author: SHEA, J.

text:
    DEANNA BOYLES v. RICHARD PRESTON
    (AC 20353)
    Mihalakos, Flynn and Shea, Js.

      Argued September 28, 2001
    officially released March 12, 2002

      Richard Preston, pro se, the appellant (defendant).

      Monika Lahiri, with whom, on the brief, was Hanon W. Russell, for the appellee (plaintiff).
   Opinion

SHEA, J.

The defendant, Richard Preston, appeals from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff, Deanna Boyles, in the amount of $105,201.34. On appeal, the defendant claims that the court improperly (1) determined that his motion to dismiss was untimely when it was filed within thirty days of his filing an appearance in the case-in-chief, but not within thirty days of his filing an appearance for the plaintiffs prejudgment remedy hearing, (2) failed to charge the jury on a requested instruction on sexual harassment where the complaint failed to set forth a claim that the defendant’s conduct was that of his employer or that of the defendant as the agent of his employer, (3) allowed an investigator from the office of the state’s attorney to testify about information in a previous criminal case against the defendant, the record of which had been erased pursuant to General Statutes § 54-142a, (4) allowed the admission into evidence in this civil case of evidence that had been suppressed in the previous criminal case and (5) accepted the plaintiffs offer of judgment as being valid where one partner in the law firm representing the plaintiff had signed the offer with the name of another partner in that firm. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of the defendant’s appeal. This case is a civil action arising from alleged sexual harassment that resulted in the intentional and negligent infliction of emotional distress. The plaintiff was employed by the state of Connecticut to perform duties in the small claims session and Housing Session of the Superior Court, geographical area number ten, in New London. The defendant was employed by the state of Connecticut as an attorney in the office of the state’s attorney in the same building. The complaint alleges that in late May, 1992, the defendant began to engage in a pattern of “intentionally injurious, unwelcome and unwanted” conduct directed toward the plaintiff. That conduct included a variety of actions of an inappropriate or harassing nature, including sexual advances toward the plaintiff, touching and rubbing the plaintiff without her consent, stalking and following the plaintiff in the workplace, telephoning the plaintiff at various hours of the day and night, and videotaping her without her knowledge or consent.

The complaint alleges that despite demands by the plaintiff for the defendant to cease and desist in that conduct, his behavior continued throughout the remainder of 1992. As a direct and proximate result of that conduct, the plaintiff claimed that she was and is in constant fear for her safety, has suffered and continues to suffer emotional and psychological distress, has had and continues to have her life disrupted, was and continues to be unable to eat and sleep normally and otherwise to engage in and enjoy life’s activities as she had previously, suffers from anxiety, pain, suffering and distress of mind, and was compelled to leave her employment with the state of Connecticut, thereby losing wages and benefits.

The complaint alleges that the defendant’s conduct constituted intentional, wilful and wanton, as well as negligent, infliction of emotional distress, and assault and battery on the plaintiff. In her prayer for relief, the plaintiff claimed actual damages, punitive damages, attorney’s fees, and such other and further relief as required in equity.

The revised complaint is dated June 17, 1996, and copies thereof were mailed to the defendant and to his attorney on that date. The trial began on October 5, 1999. The jury returned a verdict for the plaintiff on October 13, 1999, and awarded her $50,000 in compensatory damages. In response to an interrogatory, the jury also made a finding that the defendant’s conduct was malicious, wanton or wilful. On November 15,1999, following a hearing in which the court determined the amount of punitive damages to be $16,650, the court rendered judgment for the plaintiff in accordance with the verdict and awarded her $105,201.34, inclusive of punitive damages, statutory interest and costs. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly determined that his motion to dismiss was untimely because it was filed within thirty days of filing an appearance in the case-in-chief, but not within thirty days of filing an appearance for the prejudgment remedy hearing. We hold that the defendant’s motion did not comply with Practice Book § 10-30, which requires that a party intending to challenge the court’s personal jurisdiction over him do so within thirty days of filing an appearance.

The plaintiff filed an application for a prejudgment remedy, which was served on the defendant on May 23, 1995. On June 22, 1995, attorney Susan Boyan filed an appearance for the defendant and represented him at the hearing on the application held on August 8, 1995, when the court granted the plaintiff a prejudgment remedy in the amount of $60,000. A process server engaged by the plaintiff made the attachment on August 10,1995, and the complaint was served on the defendant on August 11, 1995. The defendant then filed two motions to dismiss. The first motion, dated October 4, 1995, claimed that the court lacked personal jurisdiction over him because the process served on him did not include a writ of summons as prescribed by Practice Book § 49, now § 8-1. The defendant subsequently filed an amended motion to dismiss, dated October 25,1995, in which he conceded that a writ of summons had been served, but raised a number of different issues contesting the court’s jurisdiction over him as well as the court’s subject matter jurisdiction.

In an articulation of its rulings denying both of the defendant’s motions to dismiss, the court held that the filing of a general appearance by the defendant’s counsel on June 22, 1995, to contest the application for prejudgment remedy, “triggered the thirty day period for the filing of a motion to dismiss on the ground of lack of personal jurisdiction under the plain language of § 10-30 of the Practice Book, and that the defendant’s ‘right to make such a claim was waived thirty-one days after [his attorney’s] original appearance on [that date].’ ”

Practice Book § 10-30 provides in relevant part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .” Our courts have held that where a party has submitted to the court’s jurisdiction by contesting an application for prejudgment remedy on the merits, that action will suffice as a general appearance in the case-in-chief. See Iffland, Lumber Co. v. Tucker, 33 Conn. Sup. 692, 694-96, 368 A.2d 606 (1976). Once the application for prejudgment remedy and the accompanying documents are filed properly with the clerk of the court, “the case is then pending in court .... The court becomes seized of the matter by virtue of the filing of the application, and the hearing on the application should be treated like any other interlocutory proceeding in a pending case.” Id., 695. Thus, having failed to seek to dismiss the action within thirty days of filing his appearance to contest the application for prejudgment remedy, the defendant’s motion properly was denied as untimely.

Notwithstanding our conclusion with respect to the timeliness of the defendant’s first motion to dismiss, we turn our attention to the merits of his motions to dismiss for lack of personal jurisdiction. The defendant based his motion on three alleged defects in the process served on him. Specifically, he claims that dismissal was proper because (1) the reservice of the prejudgment remedy face sheet, form JD-CV-53, as the face sheet for the case-in-chief, was contrary to statute, materially misled him as to the nature of the proceedings described in the process that was served and contained incorrect directions as to how to proceed, which, if followed, would have led to a default judgment against him, (2) the writ of summons failed to contain proper directions to the serving officer and was, therefore, insufficient, and (3) the return of service was insufficient because the document was dated before the actual date of service of the process. We conclude that the defects in process complained of are circumstantial, rather than substantive, and do not warrant dismissal of the action.

General Statutes § 52-123 provides that “[n]o writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.” Section 52-123 is used to provide relief from defects found in the text of the writ itself. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 434-35, 559 A.2d 1110 (1989). “It is not the policy of our courts to interpret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects. . . . Indeed, § 52-123 of the General Statutes protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties.” (Citations omitted.) Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 477-78, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980). It is our expressed policy preference “to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. . . . 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.” (Citations omitted; internal quotation marks omitted.) Coppola v. Coppola, 243 Conn. 657, 665, 707 A.2d 281 (1998).

A

We first consider the reservice of the prejudgment remedy face sheet. After a prejudgment remedy is granted, the clerk of the court is to deliver to the applicant’s attorney the “proposed writ, summons and complaint for service of process. . . .” General Statutes § 52-278d (b). Our Supreme Court has held that the use of an improper form is a circumstantial defect that does not deprive the court of jurisdiction if the form “clearly apprises all concerned that a lawsuit is being instituted . . . .” Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 357, 514 A.2d 749 (1986).

We are not persuaded by the defendant’s argument that the service of process at issue “materially misled the defendant as to the nature of the proceedings . . . and contained incorrect directions ... on how to proceed . . . .” Service was made on the defendant on August 11, 1995. At that time, judgment in favor of the plaintiffs application for prejudgment remedy already had entered on August 8, 1995, following a hearing in which the defendant was represented by an attorney. The defendant concedes that the service of process contained a writ of summons and complaint. The writ clearly indicates that it was being served to “summon the above named defendant to appear before the superior court ... on August 29, 1995 ... in a civil action in which the plaintiff complains and alleges as set forth in the accompanying complaint attached hereto and made a part hereof.” We are compelled to conclude that the service satisfied the statutory requirements and was sufficient to apprise the defendant that an action was being commenced. We conclude, therefore, that, where the prejudgment remedy face sheet is served on the defendant together with the appropriate forms as prescribed by § 52-278d (b), such service is sufficient to vest the court with jurisdiction.

B

The defendant also asserts that the summons was fatally defective because it lacked the proper direction to the process server as to the nature of the documents to be served. That claim is without merit. Practice Book § 8-1 (a) provides in relevant part that “[mjesne process . . . shall be a writ of summons . . . describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiffs complaint. Such writ . . . shall be signed by a commissioner of the superior court .... [T]he writ of summons shall be on a form substantially in compliance with . . . [Form 103.1 (JD-CV-1)] . . . .” See also General Statutes § 52-45a. “[A] writ of summons is a statutory prerequisite to the commencement of a civil action. . . . [I]t is an essential element to the validity of the jurisdiction of the court. . . . [T]he writ of summons need not be technically perfect, and need not conform exactly to the form set out in the Practice Book . . . (Citations omitted.) Hillman v. Greenwick, 217 Conn. 520, 526, 587 A.2d 99 (1991). “A writ must contain a direction to a proper officer for service and a command to summon the defendant to appear in court.” General Motors Acceptance Corp. v. Pumphrey, 13 Conn. App. 223, 228, 535 A.2d 396 (1988).

Despite the defendant’s claim to the contrary, the writ properly directs the serving officer to serve the defendant with the summons and attached complaint. As previously discussed, as long as the process served on the defendant comports with the basic statutory requirements, a circumstantial defect will not deprive the court of jurisdiction. See Hillman v. Greenwich, supra, 217 Conn. 527.

C

We are equally unpersuaded by the defendant’s claim with respect to the apparent discrepancy regarding the date of the return of service. At least one court has held that where the defendant was given timely notice of the claims against him, the omission of the date on the writ of summons and the process server’s failure to sign the return of service are circumstantial defects that do not warrant dismissal of an action. Exondes v. O’Boy, Superior Court, judicial district of StamfordNorwalk, Docket No. 135694 (April 18,1994). The return of service here properly was executed and clearly indicates that the defendant was served on August 11,1995. The defendant does not dispute that he was in fact served on that date. We conclude that the defendant could not have been prejudiced or misled by the date appearing at the top of the return indicating that the document was prepared on the day prior to service. Therefore, even if the court had considered the defendant’s motion to dismiss on the merits, dismissal would have been inappropriate given the substance of the alleged defects in the process served on the defendant.

II

The defendant next claims that the court improperly failed to charge the jury on a requested instruction on sexual harassment. We disagree.

The following additional facts are relevant to our disposition of the defendant’s claim. In his answer to the first count of the revised complaint, the defendant pleaded a special defense in which he claimed that the allegations of that count constitute a claim of sexual harassment, as defined in General Statutes § 46a-60 (a) (5) and (8), and that the action was barred because the plaintiff never filed a complaint with the commission on human rights and opportunities (commission), and (2) never received a release, as required by General Statutes §§ 46a-100 and 46a-101, to file her action in Superior Court. In his third special defense to the second count of the complaint, the defendant pleaded essentially the same defense, claiming that the plaintiffs failure to file a complaint with the commission and to obtain a release pursuant to §§ 46a-100 and 46a-101 barred the action.

The court did not charge the jury on either of those special defenses. In response to the defendant’s post-trial motion for articulation, the court explained that it had declined to charge on the special defenses because the plaintiffs complaint did not include a claim that the conduct of the defendant was the conduct of the defendant’s employer “by himself or [by the defendant as the employer’s] agent . . . .” General Statutes § 46a-60 (a) (8). The court stated: “Since the statutory scheme set forth in § 46a-60 was not implicated either by the pleadings or the trial evidence, no charge relating to § 46a-60 et seq. was warranted.”

We agree with the court that the plaintiffs complaint states no claim against the defendant’s employer, which was the state of Connecticut at the time the defendant’s wrongful acts occurred. Section 46a-60 provides a cause of action, “rooted in common law agency principles, on which to hold an employer hable for the conduct of its employees.” (Internal quotation marks omitted.) Brittell v. Dept. of Correction, 247 Conn. 148, 167, 717 A.2d 1254 (1998). Nothing in the legislative history of § 46a-60 or its text suggests that the intention of the legislature was to insulate an employee perpetrator from primary liability for his wrongful conduct or to preclude either a common-law action for emotional distress or an action for assault and battery against a fellow employee.

Ill

The defendant next claims that the court improperly allowed an investigator from the office of the state’s attorney to testify about information in a previous criminal case against the defendant, the records of which had been erased pursuant to § 54-142a. We disagree.

The challenged testimony consisted of information relating to records that had been erased following a determination by the Superior Court that the evidence involved had been obtained as a result of a search of the defendant’s residence that was made without probable cause in violation of the fourth and fourteenth amendments to the United States constitution, and article first, § 7, of the constitution of Connecticut.

Before the trial began, the defendant filed a motion in limine dated September 17, 1999, in which he requested that the videotape taken from his house during the unlawful search be excluded from evidence during the trial. The defendant asserted that the underlying criminal matter had been dismissed and, therefore, the videotape had become an erased record within the meaning of § 54-142a. In an articulation explaining its ruling denying the defendant’s request to exclude the videotape, the trial judge explained that he had learned that when the charges were dismissed in the underlying criminal case, the presiding judge had ordered that the videotape be preserved for any future civil litigation. The court stated also that the portion of the motion in limine relating to the videotape had been denied on the ground that the videotape is not a “record” as defined in § 54-142a.

We agree with the court that the videotape is not a record subject to erasure pursuant to § 54-142a (b), which applies only to “all police and court records and records of the state’s or prosecuting attorney or the prosecuting grand juror pertaining to such charge . . . .” Our courts have held that the term “records” in the Erasure Act does not include evidence obtained by the police in the course of an investigation, nor does it preclude the testimony of witnesses as to their personal recollection of events. See Rado v. Board of Education, 216 Conn. 541, 550-52, 583 A.2d 102 (1990) (testimony concerning observations of events admissible where witnesses in testifying did not use any record subject to erasure); State v. West, 192 Conn. 488, 496-97, 472 A.2d 775 (1984) (photographs obtained by police at time of arrest not records under § 54-142a).

Thus, the videotape of the plaintiff is not a police or court record subject to erasure pursuant to § 54-142a (b). The videotape simply is a piece of evidence demonstrating how far the defendant went to irritate the plaintiff because she had rejected his sexual advances. We affirm the judgment of the trial court in permitting the challenged testimony to come into evidence.

IV

The defendant also claims that the court improperly allowed the admission into evidence in this civil case of evidence that had been suppressed in the prior criminal case against him. We conclude that the court properly admitted the evidence.

The defendant argues that because the evidence had been suppressed in the prior criminal matter, it therefore was inadmissible in this matter pursuant to General Statutes § 54-33f (c). That subsection provides in relevant part that “[i]f the motion [to suppress unlawfully seized evidence] is granted, the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial.” General Statutes § 54-33f (c). Our Supreme Court has held that § 54-33f is “procedural rather than substantive and [does] not define the extent of the exclusionary rule under Connecticut law.” State v. Marsala, 216 Conn. 150, 157, 579 A.2d 58 (1990). Section 54-33f merely provides an aggrieved party with a mechanism by which to petition the court for the suppression or the return of property that independently has been found to have been obtained unlawfully. The extent to which unlawfully seized property may be suppressed as evidence must, therefore, be decided by reference to our jurisprudence concerning implementation of the constitutional protections against unreasonable searches or seizures afforded by the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the constitution of Connecticut. Id., 156.

“[T]he exclusionary rule is neither intended nor able to cure the invasion of the defendant’s rights which he has already suffered.” (Internal quotation marks omitted.) Id., 161. “[T]he [exclusionary] rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures .... Application of the rule is thus appropriate in circumstances in which this purpose is likely to be furthered. . . . [I]n the complex and turbulent history of the rule, the [United States Supreme] Court never has applied it to exclude evidence from a civil proceeding, federal or state. Immigration & Naturalization Service v. Lopez-Mendoza [468 U.S. 1032, 1041-42, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984)] (holding that rule does not apply in deportation proceedings); see also Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357, 363, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998) (recognizing that [court has] repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials’ and holding that rule not applicable in parole revocation proceedings); United States v. Janis, 428 U.S. 433, 448, 454, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976) (holding that rule does not apply in civil tax proceedings); United States v. Calandra, 414 U.S. 338, 343-46, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974) (holding that rule does not apply in grand jury proceedings). [B]ecause the rule is prudential rather than constitutionally mandated, [it has been held] to be applicable only where its deterrence benefits outweigh its substantial social costs. . . . Pennsylvania Board of Probation & Parole v. Scott, supra, 363. [T]he need for deterrence and hence the rationale for excluding the evidence are strongest where the Government’s unlawful conduct would result in imposition of a criminal sanction on the victim of the search. United States v. Calandra, supra, 348.” (Citations omitted; internal quotation marks omitted.) Fishbein v. Kozlowski, 252 Conn. 38, 52-53, 743 A.2d 1110 (1999).

Because the use of evidence in a civil proceeding “falls outside the offending officer’s zone of primary interest . . . exclusion of such evidence will not significantly affect a police officer’s motivation in conducting a search.” (Citation omitted; internal quotation marks omitted.) Id., 53. When the court granted the defendant’s motion to suppress on May 7,1996, and issued an order suppressing the use in the defendant’s criminal trial of “all evidence and fruits illegally seized from the defendant’s residence,” including the videotape, the deterrent effect of the exclusionary rule was complete. See United States v. Janis, supra, 428 U.S. 448 (recognizing that “the local law enforcement official is already ‘punished’ by the exclusion of the evidence in the state criminal trial”). The further exclusion of that evidence from subsequent civil proceedings, in which the state has no particular vested interest, would not provide any greater deterrence to law enforcement officials. Accordingly, we affirm the judgment of the court in admitting the evidence.

V

The defendant’s final claim involves the offer of judgment that the plaintiff filed prior to the trial pursuant to Practice Book § 17-14 as authorized by General Statutes § 52-192a (a) and (b). Specifically, the defendant claims that the court improperly accepted the plaintiffs offer of judgment as being valid where one partner in the law firm representing the plaintiff had signed the offer with the name of another partner in that firm. We hold that the offer of judgment sufficiently complied with Practice Book § 17-14.

On June 20,1996, the plaintiff, through her trial attorney, offered to stipulate to a judgment against the defendant for $30,000. The defendant did not, within thirty days after being notified of the offer, file with the clerk of the court a written acceptance of the offer signed by the defendant or the defendant’s attorney pursuant to Practice Book § 17-15. The defendant’s failure to accept the plaintiff’s offer of judgment subjected him to the penalty set forth in Practice Book § 17-18. In this case, the court, pursuant to General Statutes § 52-192a, included in the calculation of the amount of the judgment the sum of $35,608.39 for interest that accrued from August 11, 1995, to November 15, 1999.

The defendant disputes the interest award on the ground that the offer of judgment filed by the plaintiff was defective in that the signature thereon, although purporting to be that of Hanon W. Russell, the attorney who conducted the trial for the plaintiff, actually had been inscribed on that document by one of Russell’s law partners, Edward Cantor, as authorized by Russell. The defendant relies on § 52-192a (a), which provides in relevant part that a plaintiff seeking damages “may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney . . . .” (Emphasis added.) The defendant also cites Practice Book § 4-2 in support of his claim. Practice Book § 4-2 (a) in relevant part directs that “[e]very pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name. . . . The name of the attorney or party who signs such document shall be legibly typed or printed beneath the signature.”

The court rejected the defendant’s claim that the offer of judgment was wholly ineffective on the ground that Russell had authorized his partner to sign the document as his agent. We agree with the court that the validity of the offer of judgment was not impaired because Cantor had been authorized by Russell to sign Russell’s name to the document.

“The well-settled general rule is that the mere fact that the agent’s name does not appear in a contract or other instrument executed by him in the name of the principal alone does not render the execution insufficient, unless a statute provides otherwise.” 3 Am. Jur. 2d 676, Agency § 172 (1986). “The most satisfactory test of whether a statute is mandatory or merely directory is whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words whether it relates to matter of substance or to matter of convenience. . . . Where the thing required to be done is one of substance the statutory provision is mandatory. . . . However . . . provisions designed to secure order, system and dispatch in proceedings are ordinarily held to be directory where . . . they are stated in affirmative terms or, to express it differently, are unaccompanied by negative words. . . . Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.” (Citations omitted; internal quotation marks omitted.) Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969), cert denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970).

“The purpose of § 52-192a is to encourage pretrial resolution of disputes by allowing a plaintiff to make an offer and allowing a defendant to accept a reasonable offer of settlement to save the time and expense of trial. . . . [I]n construing § 52-192a, we first note that its purpose is to encourage pretrial settlements and, consequently, to conserve judicial resources. . . . [T]he strong public policy favoring the pretrial resolution of disputes ... is substantially furthered by encouraging defendants to accept reasonable offers of judgment. . . . Section 52-192a encourages fair and reasonable compromise between litigants by penalizing a party that fails to accept a reasonable offer of settlement. ... In other words, interest awarded under § 52-192a is solely related to a defendant’s rejection of an advantageous offer to settle before trial and his subsequent waste of judicial resources.” (Citations omitted; internal quotation marks omitted.) Flynn v. Kaumeyer, 67 Conn. App. 100, 107, 787 A.2d 37 (2001).

We conclude, with respect to § 52-192a (a), that the plaintiff substantially complied with the statutory requirements and that the defendant was in no way disadvantaged by the mere circumstantial defect in the filing of the offer of judgment. The document filed with the court afforded the defendant actual notice as to the existence and terms of the offer, and any irregularity with the signature could not possibly have misled or prejudiced him.

“The rules of statutory construction apply with equal force to Practice Book rules.” Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984). Applying the foregoing analysis, our courts have concluded that the provisions of Practice Book § 4-2 are directory rather than mandatory and that failure to comply strictly with those requirements does not invalidate the action taken. Krondes v. O’Boy, Superior Court, judicial district of Fairfield, Docket No. 309700 (February 24, 1995). Accordingly, we affirm the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the accompanying memorandum of law in support of the amended motion to dismiss, the defendant’s claims are set forth as follows: (1) Is the hearing on the application for the prejudgment remedy a separate and distinct proceeding? (2) In an action in which the plaintiff serves an application for a prejudgment remedy, if, after a hearing is held, the plaintiff subsequently serves a writ of summons and complaint, when does the action for damages commence? (3) Is the use of an improper form fatal? (4) Is a writ that fails adequately to direct the process server as to the nature of the documents to be served legally sufficient? (5) Is the service of process insufficient as a matter of law where the process server’s return is defective on its face because it is signed and sealed on the day before the server attests to the service of the documents? (6) Is the partner of the subscribing authority prohibited from entering into a recognizance upon the writ? (7) Is dismissal required because the scope of the allegations in the plaintiffs complaint broadens the cause of action into areas outside the subject matter jurisdiction of the court?
      The court allowed the plaintiff to file an amended recognizance to cure that particular defect and denied on the merits the defendant’s motion to dismiss as to the alleged lack of subject matter jurisdiction.

       The direction to the process server contained in judicial form JD-CV-1, civil summons, is “to make due and legal service of this summons and attached complaint.”

       General Statutes § 52-45a provides in relevant part: “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day, the date and place for the filing of an appearance and information required by the Office of the Chief Court Administrator. The writ shall be accompanied by the plaintiffs complaint. . . .”

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice ... (5) [f]or any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any act declared to be a discriminatory employment practice or to attempt to do so . . . .”

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice ... (8) [f]or an employer, by himself or his agent ... to harass any employee ... on the basis of sex. ‘Sexual harassment’ shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when . . . (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment . . . .”

       General Statutes §§ 46a-100 and 46a-101 permit a person who has timely filed a complaint with the commission to bring an action in Superior Court after obtaining a release from the commission.

       For an action against an employer for sexual harassment under General Statutes § 46a-60 to be successful, the plaintiff must show that “the employer provided no reasonable avenue for complaint, or . . . the employer knew (or should have known) of the harassment but unreasonably failed to stop it.” (Internal quotation marks omitted.) Brittell v. Dept. of Correction, 247 Conn. 148, 167, 717 A.2d 1254 (1998).

       In his principal brief, the defendant sets forth the circumstances of the illegal search as follows: “On November 4, 1994, the defendant’s residence was searched pursuant to a warrant issued to inspectors in the division of criminal justice to search for and seize various items, including videotapes.” Pursuant to Practice Book §§ 41-12 and 41-13, and General Statutes § 54-33f, the defendant on January 30, 1996, filed a motion to suppress any evidence seized from his residence during the search. On May 7, 1996, that search was adjudicated by the court to have been unconstitutional in violation of the fourth and fourteenth amendments to the United States constitution, and article first, § 7, of the constitution of Connecticut. The court issued an order suppressing “all evidence and fruits illegally seized from the defendant’s residence.” The underlying criminal matter was dismissed on May 5, 1998, and was erased pursuant to General Statutes § 54-142a.
      One of the items seized by the inspectors during their search of the defendant’s residence was a videotape of the plaintiff at her home, which had been taken by a woman he had become acquainted with. The defendant during his cross-examination admitted that he had asked the woman to take some videotapes of the plaintiff in July, 1992. He testified that he was expecting to get some videotape of the plaintiff entering or leaving the courthouse. He admitted that he had supplied the woman with his videocamera when he left for a vacation in Hawaii on August 7, 1992, and that she returned two videotapes to him with his camera after he had returned to the New London area. He testified that he never looked at the videotapes until November, 1992, and that he erased one of the videotapes because it was not what he was expecting to get. He kept the videotapes in his office, but later moved them to his house. He taped over one videotape and put the second one in his camera to tape it over, but the camera and videotape were removed from his house by a police inspector when the house was searched by the police.

       The facts relating to the seizure and subsequent suppression of the subject property are set forth in part III.

       Practice Book § 17-18 provides in relevant part: “If the judicial authority ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in that plaintiffs ‘offer of judgment,’ the judicial authority shall add to the amount so recovered 12 percent annual interest on said amount, computed as provided in General Statutes § 52-192a, may award reasonable attorney’s fees in an amount not to exceed $350, and shall render judgment accordingly. . . .”

       General Statutes § 52-192a(b) provides in relevantpart: “In those actions commenced on or after October 1, 1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. . . .”


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    FREDERICK D. KNIGHT, JR. v. COMMISSIONER OF CORRECTION
    (AC 21579)
    Foti, Dranginis and Flynn, Js.
    Argued January 14
    officially released March 12, 2002

      Max F. Brunswick, for the appellant (petitioner).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Paul E. Murray, state’s attorney, and Angela R. Macchiarulo, assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, J.

The petitioner, Frederick D. Knight, Jr., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the habeas court improperly concluded that (1) his due process rights were not violated when he was not present at a reconstruction conference and (2) he was not deprived of the effective assistance of counsel. We affirm the judgment of the habeas court.

Following a jury trial, the petitioner was found guilty of sale of narcotics in violation of General Statutes § 2 la-277 (a), sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b), possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d). Subsequently, the petitioner pleaded guilty to being a persistent drug offender and was sentenced to a total effective term of seven years in the custody of the commissioner of correction. We affirmed his conviction in State v. Knight, 50 Conn. App. 109, 717 A.2d 274 (1998).

The petitioner filed an amended petition for a writ of habeas corpus alleging that (1) he was deprived of due process of law when a portion of the transcript of his trial was reconstructed in his absence and (2) he was deprived of the effective assistance of counsel. Following an evidentiary hearing, the habeas court denied the petition for a writ of habeas corpus and later granted the petition for certification to appeal. This appeal followed.

I

The following facts are relevant to our resolution of this appeal. During the pendency of the petitioner’s direct appeal, the petitioner’s appellate counsel learned that the court reporter’s tapes of one day of the trial were lost and therefore could not be transcribed. Appellate counsel filed a motion for rectification pursuant to Practice Book § 66-5, which was granted. The petitioner’s trial counsel, Allen Williams, and the assistant state’s attorney, Robert Katz, agreed to meet to reconstruct the missing transcript from their notes and personal recollections. Williams and Katz agreed on, and signed, an eight page stipulation that reconstructed the trial testimony of seven witnesses. The stipulation was then submitted to the trial judge, who signed and approved it.

In this appeal, the petitioner claims that he had a constitutional right to attend the reconstruction conference and that he never waived that right. The petitioner seeks to be given a new preappeal reconstruction. This claim has no merit.

Our Supreme Court’s holding in State v. Lopez, 235 Conn. 487, 668 A.2d 360 (1995), that the due process clause does not require a hearing before a transcript rectification is ordered, is dispositive of this appeal. “Practice Book § 4051 [now § 66-5], which governs transcript rectification does not require a hearing. Until 1985, the rules of practice provided that a trial transcript could be rectified only ‘after [a] hearing.’ Practice Book, 1983, § 3082 [now § 66-5], In 1985, however, the hearing requirement was deleted .... We construe the 1985 deletion of the hearing requirement as vesting discretion in the trial court to determine whether to hold an evidentiary hearing before correcting a transcript.” Id., 494-95. No hearing was held in this case. We conclude that the court did not abuse its discretion when it determined not to hold a hearing.

In this case, the habeas court found that although the petitioner was not specifically invited to participate in the reconstruction conference, he did not express an interest in attending or participating in the process. Further, the court found that defense counsel reviewed his trial notes with the petitioner before the stipulation was completed and that he reviewed the stipulation with him after it was completed. As a result, the court determined that because the petitioner had the opportunity to voice any objection to the stipulation through his counsel, the petitioner had the opportunity to be heard.

On the basis of our review of the record, we conclude that the habeas court properly determined that the petitioner was not deprived of his due process rights.

II

The petitioner next claims that his counsel’s failure to inform him of his right to be present at the reconstruction conference deprived him of the effective assistance of counsel. We do not agree.

We first note our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn. App. 716, 720, 789 A.2d 1046 (2002).

“[T]o prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice. ... To prove that his counsel’s performance was deficient, the petitioner must demonstrate that counsel’s representation fell below an objective standard of reasonableness. . . . Furthermore, the petitioner must establish not only that his counsel’s performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 738, 779 A.2d 156 (2001).

The habeas court found that the petitioner’s counsel informed him of the reconstruction conference and discussed the stipulation with him before signing it. As we discussed in part I of this opinion, because the petitioner had no constitutional right to a reconstruction hearing and his counsel kept him informed of the proceedings, we conclude that his counsel’s performance was not deficient.

In addition, we conclude that even if we were to determine that the petitioner’s counsel’s performance was deficient, the petitioner suffered no prejudice. Specifically, he claims that his counsel should have inserted into the reconstructed transcript that there was an admitted fact that there was no accurate measurement of the distance between the alleged drug transaction and the school. The transaction took place in an alleyway, and the petitioner claims that without knowing how far down the alleyway the transaction took place, there could not be an accurate measurement from the point of the transaction to the school to establish that it took place within 1500 feet of the school. He also claims that it was not clear whether the distance was measured in a straight line through the intervening buildings or around the buildings.

The habeas court found that the distance from the school to the alleyway where the transaction occurred, measured around the buildings, was 1079 feet. There was testimony that the alley was no more than thirty feet long, and, consequently, the jury could conclude that the transaction clearly occurred within 1500 feet of the school. As the court pointed out, if the measurement was done in a straight line from the point of the transaction through the buildings, such a measurement would have placed the transaction even closer to the school. The court stated: “If the petitioner had testified at the reconstruction proceeding, he would not have been able to credibly testify that there was not evidence [or] testimony to support a jury verdict on those 1500 foot charges.” This conclusion was both legally and logically correct and finds support in the record. We conclude that because the result would not have been different, the petitioner has failed to show any prejudice as a result of his absence from the reconstruction conference.

Upon review of the record as a whole, we conclude that the habeas court properly found that the petitioner failed to satisfy his burden of establishing that his trial counsel provided ineffective assistance.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 66-5 provides in relevant part: “A motion seeking corrections in the transcript or the trial court record . . . shall be called a motion for rectification .... If any party requests it and it is deemed necessary by the trial court, the trial court shall hold a hearing at which arguments may be heard, evidence taken or a stipulation of counsel received and approved. The trial court may make such corrections or additions as are necessary for the proper presentation of the issues raised or for the proper presentation of questions reserved. The trial judge shall file the decision on the motion with the appellate clerk.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. TROY WESTBERRY
    (AC 21734)
    Foti, SchaUer and Flynn, Js.

      Argued January 10
    officially released March 19, 2002

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

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

FOTI, J.

The defendant, Troy Westberry, appeals from the judgment of conviction, rendered following a jury trial, of the crime of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the court (1) improperly admitted into evidence certain testimony under the spontaneous utterance exception to the rule against hearsay and (2) misled and confused the jury when it instructed the jury regarding the essential elements of intent and proximate cause. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The events giving rise to this conviction were the culmination of a period of animosity between two street groups in Hartford. By the spring of 1999, ill will existed between a group of individuals that included the defendant and Jesse Pope, and another group of individuals that included Gerald Jenkins, Dwayne Stewart and the victim, Anthony Bennefield. That hostility manifested itself in several violent altercations between members of the two groups prior to the events underlying this appeal.

Sometime near the end of April, 1999, the defendant gave money to Pope and asked him to rent a car for him. Pope thereafter asked an acquaintance, Kimberly Sarafopolous, to rent the car under her name. She complied with Pope’s request. In the subsequent days, Sarafopolous, at Pope’s request and with the use of money he had given to her, made several exchanges for different cars. On each occasion, Pope delivered the rental car to the defendant. On May 4, 1999, Sarafopolous rented a gold colored Chevrolet Monte Carlo. On May 5, 1999, the defendant used the Monte Carlo to take his girlfriend to and from school.

On May 5, 1999, Pope was driving down Albany Avenue in Hartford when Jenkins drove up behind him in a white Chevrolet Lumina. Jenkins drove alongside Pope’s car and began shooting at him. Pope tried to run Jenkins’ car off the road, but was not able to do so. Jenkins fired yet another shot in Pope’s direction before Pope drove away.

Later that night, Jenkins, Stewart and the victim celebrated the victim’s birthday at a local nightclub located on Albany Avenue. At some point, the victim went outside and fell asleep in Jenkins’ car, which was parked in front of the club. At around 1:30 a.m., Stewart, along with three other men, got into Jenkins’ Lumina. Stewart sat in the driver’s seat, the victim sat in the passenger’s seat and the other three men sat in the rear passenger seats. Shortly after driving away from the club, Stewart pulled over to the side of the road on Lenox Street, and several of the vehicle’s occupants smoked marijuana.

At that time, the defendant was operating the gold Monte Carlo on Lenox Street. He was the vehicle’s sole occupant. He pulled very closely along the driver’s side of the Lumina and fired four shots in its direction. The victim sustained fatal injuries. Two bullets penetrated his skull, and he also sustained two bullet wounds to his right hand. Thereafter, the defendant drove farther along Lenox Street and turned his headlamps on when he reached a nearby stoplight. He then turned onto Albany Avenue and continued to drive away from the scene of the shooting. Stewart and the other men in the Lumina realized that the victim, who had been asleep prior to the shooting, had been shot. After one of the men summoned help, police and emergency medical personnel arrived on the scene a short time later.

I

The defendant first claims that the court improperly admitted into evidence certain hearsay testimony under the spontaneous utterance exception to the hearsay rule. We disagree.

The following additional facts are necessary for our resolution of this claim. During the state’s examination of Stewart, the court permitted the state to introduce evidence about another shooting incident that had occurred earlier in the evening on May 5, 1999. Stewart testified that, at around 8 p.m., he was standing in front of the nightclub located on Albany Avenue and saw the defendant, operating the gold Monte Carlo, drive past him and turn right onto Deerfield Street, a side street near the club. Stewart testified that, at that same time, he saw the victim walking along Deerfield Street. He further testified that he had heard the sound of two gunshots after the defendant turned onto Deerfield Street and that the victim “hit the ground” at that time.

Stewart recalled that, after the defendant drove away, the victim approached him. Stewart testified as to the victim’s emotional state at that time; the victim was scared and shocked and his eyes were wide open. Stewart then stated that the victim told him that the defendant had fired the shots and that he was unsure as to the direction in which the defendant had fired his gun.

The court admitted into evidence the testimony as to what the victim told Stewart about the shooting over the defendant’s timely objection. The court ruled that the statement was a spontaneous utterance and thereby constituted an exception to the rule against hearsay. The defendant sought to exclude the testimony on the ground that the declarant, the victim, was not in a position to observe accurately what he related to Stewart. The defendant argued that Stewart’s testimony regarding the shooting did not establish that the victim was able to observe the defendant shoot at him and that, given the victim’s unavailability, the state had failed to prove that the victim accurately observed the shooting.

We review the court’s evidentiary ruling under an abuse of discretion standard. “[T]he trial judge must determine whether an utterance qualifies under this exception to the hearsay rule, and that decision will not be disturbed on appeal unless it constitutes an unreasonable exercise of discretion. ... All material facts should be weighed by the trial judge when determining whether a statement qualifies as a spontaneous utterance.” (Internal quotation marks omitted.) State v. Torres, 58 Conn. App. 524, 530, 754 A.2d 200 (2000); see also State v. Kelly, 256 Conn. 23, 42, 770 A.2d 908 (2001).

The spontaneous utterance exception permits an otherwise inadmissible hearsay statement to be admitted into evidence to prove the truth of the matter asserted therein if the movant can satisfy the following four conditions: “(1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant.” (Internal quotation marks omitted.) State v. Torres, supra, 58 Conn. App. 530; see also Conn. Code Evid. § 8-3 (2) (exception applies to “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”).

Our Supreme Court recognized the spontaneous utterance exception in Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924). The Supreme Court explained: “The element of time, the circumstances and manner of the [event], the mental and physical condition of the declarant, the shock produced, the nature of the utterance, whether against the interest of the declarant or not, or made in response to question, or involuntary, and any other material facts in the surrounding circumstances, are to be weighed in ascertaining the basic conclusion whether the utterance was spontaneous and unreflective and made under such circumstances as to indicate absence of opportunity for contrivance and misrepresentation. The principle rests upon the common experience that utterances made under such circumstances are void of self-interest and are in the same category as exclamations of pain. The probability of falsehood is so remote as to be negligible.” Id., 484-85.

As our review of the principles that underlie the exception demonstrates, the application of the exception entails a uniquely fact bound inquiry. The overarching consideration is whether the declarant made the statement before he or she had the opportunity to undertake a reasoned reflection of the event described therein. State v. Lomax, 60 Conn. App. 602, 609, 760 A.2d 957, cert. denied, 255 Conn. 920, 763 A.2d 1042 (2000).

As we noted previously, in the present case the defendant claims that the state faded to prove that the victim had the opportunity to observe the defendant discharge his firearm. That the declarant must have firsthand knowledge of the occurrence is firmly rooted in the exception. As our Supreme Court has explained, the declaration must have been made “by one having an opportunity to observe the matter of which he speaks, and in such close connection to the event and under such circumstances as to negative the opportunity for deliberation and fabrication and to indicate that it was a spontaneous utterance growing out of the nervous excitement and mental and physical condition of the declarant . . . .” (Emphasis added.) Perry v. Haritos, supra, 100 Conn. 484.

Our Supreme Court recently had occasion to consider a similar issue. The Supreme Court stated that “although circumstantial evidence of the declarant’s personal perception must not be so scanty as to forfeit the guarantees of trustworthiness which form the hallmark of all exceptions to the hearsay rule . . . the state is not required to establish such personal observation by the declarant beyond any possible doubt. Rather, the question for the trial court is whether a reasonable inference may be drawn that the declarant had personal knowledge of the facts that are the subject of his or her statement. . . . Consequently, [djirect proof of observation is not necessary; if the circumstances appear consistent with opportunity [to observe] by the declarant, the requirement is met.” (Citations omitted; internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 128-29, 763 A.2d 1 (2000).

We conclude that the trial court reasonably determined that the state adduced sufficient evidence to demonstrate that the victim’s statements were a product of his firsthand observations of the defendant. Stewart testified as to having witnessed the defendant drive by the club and turn onto Deerfield Street, where the victim was walking. When the defendant’s car turned onto Deerfield Street, two shots were fired. The victim immediately “hit the ground” when the shots were fired. Just moments later, the victim, in a shocked and emotionally excited state, identified the defendant as the shooter.

The sequence and substance of Stewart’s firsthand observations, as well as his testimony as to how the victim reacted to the shots and what the victim stated immediately thereafter, provided ample evidence from which the court reasonably could have inferred that the victim’s identification of the defendant as the shooter resulted from a firsthand observation of the defendant. Our Supreme Court has clearly stated that a moving party may prove personal knowledge “if it appears inferentially that the declarant personally observed such matters and that there is nothing to make a contrary inference more probable.” (Internal quotation marks omitted.) Id., 129 n.12. We conclude that that is the case here. The totality of the evidence concerning the making of the statement permitted the court’s finding.

Additionally, the court was free to infer that the fact that the victim identified the defendant as the shooter just moments after the shooting and while still under circumstances that negated the opportunity for deliberation supported a finding that the victim did make a firsthand identification of the defendant. Our law exempts spontaneous utterances from the rule against hearsay because the circumstances under which such statements are made imbue them with inherent reliability. Although the spontaneous nature of the victim’s statement does not automatically ensure that it resulted from his firsthand observation, the court was free to consider that factor, along with the myriad of others available to it, in reaching its conclusion. In other words, the victim’s exactness in identifying the defendant as the shooter may have buttressed the other circumstantial evidence that permitted the court to find that the victim did have an opportunity to observe the defendant discharge his firearm. The victim’s ambiguity as to the defendant’s precise target is of no consequence to our analysis. The state did not seek, nor was it required, to prove that the defendant tried to shoot the victim at that time. Rather, the statement’s relevance bore on the issues in the present case because it was proof that the defendant possessed a firearm and discharged that firearm in the victim’s vicinity just hours before the shooting.

The defendant argues that Johnson v. Newell, 160 Conn. 269, 278 A.2d 776 (1971), should control our resolution of the present issue. In Johnson, our Supreme Court held that a certain statement did not fall under the spontaneous utterance exception because the evidence surrounding its making did not support a finding that the declarant had an opportunity to observe the matter described therein. See id., 278-79. Our Supreme Court relied on the fact that the declarant had not witnessed the underlying event but that he had only heard it. Id., 278. The same cannot be said about the victim’s statement in the present case. As our Supreme Court later explained, the test is whether the evidence supports a finding that the declarant had an opportunity to observe the matters described in his or her statement. State v. Wargo, supra, 255 Conn. 129. The victim’s statement did not suggest that the victim only heard what he described. Rather, the victim described the defendant as the person who fired the shots either at him or in the air. In the present case, also, Stewart testified as to the location of the defendant and the victim during the shooting itself. While this evidence could not prove beyond any possible doubt that the victim personally observed the defendant shoot his gun, it certainly afforded the court ample evidence from which to infer and to conclude that the victim had the opportunity to do so. Having heard the circumstances under which the victim made the statement, the jury was free to afford this competent evidence whatever weight it deemed appropriate in its deliberations.

We conclude that the court properly exercised its discretion in admitting the victim’s statement into evidence as a spontaneous utterance.

II

The defendant next claims that the court misled and confused the jury when it instructed it regarding the essential elements of intent and proximate cause. We disagree.

The following additional facts are necessary for our resolution of this issue. Both parties concede, and the record reflects, that the court properly instructed the jury on the essential element of intent. After it delivered its instruction on intent, the court instructed the jury on the essential element of proximate cause. In its instruction on causation, the court stated: “It does not matter whether this particular kind of harm that results from the defendant’s act be intended by him.” After instructing the jury as to intent and proximate cause, the court read the relevant text of § 53a-54a and further instructed the jury on intent. It stated, inter alia, that “[t]he state must prove beyond a reasonable doubt that the defendant, in causing the death of the victim, did so with the specific intent to cause death.”

The defendant argues that the court’s proximate cause instruction, in which it stated that intent was not required, contradicted its instruction that the state had to prove beyond a reasonable doubt that the defendant intended to cause the victim’s death. As a result, the defendant argues that the court’s charge confused and misled the jury. The defendant did not take exception to the court’s instruction at trial and seeks appellate review of this claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial. . . . This court may dispose of the claim on any one of the conditions that the defendant does not meet.” (Internal quotation marks omitted.) State v. Jones, 65 Conn. App. 649, 653, 783 A.2d 511 (2001).

The claim is reviewable because the record affords this court an adequate basis on which to review the claim and the claim is constitutional in nature. We conclude, however, that the claim fails under Golding’s third prong because the defendant has failed to demonstrate that a constitutional violation clearly exists that deprived him of a fair trial.

“[I]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 161, 778 A.2d 955 (2001). As we undertake this inquiry, “the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 291, 780 A.2d 53 (2001). Stated otherwise, “[t]he test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) Id., 296.

State v. Boles, 223 Conn. 535, 613 A.2d 770 (1992), controls our resolution of this issue. The defendant in Boles claimed on appeal that the trial court had misled and confused the jury on the essential element of intent for the crime of murder. Id., 540. The trial court in Boles delivered an accurate instruction on intent and, during its instruction on the essential element of causation, stated: “It’s not necessary that the particular kind of harm that results from the defendant’s act be intended by him or the death or injury caused by the defendant’s conduct is a foreseeable and natural result of that conduct. The law considers the chain of legal causation unbroken and holds the defendant criminally responsible.” (Emphasis in original; internal quotation marks omitted.) Id., 541. Subsequent to delivering this instruction, the trial court again instructed the jury on the element of intent. Id., 542.

Our Supreme Court rejected the defendant’s claim that the court’s instruction on causation impermissibly relieved the state of its burden of proving that the defendant committed murder only if he intended to cause the victim’s death. Id., 540. As the Supreme Court explained: “The section of the trial court’s instruction in question could only be misinterpreted as informing the jury that to find the defendant guilty of the victim’s murder it had only to find proven that the defendant was the source of the conduct that caused her death, if we were to view the charge in isolation from what immediately preceded it. Viewing this portion of the charge in such isolation, however, would be completely unjustified” because the court fully and accurately instructed the jury on the element of intent before it delivered the instruction on the element of causation of which the defendant complained. Id., 541-42. “If the trial court has given a preliminary instruction on the element of intent, the subsequent use of [language describing the element of causation] cannot be viewed in isolation. The instruction neither eliminates the element of intent, nor substitutes causation therefor.” State v. Francis, 228 Conn. 118, 130-31, 635 A.2d 762 (1993); see also State v. Dillon, 34 Conn. App. 96, 102-103, 640 A.2d 630 (1994), rev’d on other grounds sub nom. State v. Carter, 232 Conn. 537, 656 A.2d 657 (1995).

We find very little to distinguish Boles from the present case. As did the trial court in Boles, the court in the present case accurately instructed the jury as to intent prior to delivering its instruction as to causation. The instructions on causation in both cases accurately instructed the jury that the state, in order to prove causation, did not need to prove that the defendant intended to cause the particular type of harm that resulted from his actions. See, e.g., Craig v. Driscoll, 64 Conn. App. 699, 711-12, 781 A.2d 440, cert. granted on other grounds, 258 Conn. 931, 785 A.2d 228 (2001). In both cases, the court thereafter instructed the jury that “it had to find proven that the defendant intended to cause the victim’s death before it could convict him of murder.” State v. Boles, supra, 223 Conn. 543.

Having reviewed the court’s entire charge, we are satisfied that, given its structure and content, it is not reasonably possible that it misled or confused the jury as to the necessary elements of intent or causation. While we need not restate each and every such instance in this opinion, it suffices to note that the court, on numerous occasions, made the need to find intent clear. As the court in Boles concluded: “In the context of the court’s instructions concerning intent and causation, it would strain reason to believe that the jury could have heard the challenged instruction as eliminating the element of intent. We believe that construed reasonably in context the meaning conveyed was that obviously intended by the trial court; that is, that the jury, in order to convict the defendant of murder, had to find proven both that the defendant intended to cause the victim’s death and that his conduct was, in fact, the proximate cause of her death.” Id., 542.

The defendant’s claim fails under Golding because he has failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial.

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 or of a third person or causes a suicide by force, duress or deception . . . .”

       Stewart recalled the victim’s statement as follows: “After [the defendant] left, [the victim] came. I seen him. I said, ‘Come here,’ and tried to, you know, I asked him what happened. He say he didn’t know if [the defendant] was shooting at him or in the air.” omitted; emphasis added; internal quotation marks omitted.) State v. Romero, 59 Conn. App. 469, 477, 757 A.2d 643, cert. denied, 255 Conn. 919, 763 A.2d 1043 (2000). Consequently, we decline to review the defendant’s claim to the extent that he challenges the statement’s spontaneity.

       As part of his argument, the defendant appears to challenge the spontaneity of the victim’s statement. He argues in his brief to this court that the victim “quite clearly engaged in a deliberate, reflective thought process because he chose between two alternatives: whether the defendant shot in the air or shot at him. Furthermore, not only did [the victim] deliberately choose between two alternatives, he selected the most sinister of the two alternatives in assuming that the defendant was trying to shoot at him. . . . It is thus apparent that [the victim’s] utterance was not an unreflective and sincere expression of the facts just observed by him.”
      The defendant has raised this facet of his claim for the first time on appeal. “Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. ... To permit a party to raise a different ground on appeal than was raised during trial would amount to trial by ambuscade, unfair both to the trial court and to the opposing party. ... We have consistently refused to consider evidentiary rulings not properly preserved. Where the issue raised for the first time on appeal is a matter of state evidentiary law, rather than of constitutional significance, this court will deny the defendant appellate review.” (Citation

       We are likewise not persuaded by the defendant’s arguments that the only reasonable inference permitted by Stewart’s testimony was that the victim heard, rather than witnessed, the shooting and that the victim’s identification was based on either speculation or conjecture. Our analysis is complete once we determine that the circumstances appeared to have afforded the declarant an opportunity to have observed that which he described in his statement. See State v. Wargo, supra, 255 Conn. 129.

       Even if we were to conclude that the court improperly admitted the challenged statement into evidence, our inquiry would not end. Where an improper evidentiary ruling does not implicate a constitutional right, the appellant bears the burden “to establish the harmfulness of the claimed impropriety.” (Internal quotation marks omitted.) State v. Russo, 62 Conn. App. 129, 137, 773 A.2d 965 (2001). This inquiry asks whether the court’s improper ruling more likely than not affected the result of the trial or caused the defendant substantial prejudice. See State v. Harris, 60 Conn. App. 436, 441-42, 759 A.2d 1040, cert. denied, 255 Conn. 907, 762 A.2d 911 (2000). We conclude that the defendant has failed to demonstrate harm in either regard for several reasons. Stewart’s account of the incident constituted independent evidence of what the victim told Stewart. The jury would have been able to evaluate this evidence and, even without having heard the victim’s statement, would likely have reached the conclusion that the defendant had fired at or near the victim. Also, the shooting incident did not serve as the basis for the defendant’s conviction. It merely provided additional evidence, apart from other ample evidence, to demonstrate the defendant’s motive and intent.

       The court instructed the jury in relevant part: “Intent relates to the condition of mind of the person who commits the act, his purpose in doing it. As defined by our statute, a person acts intentionally, with respect to a result, when his conscious objective is to cause such result. Intentional conduct is purposeful conduct, rather than conduct that is accidental or inadvertent. The existence of intent is a fact for the jury to determine. It must be proved beyond a reasonable doubt.
      “What a person’s purpose, intention, or knowledge has been is usually a matter to—to be determined by inference. No person is able to testify that he looked into another person’s mind and saw therein a certain purpose or intention or a certain knowledge to do harm to another.
      “In this case, therefore, it will be part of your duty to draw all reasonable and logical inferences from the conduct you find the defendant engaged in, in light of the surrounding circumstances, and from this, determine whether the state has proven the element of intent beyond a reasonable doubt.”

       The court instructed the jury in relevant part: “The state must prove beyond a reasonable doubt that the defendant caused certain results. Proximate cause does not necessarily mean the last act of cause or the act in point of time nearest to the death and the iryury.
      “The concept of proximate cause . . . incorporates the notion that an accused may be charged with a criminal offense, even though his acts were not the immediate cause of death and the injury.
      “An act or omission to act is a proximate cause of the death and the injury when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient intervening cause, to the death and the injury. It is a cause, without which, the death and injury would not have occurred, and a predominating cause, a substantial factor from which the death and injury follow as a natural, direct and immediate consequence.
      “It does not matter whether this particular kind of harm that results from the defendant’s act be intended by him. When the death and injury caused by the defendant’s conduct are a foreseeable and natural result of that conduct, the law considers the chain of legal causation unbroken and holds the defendant criminally responsible.”

       The court instructed the jury in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or a third person.
      “To establish the defendant’s guilt, the state must first prove that this defendant, Troy Westberry, caused the death of Anthony Bennefield. You must find proven beyond a reasonable doubt that Anthony Bennefield died as a result of the actions of the defendant.
      “The state must also prove beyond a reasonable doubt that the defendant caused the death of Anthony Bennefield with the intent to cause the death of Mr. Bennefield or a third person. I refer you to my previous instruction[s] on intent and proximate cause, which are applicable here.
      “Again, the state must prove beyond a reasonable doubt that the defendant caused the death of the victim with the intent to cause death. I have previously discussed the issue of intent required for this offense. The state must prove beyond a reasonable doubt that the defendant, in causing the death of the victim, did so with the specific intent to cause death.”

       “Not every improper jury charge . . . results in constitutional error.” State v. Schiappa, 248 Conn. 132, 165, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). It is, however, well settled that claims of instructional error as to the essential elements of a crime are constitutional in nature. Claims in this category implicate “the possibility of a due process violation affecting the fairness of the trial.” State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991).

       The only relevant difference between the two cases appears to be that, in the present case, the trial court made reference to its proximate cause instruction during one of its subsequent explanations of the specific intent for murder. It merely stated: “I refer you to my previous instruction[s] on intent and proximate cause, which are applicable here.” We find this difference to be of no consequence. The court did not reiterate its instruction on causation at that point, and the record reflects that the court stated numerous times, even in direct proximity to that statement, that the state bore the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent of causing the victim’s death.