text:
    STATE OF CONNECTICUT v. MARK DANIELS
    (AC 23053)
    Flynn, Bishop and McLachlan, Js.

      Argued April 1
    officially released June 1, 2004

      James B. Streeto, assistant 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 Thomas R. Garcia, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Mark Daniels, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims on appeal that the court (1) abused its discretion in refusing to admit into evidence the victim’s statements to the defendant’s father because no foundation had been laid confronting the victim with the statement with which the defendant sought to impeach the victim, (2) abused its discretion in allowing the state to present rebuttal evidence as to the mistake of the defendant’s father about the defendant’s date of the arrest, a collateral matter, (3) permitted prosecutorial misconduct in the course of the trial and closing argument, (4) improperly denied his motion for a judgment of acquittal on the basis of insufficiency of the evidence because there was no evidence establishing that the defendant took the victim’s wallet and (5) improperly instructed the jury on the state’s burden of proof beyond a reasonable doubt. We affirm the judgment of the trial court.

The record discloses that the jury reasonably could have found the following facts. The victim, Ronald Pusey, lived in an apartment located on Albany Avenue in Hartford. On December 9, 2000, he spent time shopping and drinking with a former companion, Tiandra Johnson. The victim gave Johnson keys to his apartment so that she could use the bathroom while he went to the grocery store. When he returned to his building, he encountered Johnson talking with his stepdaughter and the building superintendent. Johnson and the victim then went into the apartment after which Johnson again borrowed the apartment key and some money from the victim and left to go to the grocery store. When Johnson returned to the apartment, she went into the room of a female boarder named Daphne, who was not at home, but who normally kept her door locked. Johnson then went into the bathroom. While the victim was in his kitchen, Johnson entered the kitchen accompanied by a tall man with a black cloth that concealed his face. He held a gun over Johnson’s shoulder and demanded money from the victim. Johnson did not come to the victim’s aid, but left the apartment after the victim requested that she get his superintendent for help. The victim lunged at the masked man, and the two men struggled and fell to the floor where the victim tore the screen off the intruder’s face. The victim recognized the unmasked man as the defendant. The defendant struck the victim multiple times with the butt of the gun, including a strike across his face. During the struggle, the gun discharged. The victim lost consciousness momentarily. When he awoke, he noticed that he was alone in the apartment and that his wallet, which contained approximately $600, was gone. Because he thought when he regained consciousness that both telephone lines were dead, he ran to a nearby grocery store and asked a person there to call the police. He returned to his apartment where he found Johnson talking on the telephone.

When the police came to the victim’s apartment, he accused Johnson of assisting in the robbery by “setting him up” and named the defendant as his assailant. He was taken to a hospital by ambulance where he suffered a seizure and again lost consciousness, but not before he told an emergency medical technician that he had been assaulted by either his niece’s boyfriend or his stepdaughter’s boyfriend. After being hospitalized, the victim was shown an array of photographs by the police, and he identified the photograph of the defendant as the person who had assaulted him. The victim also told the police that they should arrest Johnson, whereupon he was told that the police did not have sufficient evidence to do so.

I

We first address the defendant’s claim that the court abused its discretion in refusing to admit into evidence a telephonic statement made out of court by the victim to the defendant’s father in which the victim indicated that he was “at best indefinite” that the defendant was the person who had assaulted and robbed him. The defendant properly preserved this issue for appeal by making an offer of proof after the state objected to defense counsel's attempt to elicit this information from the defendant’s father during his direct examination. The defendant claimed the evidence was admissible as a prior inconsistent statement of the victim. The state objected on the ground that no foundation had been laid because there was no direct testimony about it, and the victim had not been asked about this statement when defense counsel cross-examined him. The court sustained the objection because of a lack of foundation. The court acknowledged that § 6-10 (c) of the Connecticut Code of Evidence granted it discretion to admit the testimony, but stated that it would follow standard practice and decline to admit the evidence.

“We review evidentiary claims pursuant to an abuse of discretion standard. Generally, [t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion.” (Internal quotation marks omitted.) Stanley v. Lincoln, 75 Conn. App. 781, 785, 818 A.2d 783 (2003).

There is nothing in the record before us to indicate that the victim ever admitted making the statement. We therefore believe that the second sentence of § 6-10 (c) of the Connecticut Code of Evidence applies. It provides: “If a prior inconsistent statement made by a witness is not shown to or if the contents of the statement are not disclosed to the witness at the time the witness testifies, extrinsic evidence of the statement is inadmissible, except in the discretion of the court.” Extrinsic evidence comes from someone other than the person whose statement is being challenged by the evidence. “Proof that a witness has made a prior inconsistent statement, by extrinsic evidence ... is not generally permissible unless the witness has first been asked about the statement . . . .” C. Tait, Connecticut Evidence (3d Ed. 2001) § 6.35.5, p. 486. In State v. Saia, 172 Conn. 37, 46, 372 A.2d 144 (1976), our Supreme Court held that we have no inflexible rule regarding the necessity of calling the attention of a witness to his prior inconsistent statement before offering extrinsic evidence about it. Rather, “[t]he trial court is vested with a liberal discretion as to how the inquiry should be conducted in any given case.” Id.

The defendant has not provided us with a record indicating why the victim was not asked whether he had a conversation with the defendant’s father and whether he had indicated to the father that he “was at best indefinite” about who had assaulted and robbed him. The defendant argues that the fact of whether a robbery had occurred was not really at issue in the trial, but only whether the defendant and not some other person was the perpetrator. Although that appears to be true, it does not explain why the defendant did not cross-examine the victim about the identity of the defendant. If the victim had admitted to the conversation on direct examination, it would have been unnecessary to introduce extrinsic evidence on the issue through the defendant’s father. See Conn. Code Evid. § 6-10 (c). “It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made out of court or in other proceedings which contradict those made upon direct examination. . . . This is based on the notion that talking one way on the [witness] stand, and another way previously, raises a doubt as to the truthfulness of both statements. . . . The impeachment of a witness by extrinsic evidence is somewhat limited. Not only must the inconsistent statements be relevant and of such a kind as would affect the credibility of the witness . . . but generally a foundation should be laid at the time of cross-examination.” (Citations omitted.) State v. Saia, supra, 172 Conn. 45-46. Under the circumstances of this case, the court’s ruling was well within its discretion.

Furthermore, the defendant has not shown how he was harmed. It is axiomatic that “in the review of evidential rulings ... an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (Internal quotation marks omitted.) State v. Tinsley, 59 Conn. App. 4, 10, 755 A.2d 368, cert. denied, 254 Conn. 938, 761 A.2d 765 (2000). At trial, impeachment evidence was admitted from an emergency attendant who testified that the victim had said that either his niece’s boyfriend or his stepdaughter’s boyfriend had assaulted him but had not accused the defendant. The victim also was impeached on the basis of his prior felony convictions, his poor eyesight and inability to see well because of darkness in his apartment and about his mistaken notion that the telephone lines had been cut in his apartment. The jury therefore was presented with significant impeachment evidence that attacked the victim’s credibility.

The defendant also claims that the evidentiary ruling made by the court deprived him of the right to present a defense. He did not raise this issue before the trial court and requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s right to present a defense is governed by the rules of evidence, as long as the rules are not applied “mechanistically to deprive the defendant of his rights.” (Internal quotation marks omitted.) State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988). We reject the defendant’s attempt to obtain Golding review of this essentially evidentiary issue. See State v. Feliciano, 74 Conn. App. 391, 403-404, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d 110 (2003). The defendant was not prohibited from offering a defense. Rather, the defendant’s evidence was not admitted pursuant to the court’s discretion under the rules of evidence. State v. Jenkins, 56 Conn. App. 450, 455, 743 A.2d 660, cert. denied, 252 Conn. 947, 747 A.2d 523 (2000).

In sum, we conclude that the court properly exercised its discretion in excluding extrinsic impeachment evidence from the defendant’s father for which there had been no evidentiary foundation.

II

We next turn to the defendant’s evidentiary claim that the court improperly permitted evidence regarding his father’s mistake about the defendant’s date of arrest, which he maintains is a collateral matter. The defendant properly preserved the issue for our review by making a timely objection. We review the court’s admission of this evidence to determine whether it constituted a clear abuse of discretion. See State v. Ferraiuolo, 80 Conn. App. 521, 534, 835 A.2d 1041 (2003), cert. denied, 267 Conn. 916, 841 A.2d 220 (2004).

The following additional facts pertain to this claim. The defendant offered alibi evidence in the form of testimony from his father. His father testified to the jury that the defendant was home with him the entire day of December 9, 2000, when the victim was robbed. The defendant’s father was able to recall this date by relating it to another event he could remember, namely, the Saturday on which his wife had gone to her mother’s funeral, which was held out of state. On cross-examination, he testified that he thought the defendant’s day of arrest was December 15 or December 16, 2000, but that he was not certain of that date. The state called Detective Michael Sheldon as a rebuttal witness after the father had completed his testimony. Sheldon’s testimony established that the date of the defendant’s arrest was not December 15 or December 16, 2000, but was December 30,2000. The defendant claims that the court abused its discretion in permitting rebuttal testimony about the date of arrest because that was collateral to the issue being tried, namely, whether the defendant had burglarized the home of the victim on December 9, 2000, and then robbed him after first assaulting him.

“A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case.” (Internal quotation marks omitted.) State v. Wright, 62 Conn. App. 743, 757-58, 774 A.2d 1015, cert. denied, 256 Conn. 919, 774 A.2d 142 (2001). “The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination, generally rests within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Smith, 49 Conn. App. 252, 258, 714 A.2d 1243, cert. denied, 247 Conn. 914, 722 A.2d 809 (1998).

The jury was required to determine what amount of credibility to give to the victim’s testimony identifying the defendant as his attacker who was in his apartment and demanded his money at gunpoint. The jury also had to determine what amount of credibility to give to the defendant’s father. If the father’s testimony was to be believed, then the defendant was somewhere other than the crime scene at the time the crime was alleged to have been committed and could not have been the person who committed the crimes against the victim. Our Supreme Court has stated that “[a] primary consideration in the evaluation of the testimony of any alibi witness is his ability to recall accurately the events of the relevant time period.” State v. Villafane, 171 Conn. 644, 672, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The court was well within its discretion to permit the state to offer Sheldon’s testimony because it bore on the ability of the defendant’s father to recall dates and relate them back to the jury truly and accurately. That credibility issue was central to the case. We therefore conclude that this claim is without merit.

Ill

We next turn to the defendant’s claims that the state engaged in prosecutorial misconduct both during the trial and during closing argument. This claim was not raised before the trial court, and the defendant again requests Golding review. Although the record is adequate for review and the claim is of constitutional magnitude, the defendant has failed to show a clear violation of a constitutional right.

A primary inquiry in any claim of prosecutorial misconduct is to determine whether the conduct was in fact improper. State v. Ceballos, 266 Conn. 364, 375, 832 A.2d 14 (2003); State v. Singh, 259 Conn. 693, 702, 793 A.2d 226 (2002). Essentially, the defendant argues that cross-examining his father about the date of the arrest, followed by the rebuttal testimony of Detective Sheldon, amounted to misconduct occurring during the trial and that the prosecutor’s arguments to the jury that the father had difficulty in remembering dates was also improper. The defendant claims that by inquiring into and commenting on what he terms a “collateral matter,” the prosecutor permitted the jury to conclude possibly that the father merely was mistaken in testifying that his son was home with him all day on December 9, 2000, rather than permitting the jury to conclude potentially that the father was lying, thus creating a convenient “out” for the jury. We have already concluded that the court was well within its discretion to determine that the father’s ability to recall dates was not a collateral issue. The credibility and ability of both the victim and the defendant’s father to recall events and relate them back truly and accurately to the jury were at issue in the case. The prosecution has the right to comment on facts in evidence and inferences that the jury might draw from them. See State v. Harris, 48 Conn. App. 717, 720, 711 A.2d 769, cert. denied, 245 Conn. 922, 717 A.2d 238 (1998).

We conclude that the defendant has not made the threshold showing of impropriety by the prosecutor to warrant a further examination into whether the defendant was deprived of a fair trial. Accordingly, we reject this claim.

IV

The defendant next argues that the evidence was insufficient to sustain his conviction of robbery in the first degree. Specifically, the defendant contends that the state was required to prove that he committed larceny, which is an essential element of the crime of robbery, and that because the victim did not witness the defendant actually take his wallet, there was insufficient evidence to prove that he was the one who had stolen it.

Although the defendant moved for a judgment of acquittal at the close of the evidence on the ground that there was insufficient evidence to establish his guilt, his motion was predicated on the issue of identity and not specifically on the lack of evidence that he had stolen the wallet, which he now raises and for which he seeks review under State v. Golding, supra, 213 Conn. 239-40. Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right and therefore would necessarily satisfy the requirements for Golding review. State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993). Accordingly, no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, therefore, we review the challenge as we do any properly preserved claim. See State v. Gentile, 75 Conn. App. 839, 861, 818 A.2d 88, cert. denied, 263 Conn. 926, 823 A.2d 1218 (2003).

We apply the following standard of review to this claim. “While the jury must find every element 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. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Nicholson, 71 Conn. App. 585, 590, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. . . . When conflicting explanations are presented, the trier is entitled to reject, as less credible, testimony and inferences offered on behalf of the defendant.” (Citation omitted; internal quotation marks omitted.) State v. Adams, supra, 225 Conn. 281. In reviewing such a claim, we apply a two part test. First, we view the evidence in the light most favorable to sustaining the verdict. State v. Wortham, 80 Conn. App. 635, 640, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004). Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt of the crimes charged beyond a reasonable doubt. Id.

The long form information charged the defendant with having committed robbery in the first degree in violation of § 53a-134 (a) (3) and alleged that “the defendant, in the course of committing a larceny, used and threatened the use of immediate physical force upon another person for the purpose of preventing and overcoming resistance to the taking of property and, in the course of committing the crime of robbery, used or threatened the use of a dangerous instrument.” Larceny, a lesser included offense of robbery, is defined in relevant part by General Statutes § 53a-119 as: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner . . . .”

The defendant claims that because Johnson was also present and had access to the victim’s apartment, it was possible that she was the one who had stolen the victim’s wallet, rather than he. We disagree. From the facts presented at trial and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative effect of the evidence established beyond a reasonable doubt that the defendant wrongfully took the victim’s wallet with the intent to deprive him of its possession. Specifically, the jury was presented with evidence that the defendant pointed a gun at the victim over Johnson’s shoulder and demanded his money. During a struggle between the defendant and the victim, the defendant struck the victim in the face with the butt of the gun while Johnson left the apartment. As the melee continued, the gun discharged and the victim lost consciousness. When the victim awoke minutes later, he was alone in the apartment, and his wallet, which had been in his pocket, was missing.

Although the victim did not see the defendant actually take his wallet, the jury could have inferred from the facts presented at trial, viewed in a light most favorable to sustaining the verdict, that the defendant was the person who took the victim’s wallet. Such an inference is supported by evidence indicating that it was the defendant, not Johnson, who pointed a gun at the victim and demanded his money, subsequently assaulted him by striking him in the face with the gun and ultimately knocked him unconscious. This inference also is supported by the evidence that Johnson had not threatened the victim and was not present in the apartment when the victim lost consciousness or at the time he awoke.

On the basis of the foregoing, we conclude that it was reasonable for the jury to find that the cumulative force of the evidence established guilt beyond a reasonable doubt. See State v. Wortham, supra, 80 Conn. App. 640.

V

Finally, the defendant seeks Golding review of his unpreserved claims regarding the court’s instructions to the jury as to reasonable doubt. The defendant claims that the court improperly instructed the jury that (1) a reasonable doubt is “a real doubt, an honest doubt,” (2) a reasonable doubt “is not a doubt suggested by counsel, which is not warranted by the evidence,” (3) a reasonable doubt is “a doubt that has its foundation in the evidence or lack of evidence” and (4) a reasonable doubt is the kind of doubt upon which reasonable persons would “hesitate to act upon in matters of importance.” We review the claims because the record is adequate for our review and the claims are of constitutional magnitude, but we reject the claims because the defendant has not shown that a constitutional violation clearly exists that clearly deprived him of a fair trial. See State v. Golding, supra, 213 Conn. 239-40.

We recently have reviewed similar claims as to instructional language about real doubt, honest doubt, doubts not warranted by the evidence, doubts not having their foundation in the evidence or lack of evidence and language defining reasonable doubt in terms of a kind of doubt upon which reasonable persons would hesitate to act in matters of importance. See State v. Jones, 82 Conn. App. 81, 88-91, 841 A.2d 1224 (2004). Little purpose would be served by again plowing that same furrow. We reject these claims for the same reasons we cited in Jones.

Regarding the defendant’s claim that the court improperly instructed the jury that a reasonable doubt is not “a doubt suggested by counsel, which is not warranted by the evidence,” a matter that was not addressed by Jones, we conclude that any possible impropriety is insufficient to require a new trial.

“[I]n State v. Delvalle, [250 Conn. 466, 475, 736 A.2d 125 (1999)], our Supreme Court rejected the claim that the use of ingenuity of counsel language was violative of a defendant’s constitutional right to counsel and to a fair trial or that it was plain error. The Delvalle court reasoned that the Supreme Court has repeatedly upheld similar language on the ground that [it] did not, when properly considered in the broader context of the trial court’s instructions in their entirety, [dilute] the state’s burden of proof or otherwise [mislead] the juiy in any way. . . .

“Although the court in Delvalle rejected the constitutional challenge to the ingenuity of counsel instruction, the court stated that [t]o avoid any possibility of juror confusion arising from the use of the phrase, we invoke our supervisoiy authority over the administration of justice to direct our trial courts to refrain from using the ingenuity of counsel language in the future.” (Internal quotation marks omitted.) State v. Nims, 70 Conn. App. 378, 384-85, 797 A.2d 1174, cert. denied, 261 Conn. 920, 806 A.2d 1056 (2002).

In the present case, the court did not refer to “ingenuity” of counsel in its charge, but the language used was sufficiently similar in meaning to render it potentially violative of our Supreme Court’s directive in Delvalle. In determining whether the use of this language necessitates a new trial, we must ascertain whether the jury was misled. “[I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Citation omitted; internal quotation marks omitted.) State v. Betances, 265 Conn. 493, 510, 828 A.2d 1248 (2003).

In Delvalle, our Supreme Court held that “ingenuity of counsel” language in charges on reasonable doubt is improper, but determined that the charge in that case did not warrant a new trial under the circumstances because “[t]he phrase ‘not warranted by the evidence’ qualifies the ‘ingenuity of counsel’ language, and renders even more remote any possibility that the jury was misled by the latter phrase.” State v. Delvalle, supra, 250 Conn. 475; see also State v. Betances, supra, 265 Conn. 510-11. The court’s instruction in the present case contained the qualifying phrase, “not warranted by the evidence.” We conclude that because the improper phrase was not used in isolation, but rather was qualified, it is not reasonably possible that the jury was misled. See State v. Betances, supra, 511.

The defendant has not satisfied Golding’s third prong because he has not demonstrated that a constitutional violation clearly exists. “Although the court should have avoided the language in question, we conclude that the instructions did not affect the fairness or integrity of the proceedings, nor did they result in a manifest injustice to the defendant.” State v. O’Neil, 67 Conn. App. 827, 837, 789 A.2d 531 (2002).

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PAUL FRANCIS
    (AC 21647)
    SchaHer, Flynn and DiPentima, Js.

      Argued March 25
    officially released June 1, 2004

      Michael O. Sheehan, special public defender, with whom, on the brief, were Richard A. Reeve and Sarita I. Ordonez, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Russell C. Zentner, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Paul Francis, was convicted, following a jury trial, of murder in violation of General Statutes § 53a-54a (a), felony murder in violation of General Statutes § 53a-54c, burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), burglary in the second degree in violation of General Statutes § 53a-102 (a), arson in the first degree in violation of General Statutes § 53a-lll (a) (1), larceny in the third degree in violation of General Statutes § 53a-124 (a) (1) and criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (1). We reversed the judgment of conviction and remanded the case for a new trial, concluding that the trial court had abused its discretion by not disclosing the psychiatric records of one of the state’s key witnesses and that such error was not harmless beyond a reasonable doubt. State v. Francis, 70 Conn. App. 571, 579, 800 A.2d 574 (2002), rev’d, 267 Conn. 162, 836 A.2d 1191 (2003). Thereafter, our Supreme Court granted the state’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that the trial court improperly determined that certain requested psychiatric assessment records did not contain any information that required disclosure to the defense?” State v. Francis, 261 Conn. 925, 806 A.2d 1062 (2002). Our Supreme Court reversed this court’s judgment because, “although the trial court abused its discretion in denying the defendant access to the requested records, any error was harmless.” State v. Francis, 267 Conn. 162, 166, 836 A.2d 1191 (2003). The case was remanded to this court with the “direction to consider the defendant’s remaining claims on appeal.” Id., 188. The defendant’s remaining claims on appeal are that (1) the state’s reference to his invocation of his right to remain silent and his request for an attorney violated his constitutional rights pursuant to Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), and (2) the trial court’s charge to the jury on circumstantial evidence improperly lowered the state’s burden of proof on the element of intent. We disagree.

The relevant facts can be found in State v. Francis, supra, 267 Conn. 166-70. We now restate the facts relevant to the defendant’s two remaining claims. “[I]n the summer of 1995, [the defendant] began to socialize with Thomas Uhlman and his brother, Glen Uhlman, with whom the defendant previously had been acquainted. Thomas Uhlman testified that, in July or August of 1995, while he was fishing with the defendant, the defendant vowed that he would never return to prison, and that if he committed a future crime he would destroy the scene by fire so as to obliterate any incriminating evidence.

“The Uhlman brothers shared an apartment on Spring Street, in Portland, in an old three-story building containing four apartments. The Uhlman brothers occupied the first floor front apartment. Their mother, Ruth Mary Uhlman, who was the victim, occupied the first floor rear apartment. Jeffrey Harmon occupied the second floor apartment, and Linda Wierenga occupied the third floor apartment.

“During the fall and winter of 1995, the defendant, who was largely transient and often camped in the woods, stayed with friends or relatives, or lived in abandoned buildings, began to frequent the Uhlman brothers’ apartment. Thomas Uhlman became uneasy about the defendant’s frequent presence at the apartment and prohibited him from spending nights there. . . .

“On December 18, 1995, according to the testimony of both Thomas Uhlman and Glen Uhlman, the defendant and the Uhlmans quarreled over the defendant’s insistence that he be allowed to remain in the apartment, despite the Uhlmans’ demand that he leave. In the course of ejecting the defendant, Thomas Uhlman and the defendant scuffled on the porch. Ten minutes later, the defendant telephoned Thomas Uhlman and informed him that he had thrown a bucket filled with sand through the windshield of Thomas Uhlman’s car. Thomas Uhlman called the police and, while he was inspecting his car, the defendant returned and they had a violent encounter in the driveway. . . . The defendant then left. . . .

“The next day, the defendant called Glen Uhlman, complained about having been struck by Thomas Uhlman, and, according to Glen Uhlman’s testimony, the defendant stated, ‘I don’t care if he’s your brother or not. Tom is all done.’ . . .

“On January 1, 1996 . . . Thomas Uhlman .... fell asleep in his apartment at approximately 11:30 p.m. Harmon and his guest, Maria Thibodeau, fell asleep in his second floor apartment at approximately 2 a.m. Wierenga had fallen asleep at approximately 10:30 p.m. in her third floor apartment.

“At approximately 4:20 a.m., on January 2,1996, Mary Lou Raicik, a next-door neighbor, was awakened by the sounds of a noisy car backing out of the driveway of the Uhlmans’ house and speeding away. In addition, Wierenga testified that she was awakened by the sound of a car door slamming, and that she heard a car drive out of the driveway. She looked out of the window and saw that Thomas Uhlman’s car was parked in the driveway. Moments later, she smelled smoke, saw smoke pouring out of the victim’s apartment, called 911, and left her apartment. She then went downstairs and pounded on Thomas Uhlman’s door, yelling, ‘Fire! Fire! Get out!’ . . .

“Upon hearing Wierenga’s warning, Thomas Uhlman jumped out of bed, ran to the victim’s apartment, pushed the door open and saw that the apartment was already engulfed in flames. He ran back to his apartment, grabbed his dog, ran into the yard, and gave the dog to Wierenga. He then ran around to the side of the victim’s apartment, where he tried unsuccessfully to gain entrance through the outer doors and windows. Thereafter, he returned to the front yard. After the arrival of the firefighters and the police, both Thomas Uhlman and Wierenga noticed that the victim’s car was missing.

“The ensuing investigation disclosed that the victim’s hands and feet had been bound, and that she had died of traumatic asphyxia, most likely by manual suffocation by means of some object having been pressed into her face. A combustible liquid had been poured in two separate places in the victim’s apartment and intentionally had been ignited. Also, the police discovered a can of ‘Repel’ pepper spray on the floor of the garage. Thomas Uhlman testified that it had not been there at 8 p.m. on January 1, when he had fueled the snowblower. Glen Uhlman testified that the can was identical to one that the defendant had showed him one month earlier. Also, the police recovered the key to the trunk of the victim’s car in her bedroom, but not the key to the ignition.

“John Levesque testified that, at 5:20 p.m., on the evening of January 1, 1996, the defendant briefly had visited his apartment in Portland, which was less than one mile from the victim’s home, and that he had left on foot. In addition, Linda Gameau, who knew the defendant, testified that she saw him walking on Spring Street in Middletown at 5:50 a.m. on the morning of January 2, 1996. At 1:40 p.m., on January 2, the Middle-town police discovered the victim's car parked in a residential parking lot on Pearl Street in Middletown, which was less than one mile from the defendant’s most recent residence on Spring Street in Middletown.

“On January 4, 1996, the defendant burglarized his sister’s home and stole a shotgun and ammunition. He left behind a note saying that he was fleeing to Massachusetts, that he was determined not to return to prison, and that he would commit suicide to prevent that from happening. On January 5, 1996, the defendant was sighted walking along a road in Middletown by the Middletown police, who had a warrant for his arrest on an unrelated matter. As the police approached the defendant, he discarded the shotgun and fled. When the defendant was apprehended, a search of his clothing disclosed the ignition key to the victim’s car. He claimed both that the key belonged to him, and that he had found the key.” State v. Francis, supra, 267 Conn. 166-70. The defendant was detained and arrested on the unrelated matter. On May 5,1997, the defendant was arrested and charged with the victim’s murder. Additional facts will be set forth as necessary.

I

The defendant claims that the state’s reference to his invocation of his right to remain silent and his request for an attorney violated his constitutional rights pursuant to Doyle v. Ohio, supra, 426 U.S. 610. The defendant cites to the testimonial evidence presented in the state’s case-in-chief, the defendant’s case-in-chief, the state’s rebuttal and during closing arguments.

The following additional facts are necessary to resolve the claim. On direct examination during the state’s case-in-chief, the state asked state police Detective Richard Bedard:

“[The Prosecutor]: What else did you ask [the defendant]?
“[The Witness]: We had asked him if he heard about the fire at Ruth Uhlman’s in Portland. He said, yes, he did, and we asked him what he was doing at the time of the fire. He said that he was fishing with a prostitute. We tried to elaborate on that. He wouldn’t elaborate on that anymore. He was smiling and joking about it. Wasn’t serious at all. And from that point, we tried to change the subject a little bit, and I asked him about now, if he carried pepper spray, and he didn’t answer, and then he asked him again. He still didn't answer, and then he asked for an attorney and the interview was concluded.'' (Emphasis added.)

Moments later, the state asked Bedard:

“[The Prosecutor]: Now, on the date — let’s stay with the date of January 6, 1996. You indicated a few moments ago that at one point when you were talking to [the defendant], you and Detective Martin Graham, that he asked for a lawyer and the conversation terminated?
“[The Witness]: Yes.”

On the same day, the state similarly asked state police Detective Graham about the January 6, 1996 interview with the defendant:

“[The Prosecutor]: What else did [the defendant] say?
“[The Witness]: At that particular time — this was a brief conversation and only lasted about fourteen minutes. He asked for an attorney. At that time, the questioning stopped.
“[The Prosecutor]: Before the questioning stopped, prior to the time he asked for an attorney, at that time did you or Detective Bedard ask him anything concerning an item known as pepper spray?”

Following Graham’s testimony, outside the presence of the jury, the court stated: “[Defense counsel] has not objected to [the] testimony so far. I feel a little uncomfortable with the defendant’s [invocation] of his right to counsel.”

In response, the state filed a request to charge and stated:

“[The Prosecutor]: The court did mention — that did come in without objection; however, out of an abundance of caution I filed a request to charge, and I am respectfully urging that the court issue this request to the jury now and perhaps once again during its final instructions.
“The Court: [Defense counsel]?
“[Defense Counsel]: I don’t have any problems with it coming in now. I was going to ask for it at the end, but it’s not a problem.”

The court issued the state’s request to charge after the testimony of both officers. The court instructed the jurors, inter alia, that they should not “draw any adverse inference from the fact that the defendant elected to terminate the interview and asked to be represented by counsel, which is his right to do.”

On direct examination during the defendant’s casein-chief, defense counsel stated:

“[Defense Counsel]: And when they asked you about the [pepper spray], you became silent after that?
“[The Defendant]: Yes.
* * *
“[The Defendant]: . . . [S]o, right there, they’re just trying to pin a murder on me, and I’m innocent, so I didn’t say anything.”

During its rebuttal case, the state presented additional witnesses in response to the defendant’s testimony. The state questioned Bedard in relevant part as follows:

“[The Prosecutor]: What did you say to him with regard to pepper spray?
“[The Witness]: I asked him why he carried pepper spray.
“[The Prosecutor]: And was there a response at all?
“[The Witness]: No, he didn’t respond at all.
* * *
“[The Prosecutor]: Did you ever indicate anything else regarding pepper spray?
“[The Witness]: The only thing that I can recall is that I had asked him why he carried the pepper spray, and there was just no answer. He didn’t indicate an answer.”

During closing argument, the state made the following comment while summarizing Graham’s and Bedard’s testimony: “They ask him why he carries pepper spray. They don’t tell him they found pepper spray. He asked him, why do you carry pepper spray? No response from [the defendant].”

As part of the court’s final instruction, the court charged the jury as follows:

“Now, ladies and gentlemen, during the — I think it was last week, you may recall the testimony of Detectives Bedard and Graham that on January 6, 1996, the defendant asked for an attorney at the end of an interview. The defendant has eveiy right to terminate [questioning] and ask for a lawyer at any time. This testimony should not be given any weight or any credence by you. It should not be discussed. It should not [be] give[n] any type of believability whatsoever. You must draw no adverse inference because the defendant elected to terminate an interview, which is his right to do. It’s a right that we all enjoy in this countiy. It’s a right that you enjoy, and a right that I enjoy. It involves no culpability whatsoever, no inference of culpability. The evidence was merely offered by the state to show investigative efforts were made by police and the sequence of events that took place.”

We note that the defendant did not preserve his claim. Consequently, he seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review his dlaim because the record is adequate for review, and the claim is of constitutional magnitude. Id.

Pursuant to Doyle, “evidence of a defendant’s postarrest . . . silence [and silence after being advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] is constitutionally impermissible under the due process clause of the fourteenth amendment. ... A Doyle violation also encompasses a prosecutor’s comment upon a defendant’s statement requesting an attorney. . . . With respect to post-Miranda warning . . . silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.” (Citations omitted; internal quotation marks omitted.) State v. Daugaard, 231 Conn. 195, 210-11, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995).

Without deciding whether the state committed a Doyle violation, we conclude that any error was harmless and would not have affected the verdict. Our conclusion is based on our Supreme Court’s harmless error analysis conducted in State v. Francis, supra, 267 Conn. 182-86. Doyle violations are subject to harmless error analysis. “The harmless error doctrine is rooted in the fundamental purpose of the criminal justice system, namely, to convict the guilty and acquit the innocent. . . . Therefore, whether an error is harmful depends on its impact on the trier of fact and the result of the case. . . .

“[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. . . . The state bears the burden of demonstrating that the constitutional error was harmless beyond a reasonable doubt. . . . That determination must be made in light of the entire record [and the strength of the state’s case without the improper testimonial evidence being admitted].” (Citations omitted; internal quotation marks omitted.) State v. Daugaard, supra, 231 Conn. 212.

We first set forth our Supreme Court’s harmless error analysis from State v. Francis, supra, 267 Conn. 162. Our Supreme Court held in Francis that even though the trial court abused its discretion in refusing to disclose Thomas Uhlman’s substance abuse treatment records, any such error was harmless beyond a reasonable doubt. Id., 186-87. “[T]he state’s case was very strong .... As the detailed rendition of the evidence discloses, the state’s case, supported by physical evidence and the testimony of numerous disinterested witnesses, [and witnesses whose testimony] . . . was fully consistent with the defendant’s guilt, and inconsistent with his uncorroborated version of his reconciliation with Thomas Uhlman on the fatal New Year’s Eve. The testimony of Wierenga, Raicik, Gameau and Levesque was particularly telling in this regard. In addition, the defendant’s conduct after the crime was filled with evidence and statements of consciousness of guilt, such as his burglary of his sister’s house and the note he left. Additionally, he made numerous incriminating statements to five different police officers, and made three separate, detailed confessions to three separate cellmates at three different times. Furthermore, his possession of the victim’s car key was highly incriminating, and he gave several inconsistent explanations for it, none of which was consistent with his testimony at trial. Finally, there was Glen Uhlman’s testimony about the defendant’s possession of the can of pepper spray, which was never contradicted or explained. Thus, in our view, the evidence . . . pointed unerringly to the defendant’s guilt, and to no one else’s.” Id.

The state’s comments did “not strike at the jugular of the defendant’s story . . . [and could not be considered an] extensive, strongly-worded argument suggesting a connection between the defendant’s silence and his guilt.” (Internal quotation marks omitted.) State v. Pepper, 79 Conn. App. 1, 16, 828 A.2d 1268, cert. granted on other grounds, 266 Conn. 919, 837 A.2d 801 (2003). All references to the defendant’s request for an attorney related to the can of pepper spray that was found on the floor of the garage. Only two witnesses expressly referred to the defendant’s invocation of his right to remain silent, and the prosecution referred to it scantily in this fourteen day trial. As discussed, the state’s case was very strong. The verdict was supported by both physical evidence and the testimony of numerous disinterested witnesses. The matter of the defendant’s pepper spray that was found in the garage was circumstantial evidence that was a small link in the chain of evidence in the state’s case. The disputed questions and comment do not strike at the jugular of the defendant’s story.

The court also gave two curative instructions to the jury, one immediately after the two witnesses mentioned the defendant’s invocation of his right to remain silent and again at the end of the trial. The defendant did not object and acquiesced in the instructions. Further, the defendant made affirmative use of his invocation of his right to remain silent to support his defense that the murder was being “pinned” on him by the police.

Accordingly, we conclude that any alleged Doyle violation would be harmless and that the jury would have returned a guilty verdict without the disputed questions or comment on the defendant’s invocation of his right to remain silent.

II

The defendant next claims that the court’s charge to the jury on circumstantial evidence improperly lowered the state’s burden of proof beyond a reasonable doubt on the element of intent. We disagree.

The court’s instructions relating to circumstantial evidence and the element of intent, in relevant part, were as follows: “Now, there are, generally speaking, two kinds of evidence, direct and circumstantial evidence. Direct evidence is testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, proof from a chain of facts from which you can find that another fact exists, distinction between direct and circumstantial evidence as far as probative value. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any particular evidence. By way of example, this is only an example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. Other evidence, such as a turned on garden hose, may, however, explain the water on the sidewalk. Therefore, before you decide that a fact has been proven by circumstantial evidence, you must consider all of the evidence in the light of reason, experience and common sense.

“You are to consider only the evidence that has been admitted in the trial in front of you. However, in consideration of that evidence, you are not limited to what a witness says. On the contrary, you are permitted to draw from the facts which you find to have been proven such reasonable and logical inferences as seem justified in the light of your own experience. An inference is a deduction or conclusion which reason and common sense lead you to draw from the facts which the evidence has established. You may not, however, resort to speculation or conjecture. The state’s burden of proof applies to each and every element comprising each of the offenses charged. . . . [A]ny ultimate fact and all elements must be proven beyond a reasonable doubt. Moreover, a conclusion of guilt requires proof beyond a reasonable doubt. ...”

Subsequently, the court charged the jury on intent. “Intent is a charge that I will read to you now, and then it will be read to you repeatedly when we get into the actual charge, and it is such a reoccurring concept that when we get to that second point in the instruction, I’m going to give you a copy of it.

“Intent relates to the condition of mind of a person who commits the act, his purpose in doing it. As defined by our statute, a person acts, quote, intentionally, unquote, with respect to a result or to conduct when his conscious objective is to cause such result or to engage in such conduct. What a person’s purpose, intention or knowledge has been is usually a matter to be determined by inference. No person is able to testify that they looked into another’s mind and saw therein a certain purpose or intention or a certain knowledge to do harm to another. The only way in which a jury can ordinarily determine what a person’s purpose, intention or knowledge was, and at any given time, aside from that person’s own statements or testimony, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct and, from that, to infer what the purpose, intention or knowledge was. To draw such an inference is not only the privilege, but also the proper function of the jury, provided, of course, that the inference drawn complies with the standards for inferences as explained in connection with my instruction on circumstantial evidence.”

The court’s instruction also reminded the jurors on numerous occasions that the state bore the burden of proof. The instruction also defined the required mental state for each crime and instructed the jurors that their determination of those elements must be guided by the reasonable doubt standard.

The defendant did not preserve his claim for appellate review, but nonetheless seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. We review his claim because the record is adequate for review and the claim is of constitutional magnitude. Id.

“When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the juiy is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. DeJesus, 260 Conn. 466, 473, 797 A.2d 1101 (2002).

The defendant argues that because the words “beyond a reasonable doubt” were not specifically mentioned in the portion of the charge relating to circumstantial evidence, and because the court later instructed the jury that intent is proven by inferences and referred back to the circumstantial evidence charge, the instruction ran afoul of the constitutional requirement that intent be proven beyond a reasonable doubt.

The defendant’s claim fails because the alleged constitutional violation does not exist. We have rejected similar claims regarding circumstantial evidence, inferences and intent that were based on nearly identical jury instructions. See State v. Otero, 49 Conn. App. 459, 462-66, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998); State v. Johnson, 44 Conn. App. 125, 133-37, 688 A.2d 867 (1997). We have repeatedly held that when the trial court “defined the essential mental, element for each [of the crimes charged] and unequivocally instructed the jurors that their determination of those elements was to be guided by the standard of reasonable doubt . . . there [was] no substance to the defendant’s claim that the jury instructions failed to inform the jurors that the state bore the burden of proving the facts essential to establish each element of the crimes beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Otero, supra, 466-67; see also State v. DeJesus, supra, 260 Conn. 475.

The court’s instruction repeated that the state must prove beyond a reasonable doubt each and every element necessary to constitute each of the crimes charged. The court also defined the required mental state for each crime and instructed the jurors that their determination of those elements must be guided by the reasonable doubt standard. On the basis of the court’s repeated instruction regarding the standard of proof beyond a reasonable doubt, it is difficult to believe that the jury could have been misled on the issues of intent and circumstantial evidence.

Further, we have stated that when a group of facts is relied on to prove an element of a crime, such as intent, the cumulative impact, rather than each individual fact, must meet the standard of proof beyond a reasonable doubt. State v. Otero, supra, 49 Conn. App. 466. The court’s instruction to the jury to consider all of the evidence in the light of reason, experience and common sense was proper.

Accordingly, the court properly charged the jury on circumstantial evidence and did not improperly lower the state’s burden of proof beyond a reasonable doubt on the element of intent.

The judgment is affirmed.

In this opinion the other judges concurred.


author: McLACHLAN, J.

text:
    BENJAMIN J. EGRI v. MICHAEL R. FOISIE ET AL.
    (AC 23738)
    Lavery, C. J., and Flynn and McLachlan, Js.
    Argued February 18
    officially released June 8, 2004

      Max F. Brunswick, with whom, on the brief, was Richard A. Knapp, for the appellant (plaintiff).

      Paul T. Nowosadko, with whom, on the brief, was Lorinda S. Coon, for the appellee (defendant state of Connecticut).
   Opinion

McLACHLAN, J.

The plaintiff, Benjamin J. Egri, appeals from the judgment of dismissal for lack of subject matter jurisdiction. At issue is whether a motion to dismiss is the proper procedural vehicle by which to challenge the plaintiffs pleadings. For the reasons set forth in this opinion, we reverse the judgment of the trial court and remand the case to that court for further proceedings.

The relevant facts are as follows. On June 6, 1999, Michael R. Foisie, an employee of the department of environmental protection (department), was operating a motor vehicle owned by the state of Connecticut on Turkey Hill Road in Haddam. Foisie observed three adults, one of whom was the plaintiff, on dirt bike motorcycles driving from an area of state forest. Noticing that two of the motorcycles had no registration plates, he activated his lights in an attempt to stop them. Rather than stopping, as required by General Statutes § 14-223, the drivers continued on until the plaintiffs motorcycle collided with one operated by David D. Galemba. The plaintiff was thrown to the roadway, causing injuries.

Thereafter, the plaintiff instituted an action predicated on Foisie’s negligence. Specifically, the plaintiff alleged that Foisie negligently engaged him in a high speed pursuit, thereby causing the plaintiffs injuries. The complaint named Foisie, the state of Connecticut and the department as defendants.

In response, the defendant filed an answer and two special defenses. The first special defense alleged that the plaintiffs injuries were the result of his carelessness and negligence. The second special defense asserted that as Foisie was in the performance of his duties at the time of the alleged incident, his actions were entitled to the exemptions and protections provided by General Statutes § 14-290.

On the eve of trial, the defendant filed a motion to dismiss on the ground of sovereign immunity. The plaintiff filed an objection to that motion, asserting that the defendant had waived its immunity pursuant to General Statutes § 52-556. In a memorandum of decision filed December 10, 2002, the court concluded that the complaint lacked “any common-law motor vehicular negligence allegations. . . . The actions alleged by the plaintiff are insufficient to allege the negligent operation of a state owned and insured motor vehicle. Thus, they are insufficient to allege a waiver of sovereign immunity pursuant to § 52-556 . . . .” Accordingly, a judgment of dismissal for lack of subject matter jurisdiction was rendered. This appeal followed.

This case causes us to consider the function of two motions that are basic to our civil procedure, the motion to dismiss and the motion to strike. The motion to dismiss is governed by Practice Book §§ 10-30 through 10-34. Properly granted on jurisdictional grounds, it essentially asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court. Third Taxing District v. Lyons, 35 Conn. App. 795, 803, 647 A.2d 32, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994); see Practice Book § 10-31. By contrast, the motion to strike attacks the sufficiency of the pleadings. Practice Book § 10-39; see also 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 72 (a), pp. 216-17.

The defendant in the present case filed a motion to dismiss, which the court granted. The principal issue in this appeal is whether that motion was the proper procedural vehicle by which to challenge the plaintiffs pleadings. We hold that it was not and accordingly reverse the judgment.

There is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike. The defendant acknowledged, in the office of the claims commissioner, in which the plaintiff also filed a claim for damages, and in court, that the plaintiff can potentially state a claim under § 52-556. As the court correctly stated in its memorandum of decision, the defendant’s motion to dismiss argued that the plaintiff had not stated a cause of action under § 52-556. Such is not the function of the motion to dismiss.

“A motion to dismiss does not test the sufficiency of a cause of action and should not be granted on other than jurisdictional grounds.” Caltabiano v. Phillips, 23 Conn. App. 258, 265, 580 A.2d 67 (1990); see also 1 R. Dupont, Connecticut Civil Practice (2003 Ed.) § 10-31.1, p. 472. As our Supreme Court has explained: “A motion to dismiss is not a proper vehicle for an attack on the sufficiency of a pleading. . . . Here it was used to perform, in effect, the function of a [motion to strike] .... This was improper, and on this ground . . . the court should have denied the motion. Especially is this so, since the rule of court . . . granting a right to plead over after [the motion to strike] would not apply to [a] motion to dismiss.” (Citations omitted.) Glens Falls Ins. Co. v. Somers, 146 Conn. 708, 712-13, 156 A.2d 146 (1959); see also Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993); Baskin’s Appeal from Probate, 194 Conn. 635, 640, 484 A.2d 934 (1984).

In Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991), the court confronted a similar situation in which a motion to dismiss was utilized to challenge the sufficiency of the pleadings. The court stated that “the fact that the plaintiffs complaint failed to allege facts that would have removed it from the operation of . . . immunity . . . merely reflects that the complaint failed to state a legally sufficient cause of action.” Id., 544. Because the challenge was to the legal sufficiency of the complaint, the court held that the motion to dismiss was improper. Id. The court concluded that “the plaintiffs complaint was within the trial court’s subject matter jurisdiction, albeit subject to a motion to strike for failure to state a legally sufficient claim . . . .’’Id., 545. Like the defect in Gurliacci, the defect in the plaintiffs complaint here is not jurisdictional in nature. Rather, it simply failed to state a legally sufficient claim.

Indeed, the court’s decision was predicated on the insufficiency of the pleadings. In its memorandum of decision, the court explained that the complaint lacked “any common-law motor vehicular negligence allegations. . . . The actions alleged by the plaintiff are insufficient to allege the negligent operation of a state owned and insured motor vehicle.” (Emphasis added.)

The distinction between the motion to dismiss and the motion to strike is not merely semantic. If a motion to dismiss is granted, the case is terminated, save for an appeal from that ruling. Baskin’s Appeal from Probate, supra, 194 Conn. 640. The granting of a motion to strike, however, ordinarily is not a final judgment because our rules of practice afford a party a right to amend deficient pleadings. See Practice Book § 10-44.

That critical distinction implicates a fundamental policy consideration in this state. Connecticut law repeatedly has expressed a policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his or her day in court. Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998); Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). “Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure. Greco v. Keenan, 115 Conn. 704, 705, 161 A. 100 [1932].” Johnson v. Zoning Board of Appeals, 166 Conn. 102, 111, 347 A.2d 53 (1974); see Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 400, 655 A.2d 759 (1995) (claim of lack of subject matter jurisdiction). For that reason, “[a] trial court should make every effort to adjudicate the substantive controversy before it, and, where practicable, should decide a procedural issue so as not to preclude hearing the merits of an appeal.” Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991).

In the present case, the plaintiff filed a complaint sounding in negligence. In the office of the claims commissioner, the defendant insisted that the plaintiff could indeed maintain an action under § 52-556. At oral argument, the court stated in relevant part that “if I look at [the plaintiffs] pleadings ... in view of the pleadings in the plaintiffs best light, [they] can state a cause of action under § 52-556.” The defendant’s subsequent motion to dismiss and the court’s memorandum of decision on that motion both concluded that the plaintiffs pleadings were insufficient to state a cause of action. Such a determination may be made properly only through a motion to strike. See Gurliacci v. Mayer, supra, 218 Conn. 544. We therefore conclude that the plaintiffs complaint was within the court’s subject matter jurisdiction, albeit subject to a motion to strike for failure to state a legally sufficient claim. The motion to strike is the proper procedural vehicle by which to challenge the sufficiency of a plaintiffs pleadings. For that reason, the court improperly granted the defendant’s motion to dismiss.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The complaint did not explicitly state any statutory causes of action, nor did the defendant state of Connecticut file a request to revise as provided for in Practice Book § 10-35. The state claims that the plaintiff failed to comply with Practice Book § 10-3 (a), which instructs in relevant part that “[w]hen any claim made in a complaint ... is grounded on a statute, the statute shall be specifically identified by its number.” In Spears v. Garcia, 66 Conn. App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003), this court held that the failure to comply with the directive of Practice Book § 10-3 (a) will not necessarily bar recovery as long as the defendant is sufficiently apprised of the applicable statute during the course of the proceedings. It is uncontested that the state was so apprised in this case.

       The plaintiff asserted that his injuries were caused by the negligence of Foisie in one or more of the following ways: (1) he negligently pursued the operators of the dirt bikes and the plaintiff in a high speed chase and pursuit; (2) he engaged the operators of the dirt bikes and the plaintiff in a high speed chase and pursuit when that was not reasonably and not absolutely necessary; (3) he engaged the operators of the dirt bikes and the plaintiff in a high speed chase and pursuit when the risk of accident and iqjury was high and unreasonable under the circumstances; (4) he engaged the operators of the dirt bikes and the plaintiff in a high speed chase and pursuit when the persons being pursued presented no clear and present danger to others orto themselves so as to justify or offset the danger involving speeding vehicles; (5) he engaged the operators of the dirt bikes and the plaintiff in a high speed chase and pursuit for minor alleged motor vehicle misdemeanors or violations, thereby subjecting the plaintiff and the other dirt bike operators to the risk of accident and serious injuries; (6) he failed to immediately terminate the high speed chase and pursuit when the risk of accident was great, and he exceeded the possibility of allegedly apprehending the plaintiff and the other dirt bike operators; and (7) he engaged the plaintiff in a high speed chase and pursuit without due regard and without reasonable regard for the safety of the plaintiff dirt bike operator and the other dirt bike operators.

       The action against Foisie was withdrawn on March 11, 2002. On December 4, 2002, the court granted the motion to dismiss filed by the department of environmental protection. On December 10, 2002, the court granted the motion to dismiss filed by the state of Connecticut and rendered judgment in accordance therewith, from which the plaintiff appealed to this court. We therefore refer in this opinion only to the state of Connecticut as the defendant.

       The answer stated that at all relevant times, Foisie was operating a motor vehicle owned by the defendant in his capacity as an employee, agent and servant of the defendant.

       The first special defense asserted that the plaintiff was negligent in one or more of the following ways: (1) by traveling at an unreasonable and dangerous speed or being in violation of General Statutes § 14-218a; (2) by attempting to suddenly and unreasonably stop or divert his vehicle onto a dirt road or path off Turkey Hill Road; (3) by operating his vehicle in a negligent or unreasonably dangerous manner in light of all the circumstances then and there present; (4) by failing to keep a proper lookout in light of all circumstances then and there present; (5) by failing to maintain proper control of his vehicle; (6) by attempting to flee a department official in violation of General Statutes § 14-223; and (7) by operating his vehicle in the left lane in violation of General Statutes § 14-230.

       General Statutes § 52-556 provides: “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.” Section 52-556 “creates a cause of action against the state and represents a statutory exception to the common law rule of sovereign immunity.” Rivera v. Fox, 20 Conn. App. 619, 622, 569 A.2d 1137, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990).

       The plaintiff filed a motion for articulation on January 15, 2003, which the court denied.

       On February 17,2000, the plaintiff filed a claim, identical to that presented in his complaint, with the office of the claims commissioner. On March 22, 2000, the defendant filed with that office a motion to dismiss, stating in relevant part that § 52-556 “ ‘applies to this claim and the claim should be dismissed.’ ” In an order dated September 5, 2000, the claims commissioner dismissed the plaintiffs claim because “§ 52-556 provides [a] direct action against the state” in this instance.

       The plaintiff also argues that because the claims commissioner determined that § 52-556 provides a direct action against the state, the defendant’s motion to dismiss was precluded by res judicata and collateral estoppel. Because we conclude that the motion to dismiss was improper, we need not address that claim. We note that irrespective of the merits of that claim, the defendant’s arguments before and the determination of the claims commissioner are relevant considerations that inform our analysis.

       We note that in some cases in which the plaintiff is unable to demonstrate that anything could be added to the complaint by way of amendment that would avoid the deficiencies in the original complaint, the granting of a motion to dismiss has been found harmless despite its procedural impropriety. See McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 528, 590 A.2d 438 (1991). At oral argument, the plaintiff indicated that when repleading, he could present facts sufficient to allege the negligent operation of a state owned and insured motor vehicle.