author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. ANONYMOUS

    (AC 18026)
    O’Connell, C. J., and Hennessy and Daly, Js.
    Argued February 26
    officially released October 12, 1999

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was Stephen J. Sed-ensky III, assistant state’s attorney, for the appellant (state).

      Richard E. Condon, Jr., deputy assistant public defender, for the appellee (defendant).

       Thus titled in accordance with the spirit and intent of General Statutes § 54-142a.

   Opinion

HENNESSY, J.

Thé state appeals from the decision of the trial court denying the state’s motion to videotape the testimony of the child victim pursuant to General Statutes § 54-86g (a). The defendant contends that this court lacks subject matter jurisdiction over the state’s appeal because the state does not have the trial court’s permission to appeal and does not challenge that court’s denial of the state’s request for permission to appeal. We agree.

The following facts and procedural history are relevant to the disposition of this appeal. The defendant was charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21. Before jury selection began, the state moved to videotape the testimony of the child victim pursuant to § 54-86g (a). After hearing arguments, the trial court denied the motion to videotape. The state then moved to dismiss the charges and the court granted the motion. Thereafter, the state requested permission pursuant to General Statutes § 54-96 to appeal from the denial of the motion to videotape the child’s testimony. The trial court denied that request.

The state appeals to this court claiming only that the trial court abused its discretion in denying' its motion to videotape the child victim’s testimony. The defendant responds that this court lacks subject matter jurisdiction to hear this appeal because the state does not have permission from the trial court to appeal, as required by § 54-96, and does not challenge that court’s denial of the state’s request for permission to appeal.

“Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . The objection of want of [subject matter] jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings. . . . If at any point, it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” (Internal quotation marks omitted.) State v. Anonymous, 240 Conn. 708, 718, 694 A.2d 766 (1997).

General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.” (Emphasis added.) “Under § 54-96, we have held permission to appeal to be jurisdictional because, at common law, the state had no right to appeal in criminal cases.” Simms v. Warden, 230 Conn. 608, 614, 646 A.2d 126 (1994).

“As a general proposition General Statutes § 54-96 authorizes the state to appeal questions of law in a criminal case only if the trial court grants permission to appeal. Section 54-96, however, does not preclude an appeal by the state when the denial [of permission to appeal] was so arbitrary as to constitute an extreme abuse of discretion rendering the denial ineffective. In such cases the statute’s condition requiring the court’s permission to appeal cannot serve to insulate a trial court from review by this court; rather, the statute as a whole remains operative to allow appeal by the state. . . . Although we accord great deference to the trial court’s discretionary rulings on these matters, that does not mean that its decision is shielded from our scrutiny.” (Citation omitted; internal quotation marks omitted.) State v. Bergin, 214 Conn. 657, 660-61, 574 A.2d 164 (1990). “The proper procedure for the state to follow when it has been denied permission to appeal under § 54-96 is to file a direct appeal.” State v. McMillan, 43 Conn. App. 698, 703, 685 A.2d 1138 (1996) (en banc), citing Simms v. Warden, supra, 230 Conn. 608.

In this case, the state filed a direct appeal, but it does not challenge the trial court’s denial of permission to appeal. The state does not argue that the court’s denial of permission to appeal was so arbitrary as to constitute an extreme abuse of discretion thereby rendering the denial ineffective. The state’s only claim is that the court abused its discretion in denying its motion to videotape the child victim’s testimony. We conclude that in the absence of either permission to appeal or a challenge to the trial court’s denial of permission to appeal, this court lacks subject matter jurisdiction to hear this appeal pursuant to § 54-96.

The state presumes that it was given permission to appeal and raises a claim on the merits of the denial of the motion to videotape. We note, however, that in direct response to the state’s request for permission to appeal, the trial judge responded, “No.” The state argues that when the trial judge stated, “[Y]ou go up to the Supreme Court and find out, [if] it is in the public’s interest that it be decided,” after denying permission to appeal, the trial judge was giving permission to appeal under § 54-96. We disagree.

The trial judge unequivocally answered, “No,” to the state’s request for permission to appeal. In addition, on its appeal form, where the state is asked to provide the name of the judge granting permission to appeal and the date of the order, the state wrote, “Ford, J. (Denied permission to Appeal-January 28, 1998).” The state admittedly was aware of the trial court’s denial of permission to appeal. Under these circumstances, we con-elude that the trial court denied the state permission to appeal.

Because we conclude that the trial court denied the state permission to appeal and the state has not challenged that decision on appeal, this court is without subject matter jurisdiction. As such, we are required to dismiss this appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       When the stale asked for permission to appeal from the trial court’s denial of its motion to videotape the child victim’s testimony, the court replied, “No. It is a clear issue. There is no significant claim [other than] that it should have been granted by the court. It is smoke and mirrors. If you want to take the appeal, you go up to the Supreme Court and find out [if] it is in the public’s interest that it be decided.”

       In addition, we find persuasive the defendant’s argument that the trial judge was denying the state permission to appeal pursuant to § 54-96 and directing the state to appeal pursuant to General Statutes § 52-265a. Section 52-265a (a).provides in relevant part that “any party to an action who is aggrieved by an order or decision of the Superior Court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the Supreme Court within two weeks from the date of the issuance of the order or decision. ...” The state, however, chose not to appeal pursuant to § 52-265a.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    LAWRENCE E. GALVANEK v. DANIEL SKIBITCKY ET AL.
    (AC 18536)
    O’Connell, C. J., and Lavery and Hennessy, Js.
    Argued May 27
    officially released October 12, 1999

      David C. Pite, for the appellant (named defendant).

      Richard M. Shapiro, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The named defendant, Daniel Skib-itcky, appeals from the judgment of the trial court awarding to the plaintiff certain funds held in accordance with a purported escrow agreement. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In 1984, the plaintiff, Lawrence E. Galvanek, purchased unit six of an eight unit condominium complex on Bay-view Avenue in West Haven. The condominiums in the complex are waterfront units on Long Island Sound. After Hurricane Gloria damaged a seawall at the complex in 1985, the unit owners sought repair estimates with the intention of having the owners share in the expense of repairs. As a result, each owner was assessed $7500 for a proposed $60,000 repair.

On August 11, 1987, the plaintiff and the defendant entered into a sales contract pursuant to which the plaintiff agreed to convey unit six to the defendant. An addendum to the contract provided that the plaintiff was to place $7500 in “escrow” with the plaintiffs attorney to be used for the assessment for the repair or improvement of the embankment. The closing for this transaction took place on October 6, 1987, and title to unit six was conveyed to the defendant.

When the sales contract was executed, both parties anticipated that the condominium association would engage the contractor who had submitted a bid for $60,000 to repair the seawall in front of the building. The escrowed funds would then be used to pay the assessment for unit six. The seawall, however, was never repaired. On October 23,1994, at the annual meeting of the condominium association, the association voted to absolve the unit owners of the $7500 assessment.

The plaintiff subsequently brought the present inter-pleader action seeking the release of the escrowed funds. The trial court, considering the expressed intent of the parties, as well as the fact that eleven years had elapsed since the execution of the agreement, concluded that the agreement should be terminated and the funds disbursed to the plaintiff. The defendant then filed this appeal.

The defendant argues, inter alia, that the trial court improperly supplied a termination date to the escrow provision after concluding that this was an essential term of the contract. The plaintiff counters that the court properly supplied a termination date and awarded the funds to the plaintiff. We need not address these issues because we conclude that the funds were not properly held in escrow.

“In Connecticut, where, pursuant to an agreement, money is left in the hands of the attorney or agent of one of the parties, the money is not delivered in escrow.” Kallas v. Harnen, 48 Conn. App. 253, 258, 709 A.2d 586, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998). As a matter of law, therefore, because the money was held by Kevin Smith, the plaintiffs attorney, no escrow was established and ownership of the funds remained at all times with the plaintiff. Because the interest of the plaintiff and Smith are identical, the legal status of the funds is the same as if the plaintiff had simply agreed to hold $7500 aside for the possible seawall expense. Smith never acquired independent status as an escrow agent. Smith’s duty, at all times, was to the plaintiff, and he was obligated to deliver the funds to the plaintiff on demand. The trial court, therefore, properly ordered that the money be returned to the plaintiff.

We reach our result for reasons different from those set forth by the trial court, but the practical effect is to affirm the trial court’s judgment.4

The judgment is affirmed.

In this opinion the other judges concurred.

       Kevin Smith, who currently holds the sum at issue, also is a defendant. Only Skibitcky has appealed. We refer in this opinion to Skibitcky as the defendant.

       The addendum provides: “It is further agreed and understood by the parties hereto, that the seller shall place in escrow the sum of $7500 to be used for proposed future assessment to repair or improve the embankment.
      “Said escrow shall be held by the seller’s attorney in an interest bearing account, interest going to the seller, who will then pay the assessment when billed up to, but not exceeding $7500.”

       The defendant was present and voted in opposition to this motion.

       The parties wore ordered to, and did, file supplement a! briefs “addressing the effect of Connecticut law, which holds that an attorney for one of the parties may not be an escrow agent. See Kallas v. Harnen, 48 Conn. App. 253, 258, 709 A.2d 586 [cert. denied, 244 Conn. 935, 717 A.2d 232] (1998).”

       “Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” (Internal quotation marks omitted.) Kallas v. Harnen, supra, 48 Conn. App. 260 n.6.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. JAMES BRILEY
    (AC 17529)
    Foti, Schaller and Daly, Js.
    Argued May 21
    officially released October 12, 1999

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Robert C. Brunetti, senior assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, James Briley, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-133. The defendant claims that the state committed prosecutorial misconduct in dramatizing a witness’ memory in rebuttal argument to the jury. We disagree and affirm the trial court’s judgment.

The jury reasonably could have found the following facts. On August 9, 1996, at about 9:15 a.m., the defendant, a black male, was standing in a teller’s line in the Plumbtree Plaza branch of People’s Bank in Danbury. Melissa Balias, a customer, was behind the defendant. The defendant was wearing a long-sleeved red shirt, camouflage pants, a black cap and dark sneakers with distinctive green stitching and a circular lacing pattern. A beige grocery bag protruded from his pocket. When he approached the teller, Jennifer Pelletier, he indicated that he had a gun and demanded money in $100 and $50 denominations. Pelletier had the impression that there was a gun in the bag and handed $4050 in $100 bills and $50 bills to the defendant. The defendant left the bank at about 9:20 a.m. with the money in his left hand. The Danbury police and the Federal Bureau of Investigation (FBI) were notified.

Detectives Daniel Trompetta and James Terry of the Danbury police department were dispatched to the scene and, while en route, traversed the Woodside Avenue and Eden Drive area where they spotted the defendant. They stopped him, patted him down and then released him since the defendant’s clothing did not match the description of the robber. At the bank, the detectives viewed the bank monitor video and recognized the defendant as the perpetrator.

The detectives, along with FBI Special Agent John Mahaney, checked the area behind the bank and followed a path where they found a pile of clothing. The pile included a long-sleeved red shirt and green camouflage pants. A fresh sneaker print was discovered nearby. With the help of a trained canine, the scent was followed to an area near the Eden Street housing project where the defendant had been stopped. The officers went to the defendant’s home and asked him to accompany them to the police station where they arrived at about noon. At the station, the defendant was asked if he owned a red shirt. He replied: “Those weren’t my clothes on the trail.”

Also at the police station, Pelletier selected the defendant’s photograph from an array of eight photographs. Another teller, Yolanda Lopez, selected the defendant’s photograph along with another from an array of ten photographs. The defendant was arrested at 2:30 p.m. At about 4 p.m., a search warrant was issued for the defendant’s home. The search resulted in the seizure of sunglasses, a watch and sneakers, which were identified by Balias as those worn by the robber. The sneaker print matched that of the sneaker print on the path behind the bank.

On appeal, the defendant challenges the prosecutor’s rebuttal argument responding to the defendant’s attack on the reliability of Pelletier’s identification of the defendant, which was based on her having seen him in the bank for about thirty seconds. The prosecutor told the jury: “I submit to you, if someone says to you, ‘I have a gun, I’m going to shoot you,’ that impression of that person is ingrained in your mind. It’s burned in your memory.” The prosecutor then drew examples referring to the attack on Pearl Harbor, the destruction of the Challenger space shuttle over Cape Canaveral and the assassination of President John F. Kennedy. The defendant failed to object at that time and now claims that the prosecutor committed misconduct because he was, in essence, giving expert testimony about eyewitness memory that was contrary to cognitive psychology. The defendant claims it is reviewable as plain error or under this court’s general supervisory powers.

“Both this court and our Supreme Court have held that where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal. . . . Where counsel fails to object or to request a curative charge we have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized.” (Citations omitted; internal quotation marks omitted.) State v. Eason, 47 Conn. App. 117, 121, 703 A.2d 130 (1997), cert. denied, 243 Conn. 962, 705 A.2d 552 (1998).

“We have long held, moreover, that . . . review of such a claim [under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989)] is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial . . . because in such a case the claimed misconduct is insufficient to infect the fundamental fairness of the trial itself. . . . Furthermore, in order to warrant review under the plain error doctrine, the allegedly improper conduct must so pervade the defendant’s trial as to have impaired the effectiveness or integrity of the judicial process.” (Citations omitted; internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996).

“We have previously acknowledged that prosecu-torial misconduct can occur in the course of closing argument. . . . Furthermore, it is improper for a prosecutor to express his or her own opinion, either directly or indirectly, as to the credibility of witnesses. . . . It is well settled, however, that a defendant may not prevail under Golding or the plain error doctrine unless the prosecutorial impropriety was so pervasive or egregious as to constitute an infringement of the defendant’s right to a fair trial, nor will we invoke our supervisory authority to reverse an otherwise lawful criminal conviction absent a showing that the conduct of the prosecutor was so offensive to the judicial process that a new trial is necessary to deter such misconduct in the future. . . . Finally, we must review the challenged comments in the context of the entire trial, with due regard to the extent to which the objectionable remarks were invited by defense conduct or argument.” (Citations omitted; internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 564-65, 710 A.2d 1348 (1998).

“In determining whether this claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor’s remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant.” (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 355, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). “[B]ecause closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument.” (Internal quotation marks omitted.) Id., 358. In reviewing claims of prosecutorial misconduct, “we have focused on several factors, [including] . . . the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) Id., 355-56.

It is apparent that the remarks of the state’s attorney were invited by the comments of defense counsel in challenging the reliability of Pelletier’s identification of the defendant, which was based on the short period of time in which she saw him in the bank. “When a prosecutor’s allegedly improper argument is in direct response to matters raised by defense counsel, the defendant has no grounds for complaint.” State v. Delosantos, 13 Conn. App. 386, 392, 536 A.2d 609 (1988). Furthermore, the statements were made only on one occasion during closing argument. See State v. Owen, 40 Conn. App. 132, 141, 669 A.2d 606, cert. denied, 236 Conn. 912, 673 A.2d 114, cert. denied, 237 Conn. 922, 676 A.2d 1376 (1996). Finally, the case against the defendant was sufficiently strong (videotape identification, footprint, patron identification, clothing found in proximity to bank) such that the jury in all probability would have found him guilty absent the allegedly improper remarks. See State v. Flinter, 16 Conn. App. 402, 410, 548 A.2d 1, cert. denied, 209 Conn. 829, 552 A.2d 1216 (1988). “[T]he burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Internal quotation marks omitted.) State v. Chasse, supra, 51 Conn. App. 356. The defendant has failed to meet this burden.

“An appellate court has a certain inherent supervisory authority over the administration of justice ... in the trial courts below that permits action to deter prosecutorial misconduct which is unduly offensive to the maintenance of a sound judicial process. . . . [Our Supreme Court], however, has long been of the view that it is ultimately responsible for the enforcement of court rules in prosecutorial misconduct cases.” (Citations omitted; internal quotation marks omitted.) State v. Ubaldi, 190 Conn. 559, 570-71, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). While, by affirming, we do not approve of the prosecutor’s comments, this case does not involve deliberate prosecutorial disregard of express judicial directions or established rules of fair play. Thus, there is no occasion for the exercise of our supervisory powers. See State v. Fullwood, 194 Conn. 573, 584-85, 484 A.2d 435 (1984). Given the lack of deliberate prosecutorial misconduct or otherwise egregious or unduly offensive behavior, we also decline to exercise our supervisory powers over the administration of justice to order a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol [or] revolver . . .

       General Statutes 8 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”


text:
    MICHAEL TESTA v. CITY OF WATERBURY ET AL.
    (AC 17775)
    Landau, Spear and Hennessy, Js.

      Argued January 26
    officially released October 12, 1999

      M. Leonard Caine III, for the appellant (plaintiff).

      Justin J. Donnelly, with whom, on the brief, was Melissa E. Schwalbach, assistant corporation counsel, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiff, Michael Testa, appeals from the judgment of the Superior Court dismissing his appeal from the decision of the defendant civil service commission of the city of Waterbury (commission) on the ground that the court lacked subject matter jurisdiction because there was no statutory authority to bring the appeal. The plaintiff claims that the Superior Court improperly determined that § 1931 of the charter of the city of Waterbury (city charter) allows appeals only from department decisions and, therefore, a decision from the commission, which is not a department, is not appealable pursuant to § 1931. We affirm the judgment of the Superior Court.

The following undisputed facts are relevant to this appeal. The plaintiff applied for a position as a police officer for the city of Waterbury. As required, the plaintiff took a written and a psychological examination. Subsequently, the commission notified the plaintiff that his name had been removed from the eligibility list for that position because he failed the psychological examination. The plaintiff appealed the commission’s removal of his name from the eligibility list to the commission pursuant to procedure set forth in chapter 1, § 6, of the Waterbury Civil Service Rules and Regulations. The commission denied his appeal and, thereafter, the plaintiff filed an appeal from the commission’s decision in the Superior Court. The commission filed a motion to dismiss, asserting that the court lacked subject matter jurisdiction to hear the appeal because neither the city charter nor the General Statutes provides for a right of appeal from the commission’s decision to the Superior Court. The motion was granted by the court and, after judgment was rendered, the plaintiff appealed to this court.

The plaintiff claims that the court improperly dismissed his administrative appeal because § 1931 of the city charter allows any party aggrieved by the actions of a department to appeal to the Superior Court. Relying on two Superior Court cases and dictionary definitions of the word “department,” the plaintiff argues that the commission is a department and, therefore, the appropriate mechanism to appeal is through § 1931 of the city charter. The commission responds that the only acts appealable under § 1931 are acts of the board of aldermen or a department and not the acts of a commission.

Although the plaintiff argues that case law supports his view that § 1931 permits for an appeal to the Superior Court from a commission’s decision, we are not persuaded by the reasoning contained in the cases he cites. In McGrew v. Civil Service Commission, Superior Court, judicial district of Waterbury, Docket No. 0128371 (March 15, 1996), the commission denied the applicant permission to take an examination for a police sergeant position because he was a probationary employee and not eligible for the position. The applicant appealed to the Superior Court, and the city moved to dismiss on the ground that the applicant did not comply with the requirements of § 1931 of the city charter. The court denied the motion to dismiss and allowed the appeal, holding that “[iInasmuch as the applicant is acting pro se this court will give him the benefit of the doubt and treat this action as an appeal.” Because the Superior Court addressed the motion on the ground that the applicant did not comply with the requirements of § 1931 of the city charter and did not decide whether the appeal was even permitted under § 1931, we are not persuaded by this case.

In Balzano v. Civil Service Commission, Superior Court, judicial district of Waterbury, Docket No. 076781 (April 20, 1987), the plaintiff was removed from an eligibility list for the position of police officer due to an unsatisfactory employment record. He appealed to the commission, which denied the appeal. The plaintiff then appealed to the Superior Court and the commission filed a motion to dismiss arguing that the court lacked subject matter jurisdiction to hear the appeal. The court denied the commission’s motion to dismiss holding that Waterbury City Code, division 2, § 201, is preempted by General Statutes § 7-422 because the code is silent as to any method of appeal while the statute explicitly allows an appeal.

General Statutes § 7-422 provides in relevant part: “Any . . . city . . . may, by ordinance, create a personnel appeals board .... Said board shall hear and determine any grievance, as defined in such ordinance, of any employee or group of employees of such . . . city .... The decision of said board may be appealed to the Superior Court . . . .” (Emphasis added.) This statute was not adopted by the city of Waterbury and deals only with grievances by employees. In this case, the plaintiff is not an employee and, as a result, § 7-422 does not apply to him.1 ** Therefore, the reasoning in Balzano is not applicable.

Because § 7-422 applies only to employees, the determination of whether the Superior Court improperly dismissed the plaintiffs appeal due to lack of subject matter jurisdiction turns on whether § 1931 provides the authority to appeal. “It is well settled that appeals to courts from administrative officers or boards exist only under statutory authority and that unless a statute provides for such appeals, the courts are without jurisdiction to hear them.” Allied Plywood, Inc. v. Planning & Zoning Commission, 2 Conn. App. 506, 509, 480 A.2d 584, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984). “A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. . . . Dismissal is required in such a situation because, if the appellant lacks standing to appeal the case, the court lacks jurisdiction to hear the appeal. ... A jurisdictional defect may be brought to the attention of the court at any time, and, if the court lacks jurisdiction, it must dismiss the case either on the motion of a party or on its own motion.” (Citations omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 640, 662 A.2d 1251 (1995).

Section 1931 of the city charter’ provides in relevant part that “ [ajny party who shall feel aggrieved by any act of the board of aldermen or of any department ma,y, within twenty (20) days after the doing of the act by which he claims to be aggrieved, appeal from such action to the Superior Court for the judicial district of Waterbury . . . .” (Emphasis added.) Upon motion by the commission, the Superior Court concluded that it did not have jurisdiction to hear the plaintiffs appeal because “there is no statutory authority for his appeal. The plaintiff is not an employee of the city of Waterbury, and the civil service commission is not a city department. Both are predicates to appeal.” The issue before this court, therefore, is whether the commission is a department.

The plaintiff relies on the definitions of “department” in Black’s Law Dictionary (5th Ed. 1979) and Webster’s New Collegiate Dictionary (10th Ed. 1979) to support his position that the commission is a department. The plaintiff further argues that the court improperly “summarily dismissed” his evidence and determined that the commission was not a department despite the fact that the defendant offered no evidence that the commission was not a department. The plaintiff argues that where terms are not defined by statute and have not been construed by decisional law, the court may look to the common understanding of the words as expressed by their dictionary meaning.

“The interpretation of statutes presents a question of law . . . which is ultimately for the court to decide. . . . Likewise, the interpretation of a charter or ordinance is a question of law. In construing a city charter, the rules of statutory construction generally apply.” (Citation omitted; internal quotation marks omitted.) Fennell v. Hartford, 238 Conn. 809, 826, 681 A.2d 934 (1996). “Rules and regulations adopted pursuant to the authority granted by [a city] charter carry a presumption of validity and have the force and effect of law. . . . When construing a [city] charter, the court must determine the intent of the legislative body that promulgated the rules. ... To determine the intent of the charter, [t]he enactment must be examined in its entirety and its parts reconciled and made operative so far as possible. . . . Intent is to be ascertained from the language used, if it is plain and unambiguous; or, if it is not, by considering the legislation in the light of all of its provisions, the object which it seeks to accomplish, the pre-existing legislation upon the same subject matter, and all other relevant circumstances. . . . The words used must be accorded their commonly accepted meaning.” (Citations omitted; internal quotation marks omitted.) Meyer v. Collins, 49 Conn. App. 831, 835, 717 A.2d 771 (1998).

“In arriving at the intention of the framers of the charter the whole and every part of the instrument must be taken and compared together. In other words, effect should be given, if possible, to every section, paragraph, sentence, clause and word in the instrument and related laws.” (Internal quotation marks omitted.) Fennell v. Hartford, supra, 238 Conn. 826. “A city charter also must be construed, if possible, so as reasonably to promote its ultimate purpose. . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is . . . reasonable.” (Citation omitted; internal quotation marks omitted.) Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 429, 572 A.2d 951 (1990).

In an articulation of its decision to dismiss the plaintiffs appeal, the court stated, without explanation, that the commission is not a department. We note that although the charter does not define the words “department” or “commission,” an examination of the city charter as a whole supports the conclusion that the commission is not a department.

Section 210 of the city charter creates the civil service commission, which is to be filled by appointment of commissioners by the mayor for a fixed term. Section 202 of the city charter indicates that commission members serve without compensation and may be removed for “misfeasance, nonfeasance or partisan activity upon notice,” and indicates the procedure for removal. Section 205 of the city charter indicates the duties of the commission and provides that “[t]he members of the civil service commission shall hold meetings at least once a month and more often as may be required for the proper discharge of their duties. Said commission shall adopt rules and regulations.”

On the other hand, § 203 of the city charter indicates that civil service in the city “shall be administered through a department of personnel . . . and the head of which shall be a properly qualified person appointed under the rule of three as prescribed in Section 205 (g) of this chapter and such person shall be referred to as the director of personnel. . . .” Under this provision, the commission shall be responsible for setting the salary of and removal from office of the director of personnel. Chapter 1, § 6, of the city charter allows decisions of the director of personnel to be appealed to the commission. The creation of this administrative hierarchy strongly suggests that under the city charter the commission is not a department. Under this hierarchy, the commission creates the rules with regard to civil service, which is administered by the department of personnel. As such, the commission is not part of the department of personnel.

We conclude that the Superior Court properly determined that the commission is not a department. As a result, the plaintiffs appeal was not taken from the act of a “department,” as required by the city charter, and, therefore, the court properly determined that it did not have jurisdiction to hear the plaintiffs appeal under § 1931 of the city charter.

The judgment is affirmed.

In this opinion the other judges concurred.

       The city of Waterbury also was named as a defendant and is a party to this appeal.

       The plaintiff relies on Balzano v. Civil Service Commission, Superior Court, judicial district of Waterbury, Docket No. 076781 (April 20, 1987), and McGrew v. Civil Service Commission, Superior Court, judicial district of Waterbury, Docket No. 0128371 (March 15, 1996).

       Section 1931 of the city charter provides in relevant part: “Any party who shall feel aggrieved by any act of the board of aldermen or any department may. . . appeal from such action to the Superior Court for the judicial district of Waterbury . . . .”

       We note that the commission argues that, although § 7-422 authorizes an appeal to the Superior Court from a grievance decision of a municipal personnel appeals board, that right is granted only to “any employee or group of employees of such . . . city . . . The plaintiff does not argue that he was an employee or that this statute is the appropriate mechanism for appeal.

       Section 1931 of the city charter came into existence pursuant to 21 Spec. Acts 563, No. 499, § 155 (1931).

       We note that the Superior Court also was addressing the commission’s claim that § 7-422 allows only employees to appeal from decisions of the commission with regard to grievance issues.

       The definitions set forth by the plaintiff are as follows: Black’s Law Dictionary (5th Ed. 1979) defines the word department, as, inter alia, “a branch or division of governmental administration.” Webster’s New Collegiate Dictionary (10th Ed. 1979) defines the word department as, inter alia, “a major administrative division of a government.”


author: LAVERY, J.

text:
    ALBERT CHANCE v. NORWALK FAST OIL, INC., ET AL.
    (AC 18303)
    Lavery, Hennessy and Dupont, Js.

      Argued June 7
    officially released October 12, 1999

      Christopher T. Cobum, with whom were Saul A. Rothman and, on the brief, LawrenceM. Lapine, Robert S. Bello and Thomas M. Cassone, for the appellants (defendants).

      David P. Atkins, with whom was Maximino Medina, Jr., for the appellee (plaintiff).
   Opinion

LAVERY, J.

The individual defendants appeal from the judgment of the trial court dissolving the corporate defendant Norwalk Fast Oil, Inc. (corporation). On appeal, the defendants claim that the trial court improperly (1) ordered the dissolution and winding-up of the corporation and (2) denied their motion to dismiss the cause of action. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff, Albert Chance, commenced this action to dissolve the corporation by summons and complaint dated May 9, 1997. The complaint alleges, in part, that the shareholders are deadlocked in voting power for the election of directors and have been unable to elect successor directors. The complaint prayed that the trial court dissolve the corporation, declare the date of dissolution and order the winding-up of the corporation. In response, the defendants asserted as a special defense paragraph six of the shareholders agreement (stalemate provision), which provides that “in the event that a stalemate is reached after tallying the votes on any substantive issue affecting the Corporation, then it is hereby agreed that the stalemate shall be broken by Chance and [Richard] Kosminoff each selecting the same third person to whom the proposed question shall be submitted, and his decision on the matter shall be binding upon the Corporation and all of its shareholders.” After trial, the defendants filed a motion to dismiss the case claiming that the trial court lacked subject matter jurisdiction because Chance failed to comply with the stalemate provision.

The trial court issued a memorandum of decision dated March 23, 1998, finding the following facts and rendering judgment in Chance’s favor. The corporation is incorporated under the laws of this state and its principal place of business is in Norwalk. Chance is a 40 percent shareholder who holds 50 percent of the voting rights in the corporation. Kosminoff is also a 40 percent shareholder who holds 50 percent of the voting rights in the corporation. Seymour Epstein and Morris Epstein each own 10 percent of the stock in the corporation but ceded their voting rights to Chance and Kosmi-noff in equal shares.

Mark Rubenstein, an attorney, testified that in 1990 he prepared corporate minutes and waivers that were sent to the shareholders for their signatures. Only Chance signed the documents. Similar events occurred in 1991. The parties attempted to resolve their disputes and to close the business in 1994, but the closing never took place. Chance is involved in other litigation with the defendants and no longer is on speaking terms with them.

On April 22, 1997, Chance, as president of the corporation, called a special meeting of the shareholders to be held on May 1, 1997, at 11 a.m. The purpose of the meeting was to elect directors. The slate presented by Chance was defeated, as was the slate presented by Kosminoff. Thereafter, Chance suggested, pursuant to the stalemate provision, that Howard M. Rosenkrantz be appointed to break the stalemate regarding the appointment of directors. Kosminoff rejected the suggestion and sometime later recommended that Nicholas Cioffi be appointed, which recommendation was not accepted. The trial court concluded that the shareholders are deadlocked in voting power for the election of directors and, for that reason, have been unable to elect successors to directors whose terms normally would have expired upon election of successors, pursuant to General Statutes § 33-896 (b) (2) (B).

The trial court also found that the defendants did not prove by a fair preponderance of the evidence that Chance is estopped or has waived his rights to seek a dissolution of the corporation as alleged in the defendants’ special defenses. The trial court concluded that the stalemate provision is not a condition precedent to a court-ordered dissolution and is not an unequivocal waiver of Chance’s rights under § 33-896 (b) (2) (B). The trial court declared, pursuant to General Statutes § 33-899, that the corporation be dissolved as of April 15, 1998, and ordered that the winding-up and liquidation of the corporation’s affairs be done pursuant to General Statutes § 33-884. This appeal followed.

I

The defendants claim first that the trial court improperly dissolved the corporation and ordered its winding-up. We are not persuaded.

“When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997). “Ordinarily, the construction and interpretation of a statute is a question of law for the courts . . . .” (Internal quotation marks omitted.) West Hartford Interfaith Coalition, Inc. v. Town Council, 228 Conn. 498, 507, 636 A.2d 1342 (1994). Here, our review is plenary because we must decide a question of law, namely the construction and interpretation of § 33-896.

The parties conceded before us that they have not been able to elect successor directors since the early 1990s. Only Chance signed the corporate minutes and waivers at that time; the defendants did not. The trial court found that the parties were deadlocked with respect to electing successor directors of the corporation. General Statutes § 33-896 (b) (2) (B) provides that the Superior Court may dissolve a corporation when “the shareholders are deadlocked in voting power for the election of directors and for that reason have been unable at the next preceding annual meeting to elect successors to directors whose term would normally have expired . . .

The basis of the defendants’ argument is that the statute requires that the shareholders not reach agreement at the next preceding annual meeting. They claim that because Chance called a. “special” meeting to be held on May 1, 1997, for the purpose of electing directors, the requirements of the statute have not been met. The defendants rely on the fact that Chance called a “special” meeting to elect directors and overlook the fact that Chance and Kosminoff were not able to elect directors at the next preceding annual meeting, i.e., the trial court specifically found that the defendants did not sign the minutes and waivers of the corporation in 1990 and 1991, which included the election of successor directors. At the time of trial, the parties had not been able to elect successor directors for more than five years.

The case of Krall v. Krall, 141 Conn. 325, 106 A.2d 165 (1954), concerns a predecessor dissolution statute and is instructive because it involved a stalemate between the stockholders. In Krall, the corporation initially had three shareholders: the plaintiff owned 49 percent of the shares, her husband owned 1 percent and the defendant owned 50 percent of the shares. The defendant and the plaintiffs husband operated the business until the plaintiffs husband died. The plaintiff then effectively became a 50 percent shareholder because she controlled her deceased husband’s share under the laws of intestacy. The defendant operated the business profitably, took a salary and failed to pay any dividend; the plaintiff was suspicious and bitter toward the defendant. The parties disagreed, held no shareholder meetings and were unable to settle their dispute. The trial court found that for a period of more than seven years there had been dissension as a result of a deadlock between the parties. Id., 327-30.

In affirming the trial court’s judgment appointing a receiver to end the deadlock in Krall, our Supreme Court stated, “It is generally true that disagreement and dissension among stockholders is not in itself sufficient ground for a corporate receivership. . . . Nevertheless, the statute is broad in its purpose and intent. . . . It confers extensive equitable powers. It gives considerable latitude to the exercise of judicial discretion and does not hold the court to the stark letter of the law.” (Citations omitted.) Id., 331. As in the case before us, the Krall parties failed to hold annual meetings as required by statute and the corporation’s bylaws. That in and of itself is a violation of the law that necessitates corporate dissolution.

“It is fundamental to the concept of a corporation that its affairs are to be controlled by a board of directors elected by a majority of the stockholders. ... In the instant case, there is no such board and no such board can be elected. Consequently, there has not been and cannot be any deliberative control of the company by a board of directors. The corporation is a mere shell inhabited by a business .... A receiver is properly appointed when there are such dissensions in the governing body of a corporation, or between sets of stockholders, each owning an equal amount of stock, that the corporation ceases to function in the manner provided for by its own by-laws and in accordance with the statutes relating to corporations.” Id., 334-35. The circumstance before us is on point. For more than five years since the last annual meeting, the parties have failed to hold an annual meeting and to elect successor directors. Chance’s effort to hold a special meeting of the corporation to elect successor directors is irrelevant. Furthermore, the parties created the stalemate themselves when they invited its possibility by entering into an agreement whereby control of the corporation was divided equally among them. See id., 334.

The trial court, therefore, properly concluded that there is no more chance of breaking the deadlock between the parties in the future than there has been in the past and ordered the winding-up of the coiporation.

II

The defendants’ second claim is that the trial court improperly denied their motion to dismiss Chance’s cause of action because it was barred by the stalemate provision of the shareholder agreement. We do not agree.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact; Gurliacci v. Mayer, 218 Conn. 531, 567, 590 A.2d 914 (1991); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987).” (Internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995).

The stalemate provision of the shareholder agreement provides that “in the event that a stalemate is reached after tallying the votes on any substantive issue affecting the Corporation, then it is hereby agreed that the stalemate shall be broken by Chance and Kos-minoff each selecting the same third person to whom the proposed question shall be submitted, and his decision on the matter shall be binding on the Corporation and all of its shareholders.” The defendants claim that this provision is analogous to an arbitration clause and that Chance is bound to abide by the provision without resort to litigation.

The language of the stalemate provision clearly states that any stalemate shall be broken by Chance’s and Kosminoff s each selecting the same third person to whom the proposed question shall be submitted. Given the five years of litigation among and between the parties, their failure to speak or to hold an annual meeting of the corporation and the equal voting power created by the parties, it is likely that the parties will never be able to break their deadlock. The trial court properly found the interaction between Chance and Kosminoff to be a perpetual power struggle with little or no regard for the shareholder agreement or statutory requirements. The conflict was the result of the parties’ own making and the trial court properly stepped in to break the stalemate by dissolving the corporation.

The stalemate provision also is not a waiver of Chance’s statutory right to ask the court to dissolve the corporation. To waive a statutory right, the language of the agreement must be clear and unequivocal. See Modem Auto Finance Corp. v. Preston, 2 Conn. Cir. Ct. 492, 497, 202 A.2d 845 (1964). The defendants have pointed to no language in the shareholder agreement that provides unequivocally that any stockholder agreed to waive his right to seek a dissolution of the corporation pursuant to § 33-896. We therefore affirm the trial court’s judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The eoiporate defendant was defaulted in the trial court for failure to appear and filed no appearance in this court. We refer in this opinion to the individual defendants Richard Kosminoff, Seymour Epstein and Morris Epstein as the defendants.

       General Statutes § 33-896 provides in relevant part: “(b) The superior court for the judicial district where the corporation’s principal office . . . is located shall dissolve a corporation . . . (2) in a proceeding by a shareholder or a director when it is established that . . . (B) the shareholders are deadlocked in voting power for the election of directors and for that reason have been unable at the next preceding annual meeting to elect successors to directors whose term would normally have expired upon the election of their successors.”

       General Statutes § 33-899 provides: “(a) If after a hearing the court determines that one or more grounds for judicial dissolution described in section 33-896 exist, it may, in the case of the grounds specified in subsection (a) of said section, and shall, in the case of grounds specified in subsection (b) of said section, enter a decree dissolving the corporation and specifying the effective date of the dissolution, and the clerk of the court shall deliver a certified copy of the decree to the Secretary of the State, who shall file it. “(b) After entering the decree of dissolution, the court shall direct the winding up and liquidation of the corporation’s business and affairs in accordance with section 33-884 and the notification of claimants in accordance with sections 33-886 and 33-887.”

         General Statutes § 33-884 (a) provides: “A dissolved corporation continues its corporate existence but may not carry on any business except that appropriate to wind up and liquidate its business and affairs, including: (1) Collecting its assets; (2) disposing of its properties that will not be distributed in kind to its shareholders; (3) discharging or making provision for discharging its liabilities; (4) distributing its remaining property among its shareholders according to their interests; and (5) doing every other act necessary to wind up and liquidate its business and affairs.”


author: SHEA, J.

text:
    STATE OF CONNECTICUT v. ERIC HAM
    (AC 18127)
    O’Connell, C. J., and Landau and Shea, Js.

      Argued March 2
    officially released October 12, 1999

      William S. Palmieri, with whom, on the brief, was John R. Williams, for the appellant (defendant).

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

SHEA, J.

The defendant, Eric Ham, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-124 (a) (1), larceny in the third degree in violation of § 53a-124 (a) (1), conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a), murder in violation of § 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 and falsely reporting an incident in violation of General Statutes § 53a-180 (a) (3) (A). The defendant claims that (1) except for the larceny charges, there was insufficient evidence to establish his guilt beyond a reasonable doubt with respect to the other crimes, (2) he was denied his right to confront his accusers and (3) the trial court gave incorrect jury instructions concerning proof beyond a reasonable doubt and consciousness of guilt. We affirm the judgment of the trial court.

From the evidence, the jury reasonably could have found that in March, 1993, the defendant, accompanied by four masked men, approached Alex Santana and asked him where to find his cousin, George Flores. When Santana replied that he had not seen Flores, the defendant punched Santana in the face, causing him to be thrown against a store window. The owner of the store came outside and the defendant and his companions departed.

On May 5, 1993, at approximately 11 p.m., the defendant agreed to pay Ronaldo Rivera $40 if he would steal a large, fast, four door automobile and deliver it to the defendant. Rivera found such a vehicle on Frank Street in New Haven and, with the help of a friend, stole a four door Buick and brought the car to the defendant and another man on Ward Street at approximately 2 a.m.

Santana had been riding that night in the car of his friend, Butch Console, with three other persons, Marilyn Torres, Melissa Dawson and Dimiris Vega. When the car stopped on Button Street, the occupants got out. As they were standing by the car, a man approached and offered to paint Console’s initials on the driver’s door. Console agreed and then stood next to a red station wagon parked on the opposite side of the street. Meanwhile, his friends stood on the street side of Console’s car watching the man paint. Console noticed a car approaching slowly on Button Street. He saw what he first thought were firecrackers coming from the rear seat of the car. When he realized it was gunfire, Console ran around the front of the station wagon to the sidewalk and knelt to avoid the bullets. The approaching car was the stolen Buick and contained the defendant and three companions. Gunfire erupted from the area of the rear seat of the Buick. One bullet hit Santana in the stomach, resulting in his hospitalization. Another bullet struck Torres in the back, causing her death. The evidence indicated that at least five shots were fired from close range.

A few minutes later, the defendant and his companions crashed the Buick on Howard Avenue and abandoned it with the motor running, the rear door open, a bullet casing on the floor behind the driver’s seat, and a sheet covering the rear seat wet with blood. The rear window had been blown out. A second shell was found on the roof of the car, and a third was found on Button Street at the shooting scene. The defendant went to the Hospital of St. Raphael (hospital) at 2:49 a.m. to seek treatment for a gunshot wound. He spoke with a New Haven police officer at 3:05 a.m. He gave a statement to Sergeant Diane Langston declaring that he and his friend had been accosted and shot on the street in an attempted robbeiy by two masked men. The defendant stated that he and his friend then ran directly to the hospital.

A ballistics expert testified that the bullet obtained from Torres’ body matched the .45 caliber shell casing found on the floor of the Buick. The other casings found on the roof of the Buick and on Button Street came from a nine millimeter gun. A fingerprint expert identified fingerprints found on the interior of the driver’s door as those of the defendant. Experts from the state forensic laboratory testified that the blood on the sheet covering the backseat was consistent with the defendant’s blood type.

The jury convicted the defendant as charged on all counts. This appeal followed. Additional facts will be set forth where necessary to a resolution of the issues on appeal.

I

The defendant first claims that the evidence presented was insufficient to support the jury’s verdict. Specifically, the defendant claims that the evidence presented proves nothing more than that he was in the Buick with three companions when the shots were fired that injured Santana and killed Torres.3 * We disagree.

“In reviewing a sufficiency claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992).” (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). In the present case, we agree that the defendant’s mere presence in the car with his companions would not, by itself, prove that he was a party to a conspiracy or that he was involved in the crimes that occurred. The evidence indicates, however, that the defendant’s involvement went far beyond a mere presence at the scene of the crimes. More than one month before the crimes, the defendant punched Santana in the face when he failed to disclose the whereabouts of his cousin in response to the defendant’s inquiry. That incident provides a basis to infer hostility toward Santana on the part of the defendant.

Additionally, on the night of the crimes, it was the defendant who paid Rivera to steal the car used in the shooting. The defendant’s fingerprints were found on the interior of the car door on the driver’s side. Moreover, the blood on the sheet covering the backseat of the Buick matched the defendant’s blood type, indicating that he was sitting there during the shooting and either wounded himself or was injured by a companion when the shots were fired from the backseat. The defendant visited the hospital within one-half hour of the shooting to seek treatment for a gunshot wound to his arm. While he claimed that he had been injured during an attempted robbery by two masked men, that explanation never was corroborated by other evidence. Indeed, an investigation of the alleged location of the reported attempted robbery uncovered no shell casings, blood drops or other physical evidence to support the defendant’s account of the attempted robbery.

Finally, when Rivera’s testimony about being hired by the defendant to steal the car that was used in the shooting is considered along with the subsequent events that occurred that night, the requirement of an overt act in furtherance of the conspiracy is satisfied. General Statutes § 53a-48. Thus, after reviewing the evidence presented at trial and construing it in the light most favorable to sustaining the conviction, we conclude that there was sufficient evidence from which the jury reasonably could have convicted the defendant on all the charges beyond a reasonable doubt.

II

The defendant next claims that he was denied the right to confront his accusers. This claim, despite its constitutional implications, is based on the admission into evidence of hospital records relating to the defendant’s visit to the hospital for treatment of the gunshot wound that he claimed to have received in the attempted robbery.

The following additional facts are necessary for our resolution of this claim. The hospital records indicated that the defendant was admitted at 2:49 a.m. on the morning of the crimes. Sergeant Langston had previously testified that she had taken a statement from the defendant at the hospital shortly after 2:05 a.m. Because the state claimed that the shooting occurred at 2:20 a.m., Langston’s testimony would have provided the defendant with an alibi if it were correct. The state called Langston to testify once again after the introduction of the hospital records. It also introduced into evidence, over the defendant’s objection, two previously undisclosed statements by Langston, both of which indicated that she had not been dispatched to the hospital until 2:48 a.m. She testified that her earlier testimony was a result of “human error.”

The defendant’s only objection at trial to the admission of the hospital records was that, because this was a criminal case, the court should exercise its discretion and require the custodian of the records at the hospital to testify and be available for cross-examination. The trial court overruled the objection and admitted the records pursuant to General Statutes § 4-104, which allows hospital records, “if not otherwise inadmissible,” to be admitted into evidence without any preliminary testimony when there is attached thereto a certification in affidavit form of the person in charge of the hospital record room or his assistant. The defendant does not claim that the requirements of § 4-104 for admission of the records were not satisfied.

On appeal the defendant claims that the admission of the hospital records without supporting testimony violated his “right to be confronted with the witnesses against him,” as provided by the sixth amendment to our federal constitution. In advancing this claim, he relies on Ohio v. Roberts, 448 U.S. 56, 65, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), in which that provision was construed to require the prosecution, before introducing prior testimony from a court proceeding in which the defendant was a party, to “either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” In United States v. Inadi, 475 U.S. 387, 394, 106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986), however, Roberts was viewed as applying the unavailability requirement only to prior testimony. “Roberts cannot fairly be read to stand for the radical proposition that no out-ol-court statement can be introduced by the government without a showing that the declarant is unavailable.” Id. In this case particularly, where the only purpose for introducing the hospital records was to explain the basis for Langston’s correction of her previous testimony concerning the time of the defendant’s hospital visit, it would make no sense to require the state to produce the person who made the entries in the records showing the time of that visit. We conclude, therefore, that the hospital records were properly admitted into evidence.

Ill

The defendant’s final claims are that the trial court improperly instructed the jury concerning (1) proof beyond a reasonable doubt and (2) consciousness of guilt. We conclude that neither claim is meritorious.

A

The defendant claims that the trial court’s instructions to the jury concerning the requirement of proof of guilt beyond a reasonable doubt incorrectly diluted that standard by including the following sentence: “A reasonable doubt means this, it is a doubt for which a reasonable man or woman can give a valid reason.” The defendant excepted to that portion of the charge, thus preserving his right to appellate review. Practice Book § 42-16, formerly § 852; State v. Ali, 233 Conn. 403, 421, 660 A.2d 337 (1995).

The defendant relies mainly on the dissenting opinion of then Chief Judge Jon O. Newman in Chalmers v. Mitchell, 73 F.3d 1262, 1274-76 (2d Cir. 1996), in which a similar instruction was criticized as implying that a juror must be able to articulate a good reason to fellow jurors for entertaining a reasonable doubt. The majority opinion, although it disapproved that instruction and acknowledged that it “might mislead the jury,” held that in the context of the entire charge, it was not reasonably likely that the jurors misunderstood the proper burden of proof. Id., 1268. Moreover, the Chalmers court stated that while such an instruction was “ ‘not approved’ and ‘perhaps unwise,’ [we] have never held such [an instruction] to be reversible error.” Id.

In State v. Morant, 242 Conn. 666, 688, 701 A.2d 1 (1997), our Supreme Court approved a “valid reason” instruction identical to that challenged by the defendant in this case. The court cited the following cases that upheld the same or similar instructions: State v. Kelley, 229 Conn. 557, 567, 643 A.2d 854 (1994); State v. Adams, 225 Conn. 270, 290-91, 623 A.2d 42 (1993); State v. Derrico, 181 Conn. 151, 170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). State v. Morant, supra, 688. This court is obliged to follow precedent established by our Supreme Court in the absence of controlling federal authority. Accordingly, we conclude that there is no merit in the defendant’s challenge to the trial court’s instruction on reasonable doubt.

B

The defendant claims that the trial court’s charge on consciousness of guilt was “unwarranted by the evidence and highly misleading.” Such a claim is inconsistent with the failure of the defendant to take any exception to that part of the charge at trial.

The following additional facts are necessary for the resolution of this claim. The trial court instructed the jury that it was proper to consider evidence of the defendant’s conduct and any declarations he made after the crimes occurred that may have been fairly influenced by the alleged criminal offenses. The court instructed the jury: “If a defendant should make false statements with respect to himself or as to his whereabouts at the time of some particular event, these may be shown because such conduct or such statements often tend to show a guilty connection by the accused with the crime charged.” The trial court then referred to the statements made by the defendant to Langston at the hospital: “Now, if you find that the accused . . . lied to Sergeant Langston as to his activities, his whereabouts and how he received the gunshot wound to his arm during the early morning hours of May 6, 1993, then you may properly infer that these statements were borne of a guilty mind and that they tend to show a guilty connection by the defendant with the crimes.”

Evidence that an accused has made false statements tending to exculpate him from involvement in the crimes charged has commonly been deemed to support a jury charge on consciousness of guilt. “[A] party’s falsehood or other fraud in the preparation and presentation of his cause . . . his fabrication or suppression of evidence . . . and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit.” 2 J. Wigmore, Evidence (Chadbourn Rev. 1979) § 278, p. 133. Indeed, our Supreme Court has stated that such a charge “ ‘may be given when a party has made material misstatements because such fabrication or falsification implies that that party believes his or her case to be weak or unfounded.’ State v. Banks, 194 Conn. 617, 621, 484 A.2d 444 (1984).” State v. Middlebrook, 51 Conn. App. 711, 730, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999).

The defendant, having failed to except to the charge on consciousness of guilt, seeks appellate review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), maintaining that the court’s instruction involved the violation of a fundamental right to a properly instructed jury and, therefore, is of constitutional magnitude. In State v. Smith, 219 Conn. 160, 166, 592 A.2d 382 (1991), however, a similar claim involving an instruction on consciousness of guilt was held to be “evidentiary rather than constitutional in significance” and, therefore, did not qualify for review pursuant to Golding. “While we have recognized that a claim challenging an instruction that mandates a particular inference adverse to a defendant may sufficiently implicate constitutional rights to satisfy the second condition of State v. Golding, supra [239-40] ... we cannot agree that the instruction challenged here suffers from such a defect. The instruction merely identified a permissive inference that the jury might draw from the defendant’s false statement, an item of circumstantial evidence.” (Citations omitted.) State v. Smith, supra, 165.

In the case before us, the challenged instruction stated that if the jury found the accused had lied to Langston about how he received his gunshot wound, “you may properly infer that these statements were borne of a guilty mind and that they tend to show a guilty connection by the defendant with the crime.” As in State v. Smith, supra, 219 Conn. 165, the instruction given here “merely identified a permissive inference that the jury might draw from the defendant’s false statement, an item of circumstantial evidence.” We conclude, therefore, that the defendant is not entitled to further review of the challenged instruction because the deficiency claimed did not violate any constitutional right; id., 166; and he failed to preserve his right to appellate review by excepting to that portion of the charge as required by Practice Book § 42-16. State v. Ali, supra, 233 Conn. 421.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-59 (a) provides: “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 (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person; 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 or to a third person . . .

       General Statutes § 53a-180 (a) provides in relevant part: “A person is guilty of falsely reporting an incident when, knowing the information reported, conveyed or circulated to be false or baseless, he . . . (3) gratuitously reports to a law enforcement officer or agency (A) the alleged occurrence of an offense or incident which did not in fact occur . . . .”

       In his brief, the defendant, acknowledges, however, that there was sufficient evidence from which the jury reasonably could have convicted him of larceny in the third degree and conspiracy to commit larceny in the third degree.

       See footnote 1.

       General Statutes § 4-104 provides in relevant part: “Any and all parts of any [record or copy produced in connection with any proceeding in any court], if not otherwise inadmissible, shall be admitted in evidence without any preliminary testimony, if there is attached thereto the certification in affidavit form of the person in charge of the record room of the hospital or his authorized assistant indicating that such record or copy is the original record or a copy thereof, made in the regular course of the business of the hospital, and that it was the regular course of such business to malee such record at the time of tire transactions, occurrences or events recorded therein or within a reasonable time thereafter. . . .”

       The sixth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him . . . .”

       Although the defendant’s failure to articulate this claim in the trial court ordinarily would preclude appellate review, it qualifies for appellate review of an unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 238-40, 567 A.2d 823 (1989). Under Golding, “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. In the absence of any one of those conditions, the defendant’s claim will fail.” Id., 239-40. Although we conclude that there was no constitutional violation because the trial court’s ruling was based on § 4-104, the constitutionality of which is not challenged by the defendant, that determination cannot be made without reviewing the claim.

       The defendant in Chalmers challenged the portion of the trial court’s instructions stating that a reasonable doubt was “ ‘a doubt for which some good reason can be given.’ ” Chalmers v. Mitchell, supra, 73 F.3d 1266.


author: SPEAR, J.

text:
    IN RE CHARLES A. ET AL.

    (AC 18570)
    Schaller, Spear and Dupont, Js.

      Argued May 26
    officially released October 12, 1999

      Gregory A. Klimaszewski, for the appellant (respondent mother).

      Nina F. Elgo, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Howard J. Haims, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SPEAR, J.

The respondent mother appeals from the judgments of the trial court that terminated her parental rights with respect to her four minor children. She claims that the trial court’s conclusion that the department of children and families (department) had made reasonable efforts to reunite her with her children was clearly erroneous given its underlying findings of fact. We affirm the judgments of the trial court.

Most of the facts are not in dispute because the respondent admits all of the allegations of the termination petitions brought pursuant to General Statutes § 17a-112. All of the children had been the victims of physical injuries that were inflicted on them by the respondent parents. The trial court found that the respondent had failed to achieve sufficient personal rehabilitation even though the department had made reasonable efforts at reunification. At the conclusion of the evidence, the court issued a memorandum of decision, dated March 9, 1998, encompassing its findings with respect to the allegations of the termination petitions. The court postponed the matter of the disposition as to the respondent pending an examination by David Mantell, a psychologist, and a further hearing. After the examination was held, the court conducted another hearing and issued a second memorandum of decision, dated April 27, 1998, terminating the respondent’s parental rights.

The respondent’s sole claim is that the trial court’s findings in the first memorandum of decision conflict with its ultimate conclusion as to reasonable efforts by the department to reunite the respondent with her children. The respondent claims that reversal is required here because the court’s conclusion that the department made reasonable efforts to reunify the family simply cannot be reconciled with the following subordinate findings that the court made in its first memorandum of decision: “(1) [The department] has, in large measure, met its mission to remove and protect these children from further abuse and neglect but it has failed in some measure to protect the children’s mother. It should be noted, [the respondent] never directly asked for help, indeed she consistently lied to [the department] about her status. The court concludes, however, that a reasonably competent social worker familiar with the battered women’s syndrome, so-called, and familiar with [department] policy in such matters, should have analyzed and evaluated the situation and concluded that [the respondent] was a battered spouse. (2) [The department] treated the [respondent] ... as an abuser and not as the victim of abuse, as were the children. She was just as much in need of protection by [the department] as were the children. (3) [The department] treated her as a married woman and not the same way it would have treated her if the abuser was an unrelated male. (4) [The department] recognized very early in this case that [the father of three of the children] was an abusive, violent, controlling, and manipulative man, yet continued to communicate with him and not to communicate directly with [the respondent] under protected circumstances. (5) [The department] failed to indicate to [the respondent] clearly and unequivocally, that they viewed [the father] as a violent, abusive man and that her continued relationship with him placed her children in jeopardy and her reunification with her children in jeopardy. (6) [The department] violated its own guidelines for domestic violence with regard to [the respondent]. (7) [The department] failed on at least three occasions to pick up clear signals that she was abused and a victim in need of protection. (8) The court itself, bears some responsibility in failing to recognize that [the respondent] was under the control and influence of an abusive spouse, in that the court failed to appoint separate counsel for this woman at an early stage of the proceedings.” In view of the additional hearing and findings in the second memorandum of decision, we disagree that the earlier findings mandate reversal.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Marvin M., 48 Conn. App. 565, 577-78, 711 A.2d 756, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998).

Because the trial court took further evidence between the dates of issuance of the two memoranda, we must examine the trial court’s decision in its entirety. The respondent overlooks the trial court’s second memorandum of decision dated April 27, 1998. In that memorandum, the court found that “[the respondent] has failed to demonstrate over a period of years that she can protect her children, provide for their regular medical care, feed them and keep them safe.” The court also found, pursuant to General Statutes (Rev. to 1997) § 17a-112 (e), now (d), that the department did comply with the Adoption and Safe Families Act of 1997, 42 U.S.C. § 620, in making reasonable efforts to reunite the family. The court specifically found that “[counseling services, individually and group, were offered, homemaker services were offered but declined, visitation was offered and foster care was provided by [the department].” The court also found “that the parents actively sought to deceive the service providers by failing to disclose the dysfunction, abuse and violence within the household. The [respondent’s] claim of rehabilitation is not clinically supported and, to the extent she has made some personal rehabilitation, it is fragile and not sufficient to overcome the risk of harm to the children.”

The most important finding in the second memorandum of decision with respect to the respondent’s claim is as follows: “The court is aware that [the department] has made mistakes in this case in failing to treat [the respondent] as a victim of domestic violence. . . . These mistakes, however, do not defeat the proposition that reasonable efforts at reunification were made. In the first instance, counseling services were provided. Other, in home services were offered, but refused. The children were actually reunited with their parents, seemingly a requirement by the court in In re Eden F., 48 Conn. App. 290, 710 A.2d 771 (1998) [rev’d, 250 Conn. 674, 741 A.2d 873 (1999)], although that is not a requirement under federal law.” (Citation omitted.)

After reviewing the trial court’s decision in its entirety, we are not persuaded that its conclusion that the department made reasonable efforts to reunite the respondent with her children is in such conflict with its findings of department shortcomings as to be clearly erroneous. The trial court’s ultimate conclusion, that it was in the best interests of the children to terminate the parental rights of the respondent, is unchallenged.

The judgments are affirmed.

In this opinion the other judges concurred.

       The parental rights of the children’s fathers also were terminated. Only the respondent mother has appealed, and we refer to her in this opinion as the respondent.


text:
    STATE OF CONNECTICUT v. ROBERT C. MILLER
    (AC 18158)
    O’Connell, C. J., and Hennessy and Healey, Js.
    Argued March 3
    officially released October 12, 1999

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

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James R. Dinnan, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Robert C. Miller, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), carrying a pistol without a permit in violation of General Statutes § 29-35 and attempt to commit larceny in the third degree in violation of General Statutes §§ 53a-49 and 53a-124 (a) (1). On appeal, the defendant claims that the trial court improperly refused to instruct the jury on self-defense. We reverse the judgment of the trial court and remand for a new trial.

The following procedural history is necessary to the resolution of this appeal. The defendant did not testify at trial, nor were there any eyewitnesses to the shooting. The state, however, offered into evidence a written statement by the defendant describing the facts surrounding the shooting at issue. The defendant submitted a request to charge and a supplemental request to charge on the issue of self-defense, citing his signed statement to the police as the basis for this request. The court declined to give the charge, stating, “I do not think the evidence in this case supports in any way the claim of self-defense.” The court further stated, “I do not think that this evidence indicates in any way a self-defense issue. If characterized, it would be characterized as some type of an accidental shooting. When there was a struggle after the victim pulled out a gun, there was a struggle and in the course of the struggle the victim ended up shooting himself.”

The defendant claims that the trial court’s refusal to instruct on self-defense was improper and harmful. The defendant argues that his statement, which was introduced into evidence by the state and read to the jury, supports an instruction on self-defense. The defendant further argues that the physical evidence introduced at trial also supports his request for an instruction on self-defense.

The state responds that the defendant was not entitled to a self-defense instruction because his statement of the facts surrounding the death of the victim establishes an unintentional or accidental shooting rather than an intentional shooting. The state argues that because a claim of unintentional or accidental killing is not a defense that legally justifies or mitigates intentional criminal misconduct, the only defense to which the defendant was entitled was a claim of innocence, namely, that he did not intend to kill the victim. The state further argues that the facts set forth in the defendant’s statement “must present sufficient evidence that [the defendant] intended to kill the victim” for the defendant to assert the justification of self-defense.

At the outset, we reject the state’s argument that the defendant must admit that he intended to kill the victim to assert the justification of self-defense. This court rejected that same argument in State v. Folson, 10 Conn. App. 643, 525 A.2d 126 (1987). We noted that “[t]o compel a defendant to admit guilt in order to invoke a defense effectively relieves the prosecution of proving his guilt beyond a reasonable doubt and frustrates the assertion of the defense itself and undermines its policy.” (Internal quotation marks omitted.) Id., 649; see State v. Harris, 189 Conn. 268, 273, 455 A.2d 342 (1983).

In addition, we reject the state’s argument that because the facts support a defense of unintentional or accidental shooting, the only defense to which the defendant was entitled was a claim of innocence. A defendant is permitted to present inconsistent defenses to a jury. State v. Harris, supra, 189 Conn. 272-73 (defendant asserted alibi defense and also attempted to show that gun used in commission of crime was toy gun incapable of firing shots, which is affirmative defense to charge of robbery in first degree). In State v. Person, 236 Conn. 342, 350, 673 A.2d 463 (1996) (en banc), our Supreme Court held that “no rule of law prevents a jury from being charged, when requested, on the defense of extreme emotional disturbance simply because the defendant has testified that he or she was not upset.” Similarly, in this case, there is no rule of law preventing the jury from being charged on self-defense as requested by the defendant just because the evidence also would support a claim of innocence because the shooting was an accident. Therefore, the issue on appeal is whether the evidence presented warranted an instruction on self-defense.

“If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. ... [A] defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible .... A fundamental element of due process is the right of a defendant charged with a crime to establish a defense.” (Citations omitted; internal quotation marks omitted.) State v. Folson, supra, 10 Conn. App. 646-47.

“Self-defense is a recognized defense; see General Statutes § 53a-19; which may be raised by way of justification pursuant to General Statutes § 53a-16. With respect to the burden of proof, [w]hen a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt. General Statutes § 53a-12 (a). Therefore, the defendant was entitled to have the matter submitted to the jury if there was sufficient evidence presented at trial to raise a reasonable doubt concerning justification. ... In reviewing the trial court’s failure to charge as requested, we must adopt the version of facts most favorable to the defendant which the evidence would reasonably support.” (Citation omitted; internal quotation marks omitted.) State v. Folson, supra, 10 Conn. App. 647.

The following facts are supported by the defendant’s statement. The defendant was driving an automobile south on Interstate 91 at approximately seventy miles per hour with the victim in the passenger seat. Upset about not being paid a gambling debt owed to him by the defendant, the victim started to argue with the defendant. A short time later, the victim pulled out a gun from the backseat and displayed it to the defendant. The victim then put the gun on the defendant’s thigh. The defendant told the victim to “chill.” The victim then “cocked back the gun, pulling a slide back, and the gun made a noise like it was loaded and ready to fire.” The defendant claims that “[t]his made [him] scared, very scared.” The victim then put the gun against the defendant’s head, called him a “bitch” and said, “I can finish you.” The victim punched the defendant in the ribs and hit him in the head with the cocked gun.

The defendant, fearing that the victim was going to shoot him, took both hands off the steering wheel and started “tussling” with the victim. As they fought, the gun went off two or three times. The automobile then crashed. The defendant, noticing that the victim had been shot, removed the victim from the automobile and went for help. The defendant claimed that “[a]t no time did I have the gun in only my hands—each time the gun went off is when we struggled over it.” The defendant claimed that he was scared and “[he] never meant to kill [the victim, he] just wanted to get the gun away from him.”

Adopting the version of the facts most favorable to the defendant, we conclude, based on the defendant’s statement, that the evidence presented was sufficient to raise a reasonable doubt concerning justification. The fact that the defendant claims that the victim threatened him with a gun, “cocked” the gun, held the gun to the defendant’s head and said, “I can finish you,” is sufficient foundation for a self-defense theory. In addition, the evidence supports the fact that the defendant believed that the gun was loaded and ready to fire. He claims that he was scared and feared that the victim was going to shoot him. The defendant was so afraid that he took his hands off the steering wheel to struggle with the victim over the gun while driving seventy miles per hour on the highway and ultimately crashed the automobile. We note that “[t]he threshold is not high. The instruction must be given if there is any foundation in the evidence for the defense theory.” (Emphasis in original; internal quotation marks omitted.) State v. Deptula, 31 Conn. App. 140, 147, 623 A.2d 525 (1993), appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1994). The fact that several shots were fired and that there was a struggle is evidenced by shell casings and bullet holes in several areas of the automobile, and powder bums on the hands of both the victim and the defendant. The ultimate question of whether the defendant was justified is a question for the jury to decide. See id., 148.

We note that the fact that the defendant stated in his written statement that he never meant to kill the victim does not mean that he forgoes his right to have a jury instruction on self-defense. See State v. Person, supra, 236 Conn. 347-48. “It is for the jury to evaluate the credibility of the witnesses and the weight to be accorded the evidence. . . . The jury is free to juxtapose conflicting versions of events and to determine which is more credible. . . . [T]he [jury] can disbelieve any or all of the evidence . . . and can construe [the] evidence in a manner different from the parties’ assertions. . . . Therefore, because the jury was free to disbelieve the defendant’s testimony, his assertions therein did not preclude a jury instruction . . . .” (Citations omitted; internal quotation marks omitted.) Id.

We conclude that there was sufficient evidence presented to warrant a self-defense instruction and, therefore, the trial court improperly denied the defendant’s request for such an instruction. As such, the defendant is entitled to a new trial.

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

In this opinion the other judges concurred.

       The defendant also claims that the trial court improperly (1) denied his motions to excuse potential jurors for cause and denied his request for additional peremptory challenges and (2) refused to instruct the jury on extreme emotional disturbance. Because we conclude that the court abused its discretion in failing to instruct the jury on self-defense and remand this case for a new trial, we need not address those claims.