author: BISHOP, J. FLYNN, J.,

text:
    STATE OF CONNECTICUT v. MICHAEL FINAN
    (AC 21737)
    Dranginis, Flynn and Bishop, Js.

      Argued November 21, 2003 —
    officially released March 30, 2004

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

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, former senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The principal issue in this appeal is whether police officers may give lay opinion testimony as to the identification of an individual depicted on a convenience store surveillance videotape filmed during the course of a robbery. Because we believe that they may, the trial court’s judgment of conviction is affirmed.

The defendant, Michael Finan, was convicted after a jury trial of one count of robbery in the second degree in violation of General Statutes § 53a-135 and one count of conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-135 and 53a-48 (a). On appeal, he claims that the court abused its discretion when it allowed four police officers to testify that they suspected that he was one of the individuals who was depicted on the store’s surveillance videotape. The defendant claims, additionally, that he was denied a fair trial due to jury misconduct.

The jury reasonably could have found the following facts relevant to our discussion of the issues on appeal. At approximately 2:50 a.m. on December 23, 1999, the defendant and an unidentified man entered a 7-Eleven convenience store in South Windsor, one behind the other, while clerk Ken Thibeault was working and while the store’s surveillance video camera was operating and aimed in the direction of the checkout area. The defendant was wearing a green hooded sweatshirt, and the unidentified man wore a mask and carried a rifle or shotgun. The videotape showed the unarmed man walking past the checkout area out of the camera’s range after which the armed man could be seen stopped at the checkout counter and pointing his weapon at the clerk. Shortly thereafter, the unidentified armed man could be seen walking from the checkout area out of the store, and the defendant also could be seen simultaneously exiting the store. During the subsequent investigation, four South Windsor police officers viewed the videotape of the two men entering and departing from the store, and of the events of the robbery itself involving the unidentified man. At trial, each of the officers testified about having a suspicion based on a long-term familiarity with the defendant’s profile and mannerisms that the unarmed man depicted entering and departing from the store simultaneously with the armed man was the defendant. That evidence was heard by the jury over the defendant’s objection that the officers’ testimony should be precluded on the ground that it invaded the province of the jury to determine the ultimate issue in the case.

On October 30, 2000, the jury found the defendant guilty of robbery in the second degree and conspiracy to commit robbery in the second degree. On December 12, 2000, the court found the defendant in violation of his probation and on February 13, 2001, sentenced him to a total effective term of sixteen years incarceration, suspended after seven years, and five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The first issue on appeal is whether the court abused its discretion in allowing four police officers to testily that they “suspected” that it was the defendant on the surveillance videotape. Although we conclude that the court’s determination to permit the officers to give identification testimony in the guise of a suspicion, in reliance on State v. Fuller, 56 Conn. App. 592, 621, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000), was misplaced, we nonetheless affirm the decision on the alternate ground that the officers’ testimony was appropriate lay opinion as to identification, a material but not ultimate issue.

The following additional facts are germane to our resolution of that issue. Prior to the start of the trial, the defendant filed a motion to preclude testimony by four police officers as to their opinion that he was depicted on the videotape. The defendant argued that the officers’ testimony that he was the unmasked individual on the videotape was an opinion on an ultimate issue, which is prohibited by State v. Heinz, 193 Conn. 612, 627, 480 A.2d 452 (1984), and § 7-3 of the Connecticut Code of Evidence. In response, the state proffered that the officers would not testify as to their opinion, but rather as to their suspicion that the defendant was depicted on the videotape. The state argued that the testimony was admissible under this court’s holding in State v. Fuller, supra, 56 Conn. App. 592. Although the court granted the motion in limine, the court stated that the officers would be permitted to testify in that regard as long as their testimony was limited to their suspicions that the defendant was depicted on the videotape.

Subsequently, the four officers testified at trial that after viewing the surveillance videotape, they suspected that the unmasked man on the videotape was the defendant. Detective Michael Thompson testified that he had known the defendant for ten years, had watched him grow up and knew his family. He stated that his suspicions were based on the defendant’s mannerisms and shy walk. Detective Michael Russotto testified that he knew the defendant and his family for eight to ten years and suspected that the defendant was the unmasked man on the videotape. He claimed that he recognized the defendant from his profile. Officer Kristina Ferrante testified that she had known the defendant for eight years and suspected that he was the man on the videotape on the basis of his mannerisms, specifically his profile and walk. Finally, Officer Daniel Martin testified that upon reviewing the videotape, he immediately suspected that the defendant was the unmasked man on the basis of his sixteen years of contact with the defendant and, in particular, the defendant’s distinct walk. In addition to the police officers’ identification testimony, the state offered testimony from Robert Teachman, who stated that the defendant had told him that he had participated in the robbery. With those additional facts as context, we turn to the defendant’s first claim.

A

The defendant first argues that the testimony of the officers was an opinion on an ultimate issue. That claim has two parts: First, that the testimony of the officers was, in fact, opinion testimony, and, second, that it was testimony on an ultimate issue.

Our standard of review is well settled. “The admissibility of opinion testimony from lay witnesses rests in the sound discretion of the trial court, and the exercise of that discretion, unless abused, will not constitute reversible error.” (Internal quotation marks omitted.) Mezes v. Mead, 48 Conn. App. 323, 330, 709 A.2d 597 (1998).

At the outset, we agree with the defendant that the officers’ testimony, though varnished as mere suspicion, was, in fact, opinion evidence. In reaching that determination, we decline to expand the holding in State v. Fuller, supra, 56 Conn. App. 592, to permit lay identification opinion testimony when couched as a mere suspicion if that same testimony framed as an opinion would otherwise be inadmissible. In Fuller, we found no error in the trial court’s ruling permitting the defendant’s father to testify that he suspected that his daughter had committed the charged criminal act. As we noted in Fuller, however, the evidence was admitted as part of the state’s redirect examination of the defendant’s father and as part of an effort to rehabilitate him after vigorous cross-examination by the defendant bearing on her father’s state of mind during the evening of the assault. Id., 619. Those limitations, which were an integral part of our holding in Fuller, are not present in this instance. Here, unlike in Fuller, the testimony of the officers, while characterized as suspicion, can be understood fairly only as statements of the opinion that it was the defendant who was depicted on the surveillance videotape.

Our conclusion that the officers’ testimony was, in fact, opinion evidence brings us to the consideration of whether that testimony was admissible as a lay opinion. At the outset, we note that in Connecticut, under prescribed circumstances, a lay witness may be competent to offer an opinion. Connecticut Code of Evidence § 7-1 provides: “If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.” Thus, to be admissible, lay opinion testimony must meet two criteria: It must rationally be based on perception, and it must be helpful. In this instance, our review of the record finds support for both parts of the test. Each of the officers had significant contacts with the defendant for periods ranging from eight to sixteen years and in various circumstances. On the basis of their knowledge of the defendant, the officers were able to offer testimony concerning his mannerisms, gait, and profile and identifying similarities on the videotape. Thus, the officers’ familiarity with the defendant provided them a rational basis for their testimony that it was the defendant who appeared as the unarmed person on the surveillance videotape.

As to the second criteria for admissibility, regarding helpfulness, the defendant argues that the jurors were just as able as the officers to determine whether the videotape depicted the defendant. Specifically, he argues that the jury had the opportunity to observe the defendant, his mannerisms and his stance in the courtroom and, therefore, could compare the person on the videotape to the defendant and reach a conclusion without the officers’ testimony. We disagree. We believe that testimony by individuals who knew the defendant for a number of year s and in a variety of circumstances offered to the jury a perspective it could not have acquired in its limited exposure to the defendant during the trial. Our conclusion is buttressed by the fact that the depiction of the defendant on the videotape was momentary and not particularly clear'. The record reflects that on the videotape, the defendant was seen wearing a sweatshirt with a hood pulled over his head so that his face was partially obscured. The videotape also showed the defendant from his profile, thus further obscuring his face. Additionally, the entire robbery lasted about two minutes, and the defendant could be seen only briefly at the beginning and end of the videotape. Given the limited view of the defendant afforded by the videotape, we conclude that the testimony of witnesses familiar with him was helpful to the jury’s identification of the individual on the videotape.

Our holding that the testimony was admitted properly is buttressed by federal decisional law applying Federal Rule of Evidence 701, which is identical to Connecticut Code of Evidence § 7-1. As stated by the District of Columbia Court of Appeals, “[t]he majority of jurisdictions that have decided cases involving lay witness testimony identifying a person in a videotape . . . have affirmed the admission of such testimony under [rule] 701 . . . provided that the witness has at least some degree of familiarity with the person identified.” Sanders v. United States, 809 A.2d 584, 594 (D.C. App. 2002), cert. denied, 538 U.S. 937, 123 S. Ct. 1602, 155 L. Ed. 2d 340 (2003). The rule that has emerged from federal courts applying rule 701 is that lay opinions are admissible as to the identity of an individual in a videotape or photograph as long as there is some basis to conclude that the witness is more likely to identify the defendant correctly from the videotape. See, e.g., United States v. Henderson, 68 F.3d 323, 326-27 (9th Cir. 1995); United States v. Jackman, 48 F.3d 1, 4-5 (1st Cir. 1995); United States v. Farnsworth, 729 F.2d 1158, 1160 (8th Cir. 1984).

The determination that the opinion testimony of a lay witness is reasonably based on perception and helpful to the fact finder does not, however, end the inquiry because the proscription against opinion testimony on an ultimate issue pertains to both expert and lay opinion. As the defendant correctly asserts, “[n]o witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.” (Internal quotation marks omitted.) State v. Fuller, supra, 56 Conn. App. 619. The more general rule against opinion testimony on an ultimate issue is embodied in Connecticut Code of Evidence § 7-3 (a), which provides: “Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that, other than provided by subsection (b), an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.”

The question, therefore, is whether the officers’ opinion testimony concerning the identification of the defendant on the videotape constituted prohibited lay opinion on an ultimate issue. Although the term “ultimate issue” is often found in our decisional law, it is not amenable to easy definition. We find help in the Ballentine’s Law Dictionary definition of the allied term “ultimate fact” as “[a] fact upon the existence or nonexistence of which liability is to be determined. . . . The final and resulting fact reached by processes of legal reasoning from the detailed or probative facts, as distinguished from evidentiary facts and conclusions of law. . . .” Ballentine’s Law Dictionary (3d Ed. 1969). Thus, the idea of an ultimate issue or fact is that it is interwoven with the core of the fact to be proven or elemental to it. For example, in a criminal case, while the ultimate issue is whether the defendant is guilty, there may be other issues so interwoven with the question of guilt that they can not reasonably be separated. For example, we have found “voluntariness” to be an ultimate issue on the admission of a confession; State v. Strong, 59 Conn. App. 620, 627, 757 A.2d 1186 (2000); “intent” an ultimate issue in a charge of selling a controlled substance; State v. Bradley, 60 Conn. App. 534, 545-46, 760 A.2d 520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000); and “discriminatory intent” an ultimate issue on review of the court’s response to a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), regarding the use of peremptory challenges during jury selection; State v. Meikle, 60 Conn. App. 802, 811, 761 A.2d 247, cert. denied, 255 Conn. 947, 769 A.2d 63 (2000). In each of those instances, the issue we found to be ultimate could not reasonably be separated from the essence of the matter to be decided.

Moreover, while we agree with the defendant that in any case there may be more than one ultimate issue, we do not believe that every fact that is material to guilt is, for that reason alone, an ultimate issue. Identification is often such an issue. Here, the identity of the individual on the videotape, while clearly material, was not so interwoven with the state’s charge that the positive identification of the defendant as the unarmed man on the videotape proved his participation in the crime. As noted, the videotape depicted two men entering the convenience store, one before the other. One individual, identified by the police witnesses as the defendant, could be seen entering the store and then leaving the video camera’s view. The second person, who appeared to be carrying a rifle or shotgun, then appeared to aim the weapon at the store clerk in the checkout area. We next were able to see the individual identified as the defendant walking out of the store behind the unidentified individual. Although the identification of the unarmed person as the defendant was material to his participation in the robbery, his presence in the store simultaneously with the armed person was not, alone, sufficient evidence of his guilt.

Our view of lay opinion identification testimony as properly admissible is not novel. In State v. Gagnon, 18 Conn. App. 694, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989), noting that lay opinion properly may be admitted on the issue of the identity or similarity of persons, this court, on the ground that the testimony of a police officer was relevant and admissible, affirmed the decision of the trial court to permit the officer to render an opinion that a composite sketch drawn from the victim’s description of her assailant resembled the defendant. Id., 713-14.

Because the officers were familiar with the defendant and their testimony was helpful to the jury in determining a fact material to the state’s case, we conclude that although it was couched in terms of “suspicion,” the officers’ testimony was admissible lay opinion. Accordingly, the court did not abuse its discretion in admitting the officers’ identification testimony.

B

Finally, as to this issue, the defendant argues that if the police officers’ testimony was admissible as lay opinion, the testimony should nevertheless have been excluded because its probative value was outweighed by its prejudicial effect. Specifically, he argues that in light of the “weak case” presented by the state, the jury likely gave the opinions by the officers undue weight. We disagree.

As a general rule, “[ajlthough relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value.” (Internal quotation marks omitted.) State v. Talton, 63 Conn. App. 851, 857, 779 A.2d 166, cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001). Although the defendant argues on appeal that the state’s case was weak, the relative strength of the state’s case is not the proper standard to determine whether the probative value of admissible evidence is outweighed by its prejudicial effect. “The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” (Internal quotation marks omitted.) Id.

An examination of the record reveals that the officers’ testimony was factual and not emotionally laden. All of the officers testified that they knew the defendant and his family from the community. There was no indication by the officers that the defendant had been arrested or that they had any interaction with him in any official capacity. Furthermore, the defendant’s claim of prejudice is belied by the court’s instructions to the jury. In its charge, the court made clear that testimony should not be given special consideration simply because it was from a police officer. On the basis of the foregoing, we are unpersuaded that the probative value of the officers’ testimony was outweighed by its prejudicial impact on the defendant.

II

The defendant next argues that he was denied his federal and state constitutional rights to a fair and impartial jury due to four instances of alleged jury misconduct. Specifically, the defendant alleges misconduct in that the jury foreman failed to disclose that he was familiar with the state’s inspector; jurors were improperly influenced by the presence, during trial, of spectators friendly to the defendant; the court improperly failed to place the jury foreman under oath during the court’s hearing into the alleged misconduct; and, finally, the court’s questioning of the jurors improperly invaded their deliberative process. We disagree. We consider the issues in turn.

The following additional facts are germane to our discussion of the first issue. At the conclusion of the trial and prior to sentencing, the state became aware that an inspector working for the state, Madison Bolden, knew the jury foreman, L. The state brought that to the attention of the defendant and the court. The defendant subsequently filed a motion for a new trial, alleging that he was deprived a fair trial due to that alleged misconduct.

On November 8,2000, the court conducted an eviden-tiary hearing on the allegations of jury misconduct. At the outset, the state disclosed that the original inspector assigned to the case had been unable to work on it and that Bolden had been substituted after jury selection was completed. The court then questioned L, who testified that he was friendly with Bolden’s father and knew Bolden as well. He maintained that during the trial, he had not realized that Bolden worked for the state’s attorney’s office and that his knowledge of Bolden had not affected his ability to be impartial.

On February 14, 2000, the court denied the defendant’s motion for a new trial. The court determined that contrary to the defendant’s claim, L had not concealed his relationship with Bolden, as he never had been instructed that he had a continuing obligation to inform the court if he recognized any participants in the trial. Accordingly, the court found that there was no misconduct by L and no prejudice attributable to the conduct of L.

Before assessing the claim, we first set forth the principles that guide our review. “To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment ... a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality.” (Citation omitted; internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 296, 750 A.2d 1059 (2000).

“[A] trial court should consider the following factors in exercising its discretion as to the form and scope of a preliminary inquiry into allegations of jury misconduct: (1) the criminal defendant’s substantial interest in his constitutional right to a trial before an impartial jury; (2) the risk of deprivation of the defendant’s constitutional right to a trial before an impartial jury, which will vary with the seriousness and the credibility of the allegations of jury misconduct; and (3) the state’s interests of, inter alia, jury impartiality, protecting jurors’ privacy and maintaining public confidence in the jury system. . . .

“Consequently, the trial court has wide latitude in fashioning the proper response to allegations of juror bias. . . . We [therefore] have limited our role, on appeal, to a consideration of whether the trial court’s review of alleged jury misconduct can fairly be characterized as an abuse of its discretion. . . . [W]hen, as in this case, the trial court is in no way responsible for the alleged juror misconduct, the defendant bears the burden of proving that the misconduct actually occurred and resulted in actual prejudice.” (Internal quotation marks omitted.) State v. Bangulescu, 80 Conn. App. 26, 49-50, 832 A.2d 1187, cert. denied, 267 Conn. 907, 840 A.2d 1171 (2003). With those principles in mind, we turn to the defendant’s claims.

A

The defendant first argues that the fact that the jury foreman knew the state’s inspector and did not disclose that relationship tainted the verdict. We do not agree.

The court’s conclusion that there was no misconduct was supported by the record. At voir dire, the jury was read a list of trial participants, and jurors were asked if they knew any of them. At no time was Bolden’s name read to the jury nor were the jurors told that they had to inform the court if they recognized other individuals as the trial progressed. Therefore, the fact that the juror who recognized Bolden did not report the recognition to the court did not violate any rule or norm of juror conduct. Having made proper inquiry into the claim, the court reached factual conclusions that were not clearly erroneous. The court did not abuse its discretion by denying the motion for a new trial.

B

The defendant next argues that the court abused its discretion when it denied his amended motion for a new trial, which was based on alleged additional jury misconduct. Specifically, the defendant argues that the jurors were biased against him because they were afraid of his family and friends who attended the trial. The following additional facts are relevant to our discussion of that claim.

After the verdict was announced, it came to the attention of the court that several jurors had expressed concerns to the clerk of the court about their physical safety relative to their departing the courthouse. Given that information, the court conducted another eviden-tiary hearing during which the remaining five jurors were examined. At the hearing, the court took judicial notice of the fact that the courtroom was small and that a group of people friendly to the defendant had attended the trial daily. While expressing some concern about that group of people, all of the jurors indicated that their feelings did not influence their impartiality. From the testimony of the jurors, it became apparent that some of them had expressed concerns in the jury room about the spectators, and some of the jurors indicated that juror A had been especially concerned about the spectators. When questioned, however, A denied making any comments about the spectators to the other jurors. Nevertheless, A testified that one of the jurors had expressed concerns about leaving the building after the verdict and stated that she shared that concern a little bit. The court concluded that although some members of the jury expressed discomfort and nervousness as a result of the stares of the visitors, those communications did not affect the impartiality of any of the jurors. Accordingly, the court denied the motion.

The defendant makes two arguments in support of his claim that the court should have granted him a new trial due to jury misconduct. First, he argues that a new trial was warranted because one of the jurors, A, was dishonest when questioned. We do not agree.

“It is well established that [i]n a [hearing] before a court, the trial judge is the sole arbiter of the credibility of the witnesses . . . and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible. ... On appeal, we do not retry the facts or pass on the credibility of witnesses. ” (Internal quotation marks omitted.) Dubreuil v. Witt, 80 Conn. App. 410, 417, 835 A.2d 477 (2003). Despite the defendant’s assertions that A was not truthful, the court, as the sole arbiter of credibility, was permitted to accept A’s testimony and, therefore, a new trial was not warranted on that ground.

The defendant’s second argument related to that issue is that the court wrongly relied on the jurors’ assertions that the spectators did not affect their impartiality. Specifically, the defendant argues that the court should have recognized the prejudicial overtones that flowed from the fact that the jurors were afraid of the defendant’s family and friends.

At the outset, we note that the defendant’s argument is merely speculative. The record is devoid of any factual basis from which the court reasonably could have determined that the presence of people friendly to the defendant had any impact — beneficial or detrimental— on the defendant during trial. Furthermore, the court conducted a thorough examination of the jurors to determine if any alleged misconduct did occur, and the defendant’s counsel was given a full opportunity to question the jurors as well. The court fulfilled its obligation to investigate the alleged misconduct. In that light and mindful of the absence in the record of any evidence of juror misconduct, we cannot conclude that the court abused its discretion in denying the defendant’s motion.

C

The defendant also argues that the court erred at the evidentiary hearing by asking the jurors if the presence of the spectators during trial had affected their ability to be fair and impartial. Specifically, he claims that the question violated Practice Book § 42-33. We disagree.

Practice Book § 42-33 provides in relevant part that “[u]pon inquiry into the validity of a verdict, no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror nor any evidence concerning mental processes by which the verdict was determined. . . .” Contrary to the defendant’s assertion, the question posed by the court did not seek to inquire into how the verdict was determined. Rather, the court sought to determine whether the jury had been affected by the spectators. Concerning inquiry into alleged juror misconduct, our Supreme Court has consistently supported the trial court’s right to permit questioning as to whether a juror would be able to be fair and impartial in light of a specific fact. See State v. Cubano, 203 Conn. 81, 92, 523 A.2d 495 (1987) (not improper for court to ask if juror’s ability to determine defendant’s guilt or innocence affected by knowledge that juror’s friend might be defendant’s friend); see also State v. Tomasko, 242 Conn. 505, 513 n.12, 700 A.2d 28 (1997) (not improper to ask juror if decision to convict based on confusion over jury instruction); State v. Newsome, 238 Conn. 588, 631, 682 A.2d 972 (1996) (trial court’s factual determination relative to jurors’ testimony about alleged misconduct entitled to substantial weight). The fact that the court asked a similar question after the verdict was no more invasive of the jury’s deliberative process. Accordingly, because the questioning by the court was proper, the defendant’s claim must fail.

D

Next, the defendant argues that the court abused its discretion by not having the juror, L, sworn before testifying. We find that claim to be without merit. As noted, once the court was informed of a possible relationship between L and Bolden, the court summoned L to the courtroom. At the beginning of L’s testimony, the court informed him that he was still under the juror’s obligation to tell the truth and to uphold the law. Although it would have been desirable for the court to have placed L under oath, it is reasonable to believe that L responded to the court under the burden of his duty as a juror because the court prefaced its questions to L with the admonition that he remained under an obligation to be truthful. Under those circumstances, there is nothing in the record to indicate that L’s testimony was untrustworthy. Accordingly, the court did not abuse its discretion in relying on L’s testimony. Finally, the court’s determination that there was no juror misconduct on L’s part was not based solely on L’s testimony, but on the entire record, which included additional information from which the court reasonably could determine that L had not been tainted by any alleged familiarity with Bolden. Therefore, even if the court incorrectly failed to place L under oath before questioning him, that misstep was harmless.

E

Last, the defendant argues that the court’s inquiry into the alleged jury misconduct was inadequate because the court failed to question the two alternate jurors in accordance with the defendant’s request. Specifically, the defendant argues that the alternates could have provided additional information about the extent to which the presence of spectators may have affected the jury. We do not agree.

The following additional facts are germane to our resolution of the defendant’s claim. During the eviden-tiary hearing on the defendant’s amended motion for a new trial, the defendant requested that the two alternates be called for questioning. In response, the court determined that it was unnecessary to question the alternates, as they were not involved with the deliberations.

It is a well established principle that the form and scope of the inquiry into jury misconduct rests within the sound discretion of the court. We will find an abuse of discretion only “in the highly unusual case in which such an abuse has occurred.” (Internal quotation marks omitted.) State v. Bangulescu, supra, 80 Conn. App. 50. In this case, the court properly conducted an inquiry and questioned all the jurors except the alternates. From its questioning, the court was satisfied that it had sufficient information to render judgment. Upon review of the record and in light of our deferential standard of review, we do not conclude that the court abused its discretion in refusing to question the alternates. Accordingly, that claim, too, must fail.

The judgment is affirmed.

In this opinion DRANGINIS, J., concurred.

FLYNN, J.,

dissenting. I concur with part II of the majority opinion. I respectfully dissent from part I. I believe that the principal issue to be decided in this case is whether our traditional common-law rule, embodied in Connecticut Code of Evidence § 7-3, prohibiting opinion evidence about an ultimate issue to be decided by the jury should be abandoned to permit such opinions couched as suspicions as to the identity of the defendant from four police officers, none of whom witnessed the robbery at issue in this appeal. I would hold that the officers’ identity testimony constituted opinions on an ultimate issue. First, it went beyond testimony as to factual observations of similarities between the defendant and a person shown on a videotape of the robbery. Second, the effect of the officers’ testimony on the issue, if accepted by the jury, was decisive of the defendant’s guilt. Third, the fact-finding province of the jury was invaded. I would therefore reverse the conviction and order a new trial.

As is all too common in these times, this prosecution arose because two men robbed a convenience store, one armed and wearing a grotesque Halloween mask and the other wearing a hooded jacket that obscured most of his face. Although the state was not relieved of its burden to prove that a larceny had occurred by force or threat of force, thus constituting a robbery in which one robber was aided by another physically present, there was no contest that the store clerk forcibly had been robbed of the money in his cash register. The only real issue to be determined by the jury was whether the defendant, and not some other person, was one of the two who had committed the robbery. In that sense, it was an ultimate issue. See State v. Col-therst, 263 Conn. 478, 507, 820 A.2d 1024 (2003) (whether defendant’s alibi was fabrication was ultimate issue to be determined by jury).

The testimony of the convenience store clerk who had been robbed was not particularly helpful on the identification issue. The robbery took place in less than one minute. The clerk was not able to make an identification of either robber for the police. Cross-examination established that the clerk had not identified the robbers in the written statement he gave to the police on the day of the robbery. The defendant was a regular customer of the store. It was only after the police had arrested the defendant that the clerk claimed to have recognized him as one of the perpetrators. That recognition occurred about six weeks after the robbery when the defendant entered the store to buy a pack of cigarettes. However, the clerk never contacted the police to let them know that the defendant was the robber. The clerk was permitted to make an in-court identification of the defendant. At the time he testified at trial, the clerk had not been shown the video surveillance tape that showed a portion of the robbery.

The defendant objected to the state’s calling four members of the police department that had arrested the defendant and who actually had not witnessed the robbery to offer their opinions as to the identity of the hooded person on the videotape. The court was reluctant to permit this testimony given the prejudicial aspect of it and the ultimate issue rule. It was finally persuaded by the state to permit each officer to testify about his or her suspicion as to the identity of the hooded robber on the basis of State v. Fuller, 56 Conn. App. 592, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000). On appeal, the state has abandoned the very Fuller claim it urged at trial, namely, that the actual testimony of the officers was admissible as suspicion testimony. Rather, it now claims that each officer’s testimony was an admissible lay opinion and is admissible on that ground. I agree with the majority that the holding in Fuller cannot be extended to justify admissibility in this case.

Mere suspicion does not even suffice to meet the lesser standard required for establishment of probable cause. In re Michael B., 36 Conn. App. 364, 371, 650 A.2d 1251 (1994). “The quantum of evidence necessary to establish probable cause exceeds mere suspicion . . . .” (Internal quotation marks omitted.) State v. Guess, 44 Conn. App. 790, 794, 692 A.2d 849 (1997), aff'd, 244 Conn. 761, 715 A.2d 643 (1998). When the state’s case at best raises suspicion of commission of a crime, this is far from establishing its burden beyond a reasonable doubt. It is the law of this state that a person shall not be convicted on mere suspicion. State v. DeCoster, 147 Conn. 502, 505, 162 A.2d 704 (1960).

The defendant claims that it was improper for the court to have allowed four police officers to testify as to their suspicions that the person in the surveillance videotape was the defendant. The defendant first raised this claim by way of a motion in limine in which he sought an order prohibiting the testimony of any witness about his or her opinion as to the guilt of the defendant, whether by direct statement or inference. The defendant, in his motion, argued that “several police officers will attempt to identify the [defendant, by way of [videotape], as being one of the perpetrators of the instant offense and by so doing such testimony would constitute opinion testimony as to the guilt of the [d]éfendant and such testimony should be precluded based on [State v. Heinz, 193 Conn. 612, 480 A.2d 452 (1984)].”

Section 7-3 (a) of the Connecticut Code of Evidence provides: “Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that ... an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue.” The state, apparently recognizing the potential obstacle created by § 7-3 of the Code of Evidence and common-law prohibitions on opinion testimony on the ultimate issue; see State v. Heinz, supra, 193 Conn. 627-28; argued that it planned to ask each police officer if he or she had viewed the videotape and “suspected” who that person was. Although the court granted the defendant’s motion to exclude opinion testimony, it allowed the police officers to testify that they “suspected” that the defendant was the man in the hooded sweatshirt. The court reasoned, in reliance on State v. Fuller, supra, 56 Conn. App. 592, that the police officers’ testimony would not amount to opinions on the ultimate issue because such testimony would be couched in the language of suspicion rather than belief.

Four police officers, Michael Thompson, Michael Russotto, Daniel Martin and Kristina Ferrante, testified that they had viewed the videotape at the police station shortly after the robbery and suspected that the man in the hooded sweatshirt was the defendant. Each of these officers testified that he or she knew the defendant personally. There was no mention that they also might have known the defendant from any interactions in their official capacity as law enforcement personnel. For example, Thompson testified that he had known the defendant for approximately ten years, since the defendant was a child. He knew the defendant’s family, and the defendant had even been to his house in the past. Ferrante testified that she had known the defendant for seven or eight years and that she had taught him a course when he was in the sixth grade.

The defendant argues that the four officers “inappropriately gave their opinions that [the] defendant was guilty of robbeiy, a determination that was solely within the jury’s province,” by testifying that they suspected that he was the man in the hooded sweatshirt. He also contends that the court abused its discretion when it allowed the four police officers to give an opinion on the ultimate issue of the perpetrator’s identity because the effect of such testimony, as the state now concedes on appeal, violated the court’s order pursuant to the defendant’s motion in limine.

The defendant’s challenge to the admission of this testimony is evidentiary in nature. “Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990).

The state was able to persuade the court to admit the officers’ testimony only by arguing that the testimony would be phrased in the form of suspicion rather than opinion. The state now argues on appeal that a witness may offer an opinion on the issue of identity, effectually conceding that the officer’s “suspicions” in fact amounted to opinion testimony. The change in the state’s position in this regard is troubling. At trial, the state persuaded the court that it was excluding opinion testimony on the issue of identity when, in fact, the state was using the officers’ testimony for that very purpose. Regardless of the state’s strategy in offering the officers’ testimony in the form of a suspicion rather than a belief, however, it is clear from the testimony that if it were in fact opinion testimony, as such, it violated the court’s order made pursuant to the defendant’s motion in limine.

“Whether a statement of a witness is one of fact or of conclusion or opinion within the rule excluding opinion evidence is to be determined by the substance of the statement rather than its form. The use of phraseology appropriate to the expression of an inference, such as believe, think, etc., may in fact signify an opinion which renders the statement inadmissible; but the use of such terms is not conclusive that the witness is stating his opinion, for the language may be used merely to indicate that he is not speaking with entire certainty, in which case the evidence may be received for what it is worth.” (Internal quotation marks omitted.) State v. Fuller, supra, 56 Conn. App. 620.

The present case is factually distinguishable from Fuller. The portion of the Fuller decision on which the state relied in its argument to the court contained a description of the manner in which the “suspicion” testimony was admitted. See id., 617-19. Fitter involved a defendant who was accused of attempting to murder two of her neighbors by discharging a firearm into the front of the neighbors’ house in the middle of the night. Harvey Fuller, father of the defendant, Jancis L. Fuller, testified on the depth and length of the defendant’s hostility toward the neighbors. On cross-examination, Harvey Fuller testified that he had overheard his daughter try to enlist two men the night before the shooting to go to the victims’ home and “try to shake them up and get them to leave her alone. . . .” (Internal quotation marks omitted.) Id., 619. On recross-exandnation, he testified that the morning after the shooting was one of the worst days of his life. When the state explored this testimony on redirect examination, Fuller testified that he learned of the shooting the morning after it occurred when he awoke to find police cars at his home. It was at this point, in response to the state’s question, that he said he suspected that his daughter was responsible for the shooting when he first learned of it. Id. There was then a context and an explanation for this evidence in Fuller that explained prior testimony of the witness. In fact, the court noted that it was the defense that had opened the door to this testimony. Id., 621.

In contrast, in the present case, the officers’ suspicions were expressed dining the state’s direct examination and were not offered “to explain and clarify relevant matters in [their] testimony which [may] have been weakened or obscured by . . . cross-examination.” (Internal quotation marks omitted.) Id. Furthermore, Harvey Fuller was not one of four police officers who were members of the very police department that had arrested and brought about the prosecution of the defendant. The present case, beyond being factually distinguishable from Fuller, does not present a situation in which the jury was exposed to awitness’ mere “suspicions.” The state asked virtually the same question of all four police officers. That question was whether, after having viewed the videotape, the officer suspected that he or she knew who the unmasked robber was. When the officer responded in the affirmative, the prosecutor would ask who the officer suspected that person was, and the officers each responded with the defendant’s name. This testimony went far beyond the speculation of the witness in Fuller who was allowed to testify that, when he hear d about the crime that had occurred, he could not help but suspect that his daughter had committed the act. Id., 617 n.27. Our description of the effect of the “suspicion” testimony in Fuller illuminates the distinction between its use in that case and the use of the officers’ testimony in the present case. “It seems fair to say that when a person only suspects that a fact exists, here, that the defendant was the shooter, that person is doing nothing more than recognizing a ‘possibility’ of the existence of that fact, but he has not concluded that it actually exists. It therefore cannot be said to be an opinion on the ultimate issue before the jury, i.e., guilt or innocence.” (Emphasis in original.) Id., 621.

In the present case, the witnesses’ “suspicions” went beyond the officers’ recognizing a possibility that the defendant could be the person depicted in the videotape. None of the officers was in the store at the time the robbery occurred. Nevertheless, the officers testified that they knew the defendant personally, they saw the videotape, and they “suspected that they knew” the person depicted on the videotape was the defendant. Presented in this manner, the officers each gave an opinion on the ultimate issue of the peipetrator’s identity. In fact, each officer stated that, in his or her opinion, the hooded person in the videotape was the defendant. They expressed that opinion in statements such as: “After reviewing the videotape, watching the mannerism[s] and seeing what I saw in the videotape, I recognized that as [the defendant],” “I recognized [the defendant] from the video I watched,” “I don’t state when, I just state that I immediately recognized [the defendant]” and “[the defendant’s] mannerisms, the way he walked. I could see part of his face and his nose that I recognized as his.” Significantly, the police witnesses did not testify about what mannerisms, facial characteristics or way of walking the videotape showed that were similar to those they previously had observed in the defendant. Had that been their testimony, it would not have been objectionable as either “mere suspicion” or opinion testimony on the ultimate issue. This is so because the jurors could have observed the defendant in the courtroom and the person on the videotape and determined for themselves if they credited the testimony and if it convinced them beyond a reasonable doubt that the person on the videotape had the same type of nose or other physical feature, or the same type of walk or other mannerism as the officers had observed in the defendant, and that therefore, the defendant was the person on the videotape participating in the robbery of the store. See State v. Vilalastra, 207 Conn. 35, 45, 540 A.2d 42 (1988) (state may not elicit expert opinion that defendant possessed drugs for sale or consumption but may ask other questions designed to elicit what items drug sellers use or whether it would be usual to find these items in apartment of someone who did not sell drugs).

In the present case, the officers’ testimony amounted to opinion testimony given without any sufficient testimony to build an adequate factual foundation. The testimony should have been excluded pursuant to the court’s earlier ruling on the defendant’s motion in limine. The court, therefore, abused its discretion when it allowed this opinion testimony in direct contradiction of its earlier order without having revisited and changed its ruling in that regard.

Section 7-3 (a) of the Connecticut Code of Evidence provides in pertinent part: “Testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact . . . .” (Emphasis added.) In construing what constitutes an ultimate issue, I believe the appropriate definition of “ultimate,” and one that may coexist in harmony with the application given § 7-3 by this court and by our Supreme Court, is “a fundamental fact or principle” that is decisive of the defendant’s guilt. Using this definition, to reach the ultimate issue of guilt or innocence, the trier of fact must first decide several underlying ultimate issues, namely, the elements of the crime, proof that the defendant was a perpetrator and the validity of any defenses that might excuse the defendant’s acts, each of which is decisive of the defendant’s guilt.

The use of this definition finds support in the following cases in which testimony was inadmissible as to a fact that would serve as a foundation for the finder of fact’s final determination of guilt or liability: Barrett v. Danbury Hospital, 232 Conn. 242, 256 n.6, 654 A.2d 748 (1995) (upholding exclusion of opinion on reasonableness of plaintiff’s fear); Kowalewski v. Mutual Loan Co., 159 Conn. 76, 80, 266 A.2d 379 (1970) (upholding exclusion of opinion on whether walkway was reasonably safe for use); State v. Donahue, 141 Conn. 656, 667, 109 A.2d 364 (1954) (upholding exclusion of opinion on whether defendant acted in wilful, deliberate and premeditated manner), cert. denied, 349 U.S. 926, 75 S. Ct. 775, 99 L. Ed. 1257 (1955); Witty v. Planning & Zoning Commission, 66 Conn. App. 387, 392, 784 A.2d 1011 (upholding exclusion of opinion as to intended meaning of term in ordinance), cert. denied, 258 Conn. 950, 788 A.2d 100 (2001); Daley v. Wesleyan Univ., 63 Conn. App. 119, 137-38, 772 A.2d 725 (upholding exclusion of opinion that “tenured faculty’s decision not to recommend the plaintiff for tenure was made arbitrarily or capriciously”), cert. denied, 256 Conn. 930, 776 A.2d 1145 (2001); see State v. Vilalastra, supra, 207 Conn. 39, 43. Each of these cases held that the testimony was inadmissible as an opinion on an ultimate issue in the case. To the extent that one might infer from State v. Fuller, supra, 56 Conn. App. 621, that there is one ultimate issue in a case, i.e., guilt or innocence, that interpretation would ignore these and a host of other cases from this court and from our Supreme Court.

A close reading of State v. Fuller, supra, 56 Conn. App. 592, demonstrates that the identity of the perpetrator is an ultimate issue that must be decided by the trier of fact to reach the ultimate issue of guilt or innocence. The challenged testimony in Fuller was not deemed a ground for reversal, because, although it concerned the ultimate issue of the defendant’s guilt or innocence, the testimony involved mere “suspicion,” rather than “opinion,” which connotes a lesser degree of certainty. Id., 620-21.

Section 7-3 of the Connecticut Code of Evidence provides an example of an ultimate issue separate from that of the defendant’s guilt or innocence. Quoting General Statutes § 54-86Í, § 7-3 (b) provides: “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto, except that such expert witness may state his diagnosis of the mental state or condition of the defendant. The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.” (Emphasis added; internal quotation marks omitted.) At the very least, § 7-3 (b) explicitly sets forth the proposition that the mental state or condition of the defendant is an “ultimate issue.” More than that, however, the language of § 7-3 (b) suggests that certain other elements of the crime charged and defenses thereto are also “ultimate issues,” although they would not fall within the exclusion set forth in that particular subsection.

The Federal Rules of Evidence, while not binding on our courts, “are often influential in shaping our eviden-tiary rules.” State v. Vilalastra, supra, 207 Conn. 39-40.

The state argues on appeal that the officers’ testimony “falls squarely within the well recognized identification exception to the common-law rule prohibiting lay opinion testimony on an ultimate fact in issue.” This argument should have been presented to the court as a challenge to the court’s prohibition on opinion testimony in the present case. No such argument was made to the court at any point, however, and the court’s order, therefore, remained in effect.

Inasmuch as the state now concedes that such testimony was opinion testimony on the issue of identity, the state by implication also concedes that the officers’ testimony violated the court’s order. The state’s argument also implies that, despite offering the officers’ testimony at trial for a limited purpose that would not have fallen within the category of opinion testimony, the evidence could have been used for a totally different purpose. I disagree.

In the present case, where the state circumvented the defendant’s motion in limine by offering the officers’ testimony for the limited purpose of showing their “suspicions,” it would be inappropriate for this court to decide that the jury could have used the officers’ testimony for a totally different purpose. See Urich v. Fish, 58 Conn. App. 176, 180-81, 753 A.2d 372 (2000) (considering evidence in contradiction of prior ruling violated plaintiffs right to due process).

The majority cites State v. Strong, 59 Conn. App. 620, 627, 757 A.2d 1186 (2000), and State v. Meikle, 60 Conn. App. 802, 811, 761 A.2d 247 (2000), cert. denied, 255 Conn. 947, 769 A.2d 63 (2001), in which the court found the disputed opinions to be ultimate issues. The majority then goes on to state: “In each of those instances, the issue we found to be ultimate could not reasonably be separated from the essence of the matter to be decided.” I see no distinction in the present case. The only disputed factual issue was the perpetrator’s identity, and, therefore, it could not be more essential to the matter to be decided.

I also disagree with the majority’s opinion that its view of the issue “is not novel,” citing State v. Gagnon, 18 Conn. App. 694, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989). The disputed testimony in Gagnon was from but one police officer, not four. Id., 714. It was not first couched in suspicion. Nor did the officer state, “I recognized him as [the defendant],” or “I immediately recognized him,” or “ I could see part of his face and nose that I recognized as his.” Instead, in Gagnon, the officer opined about the resemblance between a composite sketch and the defendant. Unlike the present case, the officer in Gagnon testified about facts concerning how the defendant’s eyes, nose, mustache and the shape of his face fit the composite. Finally, the court in Fuller did not believe that the ultimate issue rule was inapplicable to opinions about identification, or it would not have taken the pains it did to draw a distinction between the harmlessness of mere suspicions as opposed to definite opinions. See State v. Fuller, supra, 56 Conn. App. 620-23.

I next conclude that the defendant’s position was prejudiced by the court’s decision to allow four witnesses to testify that the defendant was the person depicted on the videotape. The state called ten witnesses. Four of them did not identify either of the robbers. Of the six witnesses who did identify the defendant as one of the robbers, four of them were the officers who had been prohibited by the ruling on the motion in limine from expressing an opinion on the issue of identity. The fifth was the store clerk who saw the robbers for some number of seconds but less than one minute and who told the police shortly after the robbery that he could not identify the robbers. Robert Teachman, the sixth witness, who claimed that the defendant had admitted having participated in the robbery to him, was impeached by the fact that he had two felony charges pending against him in another jurisdiction. Several witnesses who were called on the defendant’s behalf testified that Teachman did not have a good reputation for truthfulness. The defendant has shown that it is more probable than not that the court’s ruling affected the result of the trial. See State v. Lomax, 60 Conn. App. 602, 610, 760 A.2d 957, cert. denied, 255 Conn. 920, 763 A. 2d 1042 (2000). I would reverse the conviction and order a new trial.

For all these reasons, I respectfully dissent.

       We note that “[w]here 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.) State v. DeLoreto, 265 Conn. 145, 153, 827 A.2d 671 (2003).

       When a state rule is similar to a federal rule, we review the federal case law to assist our interpretation of our rule. Arduini v. Automobile Ins. Co. of Hartford, Connecticut, 23 Conn. App. 585, 589, 583 A.2d 152 (1990). In this case, the language of § 7-1 of the Connecticut Code of Evidence is identical to that of rule 701 of the Federal Rules of Evidence.

       The defendant argues that the court erred by not making a specific finding that the testimony of the officers was helpful within the meaning of § 7-1 of the Connecticut Code of Evidence. We disagree. Although the court’s ruling on the motion in limine did not use the specific word “helpful,” the record reveals that the court indicated that the videotape was brief and hard to see. Furthermore, a finding of helpfulness is implicit in the court’s decision to allow the officers to testify.

       When the identification of the perpetrator of a crime is at issue, it is the state’s burden to prove beyond a reasonable doubt “not only that the offense was committed as alleged in the information, but that the defendant was the person who committed it.” See D. Borden & L. Orland, 5 Connecticut Practice Series, Criminal Jury Instructions (3d Ed. 2001) § 3.14, p. 238.

       The court commented that, prior to having read State v. Fuller, supra, 56 Conn. App. 592, its inclination was to deny the admissibility of even the testimony as phrased in the form of a suspicion, because the court, “felt that anything that’s in the nature of suspicion carries little weight.”

       Beyond merely viewing the videotape, Thompson was the officer in charge of the investigation into the robbery. Russotto assisted the investigation by looking for the gun that was used in the robbery and by taking the statement of the customer who was in the store at the time of the robbery. Martin and Ferrante testified that they had assisted the investigation, but it is not clear from the limited testimony that they gave whether their assistance extended beyond viewing the videotape and corroborating Thompson’s and Russotto’s suspicions.

       The defendant, in his initial brief, describes the distinctions between the present case and State v. Fuller, supra, 56 Conn. App. 592. The state, in response, argues that the distinctions between this case and Fuller are irrelevant and that the holding of Fuller is not dispositive of the issue of whether the officers’ testimony was admissible. The state does not attempt to argue that the officers’ testimony involved mere suspicions rather than opinions. The state also cites to several cases for the proposition that opinion testimony is admissible in certain circumstances. The state’s position on appeal is diametrically opposite to that taken before the trial judge.

       In Fuller, there was nothing comparable to the videotape presented in the present case.

       “Fundamental” is defined, in turn, as follows: “serving as, or being an essential part of, a foundation or basis; basic; underlying . . . .” Random House Compact Unabridged Dictionary 776 (2d Ed. 1996).

       Our Supreme Court in State v. Spigarolo, 210 Conn. 359, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989), listed several examples of ultimate issues of fact that have been held to be exceptions to the rule set forth in § 7-3. Id., 373 (listing testamentary capacity, sanity, authenticity of signature, intoxication and conditions of safety).

       See 1 C. McCormick, Evidence (5th Ed. 1999) § 12, pp. 56-57, for a discussion of the background of the corresponding federal rule of evidence, rule 704 (b).


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    JEFFREY W. NAVIN ET AL. v. ESSEX SAVINGS BANK ET AL.
    (AC 24250)
    Lavery, C. J., and Dranginis and Bishop, Js.

      Argued January 8 —
    officially released March 30, 2004

      John T. O’Reilly, pro se, the appellant (plaintiff). Kenneth R. Davis filed a brief for the appellants (named plaintiffs et al.).

      John S. Bennet, for the appellees (defendants).
   Opinion

LAVERY, C. J.

The plaintiffs, Jeffrey W. Navin, John F. Coyne and John T. O’Reilly, appeal from the summary judgment rendered by the trial court on each of their ten claims in favor of the defendants Essex Savings Bank (bank) and Douglas H. Olson. On appeal, the plaintiffs claim that the court improperly (1) determined that their claims were barred by the statute of limitations, (2) determined that their claims were barred by collateral estoppel and (3) granted the defendants’ motion to disqualify their attorney. We agree with the court that the statute of limitations barred the plaintiffs’ claims and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are germane to our resolution of the plaintiffs’ appeal. The origin of this case stems from certain land transactions that occurred in the 1980s. In 1986, Martin Frimberger gave a note to the bank in the amount of $300,000 and secured it with a mortgage on property he owned in Old Lyme. That mortgage was recorded in the town land records. Frimberger then gave two mortgages to two different groups to secure an unrelated debt. Those mortgages also were recorded in the town land records.

Frimberger then obtained a new mortgage loan in the amount of $650,000 and recorded it in the town land records on July 27, 1988. At that time, the holders of the two mortgages executed and delivered subordination agreements in favor of the bank. Those agreements were not recorded in the town land records until April 20, 1989.

In September, 1988, O’Reilly purchased Frimberger’s property and conveyed lots to, among others, Kenneth Davis, Navin and Coyne. The bank issued purchase money mortgage loans to those buyers. O’Reilly also became involved in another subdivision project in the town of Lyme. Frimberger owned that property as well, and O’Reilly took title knowing that the property was subject to various mortgages. The plaintiffs subsequently defaulted on the mortgages, and the bank commenced foreclosure proceedings.

The plaintiffs commenced a ten count action against the defendants on July 15, 2002. The plaintiffs set forth various causes of action, including fraud, misrepresentation, breach of contract, negligence and unfair trade practices. The crux of the complaint alleged that the bank, acting by and through its attorney, conspired to cloud the title to the plaintiffs’ properties by improperly recording mortgages on the land records in April, 1989, causing the plaintiffs to default and thereby allowing the bank to foreclose on the properties.

As a preliminary matter, we set forth certain legal principles and the standard of review that govern our resolution of the plaintiffs’ claim. “The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.” Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). “Our review of the trial court’s decision to grant the . . . motion for summary judgment is plenary. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... Summary judgment may be granted where the claim is barred by the statute of limitations.” (Citations omitted; internal quotation marks omitted.) Torringford Farms Assn., Inc. v. Torrington, 75 Conn. App. 570, 573, 816 A.2d 736, cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003). On appeal, the burden is on the opposing party to demonstrate that the court’s decision to grant the summary judgment motion was clearly erroneous. Prescott v. Meriden, 80 Conn. App. 697, 700, 836 A.2d 1248 (2003).

We note that in determining whether the court properly granted the defendants’ motion for summary judgment, we do not address or consider the underlying merits of the plaintiffs’ claims. “Although a judgment based on the running of the statute of limitations bars the plaintiff from bringing an action to relitigate the claim within that jurisdiction, it is not a judgment on the merits and does not erase the plaintiffs claim.” (Emphasis added.) Advest, Inc. v. Wachtel, 235 Conn. 559, 566, 668 A.2d 367 (1995). Thus, “the only facts material to the trial court’s decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed.” (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn. App. 449, 451, 671 A.2d 1329 (1996). Additionally, although the plaintiffs have cited various statements that were made during prior litigation, we are limited to the events alleged in the complaint of this case and any facts alleged in their affidavit in opposition to the motion for summary judgment.

The plaintiffs alleged various causes of action against the defendants, namely, fraud, misrepresentation, negligence, breach of contract and unfair trade practices under CUTPA, General Statutes § 42-110a et seq. “Where . . . distinct causes of action arise from the same wrong, each is controlled by the statute of limitations appropriate to it.” (Internal quotation marks omitted.) Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 530, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). We therefore consider the various causes of action with respect to the appropriate statute of limitations.

General Statutes § 52-577 provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” See also Krondes v. Norwalk Savings Society, 53 Conn. App. 102, 113, 728 A.2d 1103 (1999) (three year statute of limitations applicable to fraud, misrepresentation claims). General Statues § 52-584 provides in relevant part that “[n]o action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .” General Statutes § 42-1 lOg (f) provides that an action alleging unfair trade practices under CUTPA “may not be brought more than three years after the occurrence of a violation . . . .” Finally, General Statutes § 52-576 (a) provides in relevant part that “[n]o action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .”

As alleged in the complaint, the plaintiffs became aware of actionable harm in the summer of 1989. The complaint was not served on the defendants until July 15, 2002. Thus, it is evident that all of the applicable statutes of limitation had long since expired.

The plaintiffs argue that during the course of various litigation concerning the subject properties, including the foreclosure actions and a case brought in the United States District Court for the District Connecticut (federal case), the defendants had notice of those claims and, therefore, the primary purpose of the statute of limitations was satisfied. We do not agree.

“A statute of limitation or of repose is designed to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise.” (Internal quotation marks omitted.) DeLeo v. Nusbaum, 263 Conn. 588, 596, 821 A. 2d 744 (2003). Additionally, statutes of limitation promote the public policy of advancing the finality of litigation. See Rosario v. Hasak, 50 Conn. App. 632, 638, 718 A.2d 505 (1998). The fact that the defendants may have had notice did not render the statute of limitations inapplicable.

The plaintiffs also contend that the statute of limitations was tolled as a result of the federal case, which was filed on December 17, 1993. The federal case was brought pursuant to 18 U.S.C. § 1961 et seq., the Racketeer Influenced and Corrupt Organizations Act, against, among others, the bank. The plaintiffs included various pendent state law claims in the federal complaint. The federal case was dismissed at some point for lack of jurisdiction.

Our Supreme Court has stated that “the pendency of the . . . action in federal court [does] not operate to suspend the running of the time limit set out in § 52-577. The plaintiffs attempt to avoid this conclusion by arguing that any state action which was filed while the federal action was pending ‘would have been stayed.’ We need not speculate whether a state action filed after the federal action ‘would have been stayed.’ So long as the pendency of the prior action does not prevent enforcement of the remedy sought in the later action, the pendency of the first action will not toll the statute of limitations for the second action.” (Emphasis added.) Perzanowski v. New Britain, 183 Conn. 504, 506, 440 A.2d 763 (1981).

On the basis of Perzanowski, we conclude that the filing of the federal case did not toll the applicable statute of limitations relative to the state law claims.

Last, the plaintiffs argue that the defendants engaged in a continuing course of conduct by seeking deficiency judgments on the foreclosed properties. We are not persuaded.

“When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . .

“The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied. . . . For example, the doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . . .” (Citations omitted; internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 295-96, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).

The plaintiffs alleged that they knew of the defendants’ improper conduct in the summer of 1989 but did not file the present action until approximately thirteen years later. There is no evidence of a special relationship or a duty owed by the defendants to the plaintiffs after the summer of 1989. Additionally, the plaintiffs, in their complaint, pinpointed the date of the harm to the summer of 1989. Nothing in the record supports their claim of a continuing course of conduct that would toll the statute of limitations. The court’s decision, therefore, was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       At all relevant times, Olson was the president of the bank.

       The parties conceded at oral argument that the statute of limitations issue was dispositive of the appeal and we agree. Even if we assume arguendo that the court improperly disqualified the plaintiffs’ attorney, the claim still would be barred by the statute of limitations.

       The complaint stated in relevant part that “[d]uring the summer of 1989, the [plaintiffs discovered that title to their respective properties had been clouded as the result of [the bank’s] acts and omissions.”

       The plaintiffs have raised the relation back doctrine in their brief. That doctrine, however, is inapplicable, as the plaintiffs have not attempted to amend the original complaint they filed in this action, but instead attempted to relate the present complaint back to previous foreclosure and federal cases.

       The parties did not provide this court with an official or certified document from the federal court dismissing the federal case; instead, the parties stated at oral argument that the federal case had been dismissed.

       We point out that at oral argument the plaintiffs represented that the federal case had concluded either at the end of 1998 or in early 1999. Counsel for the defendants stated that the federal case was dismissed in 1996. Thus, it would appear that even if the federal action tolled that statute of limitations, all of the plaintiffs’ claims, with the exception of the breach of contract claim, would still be time barred by the three year statute of limitations.


author: PER CURIAM.

text:
    DANIEL TOLMAN v. KARLA JOY BANACH
    (AC 23642)
    (AC 23786)
    Lavery, C. J., and Bishop and McLachlan, Js.
    Argued January 15 —
    officially released March 30, 2004

      Karla Joy Banach, pro se, the appellant (defendant).
   Opinion

PER CURIAM.

This unhappy child custody litigation gives rise to two appeals. Docket number AC 23642 is the appeal by the defendant mother, Karla Joy Banach, from the trial court’s denial of her motion for visitation and its granting of her attorney’s motion to withdraw. Docket number AC 23786 is the defendant’s appeal from the denial of her motion to compel her former attorney to supply portions of her file in his possession. We affirm the judgments of the trial court.

I

AC 23642

By April, 2001, the plaintiff father, Daniel Tolman, had full custody of the parties’ minor child, and the defendant’s visitation rights had been suspended. The defendant unsuccessfully sought visitation, her most recent motion having been denied on September 11, 2002. Her attorney filed a motion to withdraw his appearance as her counsel, which the court granted on October 28, 2002.

On November 12, 2002, the defendant filed her first appeal, challenging both the denial of her motion for visitation and the granting of her attorney’s motion to withdraw. The appeal from the denial of her motion for visitation was untimely, having been filed more than two months after the challenged order was rendered. See Practice Book § 63-1. Moreover, the defendant has not separately briefed that claim. It therefore is deemed abandoned. See Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, 262 n.1, 425 A.2d 1289 (1979).

The defendant’s second claim is that the court improperly permitted her attorney to withdraw because the attorney allegedly had not complied with the provisions of General Statutes § 1-25 due to his failure to report to the court the alleged fraud of the plaintiff. That, she argues, violated her due process rights under the fourteenth amendment to the United States constitution. Decisions regarding the withdrawal of counsel are evaluated under an abuse of discretion standard. State v. Fernandez, 254 Conn. 637, 647, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001). Upon review of the record, we conclude that the court acted within its discretion when it granted her attorney’s motion to withdraw. The record indicates that the provisions of Practice Book § 3-10, which govern motions to withdraw, were followed. The defendant, thus, had notice and the opportunity to be heard. Her due process rights were not violated when the court granted the motion to withdraw.

II

AC 23786

In her second appeal, the defendant claims that the court improperly denied her motion seeking documents in the possession of her former attorney. The granting or denial of a motion to compel production rests in the sound discretion of the court. Babcock v. Bridgeport Hospital, 251 Conn. 790, 819-20, 742 A.2d 322 (1999).

The motion was argued before the court on December 23, 2002. At argument, the defendant conceded that the attorney had complied, in part, with her request and that the only documents that she was seeking were the attorney’s handwritten notes. In response, the attorney insisted that he was claiming neither work product privilege nor an attorney’s retaining lien. Rather, he explained that “the reason I’m not turning over my handwritten notes [is] a matter of principle. Those are mine. They are not hers.” The attorney indicated that he had provided the defendant with “two inches worth of paper” and had informed her that “there is a box of materials [in] my office. All she has to do is pick them up.” Because his handwritten notes were not part of her file, he refused to surrender them.

The court, having both reviewed the defendant’s motion to compel and heard oral argument on the issue, denied the motion. The defendant has not sought an articulation of that judgment, as provided by Practice Book § 66-5. On the limited record before us, we cannot conclude that the court abused its discretion in denying the defendant’s motion to compel.

The judgments are affirmed.

       General Statutes § 1-25 provides in relevant part: “You solemnly swear or solemnly and sincerely affirm, as the case may be, that you will do nothing dishonest, and will not knowingly allow anything dishonest to be done in court, and that you will inform the court of any dishonesty of which you have knowledge; that you will not knowingly maintain or assist in maintaining any cause of action that is false or unlawful; that you will not obstruct any cause of action for personal gain or malice; but that you will exercise the office of attorney, in any court in which you may practice, according to the best of your learning and judgment, faithfully, to both your client and the court; so help you God or upon penalty of perjury.”

       The motion to compel is primarily a tool of discovery. See Practice Book § 13-14. We note, however, the governing principle of Practice Book § 1-8, which provides that “[t]he design of these rules being to facilitate business and advance justice, they will be inteipreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” The Superior Courtpossesses inherent authority to regulate attorney conduct. Burton v. Mottolese, 267 Conn. 1, 25, 835 A.2d 998 (2003). Moreover, at oral argument, the attorney agreed to “comply with whatever the court rules.”

       Practice Book § 13-3 (a), which governs our work product privilege, provides in relevant part that “a party may obtain discovery of documents . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative . . . (Emphasis added.) That provision does not encompass materials prepared on behalf of one’s own client.

       We note that a self-executing attorney’s retaining lien “cannot be utilized ... if the attorney has withdrawn voluntarily . . . .” Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 645-46, 529 A.2d 702 (1987).


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. KEVIN MOORE
    (AC 24197)
    Foti, West and DiPentima, Js.
    Argued February 9 —
    officially released March 30, 2004

      Kent Drager, senior 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 Michael A. Pepper, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Kevin Moore, appeals from the judgment of conviction, rendered after a trial to a three judge court, of murder in violation of General Statutes § 53a-54a (a). The defendant claims that the evidence was insufficient to sustain his conviction of murder. We affirm the judgment of the court.

In rendering its decision, the court observed that the defendant did not contest the fact that he had caused the death of the victim, Margaret Woods, by stabbing her with a knife. The court further observed that the issue before it was whether the state had proven that the defendant acted with the requisite mental state, that is, whether the state had proven beyond a reasonable doubt that he intended to cause the victim’s death. The court then recited the following findings of fact:

“The victim lived ... in New Haven with her mother, sister and two children. In February, 1999, the defendant moved his personal effects into that apartment and commenced living there with the victim and continued to do so until December 11, 1999. During that period of time, their relationship was marked with verbal and physical confrontations.

“In the early morning hours of December 11, 1999, the defendant returned home intoxicated and was confronted by the victim, who told him to gather his belongings and to leave the apartment. After the argument, the defendant slept on the living room floor, and the victim returned to her bedroom. The confrontation resumed when they awoke later that morning, and he packed his belongings, but left the apartment without them.

“At approximately 10 p.m., he, the defendant, returned to the apartment, having been driven there by his cousin, Idelier Pettigrew. The victim let the defendant into the apartment, and they resumed arguing with each other when the victim accused him of having another woman drive him to the apartment. The defendant began to put his personal effects in the car, and the argument continued. Upon reentry, the argument escalated into a physical confrontation with each of them holding onto each other.

“During this confrontation, the victim’s mother, upon hearing the argument, left the back bedroom and entered the living area where she tried physically to separate the victim and the defendant. The defendant was attacking the victim by hitting her and pulling at her hair and clothes. The victim’s mother tried to separate them without success. The defendant and victim were standing, and the defendant was holding the victim’s shirt in the area of the neck. The defendant knelt on one knee while pulling the victim toward him by the grip that he had on her shirt. At this time, the defendant held in his other hand a knife, and as he continued to pull the victim toward him, he thrust upward with that knife, stabbing the victim in the middle of the chest. The blade of the knife went through the breast plate, puncturing the victim’s heart and causing her death. The wound was three inches deep; it was a vertical stab wound requiring the use of force. The defendant withdrew the knife from the wound without rendering aid and left the apartment with the knife.

“The defendant subsequently fled to Florida where he remained until he was extradited in August of the year 2000.” Additional facts will be set forth as necessary to resolve the defendant’s claim.

The defendant argues that the evidence at trial was insufficient to sustain his conviction of murder. Specifically, he claims that the state failed to prove beyond a reasonable doubt that he caused the death of the victim, which he had admitted, with the specific intent to kill her.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 377-78, 796 A.2d 1191 (2002).

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged [offense], each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . [I]n determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . [A]n inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.” (Citation omitted; internal quotation marks omitted.) State v. Glasper, 81 Conn. App. 367, 371, 840 A.2d 48 (2004).

“Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct. ” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Smith, 35 Conn. App. 51, 63-64, 644 A.2d 923 (1994).

The evidence presented at trial established beyond a reasonable doubt the defendant’s intent to kill the victim. On two prior occasions, the defendant had threatened the victim, once with a knife, cutting her on the arm, and once with scissors. His relationship with the victim was volatile. On the morning of the incident, the victim ordered the defendant to leave her apartment. That same morning, the defendant took a steak knife from the kitchen but did not return it. When he returned to the apartment that evening, the defendant assaulted the victim during a physical dispute.

The evidence further demonstrated that during that dispute, the defendant knelt down on one knee while pulling the victim downward. The defendant removed the steak knife from his back pocket, pulled the victim closer toward him and thrust the knife into her chest. The defendant thrust the knife into the victim’s chest with such force that he penetrated her breast plate and punctured her heart. The defendant then put the knife back into his pocket, left the apartment and fled to Florida where he remained for six months.

On the basis of that evidence, the fact finder was justified in not giving credence to the defendant’s claims that he intended only to poke the victim’s shirt with the knife and that he did not intend to kill her. The evidence presented was sufficient to support the court’s finding beyond a reasonable doubt that the defendant had intended to kill the victim. As our Supreme Court has reasoned “[o]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996). Here, the defendant, with asubstan-tiai degree of force, thrust the knife into the victim’s heart after having pulled the victim toward him. It was not unreasonable for the court to infer that the defendant possessed the intent to kill the victim.

The judgment is affirmed.

In this opinion the other judges concurred.

       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 . . . .”

       The defendant concedes that the evidence was sufficient for a conviction of the lesser offense of manslaughter and asks that we reverse the judgment and remand the matter to the trial court with direction to substitute that charge and to sentence him accordingly.


author: DiPENTIMA, J.

text:
    MIROSLAW PUCHALSKI v. MAGNUS A. MATHURA ET AL.
    (AC 23757)
    Foti, Flynn and DiPentima, Js.

      Argued January 8 —
    officially released March 30, 2004

      JuriE. Taalman, with whom, on the brief, was Timothy Brignole, for the appellant (plaintiff).

      Jack G. Steigelfest, with whom, on the brief, was Constance L. Epstein, for the appellees (defendants).
   Opinion

DiPENTIMA, J.

The plaintiff, Miroslaw Puchalski, appeals from the judgment of the trial court in favor of the defendants, Magnus A. Mathura and Kamini D. Headley, rendered after a jury trial in this personal injury action. On appeal, the plaintiff claims that the court improperly (1) refused to admit into evidence as a full exhibit a police diagram contained in a police accident report and (2) refused to admit the diagram of the accident scene when any questions of hearsay were dependent on the testimony of the investigating officer who drew the diagram, but who knowingly and possibly wilfully failed to appear for trial in response to a lawful subpoena duces tecum that had been issued by the plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. On February 4, 2000, the plaintiff was injured when his vehicle collided with a vehicle owned by Headley and driven by Mathura. The plaintiff brought an action against the defendants alleging negligence.

The plaintiff issued a subpoena duces tecum to the Hartford police department requiring Officer Brendan O’Brien to appear at the trial of this matter on December 3, 2002, and to bring with him all records pertaining to his investigation of the accident. O’Brien failed to appear. Lieutenant Jose Lopez of the Hartford police department appeared in place of O’Brien and brought O’Brien’s original police report, which included a diagram of the accident, a certified copy of the police report and a letter from the chief of police.

The plaintiff introduced a partially redacted copy of the police report as an exhibit. The defendants objected to inclusion of a statement of the plaintiff that had been taken at the accident scene on the ground of hearsay. The plaintiff argued that the statement should be admitted under the public records and reports exception to the hearsay rule pursuant to § 8-3 (7) of the Connecticut Code of Evidence and that it constituted a business record pursuant to § 8-4 of the Connecticut Code of Evidence. The court excluded the statement. That ruling is not at issue on appeal.

The defendants further objected to the inclusion of the diagram of the accident scene that had been prepared by O’Brien, claiming that the diagram constituted hearsay in that it purported to show the area of impact on the basis of O’Brien’s observations after the vehicles had been moved. The defendants argued that it was inadmissible because there was no indication of the specific information, such as debris, measurements or witness statements, that O’Brien used in determining the point of impact. After hearing the testimony of Lopez regarding the admissibility of the diagram and considering authorities cited by counsel, the court ruled that the diagram should be redacted from the exhibit. The juiy ultimately returned a verdict for the defendants, and this appeal followed.

I

The plaintiff first claims that the court improperly excluded the diagram in the police accident report despite the fact that he had laid a sufficient foundation for the evidence to be admitted. Specifically, the plaintiff argues that a diagram of an accident scene made by an investigating police officer is admissible when the diagram is based on physical evidence at the scene and the officer’s notes and observations.

“The standard to be used to review a trial court’s decision on the relevance and admissibility of evidence is abuse of discretion. ... It is a well established principle of law that the trial court has wide discretion to determine the relevance of evidence and that the court’s rulings will not be disturbed on appellate review absent abuse of that discretion.” (Citation omitted; internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 469, 760 A.2d 117 (2000), aff'd, 257 Conn. 359, 777 A.2d 681 (2001). “Even when a trial court’s evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. ... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful.” (Citation omitted; internal quotation marks omitted.) Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 530, 832 A.2d 1180 (2003). Harmful error occurs in a civil action when the ruling “would likely affect the result.” (Internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 327, 736 A.2d 889 (1999). It is the plaintiffs burden to show harmful error.

The plaintiff asserts that the diagram prepared by O’Brien was relevant and material to the plaintiffs case in that it showed the physical evidence found at the scene and the observations made by a police officer charged with the duty of investigating the accident. “[T]he appellant bears the burden of providing an appellate court with an adequate record for review.” (Internal quotation marks omitted.) Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 183, 819 A.2d 765 (2003); see also Practice Book § 63-8 (a). In support of his claim, the plaintiff has provided a partial transcript of the proceedings directly related to the offer of the police report and the court’s ruling regarding the exclusion of the diagram. We do not know what was before the jury as to how the collision occurred. There is nothing in the record that provides this court with information regarding the potential cumulative effect of other evidence presented to the corurt. Thus, even if the exclusion of the police diagram was improper, we are unable to determine whether such exclusion would likely have affected the jury’s determination. See Taylor v. American Thread Co., 200 Conn. 108, 111-12, 509 A.2d 512 (1986) (lack of appropriate transcripts precludes finding of error); DeMilo v. West Haven, 189 Conn. 671, 680-81, 458 A.2d 362 (1983) (lack of transcript of certain testimony precludes review of claim that trial court improperly failed to set aside verdict). Due to the inadequate record, therefore, we decline to review the claim.

II

The plaintiff also claims that the court improperly refused to admit the police diagram of the accident scene when any questions of hearsay were dependent on the testimony of the investigating officer who drew the diagram, but who knowingly and possibly wilfully failed to appear for trial in response to a lawful subpoena duces tecum that had been issued by the plaintiff. Despite the serious nature of the claim against a police officer, the plaintiff has failed to provide an adequate record to address the claim. There is nothing in the record to allow us to conclude that the court should have found that the officer knowingly and wil-fully failed to appear. Moreover, the record fails to show that the plaintiff made any effort beyond the subpoena to secure the officer’s presence. Further, he apparently sought no continuance. For the aforementioned reasons, we decline to review the claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Lopez testified that O’Brien was injured and on leave at the time the subpoena was issued. Lopez further testified that he had advised O’Brien of the subpoena and trial. Lopez stated that the department would conduct an investigation into the facts regarding O’Brien’s failure to appear.

       That issue presumably was raised in light of Annecharico v. Patterson, 44 Conn. App. 271, 278, 688 A.2d 1341 (1997) (police report admissible as business record when opinion as to point of impact made on basis of officer’s observations). We recognize that we need not address the issue in light of our disposition of the first issue. We note, however, that when a document may be admitted on the basis of the business record exception to the hearsay rule, it does not follow that everything in the record is required to be admitted into evidence. See State v. Kirsch, 263 Conn. 390, 401, 820 A.2d 236 (2003) (“[i]f admission of the record in part, or as a whole, would violate some other rule of evidence, the objectionable portion may not be admitted”).