author: O’CONNELL, J. SCHALLER, J.,

text:
    STATE OF CONNECTICUT v. ANDRE HUCKABEE
    (13930)
    O’Connell, Lavery and Schaller, Js.
    Argued January 23
    officially released June 4, 1996

      Mary Miller Haselkamp, assistant public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and, on the brief, Cecelia Wiederhold, assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-55, assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court (1) failed to instruct the jury on the lesser included offenses of assault in the second degree and assault in the third degree, (2) failed to instruct the jury on the limited use of prejudicial evidence, and (3) improperly limited the defendant’s cross-examination of apolice witness. We reverse the trial court’s judgment in part and affirm it in part.

The jury could reasonably have found the following facts. On the night of November 22, 1992, Raymond Harris, Tyron Walton and Dontel Glover went to a New Haven nightclub. The three men walked toward a crowd that had gathered in front of the club. Soon after, Harris saw gunfire discharged from multiple sources. Walton was killed in the shooting, and a bullet struck Harris’ leg. Harris was admitted to a hospital and released the next day.

Joseph Greene, a New Haven police detective, was assigned to investigate the shooting. Greene received an anonymous tip inculpating the defendant and three others in the shooting. Later that day, Greene recognized the defendant and arrested him. At the time, the defendant was on escape status from the Long Lane School. At the police station, the defendant signed a waiver of rights form and gave a statement implicating himself in the shooting.

I

The defendant first claims that the trial court improperly refused to instruct the jury on the lesser included offenses of assault in the second degree* and assault in the third degree. We agree.

A defendant is entitled to a lesser offense instruction only if he can demonstrate compliance with the following four conditions: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, that justifies conviction of the lesser offense, and (4) the proof of the element or elements that differentiate the lesser offense from the greater offense is sufficiently in dispute to permit the jury consistently to find the defendant not guilty of the greater offense but guilty of the lesser. State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra [179 Conn. 588], we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. . . . [T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Ray, 228 Conn. 147, 154, 635 A.2d 777 (1993). If we cannot exclude, as a matter of law, the possibility that the defendant is guilty only of the lesser offense, we must conclude that the trial court’s failure to give the requested instruction is improper. Id., 155; State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982).

Because the state and the defendant agree that the first three prongs of Whistnant are satisfied, we focus on the last prong. Whistnant's fourth prong requires that the proof of the element or elements that differentiate the lesser offense from the greater be sufficiently in dispute to permit the jury consistently to find the defendant not guilty of the greater offense but guilty of the lesser. Proof is sufficiently in dispute when “it is of such a factual quality that [it] would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense.” (Internal quotation marks omitted.) State v. Fernandez, 5 Conn. App. 40, 48, 496 A.2d 533 (1985).

To obtain a conviction on assault in the second or third degree in this case, the state was required to prove that Harris sustained physical injury, defined as the impairment of physical condition or pain. General Statutes § 53a-3 (3). In order to convict the defendant of assault in the first degree, the state was required to prove serious physical injury, defined, in relevant part, as physical injury that causes serious disfigurement, serious impairment of health, or serious loss or impairment of the function of any bodily organ. General Statutes § 53a-3 (4).

In the present case, the state offered the testimony of two witnesses to prove that Harris had sustained serious physical injury as a result of the shooting. Gerard Burns, a surgeon, testified that the bullet passed through Harris’ leg, but bypassed both the bones and the blood vessels. Bums also explained that the wound left permanent scars on Harris’ leg. Bums then testified extensively that the possible risks associated with a bullet wound to the leg included a fractured pelvis, damage to the blood vessels, and damage to the femoral and sciatic nerves. Harris testified that he has small scars marking the entry and exit of the bullet.

On cross-examination, Bums conceded that at no time did the defendant experience any of the potential risks that Burns described in his direct testimony. Bums could not testify on the appearance of the wound because he could not remember what the wound looked like and no pictures had been taken. Bums could not comment on the present state of the injury because Harris had refused to continue treatment. Harris revealed that although he experienced a tingling sensation that was sometimes accompanied by pain in his leg, the injury has never inhibited his daily activities. Harris also testified that he stopped therapy after three sessions.

Through cross-examination of Bums and Harris, the defendant put the element of serious physical injury in dispute. On the basis of on this evidence, the jury reasonably could have found that the victim was not seriously disfigured, his health was not seriously impaired, and he suffered no serious loss or impairment of the function of any bodily organ at the time of the shooting.

The state contends that because the defendant was unable to discredit the state’s witnesses, the degree of injury was not sufficiently in dispute and the jury was precluded from finding that the defendant caused only physical injury. Through cross-examination, the defendant clearly challenged the physical nature of the bullet wound. The jury is responsible for determining the credibility of the witnesses and we will not retry the facts of the case. Drabik v. East Lyme, 234 Conn. 390, 394-95, 662 A.2d 118 (1995).

The state next argues that the degree of injury was not sufficiently in dispute because both parties agreed that Harris was shot in the leg. This contention evinces a misunderstanding of the fourth prong of Whistnant. Although the parties agreed that Harris suffered a bullet wound, they could not agree that the wound constituted serious physical injury. A bullet wound is not per se serious physical injury. Such a determination is a question of fact for the jury. State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989); State v. Hooks, 30 Conn. App. 232, 240, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993); State v. Rumore, 28 Conn. App. 402, 414, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992); State v. Graham, 21 Conn. App. 688, 717, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990).

The state also contends that the seriousness of the injury was undisputed because the defendant failed to present his own evidence on the degree of injury. This argument is contrary to the law. A defendant can place a particular element of the crime charged sufficiently in dispute through the cross-examination of a state’s witness, the major function of which is to put certain matters in dispute. State v. Smith, 35 Conn. App. 51, 62, 644 A.2d 923 (1994). The defendant is not required to call his own witnesses to satisfy the fourth prong of Whistnant. By cross-examining both Harris and Bums on the amount and nature of pain and disfigurement suffered by Harris and the amount of therapy needed to treat the injury adequately, the defendant put the degree of injury sufficiently in dispute to warrant instmctions on assault in the second and third degrees.

The state next contends that the defendant did not put the seriousness of the injury sufficiently in dispute because he presented an alibi defense at trial. The degree of Harris’ injury, however, is an issue wholly separate from the defendant’s alibi defense. A defendant may argue that he did not cause the injury and challenge the degree of injury sustained by the victim. In short, the defendant was not precluded from denying that he caused Harris’ injury while also contesting that the bullet, fired from another’s gun, did not cause serious physical injury to Harris.

The state finally argues that the defendant benefited from the trial court’s refusal to give the requested instructions because if the jury believed that Harris sustained only physical injury, it would have acquitted the defendant of assault in the first degree. This argument is contrary to Connecticut law. If a defendant is entitled to a lesser included offense instruction, a refusal to so charge is not harmless merely because the defendant was convicted of a greater offense. State v. Bagley, 35 Conn. App. 138, 150, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994).

The defendant has satisfied the fourth prong of Whist-nant because we cannot exclude the possibility that the defendant is guilty of one of the lesser offenses. We conclude that the trial court improperly failed to give the requested instruction. Accordingly, the conviction on the charge of assault in the first degree is reversed and a new trial is ordered on that charge.

II

The defendant next claims that he was entitled to a jury instruction on the limited use of numerous pieces of prejudicial evidence. Generally, evidence of prior uncharged crimes or misconduct is inadmissible because of the prejudicial nature of that evidence. State v. Busque, 31 Conn. App. 120, 129, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994) (certification improvidently granted). In the event that such evidence is admitted, a trial court customarily, sua sponte if necessary, instructs the jury as to the limited purpose for which such evidence is to be considered, thereby vitiating the potential prejudice. See State v. Cooper, 227 Conn. 417, 428, 630 A.2d 1043 (1993); State v. Joyner, 225 Conn. 450, 474, 625 A.2d 791 (1993); State v. Baldwin, 224 Conn. 347, 357-58, 618 A.2d 513 (1993); State v. Ryan, 182 Conn. 335, 338 n.5, 438 A.2d 107 (1980); State v. Ulen, 31 Conn. App. 20, 35-36, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993); State v. Servello, 14 Conn. App. 88, 94-95, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988).

A

In its case-in-chief, the state introduced evidence that Greene knew the defendant by his street name, “Snake.” We agree with the trial court that this name in itself has insufficient negative connotations to warrant a limiting instruction. After introducing the defendant’s street name for the legitimate purpose of establishing his identity, however, the state continued to question Greene on how he knew the defendant was known as Snake. Greene responded that he had acquired the defendant’s true name by running the street name through the records of the New Haven police department.

The state contends that the introduction of the defendant’s street name and how Greene knew of this name does not constitute evidence of prior misconduct. We do not agree. While the street name in itself is not evidence of prior misconduct, evidence that the defendant’s name was found in police department records suggests that he either had a criminal record or had been the subject of police interest. The defendant was therefore entitled to a limiting instruction on the use of this evidence so that the jury would use it properly in its deliberations.

The state next introduced evidence that the defendant was employed as a drug seller. Although in a written statement the defendant admitted selling drugs, the trial court redacted this admission from the statement pursuant to a ruling on a motion in limine. The state contends that the introduction of the defendant’s occupation as a drug seller is not evidence of prior misconduct. To support that contention, the state argues that because portions of the defendant’s written statement were redacted, the presentation of this same evidence through a state’s witness does not constitute misconduct evidence. This argument has no merit. Despite the redaction in the defendant’s written statement, the presentation of this evidence through a state’s witness unquestionably constituted evidence of the defendant’s prior misconduct. Accordingly, the defendant was entitled to have the jury instructed on its limited use.

In cross-examination of Greene, the defendant introduced evidence to support his alibi defense that he had escaped from the Long Lane School shortly before the incident here. Thereafter, the state elicited from one of its witnesses that the defendant had escaped from Long Lane on numerous other occasions. The state contends that because the defendant first presented evidence of his own misconduct to bolster his alibi defense, he is precluded from having the jury instructed as to the limited use of the other escape attempts that it introduced. We agree with the state that it was entitled to explore the defendant’s multiple escapes from Long Lane once the defendant opened the door to such inquiry. The introduction of the defendant’s escapes prior to this prosecution, however, should have been accompanied by a limiting instruction that the evidence was to be used solely for the purpose of evaluating the defendant’s veracity, and not his propensity to commit the crime charged. We conclude that the nature of this evidence, regardless of who introduced it, requires a hmiting instruction.

B

Having concluded that the trial court’s failure to give limiting instructions was improper, we must next determine if it was harmful. The failure to give a requested instruction on prior misconduct evidence is not of constitutional dimension. State v. Servello, supra, 14 Conn. App. 94-95. Therefore, in order to prevail on his evidentiary claim, the defendant must prove that it was reasonably probable that the jury was misled by the failure to give a limiting instruction. State v. Fleming, 198 Conn. 255, 269, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Manson, 186 Conn. 574, 585-86, 442 A.2d 1335 (1982). The defendant has met this burden.

The defendant’s confession was pivotal to this case. At trial, the defendant disavowed his confession and raised an alibi defense. Both the state and the defendant point out that the critical issue for the jury was therefore whether it believed the confession. No other witness placed the defendant at the scene, and the defendant’s credibility was crucial not only to the weight to be accorded to the confession, but also to the validity of his alibi defense. Although the jury could use the evidence of prior misconduct to assess the defendant’s credibility, because the court failed to provide the jury with any guidance on how to use that evidence, it is likely that it also used it for substantive purposes.

The evidence that the police department had a record of the defendant, that the defendant was a drug seller, and that the defendant had escaped from Long Lane on several occasions more probably than not served as a basis for the jury’s conviction. Accordingly, we conclude that the defendant is entitled to a new trial.

Ill

We do not reach the issue of whether the trial court improperly restricted the defendant’s cross-examination of Greene because the issue is not likely to arise again on retrial.

The judgment is reversed only as to the convictions of manslaughter in the first degree and assault in the first degree and the case is remanded for a new trial on those charges.

In this opinion LAVERY, J., concurred.

SCHALLER, J.,

dissenting. The majority reverses the defendant’s manslaughter and assault convictions and remands this case for a new trial on the basis of its conclusions that the trial court improperly failed to instruct the jury on lesser included offenses and the claimed limited use of certain evidence. Because I conclude that the trial court properly refused to instruct on assault in the second and third degrees as lesser included offenses and did not abuse its discretion by declining to give a limiting instruction on the evidence, I respectfully dissent.

I

My disagreement on the first issue concerns the application of the fourth condition of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), to this case. I conclude that the evidence concerning serious physical injury was not sufficiently in dispute to warrant instructions on the charges of assault in the second and third degrees and, therefore, the trial court properly refused to instruct on those charges. Only the victim of the alleged assault, Raymond Harris, and the state’s witness, Gerard Bums, a surgeon, testified concerning the injury. Harris testified that he had two scars from the entry and exit wounds caused by the bullet, and that he suffered tingling and pain in his leg and ankle as a result of the shooting. Bums also testified that the bullet that stmck Harris produced entry and exit wounds, both of which left permanent scars.

On numerous occasions, this court has recognized that bullet wounds cause serious physical injury. State v. Hooks, 30 Conn. App. 232, 240, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993) (victim shot in finger); State v. Dickerson, 28 Conn. App. 290, 292, 612 A.2d 769 (1992) (victim shot in left foot); State v. Estrada, 26 Conn. App. 641, 655, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992) (victim shot once in each leg); State v. Graham, 21 Conn. App. 668, 716, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990) (victim shot in face and shoulder); State v. Woodard, 11 Conn. App. 499, 501, 528 A.2d 404, cert. denied, 205 Conn. 802, 531 A.2d 940 (1987) (victim shot in upper left arm and shoulder); State v. Dickson, 10 Conn. App. 462, 465, 523 A.2d 935 (1987) (victim shot twice in left thigh).

The defendant attempted to challenge this evidence in the course of cross-examination. The defendant elicited testimony from Harris that he has not allowed the injury to impede his daily activities. Bums testified on cross-examination that he could not comment on the present state of the injury and could not remember what the wound looked like at the time he treated it one and one-half years earlier. On the basis of these minimal concessions, the majority concludes that the defendant “clearly challenged the physical nature of the bullet wound,” and created a sufficient dispute about the seriousness of it to require the trial court to give the lesser included offense instructions.

The majority further states that “we cannot exclude the possibility that the defendant is guilty of one of the lesser offenses.” This court has concluded otherwise on two separate occasions in cases involving assault in the first degree convictions, and I would so conclude in this case. In State v. Smith, 35 Conn. App. 51, 62, 644 A.2d 923 (1994), the defendant claimed that the evidence of the permanency of a scar was sufficiently in dispute “because the victim did not seem overly bothered by the scar and did not immediately seek corrective surgery.” The victim’s plastic surgeon had testified that the victim wanted to wait and see if the scar would improve by itself. Id. We rejected the defendant’s claim, holding: “The victim’s attitude about the scar and the need for corrective surgery are completely irrelevant to the question of permanency. We are not persuaded by the defendant’s claim that the proof of permanency of the victim’s scar was sufficiently in dispute to require an instruction on the claimed lesser included offense.” Id., 62-63.

Likewise, in State v. Graham, supra, 21 Conn. App. 716, we rejected the defendant’s claim that the trial court improperly denied him the opportunity to voir dire an ophthalmologist who testified as an expert witness as to the injuries sustained by the victim. The defendant claimed that with the ophthalmologist’s testimony concerning whether he had specific medical experience with the injury involved, whether he had been suspended from practice and whether he had any interest in the case, the jury would not have concluded that the injury was serious enough to warrant a conviction for first degree assault. We concluded: “There was evidence before the jury that [the victim] was shot in the face and shoulder and can no longer see out of his left eye. In light of the evidence presented, we cannot say, as a matter of law, that the questions proposed by the defendant on appeal could have led the jury to believe that [the victim’s] injuries were not serious.” Id., 717.

“ ‘Serious physical injury’ means physical injury which . . . causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” General Statutes § 53a-3 (4). Although I recognize “the difficulty of drawing a precise line as to where ‘physical injury’ leaves off and ‘serious physical injury’ begins”; State v. Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987); I cannot agree with the majority that a jury could consistently find the defendant not guilty of assault in the first degree but guilty of assault in the second or third degree in light of the evidence that the victim was shot and has two permanent scars, one from an entry wound and one from an exit wound.

“Evidence is sufficiently in dispute where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a juiy from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. State v. Manley, 195 Conn. 567, 579, 489 A.2d 1024 (1985), quoting State v. Whistnant, supra [179 Conn. 588]. Nonetheless, jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence . . . from which inferences can fairly be drawn. State v. Manley, supra [579], quoting Schultz v. Pennsylvania R. Co., 350 U.S. 523, 526, 76 S. Ct. 608, 100 L. Ed. 668 (1956). They should not be encouraged to engage in speculation. State v. Manley, supra, 580.” (Internal quotation marks omitted.) State v. Montanez, 219 Conn. 16, 23, 592 A.2d 149 (1991).

I conclude that, given the uncontested testimony concerning the nature and effect of the victim’s injury sustained as a result of his having been shot by the defendant, only sheer speculation could have resulted in the jury’s finding only physical injury.

II

The defendant’s second claim is based on an alleged abuse of discretion by the trial court in refusing to give a limiting instruction on what the defendant asserts was misconduct evidence. The challenged evidence consists of the following: (1) the defendant’s street name was “Snake,” (2) the defendant sold drugs for Frank Carr, and (3) the defendant had been committed to and was on escape status from Long Lane School at the time of the incident.

With regard to the first item, the state concedes that it introduced evidence of the defendant’s street name during direct examination of Joseph Greene, a New Haven police detective. Greene testified that he had learned from an anonymous source that a person known as Snake was responsible for the shooting. He checked police department records and found that the defendant used that name and another alias. The purpose of the evidence was to establish how Greene was led to recognize and stop the defendant at the Chapel Square Mall in New Haven. The evidence was not offered as evidence of misconduct for the purpose of impeaching the credibility of the defendant or for showing a criminal propensity. I conclude, therefore, that Greene’s testimony on this matter does not constitute misconduct evidence. State v. Gant, 231 Conn. 43, 58, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995) (“threatening complaint merely helped explain to the jury the events that led the police to the scene of the defendant’s arrest”).

The second item, drug sale activity, was contained in the defendant’s statement. When his statement was admitted into evidence, the court ordered that information redacted. During direct examination of the defendant’s aunt, the defendant’s attorney raised the matter of the defendant’s relationship with Carr, including the fact that the defendant worked for Carr. Subsequently, the defendant’s aunt testified on cross-examination by the state that the defendant was selling drugs and collecting money for Carr. The state, therefore, was merely pursuing a matter initially raised by the defense in its direct examination of the defense witness.

The third item, concerning the defendant’s status with regard to Long Lane, was also initially introduced by the defendant during cross-examination of Greene. The defendant introduced evidence of one escape by the defendant from Long Lane in order to demonstrate that the defendant was arrested for escaping, not for murder. On redirect, the state then elicited additional testimony from Greene as to other escapes. The defendant failed to request the trial court to admit for only a limited purpose the evidence that he caused to be introduced, concerning both the defendant’s relationship with Carr and his escapes from Long Lane.

Action induced by a party ordinarily cannot be grounds for error. State v. Walton, 227 Conn. 32, 67, 630 A.2d 990 (1993); State v. Edwards, 39 Conn. App. 242, 251, 665 A.2d 611, cert. denied, 235 Conn. 924, 666 A.2d 1186 (1995). The defendant cannot claim now that the trial court improperly abused its discretion by failing to give a limiting instruction after causing the evidence to be introduced. “A defendant can present a claim of relief from induced error ‘only upon a showing that the error violated his constitutional rights.’ ” State v. Edwards, supra, 251-52, quoting State v. Harrison, 34 Conn. App. 473, 488, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994); see State v. Youdin, 38 Conn. App. 85, 98, 659 A.2d 728, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995).

The defendant cannot make this showing because: “ ‘Robing garden variety claims of improper jury instructions concerning evidentiary matters in the majestic garb of constitutional claims does not make such claims constitutional in nature. See State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988).’ State v. Ulen, 31 Conn. App. 20, 37, 623 A.2d 70, cert. denied, . 226 Conn. 905, 625 A.2d 1378 (1993).” State v. Webb, 37 Conn. App. 722, 730, 657 A.2d 711, cert. denied, 234 Conn. 915, 660 A.2d 357 (1995). “[T]he failure of the . trial court to give a limiting instruction concerning the use of evidence of prior misconduct is not a matter of constitutional magnitude.” State v. Ulen, supra, 37.

The effect of the majority opinion would be that any evidence that suggests prior misconduct of a defendant, regardless of the purpose for which it was offered, and even when that evidence was offered initially by the defendant, requires a limiting instruction by the trial court informing the jury that the evidence is to be considered “solely for the purpose of evaluating the defendant’s veracity, and not his propensity to commit the crime charged.”

Our law does not dictate that every item of prejudicial evidence is misconduct evidence subject to a limiting instruction. That is nevertheless essentially what the defendant seeks. I agree that misconduct evidence admitted to show, for example, an element of the crime, identity, malice, motive, or a system of criminal activity requires a limiting instruction. State v. Ouellette, 190 Conn. 84, 94-95, 459 A.2d 1005 (1983). In this case, however, the evidence of the defendant’s street name was offered only to show how Greene was led to arrest the defendant. It is not, therefore, subject to a limiting instruction. See State v. Gant, supra, 231 Conn. 58-59.

With regard to the other challenged evidence, the defendant initially offered the evidence without indicating any limited purpose and, therefore, any possible error was induced by the defendant. Moreover, the defendant did not request that the evidence be introduced for a limited purpose until the end of his trial. A request for a limiting instruction after introducing the evidence is a belated attempt to raise a nonconstitu-tional issue, not properly preserved in the first instance.

Accordingly, I would affirm the judgment of conviction.

For the foregoing reasons, I respectfully dissent.

       The Long Lane School is a juvenile facility maintained by the department of children and families pursuant to General Statutes § 17a-3.

       At the time of the offense, General Statutes (Rev. to 1991) § 53a-60 (a) provided in pertinent part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-61 (a) provides in pertinent part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . .

       The defendant complied with the first prong of Whistnant by requesting instructions on assault in both the second and third degrees in accordance with Practice Book § 852. The trial court, finding that the irqury was not sufficiently in dispute, refused to give those instructions. The defendant has similarly satisfied the second prong of Whistnant. The state agrees that the only element that distinguishes assault in the first degree as charged from assault in the second and third degrees is the seriousness of the injury. It is therefore not possible for this defendant to have committed the greater offense, in the manner described in the information, without having first committed the lesser as required by Whistnant. In order to satisfy the third prong of Whistnant, there must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs, to justify a finding of guilt of the lesser offense. State v. Rasmussen, 225 Conn. 55, 67-68, 621 A.2d 728 (1993). The state maintains that it has proved serious physical injury and therefore necessarily proved physical iqjuiy. Thus it agrees that the jury reasonably could have found that the defendant caused physical injury to Harris.

       Although serious physical injury also includes a “substantial risk of death”; General Statutes § 53a-3 (4); the trial court refused to charge on this portion of the definition because the state failed to present any evidence in support of the victim’s substantial risk of death. The state contends that the defendant is challenging the finding of serious physical injury on the basis of Harris’ recovered use of his leg, and not the amount of injury suffered at the time of the shooting. The state correctly explains that a victim need not suffer permanent injury in order to have sustained serious physical injury. State v. Dickson, 10 Conn. App. 462, 465, 523 A.2d 935 (1987). We have applied this law in our analysis of the defendant’s claims.

       We note that the introduction of this evidence also violates the spirit, if not the letter, of the motion in limine. Because the defendant did not raise a claim of the state’s violation of the ruling on the motion in limine, however, we limit our discussion to the introduction of this evidence as evidence of the defendant’s prior misconduct.

       The defendant in State v. Smith, supra, 35 Conn. App. 52, was convicted pursuant to General Statutes § 53a-59 (a), which provides in pertinent part: “A person is guilty of assault in the first degree when ... (2) with intent to disfigure another person seriously and permanently ... he causes such injury to such person or to a third person (Emphasis added.) The defendant requested the trial court to instruct the jury on the charge of assault in the third degree pursuant to General Statutes § 53a-61 (a) (2), which does not require that the serious injury be permanent. Id., 59.

       1 find no merit, in the majority’s argument that because the parties “could not agree that the wound constituted serious physical injury” that lesser included offense instructions were warranted. Moreover, I note that the maj ority relies on precedent dealing with insufficiency of the evidence claims to posit that, whether this bullet wound was serious physical injury is a question of fact for the jury. Those cases, and that conclusion, are not inconsistent with my position. Insufficiency of the evidence claims concern whether the slate has proven the elements of a crime beyond a reasonable doubt. This is not, however, an insufficiency of the evidence claim. The Whistnant test concerns a defendant’s claim that he is entitled to an instruction on a lesser included offense “if upon the evidence he can properly be found guilty of it and the allegations of the information include the elements which constitute that lesser offense.” State v. Whistnant, supra, 179 Conn. 579. Our Supreme Court’s holding in Whistnant demonstrates that a defendant is not entitled to an instruction on all lesser included offenses. Id., 587 (holding that defendant not entitled to instruction on lesser included offense of larceny in fourth degree when charged with robbery in first degree under facts of case). No doubt, however, the state still had to prove every element of the crime charged in Whistnant beyond a reasonable doubt, and each element remained a question of fact for the jury. Likewise, in this case, the defendant is not entitled to instructions on second and third degree assault and the element of serious physical injury remains a question of fact for the jury that, the state must prove beyond a reasonable doubt.

       See also State v. Torrence, 37 Conn. App. 482, 491, 657 A.2d 654 (1995) (evidence not sufficiently in dispute to warrant instruction on lesser included offense when defendant charged with robbery in first degree); State v. Ray, 30 Conn. App. 95, 102-103, 619 A.2d 469, rev’d on other grounds, 228 Conn. 147, 635 A.2d 777 (1993) (manslaughter in first degree); State v. Arline, 25 Conn. App. 653, 660, 596 A.2d 7 (1991), rev’d on other grounds, 223 Conn. 52, 612 A.2d 755 (1992) (first degree sexual assault).

       The defendant objected to that testimony only as it concerned the time period involved.

         The defendant also claims that the trial court improperly limited his cross-examination of Greene. I find no merit in the defendant’s claim. State v. James L., 26 Conn. App. 81, 83, 598 A.2d 663 (1991).


source: Caselaw Access Project

author: CRETELLA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RUDOLPH SNEAD
    (13976)
    Foti, SchaUer and Cretella, Js.
    Argued February 23
    officially released June 4, 1996

      Glen W. Falk, special public defender, with whom, on the brief, was David B. Bachman, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Nicholas J. Bove, assistant state’s attorney, for the appellee (state).
   CRETELLA, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the third degree in violation of General Statutes §§ 53a-136 (a) and 53a-133, larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (3) and 53a-119, tampering with a witness in violation of General Statutes § 53a-151 (a), threatening in violation of General Statutes § 53a-62 (a) (1), and interfering with an officer in violation of General Statutes § 53a-167a (a). The defendant was acquitted of a charge of assault of a victim over sixty years old.

On appeal, the defendant claims that the trial court (1) improperly consolidated the interfering charge with the other offenses for trial, (2) abused its discretion in allowing the state to amend the information before jury selection, (3) improperly allowed the state to introduce evidence of and instructed the jury regarding consciousness of guilt, and (4) improperly denied the defendant’s motion for acquittal on the charge of threatening. We affirm the judgment of the trial court.

The defendant was initially charged in two separate informations containing a total of four counts. In the first information, the defendant was charged with rob-beiy in the first degree, larceny in the second degree, and assault of a victim sixty years or older, based on an incident that occurred on November 1, 1992. The second information was based on an incident that occurred on October 8, 1993, when two Bridgeport police officers attempted to arrest the defendant. At that time, the defendant yelled, kicked and resisted the officers, giving rise to the additional charge of interfering with an officer.

Just prior to the start of jury selection, the trial court granted the state’s motion to consolidate the two infor-mations for trial. The trial court also allowed the state to file an amended long form information that reduced the original charge of robbery in the first degree to that of robbery in the third degree and, together with the charges of larceny in the second degree and assault of a victim over sixty, added the charges of tampering with a witness and threatening.

The jury reasonably could have found the following facts. On November 1,1992, the victim went to Jackson Brothers’ Lounge in Bridgeport to speak to a man named “Pumpkin” about having some wood delivered. On her way out, the victim was grabbed from behind by the defendant, who placed an object against her throat and demanded her money. The victim released her pocketbook to the defendant, and then the defendant shoved her, causing her to fall. The victim saw the defendant remove her wallet from her pocketbook and run away.

The victim called the police and the police drove her around the neighborhood in search of the defendant, but she did not see him. Later that day, the victim received a telephone call at home, threatening that if she went to the police, she would be “as good as dead.”

I

The defendant first argues that the trial court improperly consolidated the charges against him and failed to instruct the jury adequately regarding the necessity of considering the charges separately. Specifically, the defendant claims that the trial court improperly denied his motion for severance and granted the state’s motion to consolidate the information relating to the November 1, 1992 robbery charge with the information relating to the October 8, 1993 interfering charge. We disagree.

Consolidation of charges in a joint trial is authorized both by statute and judicial rule. General Statutes § 54-57; Practice Book § 829. We further note that there is a clear presumption in favor of joinder and against severance. State v. Chance, 236 Conn. 31, 38, 671 A.2d 323 (1996). “[Sjeverance may be necessary to prevent undue prejudice resulting from the consolidation of two or more charges for trial when: (1) the cases do not involve discrete, easily distinguishable factual scenarios; (2) one or more of the counts alleges brutal or shocking conduct by the accused; or (3) the trial is one of long duration or very complex.” Id., 42, citing State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987); State v. Jennings, 216 Conn. 647, 657-58, 583 A.2d 915 (1990). Whether to grant or deny a motion for severance rests in the discretion of the trial judge. State v. Chance, supra,.38. “Consistent with this discretion, which is broad, an accused bears a heavy burden to show that the denial of severance resulted in substantial injustice because of a manifest abuse of discretion in denying severance. . . . The burden includes a showing that any prejudice from joinder was beyond the curative power of the court’s instructions.” (Citations omitted; internal quotation marks omitted.) Id.; see also State v. Cassidy, 236 Conn. 112, 132-33, 672 A.2d 899 (1996); State v. Hermann, 38 Conn. App. 56, 61-62, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995).

Applying these three factors, we conclude that the defendant was not prejudiced by the denial of his motion to sever and the granting of the state’s motion to consolidate. First, the charges consolidated for trial involved discrete, easily distinguishable factual scenarios. The robbery, larceny and assault charges were based on the robbery of the victim at approximately 1 p.m. on November 1,1992; the tampering and threatening charges arose from the defendant’s telephone call to the victim later that day; and the interfering charge involved the defendant’s conduct when the police attempted to arrest him on October 8, 1993. Second, although an element of violence was involved in this case, “the conduct was not so brutal or shocking as to create a substantial risk that the jury, with explicit instructions to treat each offense separately, would nevertheless treat the evidence cumulatively.” State v. Yopp, 35 Conn. App. 740, 753, 646 A.2d 298 (1994). The facts in the present case compare favorably to more violent or disturbing crimes for which joinder has been approved. Third, the trial, which consisted of only two days of evidence, ten witnesses and six exhibits, was not so long or complex as to require severance.

“We also note that where evidence of one incident can be admitted at the trial of the other incidents, separate trials would provide the defendant no significant benefit, and under such circumstances he would ordinarily not be substantially prejudiced by joinder.” (Internal quotation marks omitted.) State v. Hermann, supra, 38 Conn. App. 63. The trial court, in ruling on the motion to consolidate, correctly noted that evidence that the defendant resisted arrest, as well as the evidence regarding tampering with a witness and threatening, would probably be admissible in the robbery case as evidence of consciousness of guilt.

“Finally, although a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissible other crimes] evidence . . . where the likelihood of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the defendant’s right to a fair trial has been preserved.” (Citations omitted; internal quotation marks omitted.) State v. Jennings, supra, 216 Conn. 660. In this case, the trial court explicitly instructed the jury that it was required to consider each offense separately. We, therefore, conclude that the trial court did not abuse its discretion in consolidating the two informa-tions for trial.

II

The defendant next argues that the trial court abused its discretion by allowing the state to amend the information on the eve of trial to add tampering with a witness and threatening charges relating to an event that occurred at a different place and time than the robbery with which the defendant was charged. We disagree.

As we have noted, the original long form information charged the defendant with robbery, larceny and assault. On the morning that jury selection was scheduled to begin, the state filed an amended information adding the charges of tampering with a witness and threatening. These charges related to the alleged telephone call made by the defendant to the victim subsequent to the alleged robbery. Following oral argument, the trial court overruled the defendant’s objection to the filing of the amended information.

“Before the commencement of trial, a prosecutor has broad authority to amend an information under Practice Book § 623. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 624.” State v. Tanzella, 226 Conn. 601, 607, 628 A.2d 973 (1993). It is clear that for purposes of Practice Book §§ 623 and 624, a criminal trial begins with the voir dire of the prospective jurors. Id., 607-608; State v. Nixon, 32 Conn. App. 224, 229, 630 A.2d 74 (1993), aff'd on other grounds, 231 Conn. 545, 651 A.2d 1264 (1995). In the present case, the state filed an amended long form information before jury selection commenced and thus § 623 governed the trial court’s analysis. That section provides that “[i]f the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in his discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.”

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

Ill

The defendant next argues that the court should not have allowed testimony of his actions at the time of his arrest as evidence of consciousness of guilt or instructed the jury on that subject. The defendant claims that although he did not object to the admission of the evidence of flight for this purpose, and although this issue is evidentiary rather than constitutional, we may nonetheless review the trial court’s failure to require a proper foundation for the evidence under the plain error provisions of Practice Book § 4185. We disagree.

Plain error review is reserved for extraordinary circumstances and situations in which “the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). That is not the case here. It has further been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the Evans-Golding standard. See State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Merritt, 36 Conn. App. 76, 96, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995). We, therefore, decline to review this claim.

IV

The defendant’s final claim is that the trial court improperly denied his motion for judgment of acquittal on the charge of threatening. Specifically, the defendant argues that because the state failed to show that he placed or attempted to place the victim in fear of imminent physical injury, there was insufficient evidence to convict him on the charge of threatening. We disagree.

“In reviewing [a] sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Mejia, 233 Conn. 215, 223, 658 A.2d 571 (1995); see also State v. Haggood, 36 Conn. App. 753, 760, 653 A.2d 216, cert. denied, 233 Conn. 904, 657 A.2d 644 (1995).

General Statutes § 53a-62 (a) provides that “[a] person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .” According to the defendant, his conviction under this statute cannot stand because the threatened harm was contingent on a future event, namely, the defendant’s learning that the victim had gone to the police. In support of this argument, the defendant cites State v. Bellino, 31 Conn. App. 385, 395, 625 A.2d 1381 (1993), appeal dismissed, 228 Conn. 851, 635 A.2d 812 (1994), for the proposition that the court should apply the definition of “imminent” contained in the self-defense statute, General Statutes § 53a-19, which requires the “imminent use of physical force.” We will not import the definitions associated with self-defense into a separate statute designed for an entirely distinct purpose.

The defendant also cites Hill v. State, 844 S. W.2d 937 (Tex. App. 1992), in support of his claim that imminence requires proof more pressing than that harm or physical force may occur sometime in the future. In Hill, the issue was whether the appellant had threatened a police officer with imminent bodily injury for purposes of the Texas assault statute, Tex. Penal Code Ann. § 22.01 (a) (2) (Vernon 1989). That statute provides that a person is guilty of assault if the person “intentionally or knowingly threatens another with imminent bodily injury.” The appellant in Hill made threats to a police officer while the appellant’s hands were handcuffed behind his back. The police officer testified that he was afraid the appellant would make good on his threats when he got out of jail, but he acknowledged that the appellant could not carry out his threats when they were made because he was handcuffed.

The court in Hill held that because the appellant’s threats “were in no way on the verge of happening,” they did not threaten “imminent” bodily injury. Id., 938. The court further noted that “[t]he threats were conditioned on a remote and future event: appellant’s release from jail” and that the “appellant had no present ability to carry out the action promised by his threats.” Id., 939. The present case is distinguishable from Hill in that the defendant here had the present ability to harm the victim. The defendant, who was aware of the victim’s recent return to her home, not only had the present ability but also the opportunity to carry out his threat.

In State v. Boyer, 2 Conn. Cir. Ct. 288, 198 A.2d 222 (App. Div. 1963), the court considered whether a threat made over the telephone constituted a violation of General Statutes (Rev. to 1958) § 53-174, the former breach of the peace statute. We agree with the court in Boyer, which noted that the statute did not require a showing of true immediacy. As the court stated: “We find no authority for the claim that to constitute a threat under our statute there must be immediate menace of violence or acts showing a present ability and will to execute the threat. That would liken the threat to an assault, which is and always has been a separate offense under our statute and distinct from a threat. A threat imports the expectation of bodily harm, thereby inducing fear and apprehension in the person threatened. A threat, unlike an assault, is not limited by time or distance. It is equally vicious whether made vis-a-vis or over a wall or across a stream, or whether it is uttered by the unaided voice or over a megaphone or is amplified through a loudspeaker. A threat is always an indication of probable evil to come, whether at once or at some certain or uncertain time in the future; and the lingering or uncertainty of the menace, particularly when voiced through a faceless telephone, is apt to cause greater fear and dread than if the threat was made face to face by an adversary who could be held to immediate accountability.” Id., 291-92.

We conclude that there was sufficient evidence to prove that the defendant, by his threat, placed the victim in fear of imminent physical injury.

The judgment is affirmed.

In this opinion the other judges concurred.

       As part of this argument, the defendant claims that at trial, defense counsel requested a continuance should the trial court overrule his objection to the filing of the amended information. According to the defendant, the trial court abused its discretion in denying this request. A review of the transcript reveals, however, that no such request was made.
      The defendant additionally argues that his convictions on the tampering and threatening charges are illegal because he was never arraigned on those charges. We note, however, that this objection was not made in a timely fashion. We further note that the defendant does not claim that this concerns a constitutional issue, nor does the defendant seek review either as plain error under Practice Book § 4185 or pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We, therefore, agree with the state that this claim is not entitled to review.

       We reach this conclusion despite the defendant’s assertion that the court should have looked to Practice Book § 624 for guidance.

       Practice Book § 4185 provides in relevant part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”


author: STOUGHTON, J.

text:
    LIBERTY PLUMBING SUPPLY COMPANY v. PAUL S. YONEY, INC.
    (14470)
    Lavery, Schaller and Stoughton, Js.
    Argued February 21
    officially released June 4, 1996

      Kevin A. Coles, for the appellant (defendant).

      Edward F. Kunin, for the appellee (plaintiff).
   STOUGHTON, J.

The defendant appeals from the trial court’s judgment rendered on the report of an attorney trial referee. The dispositive issue is whether the trial court properly determined that the attorney trial referee was authorized to rule on the plaintiffs motion to amend its complaint.

The following facts were found by the attorney trial referee and accepted by the court. The defendant has been a Connecticut corporation since 1927 and its principal office is located in Bridgeport. The defendant’s president, Gerald Yoney, is also president of Consolidated Equities, Inc., a Delaware corporation. From time to time, the plaintiff sold materials and supplies to the defendant for which the defendant gave to the plaintiff purchase orders inscribed with the name “Paul S. Yoney, Inc.” On August 25, 1993, the plaintiff instituted suit against the defendant to recover $109,086, the value of those supplies for which the plaintiff had not received payment.

The trial court referred the case to an attorney trial referee appointed pursuant to General Statutes § 52-434 (a) (4). Several weeks before the case was heard by the attorney trial referee, counsel for the defendant notified the plaintiff that the plaintiff was suing the wrong corporation. The defendant asserted that Consolidated Equities, Inc., was the true debtor. Gerald Yoney claimed that he had merged the original Paul S. Yoney, Inc., into Consolidated Equities Inc., in 1983 and then formed a new Paul S. Yoney, Inc., which never conducted any business.

The attorney trial referee heard the case on April 8, 1994. On the basis of the evidence presented at trial, and over the objection of the defendant, the attorney trial referee granted the plaintiffs motion to amend its complaint to include a claim under the Connecticut Unfair Trade Practice Act (CUTPA), General Statutes § 42-110a et seq. On July 11, 1994, the attorney trial referee issued a report of her findings of fact and a memorandum of decision that recommended judgment for the plaintiff. She found that the defendant owed the plaintiff $109,086 for the materials as well as $16,362.90 in punitive damages allowable under CUTPA. In the attorney trial referee’s response to the defendant’s motion to correct, the attorney trial referee specified that the compensatory damages were awarded under the breach of contract claim and affirmed the CUTPA punitive damage award. The defendant objected to the acceptance of the trial referee’s report. Among its objections, the defendant claimed that the attorney trial referee’s granting of the plaintiffs motion to amend its complaint violated Practice Book § 433. The trial court overruled the defendant’s objections to the report and rendered judgment for the plaintiff in accordance with the attorney trial referee’s report. This appeal followed.

The defendant claims that the attorney trial referee did not have the authority to rule on the plaintiffs motion to amend its complaint. We agree and reverse the decision of the trial court.

The limited role and function of an attorney trial referee was discussed in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986). An attorney trial referee does not exercise the powers of a court and is simply a fact finder. Id., 502. This court has previously observed that under Practice Book § 433, once the pleadings have been closed and the case referred to an attorney trial referee, no further pleadings may be filed except by agreement of all parties or order of the court. State Bank of Westchester v. New Dimension Homes of Connecticut, Inc., 38 Conn. App. 491, 496-98, 661 A.2d 119 (1995). An attorney trial referee cannot make a legal determination regarding the merits of a contested motion to amend pleadings, and the trial court improperly ruled otherwise. Id., 498.

Because we determine that the attorney trial referee had no authority to rule on the motion to amend the complaint, we do not address the defendant’s other claims, which also address the fourth count.

The judgment is reversed and the case is remanded to the trial court with direction to reject the report of the attorney trial referee and to order further proceedings pursuant to Practice Book § 443.

In this opinion the other judges concurred.

       The plaintiff initially filed a three count complaint. A fourth count was added on the day of trial before the attorney trial referee. The first count alleged a breach of contract; the second sought the reasonable value of the materials sold to the defendant; the third sought recovery under a theory of unjust enrichment; the fourth alleged that the defendant violated the Connecticut Unfair Trade Practices Act. Judgment was rendered on counts one and four, but no mention was made regarding counts two and three. Counts one, two and three, however, present mutually exclusive theories of relief. Because the trial court rendered judgment in favor of the plaintiff on count one, the trial court implicitly found in favor of the defendant as to counts two and three. Therefore, we treat the matter as an appealable final judgment.

       General Statutes § 52-434 (a) (4) provides: “In addition to the state referees who are appointed pursuant to subdivision (1), (2) or (3) of this section, the chief justice may appoint, from qualified members of the bar of the state, who are electors and residents of this state, as many state referees as he may from time to time deem advisable or necessary. No appointment of a member of the bar may be for a term of more than one year. Notwithstanding the provisions of subsection (f) of this section, state referees appointed by the chief justice from members of the bar shall receive such reasonable compensation and expenses as may be determined by the chief justice.”

       See footnote 1.

       Practice Book § 433 provides: “No case shall be referred to a committee until the issues are closed and a trial list claim filed. Thereafter no pleadings may be filed except by agreement of all parties or order of the court. Such pleadings shall be filed with the clerk and by him transmitted to the committee.”

       Practice Book § 443 provides in pertinent part: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the [attorney trial referee] has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court. . . .”


author: LAVERY, J.

text:
    CITICORP MORTGAGE, INC. v. GEORGE D. PORTO ET AL.
    (15179)
    Dupont, C. J., and Lavery and Hennessy, Js.
    Argued February 22
    officially released June 4, 1996

      Frederick P. Leaf, for the appellant (named defendant).

      Leanne M. Kinsley, for the appellee (plaintiff).
   LAVERY, J.

In this action to foreclose a mortgage, the defendant, George Porto, appeals from the judgment of the trial court granting the plaintiffs motion for summary judgment. On appeal, the defendant claims that the trial court improperly concluded that the plaintiff had no duty to give notice of acceleration to the defendant prior to accelerating the debt. Although we agree with the defendant that the plaintiff had a duty to give notice of acceleration, we conclude that the plaintiff has complied with the notice requirements of the mortgage deed. We, therefore, affirm the judgment of the trial court.

The pleadings, affidavits and other documentary information presented to the trial court reveal the following facts. On April 8, 1987, the defendant and his spouse, Joanne Porto, executed a $193,600 promissory note payable to Citicorp Person-To-Person Financial Center of Connecticut, Inc. The note was secured by a mortgage on property at 15-17 Pendelton Street in New Haven. The note and mortgage deed were subsequently assigned to the plaintiff. Since November 1, 1993, the defendant and Joanne Porto have failed to make payments on the note.

The mortgage deed provides that the plaintiff shall give notice to the defendant prior to acceleration of the debt. The promissory note, however, provides that the holder of the note may send notice of acceleration upon default. On January 4, 1994, the plaintiff sent a notice of acceleration addressed to the defendant and Joanne Porto at 60 Marvel Road in New Haven. At that time, the defendant and Joanne Porto were separated. Joanne Porto, while residing at 60 Marvel Road, received the notice of acceleration. The defendant was residing at 36 Exchange Street and was receiving his mail at 180 Lawrence Street.

The promissory note provides that notice of default or acceleration is to be sent to 15-17 Pendelton Street. The trial court found that the defendant never gave the plaintiff notice of a different address. The trial court held, however, that the language of the note does not obligate the plaintiff to send a notice of default. The trial court concluded that the plaintiff complied with all conditions precedent to foreclosure and rendered summary judgment in favor of the plaintiff.

“The standard for appellate review of a trial court’s decision to grant a summary judgment motion is well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984)]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978). Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982). Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781, citing Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). Trotta v. Branford, 26 Conn. App. 407, 409-10, 601 A.2d 1036 (1992).” (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn. App. 240, 243-44, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). “Where the question whether proper notice was given depends upon the construction of a written instrument or the circumstances are such as lead to only one reasonable conclusion, it will be one of law, but where the conclusion involves the effect of various circumstances capable of diverse interpretation, it is necessarily one of fact for the trier.” Truslow & Fulle, Inc. v. Diamond Bottling Corp., 112 Conn. 181, 188, 151 A. 492 (1930).

We first address the issue of whether the notice provisions contained in the mortgage deed and note are mandatory and required the plaintiff to send notice of default to the defendant prior to instituting this action for foreclosure. The plaintiff argues that the use of the term may in the note indicates that no notice of default or acceleration is required prior to accelerating the note. The defendant argues that the use of the term shall in the mortgage deed required the plaintiff to give proper notice prior to foreclosure. We agree with the defendant that the language of the mortgage creates a condition precedent that must be satisfied prior to foreclosure.

Notices of default and acceleration are controlled by the mortgage documents. Construction of a mortgage deed “is governed by the same rules of interpretation that apply to written instruments or contracts generally, and to deeds particularly. The primary rule of construction is to ascertain the intention of the parties. This is done not only from the face of the instrument, but also from the situation of the parties and the nature and object of their transactions.” 55 Am. Jur. 2d, Mortgages § 175 (1971). A promissory note and a mortgage deed are deemed parts of one transaction and must be construed together as such. Id., § 176.

Applying these principles, we hold that under the terms of the note and mortgage deed proper notice of default is a mandatory condition precedent to an action for foreclosure. The use of the term may in the notice provision of the note does not connote that the plaintiff had the option of sending notice prior to acceleration. The notice provision contained in the note, construed with reference to the acceleration provision in the mortgage deed, indicates that acceleration is an optional remedy for the plaintiff to pursue upon default by the defendant. We conclude that the trial court improperly held that the language of the note did not obligate the plaintiff to send notice of acceleration as outlined in the mortgage deed.

Although we hold that proper notice of acceleration is a necessary condition precedent to an action for foreclosure, we conclude that the plaintiff provided the defendant with proper notice by mailing the notice of acceleration to Joanne Porto. “While it appears that service of a notice upon one tenant in common is not usually regarded as binding upon the others, unless they are engaged in a common enterprise, the rule is different where the relation is that of a joint tenancy. In such a case, it is said that notice to one of them is binding upon all.” 20 Am. Jur. 2d, Cotenancy and Joint Ownership § 113 (1995). In Katz v. West Hartford, 191 Conn. 594, 600-601, 469 A.2d 410 (1983), our Supreme Court stated: “In the case of cofiduciaries notice to one is deemed to be notice to the other. American Surety Co. of New York v. McMullen, 129 Conn. 575, 583, 30 A.2d 564 (1943); Foster v. Mix, 20 Conn. 395, 400 (1850). The same rule applies with respect to a joint tenancy. Conrad v. Hawke, 122 Cal. App. 649, 653, 10 P.2d 534 (1932). It also applies to tenants in common who are jointly pursing the common purpose of selling, leasing or managing their real estate. Bronnenberg v. Indiana Union Traction Co., 59 Ind. App. 495, 499, 109 N.E. 784 (1915).” Notice to one of two joint obligors conveys notice to the other with respect to matters affecting the joint obligation. United States v. Fleisher Engineering & Construction Co., 107 F.2d 925, 929 (2d Cir. 1939).

In this case, the defendant concedes that Joanne Porto received actual notice of acceleration by virtue of the notice sent to 60 Marvel Road. Notice of acceleration, therefore, was conveyed to the defendant as a joint tenant and joint obligor on the note and mortgage deed. We find that the plaintiff has satisfied all conditions precedent to foreclosure and there is no genuine issue as to a material fact. We conclude that the trial court properly granted the plaintiffs motion for summary judgment.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       The plaintiff initially brought this action for foreclosure against George Porto and Joanne Porto as joint tenants of the mortgaged property, and against James Bonosconi, Robert Liedke and Patricia Spencer as tenants residing in the property. The plaintiff filed a motion for summary judgment against George Porto only. Because this appeal concerns the plaintiffs motion for summary judgment as against George Porto, we will refer to George Porto as the defendant.

       Paragraph nineteen of the mortgage provides in pertinent part: “Lender shall give notice to borrower prior to acceleration following borrower’s breach of any covenant or agreement in this security instrument .... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to the borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this security instrument and foreclosure or sale of the property.”

       Paragraph 6 (c) of the promissory note provides: “If I am in default, the note holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the note holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on the amount. That date must be at least 30 days after the date on which the notice is delivered or mailed to me.”

       Paragraph seven of the promissory note provides: “Unless applicable law requires a different method, any notice that must be given to me under this note will be given by delivering it or by mailing it first class to me at the property address above or at a different address if I give the note holder notice of my different address.”