author: Per Curiam.

text:
    Waterworks v. Real Audet et al.
    (10995)
    Foti, Landau and Freedman, Js.
    Argued November 3
    decision released December 22, 1992

      Elizabeth Audet, pro se, the appellant (defendant).

      Jack L. Grogins, for the appellee (plaintiff).
   Per Curiam.

The pro se defendants appeal from the denial of their “petition for a new trial” filed on December 10, 1991, following a judgment rendered against them on May 24, 1991.

“The threshold question that must be determined is whether this court has jurisdiction over the appeal. Although this issue was not raised by the parties, the court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear.” Sasso v. Aleshin, 197 Conn. 87, 89, 495 A.2d 1066 (1985).

A petition for a new trial in a civil matter is governed by General Statutes § 52-270. “The petition is instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding.” State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980). Here, the defendants’ “petition for a new trial” was not served separately by writ and complaint. The failure to bring a petition for a new trial as a separate proceeding deprives the trial court of subject matter jurisdiction. In re Clifton B., 15 Conn. App. 367, 370, 544 A.2d 666 (1988); State v. Servello, 14 Conn. App. 88, 101-102, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988). Therefore, the defendants’ pleading was, in fact, an improperly brought “petition for a new trial.” The trial court should have dismissed it because the court lacked subject matter jurisdiction. State v. Smith, 15 Conn. App. 502, 503, 545 A.2d 1150 (1988).

The form of the judgment is improper, the order denying the petition for a new trial is reversed and the case is remanded with direction to dismiss the petition.

       The court “denied” the “petition for a new trial” and, even if we conclude that the trial court treated this as a motion for a new trial, which is governed in a civil action by Practice Book § 320, the appeal should be dismissed for lack of a final judgment. A motion for a new trial must be brought within five days after the day judgment is rendered. The granting or denial of a motion for a new trial, however, is not an appealable final judgment. State v. Asherman, 180 Conn. 141, 143, 429 A.2d 810 (1980); Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 575, 87 A.2d 137 (1952); State v. Kemp, 124 Conn. 639, 644, 1 A.2d 761 (1938). It therefore follows that the defendants’ appeal from the court’s denial, even if treated by the trial court as a motion for a new trial, is not taken from a final judgment. “Since the lack of a final judgment is a jurisdictional defect, the appeal must be dismissed.” Guerin v. Norton, 167 Conn. 282, 284, 355 A.2d 255 (1974).


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    State of Connecticut v. Thomas R. O’Brien
    (10736)
    O’Connell, Freedman and Schaller, Js.

      Argued November 2
    decision released December 22, 1992

      Deborah Del Prete Sullivan, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Michael J. Weber, Jr., assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and two counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that he was denied a fair trial (1) because of improper remarks by the assistant state’s attorney during closing argument, (2) because of alleged witness intimidation by the state, and (3) because the trial court failed to conduct an inquiry regarding the allegations of witness intimidation. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. The victim lived in a house in Milford with her mother, her brother and her sister. In October, 1990, when the victim was eleven years old, the defendant moved into a downstairs apartment located in the victim’s house. On numerous occasions in early November, 1990, the defendant forced the victim to masturbate him. After each occasion, the defendant threatened to kill the victim if she told anyone what he had done.

On November 26, 1990, the victim went to the defendant’s apartment to clean the apartment after she had used it for a slumber party. The defendant grabbed the victim, removed some of her clothing, held her hands and had intercourse with her. Afterward, the defendant again threatened to kill the victim if she told anyone.

Later that week, the victim was riding in a car with her mother and the defendant. They went to Bridgeport where the victim’s mother purchased crack cocaine. The defendant and the victim’s mother smoked the crack. At one point, when the car was stopped, the victim tried to run away. The defendant pulled her back into the car and threatened to kill her if she told anyone.

Later that day, the victim was able to run away and telephone a friend. The victim told her friend’s mother that the defendant had sexually assaulted her. The friend’s mother telephoned the police, picked her up and took her to the police station. Thereafter, the defendant was arrested on the charges that resulted in his conviction.

I

The defendant first claims that the conduct of the assistant state’s attorney, in his summation to the jury, violated the defendant’s right to a fair trial. The defendant maintains that the prosecutor (1) argued facts not in evidence, (2) asserted his opinion and vouched for the credibility of witnesses, and (3) appealed to the jury to reach a verdict based on sympathy and emotion. Conceding his failure to preserve this claim, the defendant, relying on State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987), seeks our review of this claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or, in the alternative, asserts that the claim is reviewable as plain error under Practice Book § 4185. We are not persuaded.

“In analyzing the defendant’s claim, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Citations omitted; internal quotation marks omitted.) State v. Williams, supra, 539-40. “While prosecutorial misconduct of constitutional dimension may arise during closing argument, thereby implicating the fairness of a trial ... an unpreserved prosecutorial misconduct claim is not reviewable if the claimed misconduct consisted of isolated and brief episodes, did not disclose a pattern of conduct repeated throughout the trial, or conduct not blatantly egregious.” (Citations omitted.) State v. Hall, 28 Conn. App. 771, 778, 612 A.2d 135, cert. denied, 224 Conn. 904, 615 A.2d 1045 (1992).

Our careful review of the record in this case reveals that the prosecutor’s challenged conduct, while of questionable propriety in certain instances, was not so prejudicial as to taint the entire proceeding and deprive the defendant of the opportunity for a fair trial. State v. Hammond, 221 Conn. 264, 289, 604 A.2d 793 (1992); State v. Tweedy, 219 Conn. 489, 509, 594 A.2d 906 (1991). “Although certain remarks made by the prosecutor, from hindsight, may be deemed imprudent, such isolated and brief episodes as occurred here fail to implicate the denial of the defendant’s constitutional right to due process.” State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990). Accordingly, the defendant’s claim must fail because it cannot satisfy Golding’s third prong. See footnote 1.

“Similarly, we do not find, as is necessary to merit plain error review, that those limited instances of improper conduct so pervaded the defendant’s trial as to have impaired the effectiveness or integrity of the judicial process.” State v. Tweedy, supra. Consequently, the defendant cannot succeed on this claim of impropriety.

II

The defendant’s remaining claims revolve around the alleged intimidation of a defense witness by a caseworker for the department of children and youth services (DCYS). The defendant argues that this witness intimidation by the state violated his right to due process and his right to present a defense. The defendant also argues that the trial court improperly failed to conduct an inquiry into the allegation of witness intimidation and into the basis of the allegedly intimidated witness’ refusal to testify based on her assertion of the fifth amendment privilege. We address both claims together.

The following additional facts are relevant to our resolution of this issue. On June 13, 1991, during the presentation of his defense, defense counsel informed the court outside of the presence of the jury: “Your Honor, outside in the hallway, DCYS has shown up and they have sat and told [the victim’s mother], who was to be my next witness, that as soon as she is done testifying, they’re taking away her kids. She is now outside sobbing thanks to [the DCYS social worker], who coincidently is a witness [for the state] in this case. I’m not going to put her on the stand today in the state that she’s in. You know, I mean this is ridiculous. She’s here to be a witness, she’s got her kids here, DCYS shows up, they’re involved in the case, and they tell my witness, ‘Oh, we’re taking away your kids as soon as you’re done testifying.’ This is, you know, I don’t know if this is fact. I know that this is what my associate has just told me. I’m not going to put her on the stand in this condition. I don’t want to subject her kids to that. I think this is grossly unfair.” Although the trial court responded that it was “not very happy with what’s going on here,” it initially indicated that it did not “see why this woman can’t come in and testify.” After defense counsel protested, however, that “with the specter of DCYS taking her kids away hanging over her head, [the witness is] not going to be particularly in tune to my questions,” the court consulted with counsel and adjourned the proceedings until five days later.

Five days later, on June 18, 1991, the victim’s mother was called as a witness for the defense. She appeared with her own counsel and, under oath, expressed her intention to invoke her fifth amendment privilege against self-incrimination. At the time, there was pending against the witness a risk of injury to a minor charge based on the general events involved in the charges against the defendant. In response to an inquiry from the court, defense counsel indicated that the scope of his intended line of questioning concerned what happened in the house during the same time period in issue with respect to the charges against the defendant. Defense counsel did not pose any specific questions to the witness beyond an initial question of whether the witness intended to answer his questions. After hearing from the parties, the court concluded that the witness should be “excused from testifying further based on the fact that there are criminal charges pending against her that are somewhat related to the charges involved against the defendant in this case, and the statements that she may make in response to questions she is asked may incriminate her.”

At no time did the defendant attempt to offer testimony from the victim's mother, the DCYS social worker, or any other witnesses regarding the alleged June 13 intimidation of the witness in the courthouse hallway. At no time did the defendant seek a mistrial in the trial court based on any claim of witness intimidation by the state. In fact, the events of June 13 were never mentioned on June 18 when the witness was sworn in as a witness and refused to testify, or at any time thereafter in the trial court.

In a postjudgment motion for a new trial, the defendant did raise a claim regarding the refusal to testify by the victim’s mother. At that time, the defendant claimed that the state improperly failed to dispose of the criminal charges pending against the victim’s mother until after the defendant’s trial in order to render her unavailable as a witness through her invocation of her right to refuse to testify. At the hearing on the motion, the court asked defense counsel if he had “any evidence of anything improper on the part of the state here other than what you recited about the timing of these two cases going along,” to which defense counsel replied: “I do not, Your Honor.” After considering the arguments of counsel, the court concluded that it did not “find anything improper on the part of the state here in inducing [the victim’s mother] not to testify. She conferred with her attorney. She made an election not to do so” based on her constitutional privilege. Further, the court stated that it could not find that the testimony expected from the victim’s mother would have caused a different result in the outcome of the case.

A claim that the state has intimidated a defense witness raises serious questions that go to the core of the constitutional right to a fair trial. “A defendant’s right to offer the testimony of witnesses is protected by the due process clause of the fourteenth amendment. Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972). The prosecution violates this important right when it engages in conduct or makes comments aimed at discouraging defense witnesses from testifying freely.” Boggess v. State, 783 P.2d 1173, 1179 (Alaska App. 1989). “Threats against witnesses are intolerable. Substantial government interference with a defense witness’ free and unhampered choice to testify violates due process rights of the defendant.” United States v. Goodwin, 625 F.2d 693, 703 (5th Cir. 1980).

The defendant claims for the first time on appeal that the intimidation of the victim’s mother by the state deprived him of his constitutional right to present a defense and to a fair trial. Arguing that the DCYS social worker was a member of the “prosecution team,” the defendant contends that the social worker’s statement to the witness that her children would be taken from her by DCYS after she finished testifying impermissibly “linked the witness’ favorable testimony to the loss of her children.” Because the defendant did not raise this claim in the trial court, he seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

We conclude, however, that the record in this case is not adequate to review the claim of witness intimidation. The evidentiary support for the defendant’s claim consists entirely of the statements of counsel regarding what allegedly had occurred in a hallway conversation between his witness and the DCYS social worker. Not only are the representations of counsel not evidence; State v. Roman, 224 Conn. 63, 68, 616 A.2d 266 (1992); but the statements of counsel relied on by the defendant were based on information relayed to counsel by another person. In fact, after defense counsel reported the information to the court, he stated that he did not know if the information was true. “The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” State v. Golding, supra, 240. Accordingly, the defendant’s claim must fail because he cannot satisfy Golding’s first prong. See footnote 1.

Perhaps recognizing this deficiency in the record, the defendant next argues that “[i]n light of the allegation of government interference with a defense witness which was brought to the court’s attention during trial, the court should have conducted a particularized inquiry on that allegation and also a more detailed inquiry into the basis of the defense witness’s subsequent assertion of the fifth amendment privilege against self-incrimination.” We disagree.

“Threats against witnesses are intolerable.” United States v. Goodwin, supra. When information comes to a court’s attention that suggests that there has been government interference with a defense witness’ free and unhampered choice to testify, the due administration of justice may require further inquiry by the trial court. Nonetheless, “[a] trial judge is given great latitude in ensuring that a criminal trial be conducted in a manner that approaches, as nearly as possible, an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. . . . Given the fact that the trial judge is not simply a referee presiding over a forensic contest, but is a minister of justice, he is, for that purpose, vested with the authority to exercise a reasonable discretion in the conduct of a trial.” (Citation omitted; internal quotation marks omitted.) State v. Lucci, 25 Conn. App. 334, 341, 595 A.2d 361 (1991).

Here, defense counsel reported to the court that alleged statements by a DCYS social worker regarding her intention to take custody of the witness’ children had caused his next witness to become upset. Defense counsel complained that it would be unfair to have the witness testify while emotionally distraught due to the impending actions of DCYS. We believe that the information before the court did not contain sufficient indicia of witness intimidation to trigger the court’s duty to investigate further.

The information conveyed to the court was deficient in two important respects. First, nowhere was it suggested to the court that the intended DCYS action against the witness was in any way contingent on or in retaliation for her expected testimony. The information before the court showed only that DCYS was informing the witness that it intended to carry out its statutory mandate. See General Statutes § 17a-90 et seq. There is no reason to conclude that the remark attributed to the DCYS social worker, however ill-timed, was intended to affect the witness’ contemplated testimony. Compare United States v. Hammond, 598 F.2d 1008, 1012-13 (5th Cir. 1979) (reasonable to interpret FBI agent’s comments as threat to retaliate if witness continued to testify). Second, defense counsel’s concern in bringing the hallway incident to the court’s attention was not to suggest witness intimidation. Rather, he was concerned that the hallway incident had rendered his witness unable to testify effectively at that particular time. Through the continuance granted by the trial court, the defendant appears to have obtained all the relief needed to remedy the problem that he identified to the court. We find it highly significant that the defendant never mentioned the hallway incident again until it was raised on appeal. The defendant’s failure to raise the issue of witness intimidation in the trial court suggests that he did not at that time interpret the incident as harmful in the same way that he now presents it on appeal. We do not find that the trial court abused its discretion in not reading more into the information than that presented during the trial. See State v. Sullivan, 11 Conn. App. 80, 86, 525 A.2d 1353 (1987). In light of both of these circumstances, we do not find that there was a sufficient quantum of reliable information before the trial court to implicate the court’s obligation to undertake proceedings to assure itself that the integrity of the judicial process was not being undermined.

Furthermore, the trial court adequately explored the basis of the witness’ refusal to testify. When the victim’s mother refused to testify, the court determined that the witness had properly invoked her fifth amendment privilege. Later, in the proceedings on the motion for a new trial, the court specifically found that the state had not improperly induced the victim’s mother to refuse to testify. The incident in this case is far from the “unresolved claims of government intimidation of defense witnesses . . . [that we] would be required to remand to the [trial] court for findings on the validity of these claims.” United States v. Goodwin, supra. The trial court properly carried out its duty to ensure the integrity of the judicial process. Under these circumstances, we discern no violation of the defendant’s right to a fair trial as a result of the trial court’s failure to inquire sua sponte into matters brought to its attention that the defendant now claims amounted to the impermissible intimidation of a defense witness.

The judgment is affirmed.

In this opinion the other judges concurred.

       A defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       The defendant framed his posttrial motion as a petition for a new trial. He did not follow the proper procedure for bringing a petition for a new trial. See State v. Servello, 14 Conn. App. 88, 100-102, 540 A.2d 378, cert. denied, 208 Conn. 811, 541 A.2d 1240 (1988). Since the defendant does not challenge the trial court’s denial of this motion, we need not explore the effect of this procedural error. Compare Waterworks v. Audet, 29 Conn. App. 722, 617 A.2d 932 (1992) (per curiam).

       As a corollary to this claim, the defendant also argues that the witness’ “blanket assertion” of her fifth amendment privilege should not have been accepted. He argues that, by permitting such a blanket assertion, the trial court failed to determine the real reason why the witness refused to testify, which according to the defendant was impermissible witness intimidation by the state.
      We agree with the defendant that a witness must “claim the privilege as to each specific question asked of him and as to each, before he would be justified in refusing to answer, it must appear that there was reasonable ground to apprehend from it some real danger of incrimination.” McCarthy v. Clancy, 110 Conn. 482, 490, 148 A. 551 (1930). The witness, however, did claim the privilege in response to the limited number of questions posed by defense counsel. Further, the court clarified that defense counsel intended to question the witness “pertaining to what happened in the home and that would get into the question of physical abuse . . . and who did it and so on. . . .” Defense counsel did not seek to pose further questions and never sought to pose, as suggested on appeal, “questions of a limited scope rebutting the state’s evidence and going directly to the credibility of [the victim]” which would not have given rise to a legitimate fear of prosecution.
      Because the trial court adequately explored the basis of the witness’ refusal to testify, we do not believe that the trial court failed to explore any information suggesting that the real reason for the witness’ refusal to testify was impermissible witness intimidation by the state.


text:
    Robert Doherty v. Bernard Sullivan et al.
    (10686)
    Dupont, C. J., Foti and Freedman, Js.
    Argued September 29
    decision released December 22, 1992

      Otto P. Witt, for the appellant-appellee (plaintiff).

      H. Maria Cone, deputy corporation counsel, with whom, on the brief, was Nathaniel Brown, law student intern, for the appellees-appellants (defendants).
   Freedman, J.

The plaintiff, a police officer employed by the city of Hartford, challenged his demotion from the rank of sergeant to the rank of patrolman. The trial court rendered judgment for the defendants, the city of Hartford and its chief of police, Bernard Sullivan, after concluding that the plaintiff was not entitled to relief under either the collective bargaining agreement between the plaintiffs union and the city or a grievance settlement agreement between the plaintiff, his union and the city. As to count one of his complaint, the plaintiff claims that the trial court improperly concluded that he was on probationary status at the time of his demotion and was, therefore, not protected by the “just cause” provision of the collective bargaining agreement. As to count two of his complaint, the plaintiff claims that the trial court improperly failed to find that the defendant city of Hartford violated an implied covenant of good faith and fair dealing present in the parties’ employment contract. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff is a police officer employed by the defendant city of Hartford. In June, 1982, the plaintiff was promoted from the rank of patrolman to sergeant. He completed his probationary period in June, 1983.

On January 3, 1986, the plaintiff was charged with conduct unbecoming a police officer and failure to supervise his subordinates. As a result of this charge, the plaintiff filed a grievance against the city. On April 9,1986, the plaintiff withdrew that grievance and entered into a settlement agreement with the city and his union. Under the April, 1986 settlement agreement, the plaintiff accepted a ninety day suspension from employment and a one year probationary status at his rank of sergeant.

The plaintiff served his ninety day suspension and returned to duty on probation as a sergeant in July, 1986. The plaintiff received a favorable probationary review in September, 1986. As a result of two separate incidents in November, 1986, however, the chief of police recommended that the plaintiffs probation be terminated and that he be returned to the rank of patrolman. The plaintiffs demotion to the rank of patrolman became effective on January 18, 1987.

After the plaintiff filed a grievance contesting this action, an arbitration hearing was held before the Connecticut board of mediation and arbitration between the city and the plaintiffs union concerning the grievance. The arbitrators concluded that the matter was not arbitrable on the basis of article I, § 1.8, of the collective bargaining agreement between the city and the union, which provides that “no probationary employee in any promotional classification shall have access to the grievance procedure where the issue is one of demotion.” The union did not thereafter challenge the arbitration decision pursuant to General Statutes § 52-420.

The plaintiff then brought this action in three counts. The first count claims that the city’s demotion of the plaintiff constitutes a breach of the collective bargaining agreement and the personnel rules of the city. The second count claims that the city’s demotion of the plaintiff constitutes a breach of the implied covenant of good faith and fair dealing of the April, 1986 settlement agreement between the parties. The third count, which is not part of this appeal, alleged a tortious interference with the plaintiff’s employment contract.

As to the first count, the trial court concluded that the plaintiff could not take himself out of his probationary status by attacking the validity of the April, 1986 settlement agreement. The court then reasoned that there was no breach of the collective bargaining agreement since it contains no restrictions on the demotion of probationary employees. As to the second count, the court concluded that the plaintiff failed to show any breach by the city of any obligation to act in good faith and to deal fairly.

I

The plaintiff first contends that the city breached the collective bargaining agreement by demoting him without just cause. Article II of the collective bargaining agreement sets forth the “Grievance Procedure” to be followed by the city and the Hartford police union. Artiele II, § 2.2, provides that “[n]o employee shall be suspended, discharged or demoted except for just cause.” If the protections of article II are available to the plaintiff with regard to his demotion, then the city would have had to show just cause for his demotion.

Article I, § 1.8, provides that “no probationary employee in any promotional classification shall have access to the grievance procedure where the issue is one of his demotion.” Consequently, the grievance procedure, that is, the procedures and protections outlined in article II of the collective bargaining agreement, are unavailable to him with regard to the issue of his demotion. Absent a just cause standard attached to his demotion, the plaintiff’s claim of a breach of the collective bargaining agreement must fail.

The plaintiff seeks to avoid this result by attacking the validity of the April, 1986 settlement agreement which restored his probationary status. Arguing that the settlement agreement was outside the scope of the collective bargaining agreement and in violation of the city’s personnel rules, the plaintiff claims that the probationary status conferred by the settlement was a nullity, thus entitling him to the just cause protection available to all nonprobationary employees with respect to a demotion. We do not agree.

The trial court correctly concluded that because the plaintiff voluntarily entered into the April, 1986 settlement, he could not now attack that settlement. The settlement agreement does not conflict with the collective bargaining agreement. The collective bargaining agreement expressly contemplates that the parties may work out their own settlements of their disputes. Article II of the collective bargaining agreement establishes a procedure for resolving disputes where the parties cannot work out a settlement. By settling the dispute concerning the January 3, 1986 incident involving charges of behaving in a manner unbecoming of a police officer and failing to supervise subordinates, the plaintiff avoided an immediate demotion to the rank of patrolman in exchange for a restoration of probationary status. “One enjoying rights is estopped from repudiating dependent obligations which he has assumed; parties cannot accept benefits under a contract fairly made and at the same time question its validity.” Schwarzchild v. Martin, 191 Conn. 316, 321, 464 A.2d 774 (1983).

The April, 1986 settlement was a voluntary and mutual resolution of a dispute between two parties regarding a sanction to be imposed on one of the parties. While neither the collective bargaining agreement nor the city’s personnel rules explicitly recognize a disciplinary probation status similar to that at issue here, neither document expressly prohibits it. Our law has long been clear that a “compromise agreement . . . if free from fraud, mistake or undue influence . . . is conclusive between the parties.” Azzolina v. Sons of Italy, 119 Conn. 681, 689-90, 179 A.2d 201 (1935); Horn v. Freedom of Information Commission, 16 Conn. 49, 53, 547 A.2d 56 (1988). Moreover, the settlement agreement here arose out of the grievance and arbitration process that was contractually established for the benefit of the parties. Interference with the result of this “favored means of settling differences”; Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985); is unwarranted under the circumstances of this case and would serve only to undermine this “ ‘method for [the] orderly settlement of employee grievances’ ” established by the parties. School Administrators Assn. v. Dow, 200 Conn. 376, 382, 511 A.2d 1012 (1986), quoting Republic Steel Corporation s. Maddox, 379 U.S. 650, 653, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965).

Accordingly, the trial court properly concluded that the plaintiff was bound by the April, 1986 settlement agreement and that the city did not breach the collective bargaining agreement by demoting him while he was in a probationary status.

II

The plaintiff next claims that the city breached an implied covenant of good faith and fair dealing in the April, 1986 settlement agreement by demoting him without just cause. We disagree.

In Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984), our Supreme Court addressed the issue of whether the doctrine of an implied covenant of good faith and fair dealing is applicable to the termination of an employment contract. The Magnan court accepted the principle that implied in every contract of employment is a covenant of good faith and fair dealing in the contractual relationship, but specifically “decline[d] the invitation of the plaintiff to transform the requirement of good faith into an implied condition that an employee may be dismissed only for good cause.” Id., 571. The Magnan court then went on specifically to limit the reach of the newly recognized covenant of good faith and fair dealing in the employment context. “Although we endorse the applicability of the good faith and fair dealing principle to employment contracts, its essence is the fulfillment of the reasonable expectations of the parties. Where employment is clearly terminable at will, a party cannot ordinarily be deemed to lack good faith in exercising this contractual right. Like other contract provisions, which are unenforceable when violative of public policy, the right to discharge at will is subject to the same restriction. We see no reason presently, therefore, to enlarge the circumstances under which an at-will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves ‘impropriety . . . derived from some important violation of public policy.’ ” Id., 572, quoting Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475, 427 A.2d 385 (1980) (recognizing common law cause of action in tort for discharge of an at-will employee where reason for discharge violates public policy).

The plaintiff argues that “the agreement of April 9, 1986, was not administered in ‘good faith’ as there was no basis for the demotion.” He also argues that the investigation that led to the recommendation of his demotion was not properly conducted. Neither of these arguments, however, will permit the plaintiff to prevail under controlling case law.

A demotion without good cause does not, in and of itself, violate the implied covenant of good faith and fair dealing. Magnan v. Anaconda Industries, Inc., supra. Likewise, a demotion based on an inadequate investigation does not violate the implied covenant of good faith and fair dealing because it is not based on a demonstrably improper reason derived from some important violation of public policy. See Morris v. Hartford Courant Co., 200 Conn. 676, 678-81, 513 A.2d 66 (1986); Magnan v. Anaconda Industries, Inc., supra. In the absence of a public policy violation, there is no breach of the implied covenant of good faith and fair dealing. See Seery v. Yale-New Haven Hospital, 17 Conn. App. 532, 543, 554 A.2d 757 (1989).

Accordingly, the trial court properly concluded that the plaintiff had failed to show any breach by the city of any obligation to act in good faith and to deal fairly.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants have challenged the trial court’s denial of their motions to dismiss and for summary judgment. Because we affirm the judgment of the trial court, we need not address these claims. We do, however, need to address those claims raised by the defendants that implicate the trial court’s subject matter jurisdiction.
      The defendants’ jurisdictional claims, namely, that the plaintiff failed to exhaust his administrative remedies and that he lacks standing to enforce the collective bargaining agreement, both rest on the argument that the plaintiff’s exclusive remedy for any alleged breach of the collective bargaining agreement is by way of arbitration, not litigation. The short answer tó these claims is that the plaintiff did raise his claim by way of arbitration and the arbitrators determined that his demotion was not arbitrable due to his probationary status. Under the collective bargaining agreement, the plaintiff was not a party to the arbitration, that status being conferred on the union and the employer. Accordingly, the plaintiff could not challenge the arbitration decision in court pursuant to General Statutes § 52-420. Housing Authority v. Local 1161, 1 Conn. App. 154, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). Because the plaintiff first pursued his claims through the contractual grievance procedure as far as he could and was unable to obtain court review, the trial court properly concluded that it had jurisdiction to entertain the plaintiff’s contract claims in this civil action.

       In their brief, the defendants argue that in Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984), the court “effectively limits the implied doctrine of good faith and fair dealing to employees at will, thus excluding the plaintiff from its reach” because the plaintiff is an “employee protected by a collective bargaining agreement.” Cf. D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 211 n.1, 520 A.2d 217 (1987). The April, 1986 settlement agreement, however, placed the plaintiff in the status of an at-will employee with respect to any action by the city to demote him. He was no longer protected by the collective bargaining agreement with respect to a demotion. Consequently, we do not agree with the defendants that the plaintiff is not in a position to maintain a cause of action under the Magnan doctrine.


author: Landau, J.

text:
    State of Connecticut v. Robert Arbour
    (9928)
    Foti, Lavery and Landau, Js.
    Argued October 28
    decision released December 22, 1992

      Bruce A. Sturman, public defender, with whom, on the brief, was Peter Scillieri, assistant public defender, for the appellant (defendant).

      Susann E. Gill, assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Christopher L. Morano, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). On appeal, the defendant claims that the trial court improperly (1) denied him his rights under the sixth amendment to the United States constitution, and (2) prohibited him from raising a theory of diminished capacity. The defendant further claims that the trial court abused its discretion by (1) excluding expert testimony on behalf of the defendant on the issue of intent, (2) refusing to instruct the jury on the theory of diminished capacity, and (3) limiting the scope of the defendant’s summation as to diminished capacity. We agree with the defendant’s claim that the trial court abused its discretion when it excluded expert testimony on the issue of intent. This being dispositive of the appeal, we need not reach the defendant’s other claims.

The jury could reasonably have found the following facts. On December 13, 1989, the defendant resided with his spouse, daughter, and parents in Newington. At approximately 7 p.m. on that date, while the defendant’s brother, Roger Arbour, was visiting at the house, an argument ensued among members of the family. When the defendant and Roger began quarreling, their father attempted to quiet them. The defendant’s mother also attempted to intervene and was struck by her husband. Roger struck his father, breaking three of his ribs. Roger then chased the defendant through the house. The defendant attempted to open the front door but could not. His mother pushed Roger away from the defendant and told the defendant to go upstairs.

While the defendant was upstairs, his wife told Roger to leave. Roger grabbed her, letting her go only on his mother’s command. The defendant, returning to the kitchen with a rifle that he obtained from an upstairs bedroom, shot Roger in the back of the head. Roger was hospitalized for approximately seven months, during which time he twice underwent major surgery. He suffered damage to the right side of his brain and optic nerve and he is legally blind and permanently without sensation on the left side of his body.

When the police officers responded to the report of the domestic disturbance, they were admitted to the premises by the defendant, who had what appeared to be a laceration on his forehead and blood on his face. The victim lay on the floor in a pool of blood. The defendant told the police that his wife had shot his brother, that his brother had been on drugs and had stabbed him with a knife, that his brother had hit him with the butt of a rifle, and that when he had intervened in a fight between his father and the victim he had been hit on the head and rendered unconscious.

At trial, witnesses testified that at the time of the incident the defendant appeared dazed, unresponsive, incoherent, glassy eyed, and unable to focus his eyes or attention. There was also evidence that the defendant initially looked calm and alert. The defendant testified that he did not intentionally shoot his brother.

The state offered testimony from Edward J. Fredericks, a neurologist, concerning the injuries suffered by the defendant. Fredericks was asked about incoherence as a result of the defendant’s injuries and whether incoherence would be expected immediately after receiving the injury or would be somewhat delayed. The doctor stated that he expected it to be “right from the beginning of the injury.”

Peter Sereny, an internist, testified for the defendant that one portion of the defendant’s medical records indicated that the defendant lost consciousness the night of the shooting, although another portion of the records indicated that he suffered a head injury without loss of consciousness. He also testified that the defendant suffered a laceration over his left eyebrow, a blunt head injury and a concussion. Sereny was then asked whether he had an opinion about the defendant’s ability to form a rational intent at about 7:30 p.m. on the evening of the shooting, after the defendant had received the injury. The state objected and the court sustained the objection, citing Practice Book §§ 759 and 761. The trial court held that the defendant’s failure to provide notice of his intention to rely on expert testimony to establish a mental disease or defect negating intent precluded Sereny’s opinion testimony. The defendant countered that the state had “opened the door” to Sereny’s opinion evidence by asking Fredericks about the effect of the defendant’s injuries on the defendant’s mental process, and, therefore, §§ 759 and 761 were not applicable. On appeal, the defendant claims that the failure to allow Sereny’s opinion testimony was an abuse of discretion. We agree.

The decision to preclude a party from introducing expert testimony is within the discretion of the trial court. Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 500-501, 602 A.2d 1040 (1992); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106-107, 476 A.2d 1074 (1984). On appeal, that decision is subject only to the test of abuse of discretion. Yale University School of Medicine v. McCarthy, supra, 501; Kemp v. Ellington Purchasing Corporation, 9 Conn. App. 400, 405, 519 A.2d 95 (1986). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) State v. Polanco, 26 Conn. App. 33, 41, 597 A.2d 830 (1991). The salient inquiry is whether the court could have reasonably concluded as it did. Yale University School of Medicine v. McCarthy, supra. “ ‘It goes without saying that the term “abuse of discretion” does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds.’ ” State v. Schroff, 198 Conn. 405, 413, 503 A.2d 167 (1986). “ ‘In determining whether there has been an abuse of discretion, much depends upon the circumstances of each case.’ ” Id.

Practice Book § 759 provides that a defendant who intends to “introduce expert testimony relating to a mental disease or defect . . . shall . . . notify the prosecuting authority in writing of such intention . . . .” Practice Book § 761 provides “as the only sanction for noncompliance with § 759 that the court ‘may exclude the testimony of any expert witness offered by the defendant on the issue of his mental state.’ ” State v. Hines, 187 Conn. 199, 205, 445 A.2d 314 (1982). After the defendant attempted to elicit testimony from Sereny regarding the defendant’s state of mind at the time of the incident, the state objected, and the court stated: “If the question purports to seek from this doctor a medical opinion as to the defendant’s state of mind at the time of the alleged incident, and in view of failure to comply with Practice Book §§ 759 and 761, the court must sustain the objection.”

The trial court seems to have understood the sanctions of Practice Book § 761 to be mandatory, but that is not true. We have long held that “[fjailure to comply with the notice requirement [of § 759] does not per se justify a refusal to give an instruction on mental condition.” State v. Burge, 195 Conn. 232, 239, 487 A.2d 532 (1985). Nor does such failure on the part of the defendant mandate that Sereny be prevented from testifying as to the defendant’s mental condition at the time of the assault. While we are cognizant that rules promulgating discovery and requiring notice promote a legitimate and important judicial interest, these rules can clash, as they do here, with a defendant’s sixth amendment right to present a defense. The right to present a defense is embodied in the right to compulsory process and is applied to state prosecutions through the due process clause of the fourteenth amendment to the United States constitution. Washington v. Texas, 388 U.S. 14, 17-18, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. McKnight, 191 Conn. 564, 581, 469 A.2d 397 (1983).

Whether a trial court’s restriction of a defense witness’ testimony in a criminal trial deprives a defendant of his due process rights is a question that must be answered on a case-by-case basis. State v. Flanders, 214 Conn. 493, 500, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990). In this case, Sereny was consulted only one to two weeks prior to the trial, and not as an expert witness. There is no indication that the defendant intended to utilize the services of Sereny without informing the prosecuting authority. Furthermore, allowing the state to present the testimony of Fredericks regarding the mental state of the defendant, without allowing the defense to rebut such testimony, whether on cross-examination or by presenting its own witness and regardless of whether the defendant complied with the notice requirements of § 759, would be fundamentally unfair. Therefore, we hold that the court’s interpretation of §§ 759 and 761 resulted in an abuse of discretion.

Even if we were to hold that the trial court’s decision to sustain the objection was not an abuse of discretion, the state did, in fact, open the door to evidence of the nature of the defendant’s injuries by its questioning of Fredericks. “Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). Once the door has been opened, the trial court must then engage in a balancing test to determine whether further inquiry by the opposing party is proper in order to undo any unfair prejudice that may have resulted from the original testimony. Id., 14.

The record indicates that the following colloquy took place between the state and Fredericks on direct examination during the state’s case-in-chief:

“The State: Doctor, did you have an opportunity to examine medical records regarding an individual named Robert Arbour, Jr.?
“The Witness: Yes.
“The State: And drawing your attention to those records, can you tell us what was the nature of Mr. Arbour Jr.’s — Robert—I want to be specific because they’re the same last names — Robert Arbour, Jr., what his injury was?
“The Witness: The records indicate that he had blood trauma to the left frontal region with subsequent swelling in that area. He was described by the EMT peopie, as the emergency medical technician described him, as being lethargic and not fully aware of what was going on at the time that he was found at home and brought to the emergency room. In the emergency room he was able to respond to simple commands. The notes in the record then say that within thirty minutes he was asking questions about his family and was responding more appropriately. There was no loss of consciousness mentioned in the records, except there was one contradictory note that was mentioned on his physical examination sheet.
“The State: Now, Doctor, if someone received an injury of that nature, can you tell us, based upon a reasonable medical certainty — excuse me — reasonable medical probability, if he would become incoherent right after receiving that injury, or if that incoherence would be somewhat delayed; it may be some ten or fifteen minutes afterwards?
“The Witness: From that type of injury, if he were to be incoherent, I would expect it to be right from the beginning of the injury. We found no evidence that he had subsequent hemorrhage. That would be an explanation if someone initially was clear and then had difficulty with memory, but he had a CAT scan which showed no abnormality. There was no indication he had what they call an epidural hematoma.
“The Court: This is what the CAT scan found?
“The Witness: The CAT scan was normal. There was no evidence of any hemorrhage or any brain injury, such as what they call a contusion of the brain.
“The Court: You said an epidural hematoma?
“The Witness: I was merely trying to clarify the fact that there are instances where someone can have a head injury and initially be bright and mentally okay and then lapse into periods of memory difficulty or loss of consciousness, but he did not have that type of problem.
“The State: Thank you, Doctor. I have nothing further of this witness.”

The defendant, during its case-in-chief, called Sereny and posed the following question: “On the basis, Doctor, of your examination of the hospital record of Robert Arbour, Jr., on the basis of the injuries that are described therein, and the other information contained in that report, and, Doctor, assuming that earlier in that evening, when police officers entered a dwelling — a house or unit — or the dwelling in which he was present, that he was dazed, incoherent, disoriented, unable to focus his eyes, that he was hysterical at times, do you have an opinion about what his ability to form a rational intent would have been at about 7:30 that evening, after he had received the injury that we’ve described?”

At that point, the state objected, and the trial court sustained the objection on the basis that the defendant failed to comply with Practice Book §§ 759 and 761. The court, the next day, also stated that the state did not open the door to this line of questioning when it presented the testimony of Fredericks.

Despite the holding of the trial court and the arguments of the state that Fredericks’ testimony was limited in its scope, the testimony demonstrates that the questions posed to Fredericks plainly addressed the effect the injury had on the defendant at the time of the incident. Although the questions posed to Fredericks were not in a form that specifically addressed the defendant’s ability to form a rational intent, the practical effect is the same. It would be grossly unfair to allow the state to question its expert regarding the defendant’s incoherence — state of mind — without allowing the defendant a similar opportunity.

Once the state’s attorney asked Fredericks about the defendant’s injuries and whether incoherence would be expected “right after receiving that injury” or would be “somewhat delayed” and Fredericks, an expert witness, stated that “from that type of injury, if [the defendant] were to be incoherent, I would expect it to be right from the beginning of the injury,” the state’s attorney opened the door to questions relative to the diminished capacity of the defendant. This evidence followed closely the testimony elicited from various police officers, all called by the state, as to the defendant’s mental, emotional and physical state in which he was described as dazed, unable to focus his eyes or attention, glassy eyed, unconscious, and that he did not intentionally shoot his brother. In addition, testimony came before the jury that the defendant looked calm and alert.

That testimony went to the very heart of the defense. The defendant attempted to counter that testimony by the question addressed to Sereny and disallowed by the trial court. The examination by the state’s attorney delved into those areas on which the defendant was prohibited to inquire. It was these questions that brought into focus an issue to be decided by the jury; that is, whether the defendant had the requisite intent to commit the crime. Once the mental, emotional and physical state of the defendant became the subject matter of questions on direct examination, it was an abuse of discretion not to allow the defendant to inquire of Sereny as to his opinion of the defendant’s ability to form a rational intent.

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

In this opinion the other judges concurred.

       General Statutes § 53a-59 provides in pertinent part: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”


author: Heiman, J.

text:
    State of Connecticut v. James Willey Young
    (10278)
    O’Connell, Heiman and Freedman, Js.
    Argued November 6
    decision released December 22, 1992

      Denise M. Cloutier and Roberts. Melvin, special public defenders, with whom, on the brief, was Sally S. King, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Sarah E. Steere, law student intern, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), as a lesser included offense of murder. The defendant claims that the trial court improperly (1) omitted a supplemental instruction on self-defense when asked by the jury to explain which elements it must find proven beyond a reasonable doubt, (2) admitted expert testimony on the physical force required to cause one type of revolver to discharge, and (3) admitted an autopsy photograph of the victim. The defendant also claims that (4) the state’s conduct denied the defendant his constitutional right to a fair trial, (5) the evidence introduced at trial was insufficient for a jury to have reached a verdict of guilty of intentional manslaughter, and (6) he was deprived of his constitutional right to a jury drawn or selected from a fair cross section of his community. We disagree and affirm the judgment of the trial court.

The jury could have reasonably found the following facts. During the evening of January 3, 1982, the defendant, James Willey Young, and the victim were both patrons of the G & M Cafe, a bar on Truman Street in New London. A dispute arose after the victim accused the defendant of spilling beer in his hair. The defendant and victim then left the club separately. Later that evening, however, both men returned to the club and their argument resumed. As the argument became more heated, the defendant told the victim to remove his hand from the overcoat that the victim was wearing. The defendant took his hand out from under his own coat, exposed a large black handgun and struck the victim in the face with the gun. Other patrons in the bar ran for cover when they saw the defendant display his gun. A moment later, a shot went off, the bullet striking the victim in the right side of his back.

An ambulance crew, New London police officers and state troopers arrived at the scene. The victim had no pulse and was transported to the Lawrence and Memorial Hospital. Despite efforts to resuscitate him, the victim was pronounced dead. At the scene of the shooting, the police recovered a disfigured and “mashed” bullet. They later identified it as one fired from a .38 caliber or .357 magnum revolver.

Prior to the arrival of the police, the defendant fled. A friend drove him to Hartford. En route to Hartford, the defendant disposed of the weapon.

Six and one-half years later, on July 29, 1988, an agent of the Federal Bureau of Investigation arrested the defendant in Roanoke, Virginia. The defendant was charged with the crime of murder and pleaded not guilty.

Before the commencement of the voir dire, the defendant objected to the process by which the jury panel was drawn. He requested that the entire jury array of seventy persons be used as the panel from which he could select a jury. The court responded that there were no other jurors in the courthouse and overruled the objection. The defendant also objected that none of the eighteen venirepersons was black. The court also noted this objection.

At trial, the state introduced into evidence an autopsy photograph of the victim taken two days after his death. The photograph depicted the face and shoulder area of the victim. The victim was unclad, with his eyes half-closed. The defendant objected to the introduction of this photograph. The objection was overruled and the defendant took an exception. The state displayed the photograph to the jury and to its witnesses.

During the trial, the defendant repeatedly characterized the victim as violent, although conceding that he had seen the victim only twice before, did not know his name, had never spoken with him and had never seen him with a weapon. The defendant admitted that he removed the gun from his coat and struck the victim. He could not remember if he had cocked the gun when he removed it from his coat. He remembered, however, that somebody bumped his arm causing the gun to fire.

To rebut the defendant’s testimony, the state introduced the expert testimony of Trooper Robert Hathaway. Hathaway testified that the fatal bullet had basic rifling characteristics similar to those found in Smith and Wesson, Ruger, INA, and Llama revolvers. He explained that when any of these weapons were cocked, the trigger pull decreased significantly. He also testified that he was familiar with the trigger pull characteristics of revolvers identified as those from which the fatal shot could have been fired. He testified that he was particularly familiar with Smith and Wesson revolvers and that the trigger pull of those guns was in the range of three to four and one-half pounds when cocked and ten to fourteen pounds when not cocked. On cross-examination, Hathaway acknowledged that the range to which he testified was an average, but that the force required for trigger pull could run even higher.

After five days of trial, the jury commenced its deliberations. The jury sent a note to the court signed by the foreperson which read, “We need a copy of the lesser charge.” The trial judge recalled the jurors and reminded them of the original charge and the three lesser charges, offering to reinstruct them. The jury foreperson responded orally, “The second charge. The first lesser charge.” The court indicated that charge was intentional manslaughter in the first degree and the foreman responded, “Intentional manslaughter. What are the four elements that have to be proved beyond a reasonable doubt?” The court thereupon reinstructed the jury as to the two elements of that crime. The defendant did not object to that reinstruction.

The jury subsequently returned a verdict of not guilty as to the charge of murder, but guilty as to .the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The court sentenced the defendant to twenty years incarceration. This appeal followed.

I

The defendant first claims that the trial court improperly omitted a supplemental instruction on self-defense when asked by the jury to explain which elements it must find proven beyond a reasonable doubt. He argues that the trial court’s failure to respond adequately to the jury’s confusion as to which elements the state was required to prove beyond a reasonable doubt deprived the defendant of his right to a fair trial by jury. The defendant failed to object to the court’s reinstruction to the jury as to the elements of intentional manslaughter and seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Further, the defendant did not make the claim to the trial court that he now advances, that the question asked by the jury foreperson about the “four elements” of intentional manslaughter clearly demonstrated the jury’s confusion concerning the defense of justification. He argues that the trial court’s response failed to correct this confusion. We are unpersuaded that the defendant has established his entitlement to review of this issue under the doctrine of State v. Golding, supra.

In State v. Golding, supra, 239-40, our Supreme Court articulated four conditions that must exist before a defendant may prevail on an unpreserved claim of constitutional error: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. ” (Emphasis added.) Id. We are free to focus our attention on whichever condition is most relevant to the circumstances of the particular case under review. Id., 240.

The defendant can satisfy neither the second nor the third prongs of Golding, that the claim is of constitutional magnitude alleging the violation of a fundamental right and that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. The trial court’s response to the jury’s inquiry was adequate and appropriate under the circumstances.

After a period of deliberation, the jury sent a note to the trial court that stated: “We need a copy of the lesser charge. Signed Ronald Plourde, Foreperson.” After consultation with counsel on the record, the trial court indicated its intention to reiterate the charges to the jury. The trial court indicated that it would not explain the lesser included offenses fully, but would tell the jury what the lesser included offenses were. The jurors were brought back to the courtroom and the trial judge listed for them the principal charge and the lesser included offenses. In response to the court’s statement that if further explanation was desired the court would provide it, the jury foreperson requested further explanation. After the court explained the two elements that the state was required to prove beyond a reasonable doubt in order to convict the defendant of the crime of intentional manslaughter in the first degree, the jury again retired to deliberate. The next day the jury returned a verdict of guilty of the lesser included offense of intentional manslaughter in the first degree. It is the foreperson’s request for an explanation of the four elements of the offense of intentional manslaughter that generates the defendant’s claim.

It is undisputed that the trial court’s initial charge properly instructed the jury on the elements of intentional manslaughter in the first degree and the rules regarding self-defense and justification. It is also undisputed that the instructions delivered to the jury upon the foreperson’s request correctly reiterated the elements of the offense. See State v. Reid, 22 Conn. App. 321, 324, 577 A.2d 1073, cert. denied, 216 Conn. 828, 582 A.2d 207 (1990).

The defendant’s reliance on State v. Fletcher, 10 Conn. App. 697, 525 A.2d 535 (1987), aff'd, 207 Conn. 191, 540 A.2d 370 (1988), is misplaced. Unlike the situation here, the jury in State v. Fletcher, supra, specifically included in a request that it be reinstructed concerning the effect of self-defense on the verdict. The trial court refused to honor that request because it did not come from the jury as an entity and the trial court was of the opinion that unanimity in the request was a requirement. We reversed, holding that its failure to reinstruct when requested, even though the request was not unanimous, violated the defendant’s right to a fair trial and due process. Id., 705. Here, the trial court responded to the inquiry of the jury. Unlike State v. Fletcher, supra, 707, the jury in the present case did not ask for a reinstruction on the elements of self-defense or otherwise evince confusion on the law relating to that defense. State v. Reid, supra, 324-25. The trial court properly instructed the jury, thus fulfilling its obligation under Practice Book § 864. See id. Additionally, the record clearly reflects that the jury and its foreperson were aware of their right to request supplemental instructions if required, and, after the trial court reinstructed the jury on the elements of the lesser included offense, the jury did not request further amplification or clarification.

Absent a request by the jury seeking further instruction on the concept of self-defense or justification, or clear indication evincing confusion on the law relating to that defense, the defendant’s constitutional rights are not abridged by the failure to reinstruct on the defense. Id.

Because there was no clear deprivation of a fundamental constitutional right, we decline to review the defendant’s claim. State v. Golding, supra; State v. Reid, supra. The court did not improperly fail to recharge sua sponte on the self-defense doctrine under the circumstances of this case. State v. Golding, supra; State v. Reid, supra.

II

The defendant next asserts that the trial court improperly admitted expert testimony concerning the physical force required to cause a revolver to discharge. We disagree.

Additional facts are necessary to a proper resolution of this claim. At the scene of the homicide, the police recovered a 112.2 copper-jacketed bullet. The bullet was found resting on the chest of the victim. The bullet was taken to the state forensic laboratory and examined by Hathaway, a member of the Connecticut state police who was employed as a firearm and tool mark examiner at the laboratory. On the basis of his examination of the bullet, Hathaway testified that the bullet was of the caliber that could be fired from either a .38 special or a .357 magnum revolver. He was able further to conclude, on the basis of the rifling characteristics of the bullet, that it possibly had been fired from a revolver manufactured by Smith and Wesson, Ruger, INA or Llama.

In the course of the defendant’s testimony, he claimed that he could not recall whether he had cocked the weapon. He remembered, however, that during the melee someone struck his arm and the weapon discharged.

In his testimony, the defendant offered two separate scenarios of what had occurred. In the first, he asserted that the victim was the initial aggressor and that he acted in self-defense. In the second, he asserted that some unknown person had bumped his arm, “causing the gun to go off,” which is inconsistent with his first assertion.

The testimony of Hathaway to which the defendant now objects occurred in the state’s rebuttal. The state recalled Hathaway who testified as to the mechanics of cocking revolvers and also testified that a cocked weapon requires substantially less pressure on the trigger to discharge. The evidence offered by the state was relevant to negate the defendant’s claim of accidental discharge of the weapon after being “bumped.”

“ ‘[Rjelevant evidence is evidence that in some degree advances the inquiry. It is material and probative.’ ” State v. Dabkowski, 199 Conn. 193, 206, 506 A.2d 118 (1986); see also State v. Marra, 222 Conn. 506, 521, 610 A.2d 1113 (1992). “ ‘[Rjebuttal evidence is that which refutes the evidence presented by the defense, rather than that which merely bolsters the state’s case . . . .’ ” State v. Williamson, 206 Conn. 685, 698, 539 A.2d 561 (1988), quoting State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982). The issue of the admissibility of rebuttal evidence as it relates to relevancy is a matter addressed to the sound discretion of the trial court. State v. Canty, 223 Conn. 703, 715-16, 613 A.2d 1287 (1992); State v. Buster, 27 Conn. App. 263, 275, 606 A.2d 9, cert. granted, 222 Conn. 909, 608 A.2d 692 (1992). We will not disturb the trial court’s ruling absent a clear abuse of discretion; State v. Pollitt, 205 Conn. 61, 91, 530 A.2d 155 (1987); State v. Maxwell, 29 Conn. App. 704, 715-16, 618 A.2d 43 (1992); or unless it appears that an injustice has been done. State v. Milner, 206 Conn. 512, 518, 539 A.2d 80 (1988). The references to the trigger pull of a .38 caliber Smith and Wesson revolver illustrated the differences between a weapon that had been cocked and one that had not. The defendant “opened the door” to this testimony by asserting that the gun accidentally discharged after he had been bumped. Even the reference to a specific manufacturer met the test of relevancy. The admission of the evidence was thus proper.

Ill

The defendant also argues that the trial court improperly admitted an autopsy photograph of the victim. He argues that the prejudicial impact of the photograph outweighs its probative value. We do not agree.

Our Supreme Court has stated on a number of occasions that photographs that “ ‘have a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry’ are not rendered inadmissible simply because they may be characterized as ‘gruesome.’ ” State v. Piskorski, 177 Conn. 677, 700, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 194 (1979); see also State v. Haskins, 188 Conn. 432, 452, 450 A.2d 828 (1982); State v. Suarez, 23 Conn. App. 705, 711, 584 A.2d 1194 (1991). Here, the thrust of the defendant’s objection to the trial court was that the body depicted in the photograph was unclad and that it was “highly prejudicial at this point.” The state offered the photograph as an accurate representation of how the decedent looked when a witness observed him in the barroom after the shooting before he was removed. Witnesses testified that the photograph fairly and accurately depicted how the decedent appeared after the shooting, other than as to his clothing.

The admission of the photograph into evidence required that the trial court exercise its discretion. See State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986); State v. Scuilla, 26 Conn. App. 165, 170-71, 599 A.2d 741 (1991). Here, the defendant did not object on the ground that the picture was gruesome or likely to inflame the prejudice of the jury. Thus, we are left with the fact that the admissibility of the photograph is addressed to the discretion of the trial court. State v. Haskins, supra, 453; State v. Scuilla, supra, 171. We will reverse an exercise of the trial court’s discretion only where the abuse of discretion is manifest or where injustice appears to have been done. State v. Milner, supra; State v. Maxwell, supra. Nothing in the record supports the defendant’s claim that the admission of the photograph into evidence was improper or that the state improperly used the photograph. The photograph depicting the decedent was probative of the identity of the victim about whom the witnesses were testifying and on whom the autopsy was performed. The trial court did not abuse its discretion by determining that the probative value of the photograph was not outweighed by any potential prejudice. The defendant’s claim is without merit.

IV

The defendant next claims that the state’s conduct violated his constitutional right to a fair trial. He argues that the state’s conduct was fundamentally unfair and did not afford him the due process guaranteed by both the state and federal constitutions. Having failed to raise this claim at trial, the defendant seeks to have this court afford review of the alleged prosecutorial misconduct under Golding. He asserts that the record is adequate to review the prosecutorial misconduct that he claims occurred throughout the trial and that this claim is of constitutional magnitude alleging the violation of a fundamental right. We are unpersuaded that the defendant has satisfied the third prong of Golding, and we thus decline to afford review.

We first observe that except for a few isolated instances where the defendant’s counsel objected to the state’s questions or comments and the trial court either sustained the objection or the state’s attorney withdrew the question or comment, the record is barren of any objections raising the specter of prosecutorial misconduct. The acts of prosecutorial misconduct now alleged by appellate counsel failed to disturb the defendant’s experienced trial counsel in that he neither objected to them nor sought relief by way of curative instructions or by motion for mistrial. See State v. Lucci, 25 Conn. App. 334, 348, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991).

We will not afford Golding review to claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990); State v. Hall, 28 Conn. App. 771, 778, 612 A.2d 135, cert. denied, 224 Conn. 904, 615 A.2d 1045 (1992); State v. Lucci, supra, 349. Here, the defendant confuses effective advocacy with prosecutorial misconduct and attempts to make vigorous argument and cross-examination a vehicle for his claim of improper prosecutorial conduct.

The claimed misconduct here consisted at most of isolated and brief episodes that neither revealed a pattern of conduct repeated throughout the trial nor were blatantly egregious. State v. Somerville, supra; State v. Hall, supra. Thus, we decline to afford review since the defendant has failed to satisfy the threshold for review mandated by State v. Golding, supra.

V

The defendant asserts that the evidence introduced at trial was insufficient for a jury reasonably to find the defendant guilty of intentional manslaughter. In making this assertion, he posits that from the evidence adduced at trial it is apparent that the state did not meet its burden of proving beyond a reasonable doubt that he intended to cause serious physical injury to the victim. In addition, he argues that the state failed to introduce sufficient evidence to satisfy its burden of disproving beyond a reasonable doubt that his reactions were in self-defense. We disagree.

To determine the sufficiency of the evidence to sustain a conviction, we apply a twofold test. State v. Cruz, 28 Conn. App. 575, 578, 611 A.2d 459 (1992); State v. Uribe, 14 Conn. App. 388, 392-93, 540 A.2d 1081 (1988). We first construe the evidence in the light most favorable to sustaining the verdict. State v. Haddad, 189 Conn. 383, 385, 456 A.2d 316 (1983); State v. Cruz, supra. “We then determine whether, ‘from the evidence and all the reasonable inferences which it yields, [the jury] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.’ ” State v. Cruz, supra. In this review, we consider “whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) State v. Haddad, supra, 387; State v. Cruz, supra, 579. Since we have long held to the concept that circumstantial evidence may be treated in the same way as direct evidence, the probative force of the evidence is not diminished if it consists in whole or in part of evidence circumstantial in nature. State v. Somerville, supra, 390; State v. Sinclair, 197 Conn. 574, 576-77, 500 A.2d 539 (1985); State v. Maxwell, supra, 708. “ ‘It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.’ ” State v. Sinclair, supra.

When applying the sufficiency of the evidence test, the court must ensure that “[e]ach essential element of the crime charged ... be established by proof beyond a reasonable doubt, and although it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. . . . Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot constitutionally stand, as it is violative of due process under the fourteenth amendment [to the constitution of the United States]. . . . [T]he burden rested upon the prosecution to prove the guilt of the accused, i.e., to prove each material element of the offense charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Maxwell, supra, 708-709, quoting State v. Cruz, supra.

We have set forth in some detail the facts that the jury reasonably could have found in support of its guilty verdict, as to both elements of the crime of intentional manslaughter. The jury was free to disbelieve the defendant’s claim of self-defense and to conclude that, on the basis of the evidence, the defendant reasonably could not have concluded that the victim was about to employ deadly force against him. General Statutes § 53a-19 (a).

We are satisfied, on the basis of the evidence and the reasonable and logical inferences to be drawn therefrom, that the cumulative effect of the evidence was more than sufficient to justify the jury’s rendering the guilty verdict. See State v. Bailey, 209 Conn. 322, 351, 551 A.2d 1206 (1988); State v. Tinsley, 24 Conn. App. 685, 692, 591 A.2d 448, cert. denied, 220 Conn. 902, 593 A.2d 968 (1991). The defendant’s claim to the contrary is without merit.

VI

The defendant’s final claim is that he was deprived of his constitutional right to a jury drawn and selected from a fair cross section of his community. At the beginning of the voir dire, the defendant objected to the process of selecting jurors from a panel consisting of only eighteen venirepersons. The defendant argued that as a young black man charged with a serious crime, he was entitled to have the whole array of seventy potential jurors assembled to begin the selection process. The trial court responded that no other means were available for selecting jurors and overruled the objection. He never raised the claim again, even though a second panel was used to complete the selection of the jury. He also objected that none of the eighteen venirepersons was black. He argues that because of the manner in which the jury selection process was conducted, he had no means of knowing whether the next group of jury candidates would include black representation. The trial court noted this objection. The defendant alleges that he has been denied his due process right to select his jury from a fair cross section of the community under the standards set forth in Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). Because the defendant failed to present evidence to support his claim that the jury array did not provide a fair and representative cross section of the community, the trial court acted properly in denying the defendant’s objection to the first jury panel.

“ Tn order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’ ” State v. Tillman, 220 Conn. 487, 492, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992), quoting Duren v. Missouri, supra, 364. The defendant bears the burden of establishing an adequate record to support a challenge to a jury array. State v. Tillman, supra, 496; State v. Mack, 197 Conn. 629, 635 n.6, 500 A.2d 1303 (1985); State v. Frazier, 185 Conn. 211, 218, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982). A defendant cannot prevail on his constitutional challenge to a jury array if he fails to offer sufficient evidence to satisfy the Duren test. State v. Tillman, supra. “A challenge to a jury array will fail if the defendant presents no evidence to the court.” Id.; State v. Acquin, 187 Conn. 647, 681, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983).

By his failure to present evidence to satisfy his burden under State v. Acquin, supra, the defendant cannot prevail in this attack on the jury array. He has thus failed to meet his burden of establishing a prima facie violation of the fair cross section requirement. State v. Tillman, supra, 498; State v. Couture, 218 Conn. 309, 316-316A, 589 A.2d 343 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 provides in pertinent part: “(a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . .

       Additional facts will be set forth where they are relevant to each issue.

       The trial court instructed the jury as follows: ‘ T would just remind you what the charges are here and I’ve already discussed this with counsel. As you know, the original charge is murder. The first lesser included offense is what’s known as intentional manslaughter, first degree. The second included offense would be what is known as reckless indifference manslaughter, first degree, and the third one is reckless manslaughter, second degree. Those are the four charges. So if you have a question about any one of those charges and you want to have the law explained to you about them, let us know and we’ll do that.” (Emphasis added.)

       The discussion was as follows: “[Foreperson]: The second charge. The first lesser charge.
      “[The Court]: Intentional manslaughter first degree?
      “[Foreperson]: Intentional manslaughter. What are the four elements that have to be proved beyond a reasonable doubt?
      “[The Court]: All right. Perhaps — gentlemen, if you have no objection, I’ll go through the first charge — first manslaughter.” (Emphasis added.)
      Both defense counsel and the state’s attorney indicated that they had no objection.

       Practice Book § 864 provides: “If the jury, after retiring for deliberations, request additional instructions, the judicial authority, after notice to the parties, shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the request or to direct the jury’s attention to a portion of the original instructions.”

       The defendant argues that the prosecutorial misconduct was committed throughout the judicial proceeding and is recorded in the official trial transcript. He alleges that the transcript reveals this misconduct in the form of the prosecutor’s personal opinions, injection of extraneous and prejudicial matters and facts not in evidence, appeals to juror sympathy, and improper and inflammatory remarks made during closing argument. Examples of the claimed misconduct are that the state’s attorney improperly expressed his own personal opinions during closing arguments by stating “I don’t know whether the judge is going to instruct you on self-defense, but self-defense has nothing to do with this case, nothing to with this case at all.” He also alleges that this improper conduct of injecting personal opinion occurred during cross-examination of the defendant when the state’s attorney questioned the defendant in the following manner: “Are you telling us that you might have accidentally cocked [the weapon] when you pulled it out? You’re not telling us that, are you? . . . You know that when you cock the gun you have to pull the thing back, the thing on the back of the gun? You know that, don’t you? I mean, you’ve seen that on TV a thousand times?” A further example of the claimed misconduct in the nature of improperly arousing juror sympathy occurred when the state’s attorney presented witnesses, who already were crying, with a photograph of the victim.


text:
    In re Ernest B.

    (11423)
    Daly, Poti and Heiman, Js.
    Submitted on briefs November 30
    decision released December 22, 1992

      Dante R. Gallucci, special public defender, filed a brief for the appellant (respondent).

      Thomas McCullough O’Brien, state’s advocate, filed a brief for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The respondent, Ernest B., appeals from an order of the Superior Court in the judicial district of Fairfield, Juvenile Matters, entered pursuant to General Statutes § 46b-127, transferring him to the regular criminal docket of the Superior Court to be tried and, if convicted, sentenced as an adult. The respondent alleges that the court improperly ordered him transferred because the evidence was insufficient to find probable cause to believe that he had committed the crime of felony murder in violation of General Statutes § 53a-54c.

On April 28, 1992, the court held a hearing on the motion of the state’s advocate to transfer the respondent, found probable cause existed and granted the motion. The court also granted the respondent’s motion for a stay of execution of the transfer order pending this appeal. The court found that the respondent, born on July 9, 1976, was fifteen years of age on November 13,1991, the date on which Anthony Giannini, age eighty-four, was fatally injured by a shotgun wound to the abdomen. The evidence presented at the hearing, including eye-witness testimony, was sufficient to establish that the respondent, while in the course of an armed robbery, fired two shots at the victim from a sawed-off shotgun, causing the victim’s death with the second shot.

We have recently discussed our function on appeal, as well as the quantum of evidence required to establish probable cause. We have also discussed the standard applicable to our review of the evidence to determine whether the trial court’s decision was clearly erroneous. See In re Ernest B., 29 Conn. App. 573, 575, 617 A.2d 903 (1992).

Our review of the record in this case leads us to conclude that the evidence was sufficient to support the trial court’s findings and that the findings, in turn, legally, logically and reasonably support the determination that probable cause existed. We cannot say that this determination was clearly erroneous.

The order of transfer is affirmed.

       General Statutes § 53a-54c provides in pertinent part: “A person is guilty of murder when ... he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime . . . he . . . causes the death of a person other than one of the participants . . . .”