author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. RICKY LEE BARNETT
    (AC 16926)
    Spear, Hennessy and Daly, Js.

      Argued October 28, 1998
    officially released June 1, 1999

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

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and Kevin Murphy, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Ricky Lee Barnett, appeals from the judgment of conviction, rendered after a jury trial, of rioting in a correctional institution in violation of General Statutes § 53a-179b, possession of a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a, assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (4), and § 53a-8, and assault in the second degree in violation of General Statutes §§ 53a-60 (a) (1) and 53a-8. The defendant claims that the trial court improperly denied his motions for a judgment of acquittal and for a new trial because (1) the evidence was insufficient to support his convictions of rioting in a correctional institution, assault in the first degree and assault in the second degree, (2) the state improperly charged him as both a principal and an accessory to the first degree assault and the court improperly instructed the jury that he could be convicted as both, (3) the state committed prosecutorial misconduct, (4) the trial court improperly deprived him of his right to have the trier of fact decide factual issues by holding that there were dangerous instruments at or near dormitory 4B on the date of the incident, (5) the trial court improperly instructed the jury on the second degree assault charge, (6) his conviction of assault in the first degree of John Bratz, another inmate, under both subdivisions (1) and (4) of § 53a-59 (a) were multiple punishments for the same offense and violated his right against double jeopardy under the United States and the Connecticut constitutions, and (7) the trial court improperly admitted into evidence a list of inmates inside dormitory 4B after the riot. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In July, 1994, the defendant was housed in building four, dormitory B (dorm 4B) of the Carl Robinson Correctional Institution in Enfield. Building four is one of six buildings considered minimum to medium security and, like all six buildings, is divided into an A side and a B side. Each side has bathrooms, a dayroom, a telephone area, windows and two entrances. Each side houses approximately eighty-five inmates. The inmates have access to an outside area where they can interact freely.

On July 12, 1994, at approximately 5:45 p.m., two opposing groups of inmates lined up in the outside area and began attacking each other with makeshift weapons. Initially, the inmates were attacking only opposing gang members; however, the attacks spread to nongang members on the basis of where they were from and whether they were homosexuals. Most of the inmates wore cloth masks or T-shirts covering their faces. Correction officers in dorm 4 locked the outside doors. Shortly thereafter, inmates started to smash the windows and climb inside in search of other inmates. The officers from dorm 4 and an inmate locked themselves in a bathroom.

The defendant was outside at the start of the riot. Shortly thereafter, the defendant and others broke the windows and climbed into dorm 4B through the broken windows. The defendant was seen carrying various makeshift weapons. He was also seen pointing out to other inmates those who were either homosexual or not from Hartford. The defendant and about six other inmates were seen near Richard Mann in the back of the dorm where Mann was stabbed to death.

The defendant pointed out to one inmate, who was known as Hammer, another inmate, Kenneth Henton, as being from Bridgeport. Hammer hit Henton on the head with apipe and Henton was knocked unconscious. The correction officers in the bathroom heard the inmates beating up Henton. When the correction officers left the bathroom, they saw Henton lying on the floor in a pool of blood. Henton initially was placed in the medical unit at the correction facility and he was later transferred to the hospital. Henton regained consciousness in the hospital. He had four missing teeth, two stab wounds in his thumb and had been stabbed in his eye and ear.

The defendant and a group of inmates surrounded another inmate, John Bratz, and began attacking him. During the attack, the defendant hit Bratz with what appeared to be a metal vacuum cleaner pipe. During the attack, Bratz sustained multiple stab wounds to his arm, his teeth were knocked loose and his head was split open. He also had wounds to his head, shoulders and upper body. He lost a considerable amount of blood. Bratz was carried to the medical unit and lost consciousness several times due to the pain. Bratz went into shock and was admitted to a hospital where he underwent surgery.

During the incident, approximately 300 inmates were armed. Small fires blazed and doors and windows were damaged and broken. The approximately fifty correction officers were unarmed and outnumbered and focused their efforts on retrieving staff from the dorms until reinforcements from the state police and correctional emergency response team arrived. Order was not restored in the facility until after 11 p.m. Other facts will be discussed where relevant to the issues on appeal.

I

The defendant first claims that the evidence was insufficient to support his conviction of rioting in a correctional institution, assault in the first degree and assault in the second degree. “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. James, 237 Conn. 390, 435, 678 A.2d 1338 (1996).” (Internal quotation marks omitted.) State v. Crespo, 246 Conn. 665, 670, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).

“As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [trier of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Citations omitted; internal quotation marks omitted.) Id., 671.

A

The defendant first claims that the evidence presented was insufficient to support his conviction of rioting in a correctional institution in violation of § 53a-179b because the state did not prove beyond a reasonable doubt that the defendant “did incite, instigate, cause, aid, abet, assist and take part in a disorder, disturbance or riot.” We decline to review this claim.

“We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 420, 717 A.2d 824 (1998); see also State v. Leary, 51 Conn. App. 497, 499, 725 A.2d 328 (1999); Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 586, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996).

In his brief, the defendant sets out this claim, the relevant facts, the reviewability, and the standard of review; however, he does not provide this court with any citation to legal authority. In fact, he did not provide this court with any legal analysis of this issue. Accordingly, we decline to review this claim.

B

The defendant next claims that the evidence was insufficient to support his conviction of assault in the first degree in violation of § 53a-59 (a) (1) and (4) and § 53a-8 against Bratz. We disagree.

It should be noted that, in this case, the defendant was charged with assault against Bratz as an accessory, and, therefore, the state did not need to prove that the defendant actually caused serious physical injury to Bratz. It is enough for the state to prove that the defendant, acting with the intent to cause serious injury to Bratz, solicited, requested, commanded, importuned or intentionally aided another person to cause serious physical injury to Bratz by means of a dangerous weapon. See General Statutes §§ 53a-59 and 53a-8.

1

The defendant first argues that the evidence was insufficient to prove beyond a reasonable doubt that he caused the injury to Bratz. Specifically, the defendant argues that there was no evidence introduced that he caused the injury to Bratz. The defendant further argues that, with regard to his culpability as an accessory, there was insufficient evidence that he intended to aid the principal and that he intended to commit the offense charged as required by the statute. We disagree.

The state introduced the following evidence. The defendant was seen carrying various makeshift weapons during the incident on July 12, 1994. The defendant was seen pointing out to other inmates those who were either homosexual or not from Hartford. He also was seen in the back of dorm 4B near Mann when Mann was stabbed to death. The defendant pointed out to an inmate known as Hammer that another inmate, Henton, was from Bridgeport, and shortly thereafter Hammer hit Henton in the head with a pipe.

The defendant was one of a group of inmates who surrounded and attacked Bratz. Bratz was stabbed and hit with various makeshift weapons. The defendant participated in the attack by hitting Bratz with a pipe from a vacuum cleaner hose.

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Rozmyslowicz, 52 Conn. App. 149, 152-53, 726 A.2d 142 (1999). On the basis of the evidence and the logical inferences that could be drawn therefrom, a jury reasonably could conclude that the defendant acted with the mental state required to be convicted as an accessory to the assault against Bratz.

2

The defendant next argues that the evidence was insufficient to prove beyond a reasonable doubt that he caused the injury to Bratz by means of a dangerous instrument. Specifically, the defendant argues that there was no evidence that he used a dangerous instrument because the only description provided was a “vague description of a vacuum hose.” We disagree.

A dangerous instrument “means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” (Emphasis added.) General Statutes § 53a-3 (7). “[A] dangerous instrument may be an ordinary object not designed to cause death or serious physical injury . . . [E]ach case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury.” (Citation omitted.) State v. Mercer, 29 Conn. App. 679, 682, 617 A.2d 916 (1992), cert. denied, 225 Conn. 902, 621 A.2d 285 (1993).

The state introduced the following evidence. During the July 12,1994 incident, Bratz was stabbed under the armpit with a screwdriver. Bratz testified that he “got stabbed all through the arm,” had his “head split open” and that the defendant hit him with an aluminum pipe from a vacuum cleaner hose. He also testified that he was stabbed with an ice pick. Another inmate, Maurice Washington, testified that he observed Bratz being attacked with “two by fours, canes, scissors . . . [and] TV antennas.” We note that “[i]t is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Citations omitted; internal quotation marks omitted.) State v. Rozmyslowicz, supra, 52 Conn. App. 152. We conclude that it was reasonable and justifiable for the jury to conclude that, under the circumstances of this case, the metal vacuum cleaner pipe, the screwdriver, the ice pick, the two by fours, the canes, the scissors, or the TV antennae were capable of causing death or serious physical injury and were, therefore, dangerous instruments.'

3

The defendant next argues that the evidence was insufficient to prove that there was “serious physical injury” to Bratz. Specifically, the defendant argues that without “evidence through medical personnel at the medical unit of the [correctional institution], Johnson Memorial Hospital or Somers Hospital to indicate a diagnosis or prognosis of the nature, extent and/or type of injuries on the body of John Bratz” the jury would need to resort to improper speculation. We disagree.

Serious physical injury “means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” General Statutes § 53a-3 (4). The state introduced the following evidence. Bratz testified to the following facts. He was stabbed under the armpit with a screwdriver and “got stabbed all through the arm” and had his “head split open” and had his “teeth knocked loose.” He was hospitalized for “a long, long time with this. Had to leave it open and everything else. They had to put tubes all up inside here. I went through hell.” He received twenty-one stab wounds to his arm and the stab wounds went “through the muscle and everything like that.” He indicated that the defendant participated in the attack by hitting him with an aluminum pipe from a vacuum cleaner hose.

He stated that, when he was carried out of dorm 4B, he passed out from the pain and every time they moved his body he would “wake up and pass out, wake up and pass out because the pain was so bad.” He testified that he “got knocked out. They said I died seven times coming off the compound . . . They hit me with the plungers. I was on Channel 3 news going up the thing with a white towel around me, but the towel was pure red with blood.” He testified that he was “going into shock” and was taken by ambulance to Johnson Memorial Hospital where surgery was performed.

We note that “[i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence. ... In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Chapman, 46 Conn. App. 24, 35, 698 A.2d 347, cert. denied, 243 Conn. 947, 704 A.2d 800 (1997), cert. denied, 523 U.S. 1063, 118 S. Ct. 1393, 140 L. Ed. 2d 652 (1998). On the basis of the evidence and the logical inferences that could be drawn therefrom, a jury reasonably could conclude Bratz sustained serious physical injury. Accordingly, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that the defendant was guilty of assault in the first degree against Bratz.

C

The defendant next claims that the evidence was insufficient to support his conviction of assault in the second degree in violation of §§ 53a-60 (a) (1) and 53a-8 against Henton. We disagree.

In this case, the defendant was charged as an accessory to the assault against Henton and, therefore, the state did not need to prove that the defendant actually caused the serious physical injury to Henton. It is enough for the state to prove that the defendant, acting with the intent to cause serious injury to Henton, solicited, requested, commanded, importuned or intentionally aided another person to cause serious physical injury to Henton. See General Statutes §§ 53a-60 and 53a-8.

1

The defendant first argues that the evidence was insufficient to prove beyond a reasonable doubt that the defendant caused the injury to Henton. Specifically, the defendant argues that the testimony that the defendant pointed to Henton and stated, “He’s from Bridgeport,” in the presence of an inmate known as Hammer is not sufficient to show that the defendant ordered Hammer to assault Henton. The defendant further argues that this testimony is insufficient to prove that the defendant intended to aid the principal and that he intended to commit the offense charged as required by the statute. We disagree.

The state introduced the following evidence. The defendant was seen carrying various makeshift weapons during the incident on July 12,1994. The defendant was seen pointing out to other inmates those inmates who were either homosexual or not from Hartford. He also was seen in the back of dorm 4B near Mann when Mann was stabbed to death. The defendant was one of a group of inmates who surrounded and attacked Bratz. Bratz was stabbed and hit with various makeshift weapons including a pipe from a vacuum cleaner hose wielded by the defendant. Additionally, the defendant pointed out to Hammer that another inmate, Henton, was from Bridgeport and, shortly thereafter, Hammer hit Henton in the head with a pipe.

As we indicáted, “[i]t is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Citations omitted; internal quotation marks omitted.) State v. Rozmyslowicz, supra, 52 Conn. App. 152. On the basis of the evidence and the logical inferences that could be drawn therefrom, a jury reasonably could conclude that the defendant acted with the mental state required to be convicted as an accessory to the assault against Henton.

2

The defendant next argues that the evidence was insufficient to prove that there was “serious physical injury” to Henton. Specifically, the defendant argues that without “evidence through medical personnel at the medical unit of the [correctional institution] or Saint Francis Hospital and Medical Center to indicate the nature, extent and/or type of injuries on the body of Kenneth Henton” the jury would need to resort to improper speculation. We disagree.

The state introduced the following evidence. The defendant indicated to Hammer that Henton was from Bridgeport. Shortly thereafter, Hammer hit Henton in the head with a pipe and Henton saw a flash. The next thing Henton remembered was waking up in a hospital. Henton testified that he had four teeth knocked out, that his “cheekbone area from around to the side of my head [was still] numb” at the time of trial, that he had two stab wounds in his thumb and he “got stabbed in the eye” and he “got stabbed in the ear.”

On the basis of the evidence and the logical inferences that could be drawn therefrom, a jury reasonably could conclude that there was a serious physical injury to Henton. Accordingly, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that the defendant was guilty as an accessary to assault in the second degree against Henton.

II

The defendant next claims that the state improperly charged him as both a principal and an accessory to the first degree assault against Bratz and, therefore, there was insufficient notice of the charges. We disagree.

The defendant never raised this issue at trial and seeks review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 232, 239-40, 567 A.2d 823 (1989). We conclude that the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial.

A criminal defendant has a constitutional right to be informed of the “nature and cause of the charges against him with sufficient precision to enable him to meet them at trial.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). The state has satisfied this constitutional mandate when its pleadings “informed the defendant of the charge [s] against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . (Internal quotation marks omitted.) Id. “In order to establish a violation of the right to fair notice, a defendant must show not only that the information was insufficient, but also that he was in fact prejudiced in his defense on the merits and that a substantial injustice was done because of the lack of specificity in the pleadings. . . . Such a showing amounting to a deprivation of his constitutional right to adequate notice of the charges against him is not made, however, merely by establishing that the presentation of his . . . defense may be more burdensome and difficult.” (Citations omitted; internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 789, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996).

The defendant argued that the charge in the information was “vague and confusing.” The defendant, however, never argues that he was prejudiced or that substantial injustice was done. While the defendant cites to State v. Bergin, 214 Conn. 657, 674-75, 574 A.2d 164 (1990), he does not provide analysis as to how this case supports his claim. See State v. Mozell, 37 Conn. App. 574, 580-81, 657 A.2d 686, cert. denied, 234 Conn. 910, 660 A.2d 355 (1995) (issue inadequately briefed when defendant cited two cases without analysis or attempt to analogize and failed to address factors used to determine whether defendant’s right to speedy trial was violated). We conclude, therefore, that the defendant failed to show that he was prejudiced in his defense on the merits and that a substantial injustice was done. Accordingly, the defendant’s claim fails under the third condition in Golding.

Ill

The defendant next claims that the prosecutor committed prosecutorial misconduct by filing an unsubstantiated sixth count charging the defendant with assault in the first degree of Mann and showing an unadmitted photograph of Mann’s dead body to the jury, thereby depriving him of his right to a fair trial. Specifically, he argues that these events demonstrate that the prosecutor had wanted to present the defendant in the worst possible light to the jury. We decline to review these claims.

The defendant failed to raise these claims at trial. “It is well established that generally this court will not review claims that were not properly preserved in the trial court. ... A defendant may prevail on a claim of constitutional error not preserved at trial, however, if the defendant satisfies the four part standard set forth in State v. Golding, [supra, 213 Conn. 239-40].” (Citations omitted.) State v. Jones, 50 Conn. App. 338, 346-47, 718 A.2d 470 (1998), cert. denied, 248 Conn. 915, 734 A.2d 568 (1999). In this case, the defendant did not request review under Golding. “In the absence of such a request, we have, in the past declined to review a defendant’s claim under similar circumstances.” Id. While the defendant did argue that this claim raises a constitutional issue, he did not request review under Golding. “Claims on appeal that are inadequately briefed are deemed abandoned. . . . This rule applies to claims that the defendant is entitled to Evans- Golding review. ’ ’ (Citations omitted.) State v. Rodriguez, 44 Conn. App. 818, 823, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997). It is appropriate for this court to decline to review an issue where the defendant has “not adequately briefed the propriety of Evans-Golding review.” Id., 824. Accordingly, we decline to review this claim.

In any event, the defendant has not identified any evidence that substantiates his claim that the jury saw the photograph of the dead body of Mann. With regard to the prosecutor’s alleged filing of an unsubstantiated sixth count charging the defendant with assault in the first degree of Mann, the defendant did not cite to any case law indicating that it is prosecutorial misconduct for the state to bring a count that ultimately fails for lack of sufficient evidence.

IV

The defendant next claims that the trial court “ ‘held’ that there were ‘dangerous instruments' at or near dorm 4B on the date of the incident” and, therefore, deprived the defendant of his right to have the trier of fact decide factual issues. The defendant did not provide this court with any substantive discussion of this issue or citation to legal authority. As we previously have indicated, “[w]here a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., supra, 40 Conn. App. 45. Accordingly, we decline to review this claim.

V

The defendant next claims that the trial court improperly instructed the jury on the second degree assault charge. Specifically, the defendant argues that the trial court misled the jury by instructing it that the defendant was charged with assault in the first degree against Henton and, after the amendment of the count, by not instructing the jury that the charge was changed to assault in the second degree. We decline to review this claim.

The state argues that this claim is raised for the first time on appeal and, since the defendant did not request any extraordinary review, this court should decline to review the defendant’s claim. When a claim is raised for the first time on appeal, our review of the claim is limited to review under either the plain error doctrine, or States. Golding, supra, 213 Conn. 239-40. The defendant did not request review of this claim under either of these doctrines. “As this court has previously noted, it is not appropriate to engage in a level of review that is not requested.” State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). Accordingly, we decline to review this claim.

VI

The defendant next claims that his conviction of assault in the first degree against Bratz under both subdivisions (1) and (4) of § 53a-59 (a) consists of multiple punishments for the same offense and violates the double jeopardy clause of the fifth and fourteenth amendments to the United States constitution. We disagree.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. . . . This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. . . . State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 (1990). [T]he role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. . . . The issue, though essentially constitutional, becomes one of statutory construction. . . . Id., 290. Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . . Id., 290-91.” (Internal quotation marks omitted.) State v. James, 247 Conn. 662, 671, 725 A.2d 316 (1999).

“In analyzing whether two offenses constitute the same offense, the United States Supreme Court has stated that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).” (Emphasis in original; internal quotation marks omitted.) State v. Otto, 50 Conn. App. 1, 18-19, 717 A.2d 775, cert. denied, 247 Conn. 927, 719 A.2d 1171 (1998). In this case, although the crimes arise out of the same act, each of the offenses requires proof of a fact which the other does not. A person is guilty of assault in the first degree pursuant to General Statutes § 53a-59 (a) (1) when “[w]ith intent to cause serious physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument . . . .” (Emphasis added.) A person is guilty of assault in the first degree pursuant to General Statutes § 53a-59 (a) (4) when “with intent to cause serious physicial injury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person . . . .” (Emphasis added.)

We conclude that, under the test articulated in Blockburger v. United States, supra, 284 U.S. 304, the offenses of assault in the first degree pursuant to § 53a-59 (a) (1) and (4) are two separate offenses for double jeopardy purposes. We note that “the Blockburger test is not a conclusive presumption of law . . . but is a rule of statutory construction, and . . . should not be controlling where, for example, there is a clear indication of contrary legislative intent.” (Internal quotation marks omitted.) State v. Delgado, 19 Conn. App. 245, 251, 562 A.2d 539 (1989). In this case, however, the defendant did not provide this court with any legal analysis of the legislative intent that these two subdivisions should be treated as one offense for double jeopardy purposes and, therefore, failed to rebut the presumption established in Blockburger that he was convicted of two crimes warranting two separate punishments. See State v. Morris, 49 Conn. App. 409, 420, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998). Accordingly, we conclude that the defendant’s conviction under both subdivisions (1) and (4) of § 53a-59 (a) does not violate his right against double jeopardy.

VII

The defendant finally claims that the trial court improperly admitted into evidence a list of inmates inside dorm 4B after the riot. Specifically, the defendant argues that the list of inmates is hearsay and is, therefore, inadmissible. We disagree.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [party raising the challenge] of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) O’Brien v. Coburn, 46 Conn. App. 620, 630-31, 700 A.2d 81, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).

The following facts are relevant to the resolution of this issue. Correction Officer Timothy McIntosh testified that order was restored to the correction facility at approximately 11:15 p.m. McIntosh testified that, after order was restored, orders were given to the correctional staff to make a list of the name, identification number and bed location of every inmate within the fence line of the correctional facility and that the list included dorm 4B. McIntosh testified that the census information was recorded at the same time it was taken and was sent over to the control center. McIntosh testified that he provided the state with a copy of the census. He further testified that the document marked for identification as exhibit 13 was a fair and accurate copy of the census document. The defendant’s counsel objected to the admission of the exhibit arguing that there was no foundation laid as to the regular course of business. After questioning the witness, the court overruled the defendant’s objection and the document was admitted as a full exhibit.

“An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.” State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998). The trial court admitted the census of inmates under the business records exception to the rule against hearsay over the defendant’s objection. See General Statutes § 52-180. “General Statutes § 52-180 permits hearsay evidence to be admitted if (1) [the] writing was made in the regular course of business, (2) it was the regular course of the business to make such a writing, and (3) the writing was made at the time of the transaction or occurrence or within a reasonable time thereof. State v. Scott, 31 Conn. App. 660, 665, 626 A.2d 817 (1993). To qualify a document as a business record, the party offering it must present a witness who testifies that these three requirements have been met. State v. Lawler, 30 Conn. App. 827, 831-32, 622 A.2d 1040 (1993). The trial court has discretion to determine whether the statute is satisfied and appellate courts must construe the statute liberally when reviewing abuse of discretion. State v. Scott, supra [665]; State v. Lawler, supra [832]. Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 709-10, 638 A.2d 44 (1994). . . . Shadhali, Inc. v. Hintlian, [41 Conn. App. 225, 227-28, 675 A.2d 3, cert. denied, 237 Conn. 926, 677 A.2d 948 (1996)]. [T]he essential hallmark of admissibility under § 52-180 is the trustworthiness of the document; American Oil Co. v. Valenti, 179 Conn. 349, 358-59, 426 A.2d 305 (1979) .... Jefferson Garden Associates v. Greene, 202 Conn. 128, 141, 520 A.2d 173 (1987).” (Internal quotation marks omitted.) Berkeley Federal Bank & Trust, FSB v. Ogalin, 48 Conn. App. 205, 208-209, 708 A.2d 620, cert. denied, 244 Conn. 933, 711 A.2d 726 (1998).

We conclude that McIntosh’s testimony satisfied all three requirements of the business record exception to the rule against hearsay. McIntosh testified that the officers are trained to take a census of the inmates present in the dormitories after riots have ended. He testified that it is the regular course of the institution to take such a census and that the census was taken in the regular course of institution business. He further testified that the list of inmate names was transcribed contemporaneously with the census and that the list was reported to the control center. He further testified that the document marked as exhibit thirteen was a fair and accurate copy of the original census list.

The defendant argues that “[t]he witness was not sure of who took the census and was not present during the census, therefore there [were] no guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exception.” Section 52-180, however, “expressly provides that the proponent of the business record need not produce that person who made the record or show that the person is unavailable.” State v. Damon, 214 Conn. 146, 160, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990). McIntosh believed that the census was taken by Officer James Hensley. McIntosh’s testimony indicates that the purpose of the census was to determine the whereabouts of the inmates and that the correctional facility relied on the census for that purpose. We conclude, therefore, that the document was sufficiently trustworthy to be admitted under § 52-180. Accordingly, we hold that the trial court did not abuse its discretion by admitting the census into evidence pursuant to the business records exception to the rule against hearsay.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-179b (a) provides: “A person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ... or (4) with intent to cause serious physical injury to another person and while aided by two or more other persons actually present, he causes such injury to such person . . . .”

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

       As we noted previously, because the defendant was charged as an accessory to the assault in the first degree against Bratz, the state was required to prove only that the defendant, acting with the intent to cause serious injury to Bratz, solicited, requested, commanded, importuned or intentionally aided another person to cause serious physical injury to Bratz by means of a dangerous ‘weapon. In fact, it was not necessary for the state to prove that the defendant used a dangerous weapon as long as one of the other participants caused serious physical injury to Bratz by means of a dangerous weapon.

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . .

       See footnote 3.

       For the definition of "serious physical injury,” see General Statutes § 53a-3 (4), as discussed in part I B 3 of this opinion.

       The defendant argues that “[t]he state charged count three in a mixture of theories that was, at least, vague and confusing.” We note, ironically, that the defendant’s argument on this issue is based on a hodgepodge of theories including that the instruction was confusing, the evidence is insufficient, the charge was vague and confusing, the charge went well beyond the scope of liability permitted by statute and there is insufficient notice of the charges. The defendant’s argument was vague and confusing and only the insufficient notice of the charges claim cites to any case law. The defendant’s argument does not, however, provide any analysis as to how this case supports his claim. With regard to his other claims, “[cjlaimed errors not adequately briefed and not fully developed will not be considered by this court. . . . We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Citations omitted; internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 400, 662 A.2d 118 (1995). Therefore, we will only consider the defendant’s claim that there was insufficient notice of the charges.

       “In State v. Golding, [supra, 213 Conn. 239-40, our Supreme Court] reformulated the standard announced in State v. Evans, supra [165 Conn. 61], for appellate consideration of constitutional claims that were not preserved at trial. [Our Supreme Court] stated that ‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’ . . . State v. Golding, supra [239-40]. We noted that we would remain free to dispose of the claim ‘by focusing on whichever condition is most relevant in the particular circumstances.’ Id., 240.” (Emphasis in original.) State v. Watlington, 216 Conn. 188, 192, 579 A.2d 490 (1990).

       The defendant argues that “due process of law requires the trial court to ensure that the jury remains impartial and unprejudiced throughout the trial. . . . The jury cannot remain impartial and unprejudiced if they are shown extrinsic, highly prejudicial, irrelevant real evidence. . . . Consideration of extrinsic evidence is presumptively prejudicial because it implicates a defendant’s constitutional right to a fair trial before an impartial jury.”

       With regard to the photograph, the defendant points to the trial court’s statement in the transcript that: “The problem is the man is charged with assault in the first degree and you can’t be parading dead pictures, murdered victims, in front of the jury.” This statement, however, does not indicate that the prosecutor did, in fact, parade the pictures in front of the jury. We note that the trial court’s statement was made outside the presence of the jury. The defendant did not indicate any other evidence that the jury saw the photograph.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       The defendant also claims a violation of article first, § 8, of the Connecticut constitution. “Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass protection against double jeopardy.” (Internal quotation marks omitted.) State v. Belcher, 51 Conn. App. 117, 119 n.7, 721 A.2d 899 (1998). The plaintiff, however, did not provide a separate analysis under the Connecticut constitution and, therefore, we are not bound to consider this claim. State v. Blocker, 46 Conn. App. 734, 738 n.7, 700 A.2d 1186, cert. denied, 243 Conn. 946, 704 A.2d 799 (1997). In any event, we consistently have held that the Connecticut constitution affords no greater protection than the United States constitution’s double jeopardy clause. Id.

       General Statutes § 52-180 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.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. . . .”


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL RYAN
    (AC 16865)
    Foti, SchaUer and Dupont, Js.

      Argued January 25
    officially released June 1, 1999

      James Streeto, special public defender, for the appellant (defendant).

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

DUPONT, J.

The defendant, Michael Ryan, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the third degree in violation of General Statutes § 53a-136, and assault in the third degree in violation of General Statutes 53a-61. On appeal, the defendant claims that the trial court improperly (1) instructed the jury regarding the law of reasonable doubt and the presumption of innocence, thereby depriving him of his rights under the state and federal constitutions, and (2) permitted the state to file a substitute information after the state had rested its case. We affirm the judgment of the trial court.

The jmy reasonably could have found the following facts. On October 8, 1995, the victim, Brian Fernandez, was attacked by the defendant after Fernandez withdrew money from an automatic teller machine at a People’s Bank in Fairfield. As Fernandez was exiting the bank, he saw the defendant approaching. Fernandez held the door open for the defendant because he thought the defendant was going to use the teller machine. Instead, the defendant demanded that Fernandez give him money, pushed him to the ground and sprayed him in the face with a substance that caused burning and irritation. After Fernandez gave the defendant his wallet, which contained $35, the defendant fled the scene and Fernandez called the police. Subsequently, Fernandez identified the defendant from a photographic array as the person who robbed him. The defendant was arrested and charged in a substitute information dated August 15, 1996, with robbery in the first degree and assault in the second degree. At trial, Fernandez made an in-court identification of the defendant as the man who had robbed him.

At the close of the state’s case-in-chief, the defendant moved for a judgment of acquittal as to both counts because the state failed to present evidence of a dangerous instrument. The trial court granted the motion, in part, as to the principal offenses charged, but concluded that there was sufficient evidence that would permit a jury to return verdicts of guilty on the lesser included crimes of those that were charged. Thereafter, the trial court permitted the state to file a substitute information charging the defendant with the crimes of robbery in the third degree and assault in the third degree. The jury returned verdicts of guilty on both counts and this appeal followed.

I

The defendant raises six claims regarding the trial court’s jury instructions, arguing that the trial court’s instructions concerning the law of reasonable doubt and the presumption of innocence were improper as violative of his fifth amendment right to due process and sixth amendment right to a jury trial. We will address the defendant’s claims in turn.

“ ‘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.’ . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).” State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999). “It is axiomatic that in reviewing a challenged portion of a jury charge, we must consider the charge as a whole and its effect in guiding the jury to a proper verdict. . . . We do not scrutinize an individual section of an instruction in artificial isolation from the overall charge in a microscopic search for possible error.” (Citation omitted; internal quotation marks omitted.) State v. Edwards, 39 Conn. App. 242, 248-49, 665 A.2d 611, cert. denied, 235 Conn. 924, 666 A.2d 1186 (1995).

A

The defendant first claims that the trial court’s instruction to the jury that the principle requiring the state to establish guilt beyond a reasonable doubt is a “rule of law . . . made to protect the innocent and not the guilty” impermissibly undermined the presumption of innocence, thereby diluting the state’s burden of proof. We do not agree.

Since the filing of this appeal, our Supreme Court has considered whether an instruction identical to the one challenged by the defendant violates a defendant’s due process rights. State v. Schiappa, 248 Conn. 132, 167-68, 728 A.2d 466 (1999) (en banc). Although the court in Schiappa disapproved of the challenged language and, pursuant to its supervisory authority over the administration of justice, directed our trial courts to refrain from using the challenged language in future cases, the court nevertheless rejected the defendant’s constitutional claim based on the particular instructions given in that case.

The Supreme Court stated that the trial court “repeatedly apprised the jury regarding the presumption of innocence and the state’s burden of establishing guilt beyond a reasonable doubt. Moreover, the challenged portion of the instruction was immediately preceded by language underscoring the presumption of innocence and the state’s burden of proof: ‘It is the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence which the law imputes to every person so charged by making the state meet its burden of proof of guilt beyond a reasonable doubt.’ . . . Furthermore, the allegedly improper language was immediately followed by an instruction that again emphasizes these two critical constitutional principles: 'If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime or crimes charged, then it is the sworn duty of the juiy to enforce the law and to render verdicts of guilty.’ . . . These two sentences, taken together with the court’s repeated explanations of the presumption of innocence and the state’s burden of proving the defendant guilty beyond a reasonable doubt, eliminated any reasonable likelihood of juror misunderstanding as to the state’s burden and the proof necessary for a conviction.” (Emphasis in original.) Id., 172-73. The court held that “under the third prong of Golding, ‘[a] defendant may prevail ... on a claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled’ . . . State v. Webb, 238 Conn. 389, 456, 680 A.2d 147 (1996) . . . .” State v. Schiappa, supra, 248 Conn. 176-77.

Here, the same two instructions cited by the court in Schiappa immediately preceded and followed the challenged portion of the instruction. In light of Schi-appa, and after reviewing the trial court’s entire charge to the jury, we conclude that the defendant’s claim must fail.

B

The defendant’s next claim is that the trial court’s instruction that “a reasonable doubt is a doubt that has its foundation in the evidence or lack of evidence” unconstitutionally diluted the state’s burden of proof. The defendant concedes that he did not preserve his claim at trial and he seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5. We conclude that the trial court’s instruction did not constitute a constitutional violation and, therefore, the defendant’s claim is not entitled to Golding review. We also conclude that the instruction did not involve plain error.

“ ‘Just as every claim of evidentiary error by the trial court is not truly constitutional in nature . . . every claim of instructional error is not truly constitutional in nature.’ ” (Citation omitted.) State v. Dash, 242 Conn. 143, 151-52, 698 A.2d 297 (1997). While our Supreme Court has held that claimed instructional errors regarding the burden of proof or the presumption of innocence can be constitutional in nature so as to satisfy the second Golding requirement; see id., 152; not all claims masquerading as constitutional ones concerning the burden of proof or the presumption of innocence have been afforded Golding review. See State v. Blackman, 246 Conn. 547, 561, 716 A.2d 101 (1998); State v. Williams, 48 Conn. App. 361, 373, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998).

The defendant claims that the court’s instruction is improper because a reasonable doubt need not be founded on the evidence or the lack of evidence but must be consistent with the evidence offered at trial, and relies on State v. Gallivan, 75 Conn. 326, 53 A. 731 (1902), to support his claim. The defendant’s reliance on Gallivan, however, is misplaced. That case involved a challenge to a court’s instruction containing language different from that at issue here and fails to support the defendant’s assertions. Our Supreme Court has held that identical or substantially similar language to that challenged here is not of “constitutional dimension.” State v. Taylor, 239 Conn. 481, 505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). Moreover, we do not find that the instruction affected the fairness or integrity of the proceedings or resulted in manifest injustice to the defendant and, therefore, there was no plain error. State v. Thomas, 214 Conn. 118, 120, 570 A.2d 1123 (1990).

C

The defendant next claims that the trial court improperly instructed the jury that a reasonable doubt is not a doubt “suggested by the ingenuity of counsel or of a juror not warranted by the evidence.” The defendant has failed to preserve his claim and, in his brief, seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40, or the plain error doctrine. Our resolution of this claim is governed by State v. Hines, 243 Conn. 796, 817-18, 709 A.2d 522 (1998), in which our Supreme Court, relying on State v. Taylor, supra, 239 Conn. 504-505, held that an instruction containing virtually identical language was not constitutional in nature and, therefore, not reviewable under Golding. Accordingly, we decline to review the defendant’s unpreserved claim. Similarly, we reject the defendant’s challenge to the allegedly improper instruction as plain error. Id., 505.

D

The defendant next claims that the trial court improperly instructed the jury concerning the presumption of innocence. The defendant claims that the trial court’s preliminary instruction that the presumption of innocence applies until the jury is satisfied from the evidence that the defendant is guilty reasonably could be interpreted to mean that the presumption vanishes once the jury believes that the evidence establishes the defendant’s guilt, at any stage in the trial, thereby misleading the jury to make an unconstitutionally premature evaluation of the case. The defendant has not preserved his claim and seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40, or the plain error doctrine. We will review this claim because it alleges the violation of a constitutional right. We conclude, however, that the defendant’s claim fails the third prong of Golding.

In its preliminary remarks, the trial court gave a brief overview of the nature of a criminal case and the charges against the defendant. The court also gave a preliminary explanation of the concept of the presumption of innocence and the burden of the state to prove the charges beyond a reasonable doubt, and instructed the potential jurors to keep an open mind throughout the trial. In making those remarks, the trial court stated the following: “Any person who is accused of a crime is entitled to a presumption of innocence. . . . What it means is as [the defendant] sits here right now, there is no evidence against him. He is presumed to be innocent. The burden is on the state to prove the allegations that they are making against [the defendant]. He is presumed tobe innocent unless and until you are satisfied from the evidence that is presented that he is guilty of the crimes charges beyond a reasonable doubt." (Emphasis added.) The full jury was selected from this panel of venirepersons.

“ ‘Preliminary instructions to prospective jurors in a criminal case are not mandatory. . . . When preliminary instructions are given, they do not supersede those given after evidence and arguments under our practice.’ ” State v. Rodriguez, 49 Conn. App. 606, 612-13, 716 A.2d 914, cert. denied, 247 Conn. 925, 719 A.2d 1171 (1998). “In determining whether preliminary jury instructions require reversal, we must ask whether the jury was fully and properly instructed at the critical time, after all the evidence and after the arguments of counsel.” (Internal quotation marks omitted.) Id., 613.

In its preliminary remarks to the jury prior to the taking of evidence, the court repeated the challenged instruction to the jury. The trial court, however, explained further: “Unless you find at the conclusion of all evidence that the state has proven beyond a reasonable doubt that the defendant has committed every element of the particular offense [with which] he is charged, you must find him not guilty as to that particular charge. On the other hand, if you are satisfied that the evidence does establish the guilt of the defendant beyond a reasonable doubt then you should not hesitate to find him guilty as to that particular charge.” (Emphasis added.) Following those instructions, the court stated: “Until the case is submitted to you at the conclusion of the court’s final instructions, you must not discuss it with anyone .... You must discuss it only in the juiy room when it is submitted to you. . . . The important thing is that you keep an open mind and not decide any issue in the case until the entire case has been submitted to you under the instructions of the court.” The trial court also explained that its preliminary remarks were “not intended to be a substitute for a detailed instruction that [the court] will give you at the conclusion of trial.”

In its final charge to the jury, the trial court again instructed the jury to consider “all the evidence in the case” and stated: “In this case, as in all criminal prosecutions, the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. This presumption of innocence was with the defendant when he was first presented for trial in this case. It continues with him throughout this trial unless and until such time as from all the evidence produced here in the orderly course of this conduct—of this case considered in light of these instructions of law and deliberated upon by you in the jury room satisfies you beyond a reasonable doubt that he is guilty.”

“ ‘Under the third prong of Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if from the substance of the charge rather than its form, it is reasonably possible that the jury was misled.’ ” State v. Jenkins, 40 Conn. App. 601, 605, 672 A.2d 969, cert. denied, 237 Conn. 918, 676 A.2d 1374 (1996). We conclude that the defendant cannot prevail under that standard.

Here, the trial court instructed the jury in its preliminary instructions that the defendant was presumed innocent until the state proved otherwise and that it was the state’s burden to prove him guilty beyond a reasonable doubt. The trial court specifically told the jurors that they should keep open minds and not decide the case until the entire case has been submitted to them. In its final instructions, the court stated further that the defendant is presumed innocent until proven guilty beyond a reasonable doubt, that the presumption continues with him throughout the trial and that “[i]t is the sworn duty of the court and the jurors to safeguard the rights of persons charged with crimes by respecting the presumption of innocence which the law imputes to every person so charged by making the state prove its burden of proof of guilt beyond a reasonable doubt. ... If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime or crimes charged, then it is the sworn duty of the jury to enforce the law and render verdicts of guilty.” The court also told the jury to consider all the evidence in arriving at its verdict.

Our review of the instruction as a whole persuades us that the trial court correctly conveyed the concept of presumption of innocence to the jury, namely, that the presumption of innocence remains with the defendant throughout the trial until the jury, after deliberation and a careful consideration of all of the evidence, is satisfied beyond a reasonable doubt that the defendant is guilty. Therefore, the defendant’s claim fails the third prong of Golding. Similarly, the challenged instruction did not affect the fairness and integrity of and public confidence in the judicial proceedings and, therefore, did not constitute plain error. State v. Webb, supra, 238 Conn. 457.

E

The defendant next claims that the trial court improperly failed to correct a statement of an essential principle of law concerning the reasonable doubt standard, thereby creating a reasonable possibility that the jury was misled by the instruction. We disagree.

In its final charge to the jury on the reasonable doubt standard, the trial court stated: “Proof beyond a reasonable doubt is not proof that precludes every reasonable hypothesis except guilt—excuse me, let me read that again. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.” (Emphasis added.)

The defendant claims that although the trial court attempted to correct the mistake, it did not tell the jury which of the two instructions was the correct one, resulting in contradictory instructions on reasonable doubt. The defendant compares this case with State v. Miller, 34 Conn. App. 250, 259, 641 A. 2d 400, cert. denied, 230 Conn. 902, 644 A.2d 916 (1994), in which we held that the trial court’s contradictory instructions constituted reversible error because it was reasonably possible that the jury was misled by the improper instructions. That case, however, involved a no adverse inference instruction pursuant to General Statutes § 54-84 (b), where the trial court’s instruction regarding the defendant’s failure to testify included both the verbatim provisions of the statute and a misstatement of the law. The slightest deviation from the language of the statute constitutes error of constitutional magnitude. State v. Sinclair, 197 Conn. 574, 583, 500 A.2d 539 (1985). The trial court failed to give a supplemental instruction that might have remedied the confusion inherent in the improper instruction. We held that the error was harmful because the state could not show that there was no reasonable possibility that the jury was misled.

Here, the record fails to demonstrate the same confusion and constitutional dimension of the error as in Miller. The trial court in the present case corrected its mistake prior to finishing the sentence with the improper language. On the basis of our review of the trial court’s entire instructions concerning reasonable doubt, we conclude that the language of the charge as a whole adequately apprised the jury of the concept of proof beyond a reasonable doubt and the heavy burden on the state, and that it was not reasonably possible that the jury was misled by the trial court’s instructions.

F

The defendant’s final claim of instructional error is that taken as a whole, the instructions resulted in an incorrect charge on reasonable doubt and the presumption of innocence. In State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992), our Supreme Court held: “We are aware of no case, and the defendant has cited none, that holds that a group of instructional claims of error, each of which has individually been found not to constitute reversible error; see State v. Harris, 182 Conn. 220, 230-33, 438 A.2d 38 (1980); should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial. We decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.” See also State v. Cassidy, 236 Conn. 112, 145-46, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996). We reject the defendant’s claim.

II

The defendant’s final claim is that the trial court improperly permitted the state to file a substitute information, over the defendant’s objection, after the state had rested its case. We do not agree.

“Once a trial has started, the prosecutor’s broad authority to amend an information is constrained by the provisions of Practice Book § 624 [now § 36-18]. State v. Snead, 41 Conn. App. 584, 590, 677 A.2d 446 (1996). ‘Practice Book § 624 [now § 36-18] is primarily a notice provision. Its purpose is to ensure that the defendant has adequate notice of the charges against which he must defend.’ State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). It is the defendant’s burden to ‘provide a specific showing of prejudice resulting from the state’s delay in providing notice of the charge against which [he] must defend.’ State v. Mazzetta, 21 Conn. App. 431, 438, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990).” State v. Morris, 49 Conn. App. 409, 415, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).

The trial court’s decision to allow an amendment to the information to conform to the evidence is subject to reversal only for an abuse of discretion. State v. Ramos, 176 Conn. 275, 276, 407 A.2d 952 (1978). “The trial court’s discretion pursuant to Practice Book § 624 [now § 36-18] is limited only by the requirement that no additional or different offense may be charged in and no substantive rights of the defendant may be prejudiced by an amended information.” State v. Adams, 38 Conn. App. 643, 649-50, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995).

The defendant concedes that because the amended substitute information charges him with lesser included offenses of those originally charged, they do not constitute additional or different offenses. A defendant who is on notice that he is charged with robbery with a dangerous instrument and assault with a dangerous instrument or deadly weapon is on notice that he is accused of the lesser offenses of robbery and assault. We conclude, therefore, that the defendant was adequately notified of the charges against which he was required to defend. See State v. Adams, supra, 38 Conn. App. 651-52; State v. Vaughn, 20 Conn. App. 386, 389-90, 567 A.2d 392 (1989). The defendant’s sole claim is that he was prejudiced by the amended substitute information. Specifically, the defendant claims that the “cross-examination of the state’s chief witness [the victim] was undertaken on the presumption that no further charges against him were extant. This constituted significant prejudice to the defendant, who had structured his defense around the allegations contained in the information.”

“In determining whether the defendant’s rights were prejudiced, this court considers ‘the totality of the circumstances in deciding whether the defendant was surprised by the changes and whether the defense was hampered.’ State v. Mazzetta, 21 Conn. App. 431, 439, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990). A ‘bare assertion of prejudice is not sufficient’ to support a claim of prejudice. Id., 438. ‘The defendant must provide a specific showing of prejudice in order to establish that he was denied the right of due process of law . . . .’ State v. Ramos, [supra, 176 Conn. 279-80].” State v. Marsala, 44 Conn. App. 84, 89, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).

Here, the defendant has failed to make a showing of actual or specific prejudice. As we have stated, the defendant was on notice of the lesser included crimes charged in the amended substitute information and, therefore, his claim that his cross-examination of the victim was hampered because he was unaware of the lesser charges is without merit. A review of the record reveals that the questions on cross-examination of the victim related to the lighting of the area where the robbeiy occurred and to the victim’s ability correctly to identify the defendant as the one who robbed him. We are unable to discern, and the defendant has failed to show us, how this line of questioning would have changed had the defendant been charged with the lesser crimes of robbery in the third degree and assault in the third degree at the time of the questioning, instead of the charges then existing of robbery in the first degree and assault in the second degree, which required the state to prove that the crimes of robbery and assault were committed with a dangerous or deadly instrument.

We conclude that the defendant has not shown that the amended information prejudiced him or that the trial court’s ruling was an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 42-40 provides in relevant part: “After the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant or upon its own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty. Such a judgment of acquittal shall not apply to any lesser included offense for which the evidence would reasonably permit a finding of guilty.”

       The defendant also makes his claim under article first, § 8, of the Connecticut constitution. Because the defendant has failed to provide an independent analysis of his state constitutional claim, we decline to review it. See State v. Faust, 237 Conn. 454, 465 n.10, 678 A.2d 910 (1996); State v. Wilkes, 236 Conn. 176, 183 n.9, 671 A.2d 1296 (1996).

       The defendant attempts to distinguish Schiappa on the ground that in the present case, unlike in Schiappa, the defendant preserved his claim and, therefore, need not rely on State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We, however, are not persuaded because the standard for review under Golding of an unpreserved claim is the same as the standard of review of a preserved constitutional claim. State v. Schiappa, supra, 248 Conn. 175 n.46.

       “Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. [State v. Golding, supra, 213 Conn. 239-40.] State v. Graham, 33 Conn. App. 432, 441-42, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986) . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Otero, 49 Conn. App. 459, 463 n.6, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998). If there is no constitutional claim, the claim is not reviewable.

       General Statutes § 54-84 (b) provides: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       Practice Book § 36-18 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”

       The defendant does not claim in this appeal that the state failed to show good cause for the amendment and, therefore, we do not discuss this issue.


author: LANDAU, J.

text:
    JOSE LOPEZ v. WILLIE LIVINGSTON ET AL.
    (AC 17892)
    Landau, SchaUer and Daly, Js.
    Argued February 16
    officially released June 1, 1999

      James A. Curran, for the appellants (defendants).

      Douglas J. Lewis, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendants, Willie Livingston and Barbara Livingston, appeal following the trial court’s denial of their motion to open a judgment of possession in a summary process action that was rendered in favor of the plaintiff, Jose Lopez. On appeal, the defendants claim that the trial court improperly denied their motion to open because, as a matter of law, a stay of the action upon the filing of a bankruptcy petition is mandatory and automatic. The plaintiff asserts that although defense counsel made a representation that he filed a petition for bankruptcy on the defendants’ behalf, he did not present any evidence to the trial court to that effect, thus preventing that court from finding that a petition had been filed. We affirm the judgment of the trial court.

The following procedural history is necessary for the resolution of this appeal. The plaintiff purchased the premises known as 22 Rowen Street Extension from the city of Danbury. On June 11, 1997, the defendants, who were in possession of the premises, were served with a notice to quit possession of the premises. Thereafter, the plaintiff commenced a summary process action against the defendants. Following the defendants’ failure to appear, the trial court rendered judgment in favor of the plaintiff on November 17,1997. The defendants did not file an appeal from that judgment. On November 25, 1997, the defendants filed a motion to open, which the trial court heard and denied on December 8, 1997. On November 26, 1997, defense counsel filed a petition in bankruptcy on the defendants’ behalf. At the hearing on the motion to open, defense counsel requested a stay pursuant to 11 U.S.C. § 362 (a) of the Bankruptcy Code. Defense counsel neither presented any evidence nor made any representations regarding good cause to open the judgment. The trial court denied the defendants’ motion to open. This appeal followed.

The defendants concede that they filed the motion to open after the five day statutory appeal period set forth in General Statutes § 47a-35 (b) had expired. The defendants claim, however, that the appeal period was tolled by their filing of the petition in bankruptcy on November 26,1997, because of the automatic stay provisions of 11 U.S.C. § 362 (a). The defendants argue, therefore, that the trial court had no jurisdiction to entertain the motion to open during the period of the stay. We disagree.

“Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the [s]tate from which the judgments emerged would do so ... . Allen v. McCurry, 449 U.S. 90, 96, 101 S. Ct. 411, 415, 66 L. Ed. 2d 308 (1980) (citing 28 U.S.C. § 1738 [1982]). Bankruptcy courts fall within Congress’ mandate. See, e.g., In the Matter of Farrell, 27 B.R. 241, 243 (Bkrtcy. E.D.N.Y. 1982).” (Internal quotation marks omitted.) Kelleran v. Andrijevic, 825 F.2d 692, 694 (2d Cir. 1987), cert. denied, 484 U.S. 1007, 108 S. Ct. 701, 98 L. Ed. 2d 652 (1988). In the present case, the trial court rendered judgment of possession in favor of the plaintiff on November 17, 1997. The defendants did not appeal from that judgment within the statutory appeal period. It was not until November 26, 1997, a day after they filed the motion to open, that the defendants filed the petition in bankruptcy. The bankruptcy court, therefore, was bound to give preclusive effect to the default judgment obtained by the plaintiff in the state court to the same extent as would any Connecticut court. The automatic stay provision of 11 U.S.C. § 362, therefore, did not act to prevent the trial court from considering the defendants’ motion in this case.

Upon application to open a judgment rendered following the default of a party, Practice Book § 17-43 requires that a reason be set forth to show why the party failed to appear. Recently, we again held that a trial court may properly refuse to grant a motion to open a default judgment when a defendant has failed to comply with the requirements of Practice Book § 17-43. See Bufferd v. Yost, 51 Conn. App. 1, 3-4, 719 A.2d 487 (1998); Dister Corp. v. Northco, Inc., 50 Conn. App. 764, 766, 719 A.2d 485 (1998); see also Costello v. Hartford Institute of Accounting, Inc., 193 Conn. 160, 167, 475 A.2d 310 (1984) (to set aside default judgment, there must be showing of both good defense and good cause for nonappearance). To the extent that the defendants’ claim encompasses a challenge to the broad discretion of the trial court in denying their motion to open, we conclude, on the basis of our review of the record before us, that the trial court properly exercised its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because 1he defendants did not file this appeal within five days of the issuance of judgment of possession as required by § 47a-35; see HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 668 A.2d 1309 (1995); see also footnote 5; the question arose during oral argument as to whether this fact had any impact on this court’s jurisdiction to hear the defendants’ appeal taken from the denial of their motion to open that judgment. We ordered simultaneous supplemental briefs addressing this issue, which the parties filed.
      In Maccio v. Hundley, 36 Conn. Sup. 623, 625, 422 A.2d 953 (1980), the Appellate Session of the Superior Court held that the strict jurisdictional time limit set in summary process cases does not apply to an appeal taken from the denial of a motion to open. In reaching this conclusion, the court noted that “[a] review of the pertinent statutes reveals no reason why the ordinary rules governing an appeal from a denial of a motion to open a judgment should not apply to such a motion directed to a judgment rendered in a summary process action.” Id. Thus, in the present case, the defendants’ failure to appeal within five days of the rendering of the judgment of possession does not deprive this court of subject matter jurisdiction to consider the defendants’ appeal taken from the denial of their motion to open.

       Although the defendants claim in their brief that they filed their motion to open on November 24, 1997, the docket sheet contained in the record indicates that they filed their motion on November 25, 1997.

       Section 362 (a) of title 11 of the United States Code provides in relevant part: “[A] petition filed under section 301, 302, or 303 of this title . . . operates as a stay, applicable to all entities, of—
      “(1) the commencement or continuation, including (he issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title . . . .”

       Pursuant to Practice Book § 17-43, formerly § 377, “[a]ny judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the written motion oí any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. . . .”

       General Statutes § 47a-35 provides: “(a) Execution shall be stayed for five days from the date judgment has been rendered, provided any Sunday or legal holiday intervening shall be excluded in computing such five days.
      “(b) No appeal shall be taken except within such five-day period. If an appeal is taken within such period, execution shall be stayed until the final determination of the cause, unless it appears to the judge who tried the case that the appeal was taken solely for the purpose of delay or unless the defendant fails to give bond, as provided in section 47a-35a. If execution has not been stayed, as provided in this subsection, execution may then issue, except as otherwise provided in sections 47a-36 to 47a-41, inclusive.”

       The defendants also claim that, pursuant to Practice Book § 63-1 (b), formerly § 4009, the judgment of possession in favor of the plaintiff was suspended by the defendants’ filing of the motion to open. The filing of a motion to open, however, does not stay execution of the judgment. See Maccio v. Hundley, 36 Conn. Sup. 623, 625-26, 422 A.2d 953 (1980).

       “Bankruptcy courts may look beyond a state court default judgment where the judgment was procured by collusion or fraud ... or where the rendering court lacked jurisdiction . . . .” (Citations omitted.) Kelleran v. Andrijevic, supra, 825 F.2d 694. Although defense counsel mentioned a fraudulent conveyance at the hearing on the motion to open, it was a bare bones assertion lacking any evidential foundation or an offer of proof.

       We note that 11 U.S.C. §362 (a) acts to stay the commencement or continuation of proceedings against a debtor that were commenced against him before the commencement of the case under this title. The defendants’ argument is, therefore, somewhat disingenuous in that it was the defendants, through their motion to open the judgment, who were pursuing litigation which had already gone to judgment regarding their tenancy rights and the plaintiff was merely opposing the motion.