author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. JOHN CASANOVA, JR.
    (AC 17372)
    Landau, Schaller and Sullivan, Js.

      Argued June 7

    officially released September 7, 1999

      Jon L. Schoenhom, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, JohnF. Cronan, acting state’s attorney, and Brian Preleski, assistant state’s attorney, for the appellee (state).

       This appeal originally was argued on January 11, 1999, before Judges Landau, Sullivan and Kulawiz. Judge Kulawiz died before the appeal was decided, and the parties elected to reargue.

   Opinion

LANDAU, J.

The defendant, John Casanova, Jr., appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes (Rev. to 1995) § 53a-167c. On appeal, the defendant claims that the trial court improperly (1) violated his rights to confront witnesses and present a defense by prohibiting certain cross-examination, and (2) abused its discretion by refusing to use the words requested by the defendant in its jury charge when instructing on the defendant’s choice not to testify. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 9 a.m. on July 21, 1995, several members of the Southington police department were dispatched to the Casanova family residence to execute a warrant for the arrest of the defendant’s younger brother, a minor. Although he was not part of the group of officers initially dispatched, Officer Lewis Palmieri was directed to go to the Casanova home to aid with an arrest. When Palmieri arrived, he spoke with Detective Craig Fournier about the situation. Both men were dressed in plain clothes but were identifiable as police officers because their badges, handcuffs and weapons were visible.

Palmieri followed Fournier to the front door; Detective William Ludecke and Officer John Olson stood behind them. Palmieri held the screen door open as Fournier stood inside the doorway talking to the defendant’s father. The defendant’s younger brother then exited the house and was taken into custody by Ludecke and Olson. Thereafter, Fournier informed the defendant’s father that he was under arrest for interfering with a police officer. The defendant’s father snickered, turned away from the officers and walked to the interior of the house.

Fournier and Palmieri followed the defendant’s father into the kitchen in an effort to arrest him. As Palmieri was following Fournier, the defendant stepped into his path. Palmieri pushed the defendant aside and informed him not to interfere or that he, too, would be arrested. In the kitchen, Fournier and Palmieri struggled with the defendant’s father. To subdue the defendant’s father and to avoid injuries, Palmieri discharged pepper spray in the direction of the defendant’s father. The defendant then struck Palmieri on the left side of the face. Palmieri sprayed the defendant with pepper spray, and the defendant fled to the second floor of the house and entered a bathroom. Palmieri pursued the defendant, told him that he was under arrest and instructed him to come out and to lie on the floor. The defendant did not cooperate. Palmieri went back downstairs. Additional police responded and eventually arrested the defendant.

As a result of having been hit by the defendant, Palmieri sustained a cut on his face that had to be closed with sutures, blurred vision and sinus problems. The jury found the defendant guilty of assault of a peace officer, and the trial court rendered judgment on the verdict. This appeal followed. Additional facts will be discussed as necessary.

I

The defendant’s first claim on appeal is that the trial court violated his rights to confront witnesses and to present a defense by refusing to permit him to cross-examine Palmieri and Fournier about the legality of their having entered the defendant’s home to arrest his father. The state argues that the legality of the police officers’ entry to arrest the defendant’s father is irrelevant to the defendant’s arrest. We agree with the state.

The following procedural history is necessary for our analysis of this claim. Approximately six months before trial, a hearing was conducted on the defendant’s motion to dismiss in which he claimed that the entry of police into his home was unlawful. The trial court denied that motion. At trial, while cross-examining Palmieri and Fournier, the defendant attempted to question them about the police department’s general policy concerning routine, warrantless arrests within a private residence. The state objected, claiming that it was irrelevant and that the issue had been decided on the motion to dismiss. The defendant argued that the pretrial ruling was not binding on the trial court because whether the officers’ entry into the Casanova home was lawful is a question of fact to be determined by the jury and that if the entry was unlawful, it is a defense to the charge of assaulting a peace officer because an element of the crime is that the officer must have been performing his official duties. The trial court precluded the defendant from inquiring into “issues surrounding the father’s arrest, lawful versus unlawful entry, that is the subject matter of the motion to dismiss.” The trial court, however, sustained the state’s objection and concluded that the lawfulness of the arrest was not relevant to the crime with which the defendant was charged.

Although he couches his claim in constitutional garb, the defendant’s claim is an evidentiary one to which the abuse of discretion standard applies. See State v. Hansen, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). “At the outset, we note that we will set aside a trial court’s evidentiary ruling only where there has been a clear abuse of discretion. ... To the extent that evidence offered in defense is relevant and mitigates a crime charged, it should not be excluded from the factfinder. . . . When defense evidence is excluded on evidentiary grounds, such exclusion may give rise to a claim of denial of the right to present a defense. ... A defendant is bound by the rules of evidence in presenting a defense, however. ... If the proffered evidence is not relevant, it is properly excluded. ... It is well established that, [e]vidence is relevant if it has a tendency to establish the existence of material facts .... Evidence is not rendered inadmissible simply because it is not conclusive. It is admissible if it tends to support a relevant fact even in a slight degree.” (Citations omitted; internal quotation marks omitted.) In re Adalberto S., 27 Conn. App. 49, 57, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992).

“The elements of assault on a peace officer, General Statutes § 53a-167c (a) (1) are: (1) intent to prevent a reasonably identifiable peace officer from performing his duties; (2) the infliction of physical injury to the peace officer; and (3) the victim must be a peace officer. State v. Kelly, 23 Conn. App. 160, 172-74, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991).” State v. Raymond, 30 Conn. App. 606, 610 n.4, 621 A.2d 755 (1993).

The defendant relies heavily on State v. Gallagher, 191 Conn. 433, 441, 465 A.2d 323 (1983), in which our Supreme Court noted that the legislature abrogated the common-law right to resist an unlawful arrest, but that the common-law privilege to resist an unlawful police entry remains. This distinction is significant here because it determines whether the defendant’s proposed cross-examination was relevant. The facts show that the defendant assaulted Palmieri while Palmieri and Fournier were arresting the defendant’s father. The defendant’s act was not related to the officers’ entry into the Casanova home. Therefore, the lawfulness of the entry is not relevant to the question of assault.

The facts of this case are distinguishable from Gallagher, where the defendant was charged with interfering with a police officer in violation of § 53a-167a. “We emphasize that the defendant herein was charged with the offense of interference with a police officer under General Statutes § 53a-167a, and not with assault. It is in the context of a defense to a charge of interference that our case law has countenanced a defense of illegal police conduct. Where the defendant is charged with a different crime, a claim of a right to resist an unlawful arrest might be more difficult to reconcile with General Statutes § 53a-23 which provides: ‘A person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer, whether such arrest is legal or illegal.’ Accord United States v. Simon, 409 F.2d 474, 477 (7th Cir.), cert. denied, 396 U.S. 829, 90 S. Ct. 79, 24 L. Ed. 2d 79 (1969); United States v. Heliczer, 373 F.2d 241, 245 (2d Cir. 1967); State v. Hatton, 116 Ariz. 142, 148, 568 P.2d 1040 (1977); State v. Thomas, 262 N.W.2d 607, 609-11 (Iowa 1978).” State v. Gallagher, supra, 191 Conn. 443 n.7.

For the sake of argument only, if Palmieri and Fournier entered the Casanova home illegally to arrest the defendant’s father, the father may have a common-law defense. The defendant, however, assaulted Palmieri, not when he entered the home, but after Palmieri pepper sprayed the father during the arrest. Because the defendant assaulted the police officer while he was making an arrest, the legality of the officers’ entry to the home is irrelevant.

The defendant also claims that he was entitled to have the jury determine whether Palmieri was performing his duty as a police officer or was on a frolic. “If [the officer] is acting under a good faith belief that he is carrying out [his] duty, and if his actions are reasonably designed to that end, he is acting in the performance of his duties. . . . The phrase in the performance of his official duties means that the police officer is simply acting within the scope of what [he] is employed to do. The test is whether the [police officer] is acting within that compass or is engaging in a personal frolic of his own.” (Internal quotation marks omitted.) State v. Torwich, 38 Conn. App. 306, 315-16, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 (1995). Palmieri had been dispatched to the Casanova home to assist with the execution of an arrest warrant. While on the premises, Palmieri assisted Fournier in arresting the defendant’s father as well. The jury could have determined, beyond a reasonable doubt, that Palmieri was not engaged in a frolic but was acting well within the confines of his duties as a police officer. The trial court, therefore, did not abuse its discretion in sustaining the state’s objection to the defendant’s cross-examination.

II

The defendant’s second claim is that the trial court abused its discretion by refusing to use the words requested by the defendant in its charge to the jury to describe the fact that the defendant did not testify. Specifically, the defendant claims that the trial court abused its discretion by describing the defendant’s choice to exercise his right not to take the stand in his own defense as a “failure to testify.” The defendant’s claim is without merit.

The following facts and procedural history are relevant to our analysis of this claim. Prior to charging the jury, the trial court gave counsel an opportunity to respond to issues they wanted addressed in the charge. The defendant’s counsel objected to the proposed charge because it contained the phrase “failure to testify,” which the defendant claimed had a negative connotation. The defendant claims that the word failure means deficiency or defeat, and that because he has a constitutional right not to testify, the language in question leads the jury to infer that by failing to testify, the defendant did something wrong.

The trial court instructed the jury as follows. “The defendant here has not testified in this case. An accused person has the option to testify or not to testify at the trial. He is under no obligation to testify. He has a constitutional right not to testify. You must not draw unfavorable inferences from the defendant’s failure to testify.” The state points out that the language in question is contained in General Statutes § 54-84 (b).

The defendant’s claim is controlled by our decision in State v. Tyson, 23 Conn. App. 28, 41-44, 579 A.2d 1083, cert. denied, 216 Conn. 829, 582 A.2d 207 (1990), where the defendant made a similar request of the trial court to use a phrase other than “failure to testify” in its charge. In holding that the trial court did not abuse its discretion by charging in the language of the statute, we stated: “There is no rational justification for the defendant’s position that the statutory language was an unacceptable alternative to his own suggested jury instructions. Recognizing that the jury may impermissibly hold the defendant’s silence against him, § 54-84 (b) requires the court, even if not so requested, to give jury instructions to reduce speculation. State v. Thurman, 10 Conn. App. 302, 309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). The statute thus protects the defendant’s rights more stringently than either the federal or state constitution. State v. Sinclair, [197 Conn. 574, 585, 500 A.2d 539 (1985)]. A court’s failure to comply with § 54-84 (b) is plain error; id., 582; and deviations altering the meaning of the charge are grounds for reversal. State v. Tatem, [194 Conn. 594, 595, 483 A.2d 1087 (1984)]. We do not read [State v. Wright, 197 Conn. 588, 594-95, 500 A.2d 547 (1985)] as suggesting that a defendant’s request for modification is binding on the court or that using the statutory language despite a request for modification constitutes reversible error.” State v. Tyson, supra, 42. We conclude, therefore, that the trial court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 53a-167c (a) provides in relevant part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) he causes physical injury to such peace officer ... or (2) he throws or hurls, or causes to be thrown or hurled, any rock, bottle, can or other article, object or missile of any kind capable of causing physical harm, damage or injury, at such peace officer ... or (3) he uses or causes to be used any mace, tear gas or any like or similar deleterious agent against such peace officer ... or (4) he throws, hurls, or causes to be thrown or hurled, any paint, dye or other like or similar staining, discoloring or coloring agent or any type of offensive or noxious liquid, agent or substance at such peace officer . . . .”

       There is no evidence of what took place at the Casanova residence prior to Palmieri’s arrival or why Palmieri was directed to help with the arrest.

       The defendant’s father ultimately was arrested and charged with interfering with an officer in violation of General Statutes § 53a-167a.

       The trial court stated in its memorandum of decision, “With regard to [the defendant], the statute with which he stands charged, § 53a-167c (a) provides in pertinent part: ‘A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) such person causes physical injury to such peace officer . . . .’
      “This court has difficulty attaching much credibility to [the defendant’s] testimony. After testifying that he pulled a man off his father, [the defendant] said that he had ‘no clue’ as to who that man was or what his occupation was. Both police officers Fournier and Palmieri testified that they were in plain clothes consisting of a pair of slacks and a shirt with their police badges, handcuffs, handguns and holsters on their belts. There was no evidence that they wore jackets or otherwise covered these items which, in the court’s opinion, are routinely worn by plainclothes police officers in the process of executing arrest warrants.
      “The court finds that [the defendant], on the basis of the evidence presented, has not sustained his burden of proof that the entry of the police into his home was unlawful or that the evidence presented is insufficient to justify the bringing or continuing of the information, or his being placed on trial. The more credible evidence supports the likelihood that [the defendant] struck Officer Palmieri near the left eye while he was in the performance of his duty. Such conduct is not considered reasonable resistance even if the police entry was unlawful. State v. Gallagher, [191 Conn. 433, 465 A.2d 323 (1983)]. Accordingly, the defendant John Casanova, Jr.’s motion to dismiss is denied.”

       Our review of the transcript leads us to conclude that the trial court’s ruling was based on relevance, not the law of the case. The trial court reached its decision independently.

       We also note that the defendant did not want the jury to know of his father’s arrest and pending prosecution. The defendant cannot ask to have the legality of the officers’ entry into his home determined and, at the same time, ask to exclude facts concerning his father’s arrest.

       General Statutes § 54-84 (b) provides: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       The defendant asks us to overrule Tyson. Our Supreme Court denied certification in Tyson, and the case was cited with approval in State v. Dickerson, 28 Conn. App. 290, 297, 612 A.2d 769 (1992).


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    ROXANNE M. POLIZOS v. NATIONWIDE MUTUAL INSURANCE COMPANY
    (AC 18130)
    Foti, Sullivan and Freedman, Js.
    Argued March 16
    officially released September 7, 1999

      A. Jeffrey Somers, for the appellant (defendant).

      George J. Markley, with whom was Raymond B. Rubens, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The defendant, Nationwide Mutual Insurance Company (Nationwide), appeals from the judgment of the trial court granting the application filed by the plaintiff, Roxanne M. Polizos, to compel arbitration pursuant to the uninsured motorist provision in her insurance policy. The defendant claims that, in granting the plaintiffs application, the trial court improperly (1) found that the six year statute of limitations on the plaintiffs claim began to run from the date that she first became aware that the tortfeasors were uninsured and (2) applied the six year statute of limitations for written contracts to the plaintiffs claim. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. On April 16, 1988, the plaintiff was an insured under an automobile liability policy issued by the defendant when she was involved in an automobile accident with Marc Mead. Mead was driving a car leased to him by Sharp Leasing Corporation (Sharp Leasing). On April 25,1988, the plaintiff applied to the defendant for medical benefits. Subsequently, on March 12,1989, the plaintiff filed an action against Mead and Sharp Leasing. On May 10, 1989, Progressive Insurance wrote a letter to the plaintiffs counsel on behalf of Sharp Leasing. Also, an attorney appeared for Sharp Leasing on May 25,1989.

On June 17, 1994, the plaintiff filed interrogatories, which Sharp Leasing answered on July 15, 1994. The answers indicated a lack of insurance coverage. The case was then tried to a jury and a plaintiffs verdict in the amount of $202,000 was rendered on May 10, 1996. The plaintiff was unable to collect the award. On June 19, 1996, counsel for Sharp Leasing wrote to the plaintiffs attorney stating that Sharp Leasing was not insured, and that to the best of its knowledge, Mead was also not insured.

On July 17, 1996, plaintiffs counsel made a demand to the defendant for payment under the uninsured motorist coverage provisions of her policy. The defendant denied the claim and invoked the statute of limitations for written contracts, General Statutes § 52-576 (a). Subsequently, the plaintiff filed an application in the Superior Court to compel arbitration, which was granted by a memorandum of decision on February 9, 1998. This appeal followed.

I

The defendant’s first claim on appeal is that the trial court improperly found that the plaintiffs application to compel arbitration was not barred by the six year limitation period contained in § 52-576 (a). More specifically, the defendant argues that the plaintiffs claim violates the statute of limitations because the statute began to run from the date of the accident and the plaintiffs claim was made more than six years from that date. We disagree.

The following additional facts axe necessary for the resolution of this issue. The defendant objected to the plaintiff’s application to compel arbitration of her uninsured motorist claim on the ground that the plaintiff’s claim was barred by the six year statute of limitations set forth in § 52-576 (a). The defendant argued that the statute of limitations began to run on the date of the plaintiffs automobile accident. The plaintiff, however, argued that the uninsured coverage claim accrued when the verdict against Sharp Leasing was secured.

The trial court rejected both of those claims and concluded that the time period began to run from the date when the plaintiff received answers to her interrogatories that suggested that Sharp Leasing might not have insurance that was sufficient to cover the accident. The trial court reasoned that “the particular facts unique to this case put forth an equitably obvious moment when plaintiff must be held to have been alerted that action ought to be taken to request arbitration or issue notice of the likely need therefor. That point in time occurred when the plaintiff received the interrogatory answer indicating a complete absence of coverage; it was then that [an uninsured motorist] action could ‘successfully be maintained.’ ”

The trial court did not state explicitly that it determined the accrual date to be when the plaintiff knew or should have known of the lack of insurance. Implicit in its decision that the action began to accrue when she was alerted that action ought to be taken to request arbitration, however, is the conclusion that the six year time limitation began to run from the time when the plaintiff knew or should have known of the lack of insurance coverage. The determinative question before us is, therefore, whether the trial court properly found that the plaintiffs cause of action under the insurance policy accrued on July 15, 1994, the date the plaintiff knew or should have known of the lack of insurance.

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996), quoting Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992).

The issue before us is a question of law. “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980).

Section 52-576 (a) provides in relevant part: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .” “Applied to a cause of action, the term to accrue means to arrive; to commence; to come into existence; to become a present enforceable demand. Eising v. Andrews, 66 Conn. 58, 64, 33 A. 585 (1895). D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 182, 455 A.2d 833 (1983).” (Internal quotation marks omitted.) Prudential Property & Casualty Ins. Co. v. Perez-Henderson, 49 Conn. App. 653, 658-59, 714 A.2d 1281, cert. denied, 247 Conn. 917, 722 A.2d 807 (1998). “While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action. Gaylord Hospital v. Massaro, 5 Conn. App. 465, 467, 499 A.2d 1162 (1985).” (Internal quotation marks omitted.) Prudential Property & Casualty Ins. Co. v. Perez-Henderson, supra, 659.

Thus, the point at which a cause of action can be successfully maintained or when it becomes an enforceable demand is not one unalterable moment, such as the date of the accident. Instead, the cause of action begins to accrue from the moment that the plaintiff is made aware that there is no insurance coverage available.

In this case, we agree with the trial court’s conclusion that the plaintiff was unaware of the lack of insurance coverage until she received the answers to interrogatories on July 15, 1994. The trial court found that prior to July 15, 1994, the plaintiffs belief that there was coverage was justified because of the letter she received from Progressive Insurance discussing such coverage. Furthermore, although the letter stated that the plaintiff would be notified as soon as a final determination concerning its coverage was made, no determination was ever conveyed until after the jury verdict, seven years later. We, therefore, conclude that the trial court’s conclusion that the plaintiffs action began to accrue on July 15, 1994, is fully supported by the record.

The defendant asserts that the plaintiff could have maintained a cause of action at the time of the accident; therefore, the date of the accident is the accrual date. The defendant relies on McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 140, 617 A.2d 445 (1992), and Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 149-50, 617 A.2d 451 (1992), where the accrual date for the cause of action for underinsured motorist coverage was the date of the accident, as support for its claim that the six year statute of hmitations began to run on the date of the accident. This reliance is misplaced.

In both McGlinchey and Hotkowski, the cause of action for underinsured motorist coverage began to accrue from the date of the accident; however, both cases dealt with the interpretation of limitation periods contained in insurance contracts, which, by their express terms, commenced with the date of the accident. As such, these cases have no bearing on when a cause of action accrues for the purposes of § 52-576 (a).

Further, in Prudential Property & Casualty Ins. Co. v. Perez-Henderson, supra, 49 Conn. App. 653, this court expressly rejected the trial court’s ruling that a claim for underinsured motorist coverage begins to accrue from the date of the accident. Instead, this court held that the claim did not begin to accrue until the insured had exhausted all other sources of insurance. Id., 660.

Furthermore, we note that using the date of the accident as the accrual date would require a plaintiff to make a claim before she has any awareness of a coverage problem. The use of the accident date as the trigger point for the limitation period would result in courts having to accept and partially to entertain applications to compel arbitration before exhaustion, and before the reasonable awareness of coverage difficulty, merely as a prophylaxis against the running of the limitation period, when no problem may exist. We conclude that the accrual date or the date that the plaintiff properly could have maintained an action against the defendant was the date when she was notified as to the lack of insurance coverage.

After a plenary review of the record and briefs and after affording the defendant’s first claim the appropriate scope of review, we conclude that the claim is without merit.

II

The defendant next claims that the trial court improperly granted the plaintiffs application to compel arbitration because her claim was not within the two year statute of limitations set forth in the plaintiffs insurance policy. In its objection to the plaintiffs motion to compel arbitration and in its first issue on appeal, the defendant invoked the six year statute of limitations contained in § 52-576 (a). The defendant now asserts that the two year insurance policy provision is applicable to the plaintiffs claim and, therefore, the plaintiffs motion to compel arbitration is time barred.

We do not reach the merits of this claim, however, because the defendant failed to raise the issue at the hearing before the trial court and, therefore, has expressly waived it. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973) (“claim not raised is deemed waived” absent “exceptional circumstances”). “This court will not review issues of law that are raised for the first time on appeal.” State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” Keating v. Glass Container Corp., 197 Conn. 428, 431, 497 A.2d 763 (1985). “Claims that were not distinctly raised at trial are not reviewable on appeal.” State v. Pickles, 28 Conn. App. 283, 286-87, 610 A.2d 716 (1992). Because it was not raised at trial, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The letter from Progressive Insurance to the plaintiff stated in part: “[W]e [Progressive Insurance] are an excess liability insurance carrier for Sharp Leasing Corporation. Under the terms of our policy, we provide coverage to Sharp Leasing when, because of their status as owner of a leased vehicle, they become financially responsible for damages suffered by a third party. In addition, under certain circumst anees, the policy provides the lessee with the statutory minimum financial responsibility limits of the state in which the loss occurred. Our policy only becomes effective when there is no other insurance available on the leased vehicle. We are currently investigating the applicability of our coverage to this matter. You will be notified as soon as a final determination is made.”

       The plaintiffs automobile liability insurance policy contained a written agreement to arbitrate. The defendant conceded that the letter demanding payment of the plaintiffs uninsured motorist coverage was sufficient, substantively, to demand that it arbitrate the plaintiffs uninsured motorist claim.

       The defendant conceded in its objection to the plaintiffs motion to compel arbitration that the two year limitation period contained in the plaintiffs insurance policy was not applicable. Rather, the defendant asserted that the six year statute of limitations for written contracts was controlling and barred the plaintiff from compelling arbitration. In its first issue on appeal, the defendant has again asserted that the claim is governed solely by the six year limitation period contained in § 52-576 (a). Although the defendant argues in its second claim on appeal that this six year limitation period does not apply, for the purposes of this issue, the defendant concedes that the six year limitation period is controlling.


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. THOMAS SANDERS
    (AC 17804)
    O’Connell, C. J., and Foti. and Landau, Js.
    Argued May 3
    officially released September 7, 1999

      Michael O. Sheehan, special public defender, with whom was Richard A. Reeve, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson and Nicholas J. Bove, Jr., assistant state’s attorneys, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant, Thomas Sanders, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), and carrying a pistol without a permit in violation of General Statutes § 29-35.

On appeal, the defendant claims that (1) there was insufficient evidence to sustain his conviction of attempt to commit assault in the first degree, (2) the jury instructions on the attempted assault charge improperly allowed the jury to reach a verdict under a theory of liability that was neither alleged in the information nor argued by the state, (3) the case should be remanded for resentencing because his conviction on the attempt to commit assault charge influenced the trial court’s sentence on the weapons charge and (4) the trial court improperly instructed the jury on the presumption of innocence. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On May 15,1991, New Haven police department Detectives Gilbert Burton and Robert Coffey responded to a report that the body of a black male, later identified as Curtis Washington, was lying on the floor of a garage on Sherman Avenue. Initial investigation led the detectives to Michael Durant, Claymont Arrington and the defendant, who were the last people seen with Washington before his death. The detectives took several statements from Durant and Arrington, as well as one from the defendant. Initially, both Durant and Arrington gave false statements in which they claimed that Washington had been abducted by two individuals unconnected to the events relevant to this case.

The following day, Durant returned to the police station and gave a tape-recorded statement in which he recanted his abduction story and admitted that he and Arrington, as well as the defendant, had been with Washington when he was killed. Durant stated that the four men had planned to rob some drug dealers on Lamberton Street, that Arrington and the defendant had been armed with pistols, and that Washington had accidentally been killed by Arrington or the defendant. He further stated that the two pistols were a nine millimeter and a .32 caliber, but that he did not know which man had which pistol.

The detectives called Arrington to the police station where he gave a new tape-recorded and transcribed statement. In this statement, Arrington also recanted his story about the abduction and admitted that he had been with Durant, Washington and the defendant when Washington was killed. Arrington described how the four men rode around intending to rob certain drug dealers known to them. He stated that when their car pulled up in front of the house where the drug dealers were, Durant and Washington stayed in the car while he and the defendant left it and entered the yard of the house. He admitted that while he was standing in the middle of the street, he fired one shot from his gun at a boy standing near the house. He further claimed that the defendant fired his gun several times, including shots that went in the general direction of the car in which Washington remained. He contended that he could not have caused Washington’s death because he did not shoot in the direction of the car. Arrington further stated that he had the .32 caliber revolver and the defendant had the nine millimeter pistol.

On the same day, the detectives interviewed Durant again. During this interview, Durant stated that the defendant had the nine millimeter pistol and Arrington had the .32 caliber weapon. He further stated that Arrington stood in the street on the left side of the car, and the defendant stood on the sidewalk on the right side of the car.

Several days later, the defendant gave the police a tape-recorded and transcribed statement. In his statement, the defendant claimed that he was in the car with the three other men, and that he had the .32 caliber weapon and that Arrington had the nine millimeter weapon. He further stated that no one discussed a robbery as the men rode in the car and that when they arrived at the scene of the shooting, he went into the house alone to buy beer. The defendant stated that when he came out, Arrington was shooting at the drug dealers. He admitted that as he stood on the porch of the house he fired his gun once into the air, and he estimated that Arrington fired his weapon approximately eight times.

Arrington and Durant thereafter gave police additional statements. Arrington admitted that he had fired the nine millimeter in the direction of the car where Washington was waiting, and that he and Durant had decided to falsely tell the detectives that it was the defendant who had fired the nine millimeter. As a result of his admission, Arrington was charged with manslaughter in the death of Washington and, prior to the commencement of the defendant’s trial, pleaded guilty and was sentenced.

At trial, the state called Durant and Arrington as witnesses. Both gave testimony that conflicted with then-prior statements in that they refused to incriminate the defendant. Durant testified that the defendant was not present during the robbery and shooting, and Arrington testified that although the defendant was present, he had nothing to do with the robbery and never fired his gun. The state then introduced the tapes and transcripts of the witnesses’ prior statements to the police as substantive evidence. The defendant did not object to the admission of the statements as substantive evidence, nor did he request a jury charge limiting the jury’s use of the statements to impeachment.

I

The defendant first argues that there was insufficient evidence to sustain his conviction for attempt to commit assault in the first degree. Specifically, the defendant claims that there was insufficient evidence of his intent to cause serious physical injury.

At the close of the state’s case-in-chief, counsel for the defendant raised a general challenge to the sufficiency of the evidence on all but the weapons charge. After the verdict, the defendant also made an oral motion to set aside the verdict on the attempted assault charge. Although neither motion specifically challenged the sufficiency of the evidence on the attempted assault charge, we conclude that these motions effectively preserved this claim. Further, even if this claim were unpreserved, review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), would be warranted. State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995) (per curiam); State v. Adams, 225 Conn. 270, 275 n.3, 623 A.2d 42 (1993).

The standard of review for a sufficiency of the evidence claim is well settled. “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. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994).

“We also acknowledge that the trial court’s findings of fact are entitled to great weight and that a conviction based on the facts found by the trier will be affirmed if the trier of fact could reasonably have inferred [from the evidence] that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Osman, 218 Conn. 432, 436, 589 A.2d 1227 (1991) (per curiam). It is the function of the jury to consider the evidence and judge the credibility of witnesses. State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983). The jury is free to accept or reject all or part of a witness’ testimony. State v. Brigandi, 186 Conn. 521, 531, 442 A.2d 927 (1982). “Although some evidence may be inconsistent with the state’s theory of the case, the jury is not bound to credit only that evidence to the exclusion of evidence consistent with the state’s theory.” State v. Salz, 226 Conn. 20, 29-30, 627 A.2d 862 (1993).

Section 53a-49 provides that to be guilty of an attempt to commit a crime, the defendant must act with the mental state required for the commission of the substantive offense. Under § 53a-59 (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 a deadly weapon or a dangerous instrument . . . .”

“It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.” (Internal quotation marks omitted.) State v. Commerford, 30 Conn. App. 26, 34, 618 A.2d 574, cert. denied, 225 Conn. 903, 621 A.2d 285 (1993). Because direct evidence of the accused’s state of mind is rarely available, intent is often inferred from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. State v. Sivri, supra, 231 Conn. 126-27.

In this case, there was sufficient evidence from which the jury could conclude that the defendant acted with the requisite intent to cause serious physical harm to the intended robbery victims. The jury may have chosen not to credit the testimony of Durant and Arrington that the defendant did not participate in the assault on the drug dealers. Instead, the jury reasonably could have relied on the witnesses’ pretrial statements in which both stated that the defendant fired multiple shots in the direction of the drug dealers. It also was reasonable for the jury to infer intent to cause serious physical injury to a person from the fact that the defendant fired a gun at that person. See State v. Hamilton, 30 Conn. App. 68, 80, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994).

Further, there is no merit to the defendant’s contention that the inconsistency in the prior statements of Durant and Arrington rendered them unreliable and, therefore, rendered it unreasonable for the jury to conclude that the defendant fired a gun at the drug dealers. As we stated previously, it is the function of the jury to resolve inconsistencies in the evidence. State v. Brigandi, supra, 186 Conn. 531. We cannot say that the jury’s conclusions were unreasonable because when the evidence is construed in the light most favorable to sustaining the verdict, there was sufficient evidence to permit the jury to find that the defendant had the requisite intent to cause serious physical injury.

II

The defendant next claims that the jury instructions on the attempted assault charge improperly permitted the jury to reach a verdict under a theory of liability that was neither alleged in the information nor argued by the state. The defendant requests review of this unpreserved claim under State v. Golding, supra, 213 Conn. 239-40, or under the plain error doctrine pursuant to Practice Book § 60-5. We will review the defendant’s claim under Golding because the record is adequate for review and the alleged violation is of constitutional magnitude, involving his due process right to an adequately instructed jury. See State v. Cooper, 38 Conn. App. 661, 666, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995) (improper jury instructions on essential element of crime implicate constitutional right). We must consider next whether the defendant has met his burden of showing, under the third prong of Golding, that the alleged constitutional violation clearly exists and that it clearly deprived him of a fair trial. See State v. Golding, supra, 239-40.

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial.” (Citations omitted; internal quotation marks omitted.) State v. Elijah, 42 Conn. App. 687, 691, 682 A.2d 506, cert. denied, 239 Conn. 936, 684 A.2d 709 (1996). “[A]n error in the [charge] requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Internal quotation marks omitted.) State v. Anderson, 212 Conn. 31, 38, 561 A.2d 897 (1989); State v. Pompei, 52 Conn. App. 303, 308, 726 A.2d 644 (1999).

The following additional facts are relevant to this claim. The long form information charged the defendant with attempt to commit assault by firing a pistol. The trial court first charged the jury generally on attempt crimes relevant to both the attempted robbery and attempted assault charges. The trial court read the language from the statute pertaining to attempt crimes, § 53a-49, and then charged: “So what we are saying is that [while] the actual crime may not have been [committed], there may not have been a robbery in the first degree, there may not have been an assault in the first degree. As far as attempt is concerned, a person attempted and took a substantial step toward the commission of those offenses as I defined them. The first element which the state must prove beyond a reasonable doubt to sustain a conviction of this defendant on these charges is that the defendant had the specific intent [required to commit] the crimes of robbery in the first degree and assault in the first degree.”

The court also charged on the substantive offense of assault as follows: “A person is guilty of assault in the first degree when, with intent to cause serious physical injury to another person, he causes such injury to such person and he causes such injury to such person or a third person by means of a deadly weapon. So that assault in the first degree is with intent to cause serious physical injury to another person, [and] he causes such injury to such person or a third person by means of a deadly weapon. ... [A] person’s intention may be inferred from his conduct. . . . [Y]ou may, but you are not required to do so, infer from the fact that a pistol that is capable of causing serious physical injury, including death, was used, and from that you may infer that the defendant intended to cause serious physical injury because a pistol was used, if you find that to be the case.” Later, in defining the term serious physical injury for the jury, the trial court charged: “The term serious physical injury means physical injury which creates a substantial risk of death and here, of course you have a death .... In short, the injury must be serious rather than minor or superficial. And I would think that you probably would consider a death to be a serious physical injury.” (Emphasis added.) It is this language, in addition to a portion of the recharge, referencing Washington’s death, that the defendant claims rendered the jury charge improper.

The defendant contends that the jury instructions invited the jury to convict him of first degree assault based on the death of Washington, but that the state’s theory was that it was Arrington, not the defendant, who shot Washington, and that the defendant’s attempt to commit assault charge was based on his shooting at the drug dealers with the intent to cause them serious physical injury. Although the few sentences in the trial court’s exhaustive jury charge challenged by the defendant may have been inartful, “individual instructions are not to be judged in artificial isolation from the overall charge. . . . Thus, an error in the [charge] requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Citations omitted; internal quotation marks omitted.) State v. Anderson, supra, 212 Conn. 37-38; State v. Pompei, supra, 52 Conn. App. 308.

In the present case, our review of the charge in its entirety leads us to conclude that the trial court properly instructed the juiy on the elements of the crime of attempt to commit assault in the first degree.

Ill

The defendant’s final claim, raised in his supplemental brief, is that the trial court improperly instructed the jury on the presumption of innocence and reasonable doubt in violation of his due process rights. Specifically, he asserts that the instruction that “the law was made to protect society and innocent persons, and not to protect guilty ones” undermined the principal that an accused is to be afforded a presumption of innocence, as well as the principle requiring the state to establish guilt beyond a reasonable doubt. Our Supreme Court’s ruling on this issue in State v. Schiappa, 248 Conn. 132, 167-75, 728 A.2d 466 (1999), is controlling.

In Schiappa, the court considered whether a juiy instruction, substantially the same as the one challenged in this case violated the defendant’s due process rights. The court held that “[although we disapprove of the challenged language and, pursuant to our supervisory authority over the administration of justice, direct our trial courts to refrain from using the challenged language in future cases, we nevertheless reject the defendant’s constitutional claim.” Id., 168.

As was the case in Schia/ppa, the trial court in this case, in clear and legally correct terms, instructed the jury in detail regarding the presumption of innocence and reasonable doubt. In light of Schiappa, and after reviewing the trial court’s jury instructions as a whole, we conclude that the defendant’s constitutional claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       On December 4, 1996, the defendant filed an appeal (A.C. 16108) of his December 10, 1993 conviction, which was dismissed as untimely. The defendant's appellate rights subsequently were reinstated by stipulation in a habeas corpus proceeding and, in response, the defendant filed this appeal.

       The defendant also was charged with attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (2). He was acquitted of both those charges.

       All but the first statement given by Durant were tape-recorded and transcribed.

       At some point prior to giving this statement, Arrington learned that Washington had been killed by a nine millimeter bullet.

       The state also called Burton and Coffey as witnesses.

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court stated that “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.”

       Because we affirm the judgment as to the conviction of attempt to commit assault in the first degree, we need not address the defendant’s third claim regarding resentencing on the charge of carrying a weapon without a permit.

       During deliberations, the jury requested reinstruction on attempted assault. On reinstruction, the trial court stated in part: “[Y]ou may, but you are not required to . . . infer from the fact that a pistol that is capable of causing serious physical injury, including death, was allegedly used . . . that the defendant intended to cause serious physical iqjury.” The trial court defined assault in the first degree, stating in part: “And to constitute the offense of assault with a deadly weapon in the first degree, actual physical injury must be inflicted .... [W]e are not concerned [in this case] with the . . . actual commission of an actual physical injury, although you may so find in this case, because the defendant is being charged with the attempt to commit this offense.” (Emphasis added.)

       This court granted the defendant’s request to file a supplemental brief on June 23, 1998.

       The defendant at trial failed to object to the challenged instruction and, therefore, seeks review under State v. Golding, supra, 213 Conn. 239-40. The record is adequate for review and, consequently, we will review the defendant’s claim.


text:
    ELIZABETH A. VILLANO, EXECUTRIX (ESTATE OF FREDERICK VILLANO) v. CARLO POLIMENI ET AL.
    (AC 17810)
    O’Connell, C. J., and Landau and Dupont, Js.
    Argued April 27
    officially released September 7, 1999

      C. George Kanabis, with whom, on the brief, was Renee Houle, for the appellant (plaintiff).

      Thomas M. DeLillo, with whom, on the brief, was James E. Mattem, for the appellee (defendant Joseph Polimeni).
   Opinion

O’CONNELL, C. J.

This is a mortgage foreclosure action in which the plaintiff appeals from the trial court’s judgment for the defendant Joseph Polimeni on both special defenses. The trial court’s judgment was in accordance with the report of an attorney trial referee. The plaintiff executrix of her husband’s estate claims that the conclusions of law reached by the referee and adopted by the trial court that (1) a merger of title interest and mortgage interest occurred and (2) the estate was not the owner of the property at the time of the creation of the note and mortgage are inconsistent with the subordinate facts found. Because we conclude that the subordinate facts found by the referee support the legal conclusion that payment in Ml was made on the note thus extinguishing the mortgage that is the subject of the foreclosure, we affirm the judgment of the trial court.

The attorney trial referee found the following relevant facts. The plaintiff, Elizabeth A. Villano, as executrix of the estate of Frederick Villano, conveyed the estate’s entire interest in and to certain real property to the defendants Joseph Polimeni and Carlo Polimeni as tenants in common. As consideration for the transfer of property, the Polimenis gave the estate a note and mortgage. Subsequently, Joseph Polimeni conveyed his interest in the property to Carlo Polimeni. In connection with this transaction, Carlo Polimeni executed a new note and mortgage deed to the plaintiff, and gave Joseph Polimeni a second mortgage on the subject property.

When Carlo Polimeni experienced difficulty in paying the note, he quitclaimed his fee interest in the mortgaged property to the plaintiff. The plaintiff accepted the conveyance of the property in payment of the note.

The plaintiff initiated this action against the Polimenis as executrix of the estate seeking strict foreclosure of the mortgage given to the estate by Carlo Polimeni. Joseph Polimeni filed two special defenses, the first alleging that the note and mortgage merged into the title holder of the subject property when Carlo Polimeni quitclaimed his fee interest in the property to the plaintiff, and the second alleging that Carlo Polimeni conveyed to the plaintiff his interest in the subject property in full payment of the note and mortgage cited in the plaintiffs complaint.

The attorney trial referee made findings of fact that led him to conclude that both merger and payment had occurred, thus extinguishing the mortgage that is the subject of the foreclosure action. Accordingly, pursuant to the recommendation of the referee, the trial court rendered judgment for Joseph Polimeni on both special defenses.

“We begin by setting forth the applicable standards of review. Attorney trial referees are empowered to hear and decide issues of fact. Spears v. Kerars Realty Co., 171 Conn. 699, 702-703, 372 A.2d 121 (1976). It is axiomatic that ‘a reviewing authority may not substitute its findings for those of the trier of the facts.’ Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 214 Conn. 804, 573 A.2d 318 (1990). The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989).” Romano v. Derby, 42 Conn. App. 624, 626, 681 A.2d 387 (1996). “Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney trial] referee. See Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256, 524 A.2d 610 (1987).” (Internal quotation marks omitted.) Kallas v. Harnen, 48 Conn. App. 253, 257, 709 A.2d 586, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998).

The attorney trial referee made a factual finding that payment of the debt occurred, thus extinguishing the mortgage that is the subject of this foreclosure. The referee found that the plaintiff had accepted the quitclaim deed in full satisfaction of the debt. The referee further found that the plaintiff made no demand of the Polimenis for interest or principal on the debt from the time that the property was conveyed to her until she executed this foreclosure action on behalf of the estate four and one-half years later, thus lending further credence to the conclusion that she accepted the quitclaim deed in full satisfaction of the debt. The trial court relied on those factual findings in its memorandum of decision to conclude that “the plaintiff accepted the quitclaim deed in payment of the debt and, therefore, Carlo Polimeni owed the plaintiff no obligation under the mortgage.”

Our review of the record, briefs and oral argument convinces us that the conclusion reached by the attorney trial referee and accepted by the trial court that payment occurred is more than adequately supported by the subordinate facts found.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original defendants in this action are Carlo Polimeni, Joseph Polimeni and Farmers and Mechanics Savings Bank. Carlo Polimeni was the mortgagor of the mortgage on which the plaintiff sought foreclosure. Joseph Polimeni held a second mortgage on the property, and Farmers and Mechanics Savings Bank held third and fourth mortgages on the property. Prior to judgment, defaults were entered against Carlo Polimeni and Farmers and Mechanics Savings Bank. The only defendant relevant to this appeal, therefore, is Joseph Polimeni.

       This claim centers on the confusion that was created by the fact that the plaintiff executed the documents connected with Carlo Polimeni’s quitclaim deed to her in her individual capacity, while the mortgage and note that are the subject of this foreclosure action were executed by the plaintiff in her capacity as executrix of the estate of Frederick Villano. The plaintiffs claim that the estate of Frederick Villano and Elizabeth Villano are separate entities for purposes of the payment of the debt, however, is irrelevant. As the trial court properly determined, as sole beneficiary of the estate, for purposes of title, Elizabeth Villano was the owner of the property as of the date of the death of Frederick Villano and, thus, was the owner when the property was transferred to Carlo Polimeni. Under Connecticut law, title to real property passes to a named devisee at the lime of death of the owner, subject to divestment if, in the course of administration, funds are needed for debts and expenses. State v. Marks, 239 Conn. 471, 481, 686 A.2d 969 (1996); Brill v. Ulrey, 159 Conn. 371, 375, 269 A.2d 262 (1970). Accordingly, a separate discussion of this claim is unnecessary.

       Because we conclude that the trial court properly rendered judgment for Joseph Polimeni on his second special defense alleging payment, we need not address the plaintiffs claim that the trial court’s judgment for the Joseph Polimeni on his first special defense alleging merger was in error.

         The estate owned the property as tenants in common with Rosalie Brax. The remaining interest in the property owned by Brax was also sold to the Carlo Polimeni on the same date. The transactions with Brax are not part of this appeal.

       It is this mortgage that is the subject of the foreclosure action.

       With respect to Joseph Polimeni, who now claims an interest in the property by way of a second mortgage, the plaintiff alleges a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and detrimental reliance in connection with the agreement between the Polimenis that resulted in Joseph Polimeni’s selling his interest in the land to Carlo Polimeni.

       The plaintiffs second amended complaint contained three counts. The first count sought strict foreclosure of the mortgage given to the plaintiff by Carlo Polimeni, the second count alleged a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and the third count alleged detrimental reliance on the agreement with respect to the land between the Polimenis. Counts two and three were, however, withdrawn by the plaintiff on the morning of the trial before the attorney trial referee.

       The following colloquy took place at the hearing before the attorney trial referee:
      “[Counsel for the Defendants]: He couldn’t pay you?
      “[The Plaintiff]: He could not pay me.
      “[Counsel for the Defendants]: So, you agreed to take the property back in exchange for any future payments, correct?
      “[The Plaintiff]: Yes.”

       The trial court issued a memorandum of decision in response to the plaintiffs motion for articulation.


text:
    JAMES CALVIN TILLMAN v. COMMISSIONER OF CORRECTION
    (AC 17461)
    Lavery, Spear and Sullivan, Js.
    Argued March 29
    officially released September 7, 1999

      Joseph W. McQuade, special public defender, for the appellant (petitioner).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and John J. Dropick, Sr., former assistant state’s attorney, for the appellee (respondent).
   Opinion

SULLIVAN, J.

The petitioner, James Calvin Tillman, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly determined that he had not sustained his burden of proving that his trial and appellate counsel were ineffective.

The following facts and procedural history are necessary to our decision. In 1989, a jury convicted the petitioner of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), sexual assault in the first degree in violation of General Statutes § 53a-70 (a), robbery in the third degree in violation of General Statutes § 53a-136 (a), assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). The trial court imposed a total effective sentence of forty-five years. On direct appeal, our Supreme Court affirmed the judgment of conviction. State v. Tillman, 220 Conn. 487, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).

In Ms petition for a writ of habeas coipus, the petitioner based his ineffective assistance of counsel claims on the jury selection method, which, he claims, both trial and appellate counsel failed to challenge adequately. He argues that effective assistance would have exposed the unconstitutional methods of jury selection then in place at the Hartford Superior Court where he was tried.

During jury selection, the petitioner, whose race is African-American and Native American, noted the absence of black males and the presence of only one Hartford resident among the potential jurors. Christopher Cosgrove, the petitioner’s trial counsel, raised this issue with the trial court. Cosgrove questioned Ruth Kviesis, one of the two juror clerks then working for the Hartford Superior Court. He thereafter represented to the court that the jury clerks were excusing jurors for reasons of economic hardship, including daily wage earners, persons not being paid by their employers while serving and self-employed persons. Kviesis opined to Cosgrove and later to the habeas court that a disproportionate number of minorities would be excluded because she believed minorities were more likely to occupy lower and hourly paying positions that would not compensate them for their jury service. As the habeas court noted, this was speculation and assumption on her part. In presenting this to the trial court, Cosgrove acknowledged that the panels in a criminal trial simultaneously occurring in an adjacent courtroom, which were drawn from the same array, contained five black persons, three of whom were selected to serve.

Kviesis testified before the habeas court that, in 1989, 360 potential jurors were summoned every two weeks to serve for four weeks. The jury clerks would receive letters from potential jurors asking to be relieved of jury duty for a variety of reasons. Although Kviesis opined that excusáis for economic reasons had a disproportionate impact on minorities, there is no evidence that she had any basis for this opinion other than speculation and assumption. Moreover, there is no indication that the jury clerks were aware of the race of those potential jurors who were excused.

I

The petitioner first claims that the habeas court improperly determined that he had not met his burden of demonstrating that he was rendered ineffective assistance of counsel by his trial counsel’s failure to provide an adequate offer of proof, or to request an evidentiary hearing or a continuance to gather proof of unconstitutional jury selection methods.

“ ‘The right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution . . . .’ Levine v. Manson, 195 Conn. 636, 639, 490 A.2d 82 (1985). ‘When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). ‘There are two components of a claim of ineffective assistance of counsel. “First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.” [Id., 687].’ Johnson v. Commissioner, [218 Conn. 403, 424, 589 A.2d 1214 (1991)]” McIver v. Warden, 28 Conn. App. 195, 199-200, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992).

“To satisfy the first prong, that his counsel’s performance was deficient, the petitioner must establish that his counsel made errors so serious that [he] was not functioning as the counsel guaranteed the [petitioner] by the Sixth Amendment. . . . The petitioner must thus show that counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. ... We will indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . .

“To satisfy the second prong, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . . . The petitioner must establish that, as a result of his trial counsel’s deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. . . . The second prong is thus satisfied if the petitioner can demonstrate that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . Johnson v. Commissioner of Correction, 36 Conn. App. 695, 701-702, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995).” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 51 Conn. App. 818, 821, 725 A.2d 971 (1999).

A

The testimony elicited at the habeas proceeding failed to disclose that the petitioner suffered any prejudice as a result of his trial counsel’s conduct or that such conduct fell below the acceptable level. Cosgrove investigated the jury selection system by questioning Kviesis. According to him, she described the method through which potential jurors could be excused, but she offered nothing except her opinion of the disproportionate impact on minorities to suggest that there was any sort of exclusion of black jurors. At the habeas hearing, he testified that he also had learned “that there was a murder trial going on next door, which did have—it appeared to be a substantial number of black jury panel members—panel members, who would have come from the same array as we drew from. So, again, [he] did not find any evidence of any systematic exclusion of any funneling away from our panels to benefit or ... to influence other panels.” Cosgrove investigated, considered the issue and ultimately decided not to pursue it. We cannot conclude that this conduct fell below the sixth amendment standard.

B

The petitioner also has failed to show that the outcome of his trial would have been different but for the conduct of Cosgrove.

1

“[T]o establish a violation of his federal constitutional right to a jury drawn from a fair cross section of the community, the defendant must demonstrate the following: ‘(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.’ Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979); State v. Robinson, [227 Conn. 711, 717-18, 631 A.2d 288 (1993)].” State v. Webb, 238 Conn. 389, 450, 680 A.2d 147 (1996).

Our Supreme Court addressed and found evidence wanting of both the “distinctive” group requirement under the due process analysis of Duren v. Missouri, supra, 439 U.S. 357, and of the suspect class requirement of State v. Nims, 180 Conn. 589, 596, 430 A.2d 1306 (1980). State v. Tillman, supra, 220 Conn. 487. Not only was this issue covered by the Supreme Court, there was no evidence offered at the habeas hearing that was not considered by the Supreme Court.

2

General Statutes (Rev. to 1989) § 51-217 (c) (2) provides that the jury administrator “may determine . . . whether any person may be excused [from jury service] for extreme hardship.” Section 51-217a authorizes only the court, rather than the jury administrator or clerks, to dismiss those persons who would suffer extreme hardship. The petitioner alleges that his due process rights were violated by the jury selection method actually existing whereby jury clerks excused potential jurors without any court participation in the process.

Because habeas corpus proceedings are not an additional forum for asserting claims that should properly be raised at trial or in a direct appeal, a petitioner must meet the “cause and prejudice” standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), for determining the reviewability of habeas claims that were not properly pursued on direct appeal. See Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993). “The petitioner must show good cause for his failure to preserve a claim at trial and actual prejudice resulting from the alleged constitutional violation.” Daniels v. Warden, 28 Conn. App. 64, 71, 609 A.2d 1052, cert. denied, 223 Conn. 924, 614 A.2d 820 (1992).

Although the petitioner challenged the statute on other grounds on direct appeal, he did not raise this issue at trial or on direct appeal. The petitioner offered no cause for his failure to raise this issue earlier. Moreover, we are not satisfied that the petitioner has shown actual prejudice that resulted from the alleged constitutional violation. As we have noted previously, there has been no satisfactory demonstration that the jury selection method systematically excluded a distinct group or that any suspect class was excluded from the jury array.

II

The petitioner also claims that the habeas court improperly determined that he failed to meet his burden of demonstrating ineffective assistance of appellate counsel by appellate counsel’s failure to raise the argument that the trial court had a duty to conduct, sua sponte, an evidentiary hearing into potentially unconstitutional jury selection methods. We disagree.

“[T]o prevail on this claim, [the petitioner] must establish (1) that his appellate counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law, and (2) that this lack of competency contributed so significantly to the affirmance of his conviction as to have deprived him of a fair appeal, thus causing an unreliable conviction to stand. See Valeriano v. Bronson, 209 Conn. 75, 84-86, 546 A.2d 1380 (1988); accord Strickland v. Washington, [supra, 466 U.S. 687]. If the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, supra, 51 Conn. App. 820-21.

“While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions.” (Internal quotation marks omitted.) McIver v. Warden, supra, 28 Conn. App. 202.

“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.. . . Appellate advocates select what in their professional judgment, are the most promising issues for review. ... It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment. ... A reviewing court must be highly deferential to counsel’s decision and judge the action from counsel’s perspective at the time. . . . Thus, our action in reaching the petitioner’s challenge based on ineffective assistance of counsel will further the goals of finality and minimize intentional defaults as well as provide relief for petitioners who have been denied their constitutional rights in appropriate cases.” (Citations omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, supra, 51 Conn. App. 822.

The petitioner’s appellate counsel, Charles Ray, testified at the habeas hearing that only on his motion for reargument did he consider the issue of whether the trial court should, sua sponte, have ordered an evidentiary hearing. Although Ray conceded that the argument may have had merit, the fact that it was not raised does not mean that the petitioner was deprived of effective assistance of counsel. As we have noted previously, the standard for effective assistance is not so rigorous as to demand that every meritorious issue be considered and raised by appellate counsel. Moreover, we cannot reasonably conclude that a reviewing court would have found that the trial court improperly failed to order, sua sponte, an evidentiary hearing where defense counsel had investigated the matter and represented to the trial court that he could find no evidence of systematic exclusion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Our state Supreme Court’s opinion in the direct appeal provides a full exposition of the facts that the jury reasonably could have found at trial. See State v. Tillman, 220 Conn. 487, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).

       The petitioner’s reply brief in the direct appeal states in relevant pari: “At trial, counsel argued that the jury clerk was impermissibly excusing potential jurors on the basis of their employment and that this practice likely resulted in the underrepresentation of minorities on jury arrays in Hartford. On the appeal, the [petitioner] has put that claim into the context of constitutional requirements by arguing that, absent some showing of ‘extreme hardship’; General Statutes [Rev. to 1989] § 51-217 (c) (2); jurors simply cannot be excused solely because they will not be paid by their employers. The defendant, recognizing that the record is inadequate to resolve the issue at the present time, has cast his potential claim as a violation of his due process right to have jury arrays represent a true cross section of the community.”


text:
    STATE OF CONNECTICUT v. ANDRE HUCKABEE
    (AC 17908)
    Schaller, Hennessy and Sullivan, Js.
    Argued March 18
    officially released September 7, 1999

      William B. Westcott, special public defender, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger Dobris, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Andre Huckabee, appeals from the judgment of the trial court, revoking his probation and sentencing him to serve the term of his suspended sentence. The sole issue on appeal is whether the trial court improperly admitted into evidence an attendance report without which the defendant claims there was insufficient evidence to find a probation violation.

The following facts are relevant to the resolution of this issue. The defendant pleaded guilty to manslaughter in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-56 (a) (1). On October 18,1996, the trial court imposed aten year sentence, execution suspended after four and one-half years. On October 26, 1996, the defendant met with Suzanne Kuziak, his probation officer, to review and sign documents that specified the conditions of his probation as well as the intensive supervision that required that he meet Kuziak weekly. Under the terms of his probation, the defendant was required to comply with intensive supervision as long as the office of adult probation deemed appropriate, to attend school, to attempt to secure employment, to submit to random urinalysis, to possess no weapons and to submit to psychological evaluations.

Because the defendant was neither attending school nor gainfully employed, Kuziak referred him on November 26,1996, to Project More, a service provider for the alternative incarceration center program. Although the office of adult probation makes referrals to and contracts with the alternative incarceration program and Project More, neither entity is part of the office of adult probation. On December 2, 1996, the defendant reported to Chris Watts at Project More for the first time as required. The defendant was to attend Project More five days a week from 9 a.m. to noon.

Kuziak received a report from Watts at Project More dated January 10,1997, that indicated that the defendant had missed twenty-one days by that date and that the alternative incarceration program was seeking to terminate him. Kuziak testified that she is required to keep records of the defendant’s attendance at the alternative incarceration program as part of the supervision. After admonishing the defendant about the need to improve his attendance and persuading the alternative incarceration program not to terminate him, Kuziak noted that the defendant’s attendance slipped again in February and that he also missed two appointments with her. Kuziak applied for a warrant for the defendant’s arrest on February 19,1997. Upon finding a probation violation by a preponderance of the evidence, the trial court revoked probation and sentenced the defendant to serve the five and one-half years of his suspended sentence.

The defendant claims that the trial court improperly admitted Project More’s attendance report, that the report was hearsay and that, but for the improper admission of this report, there would have been insufficient evidence to support the trial court’s finding of a violation. Specifically, the defendant argues that the report was hearsay not subject to any recognized exception for admissibility and was not otherwise reliable. We disagree.

“On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. . . . Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Jurgensen, 42 Conn. App. 751, 754, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996). General Statutes § 52-180 provides a business records exception to the hearsay rule. “Section ‘52-180 permits hearsay evidence to be admitted if (1) this writing was made in the regular course of business, (2) it was the regular course of the business to make such a writing, and (3) the writing was made at the time of the transaction or occurrence or within a reasonable time thereof. State v. Scott, 31 Conn. App. 660, 665, 626 A.2d 817 (1993). To qualify a document as a business record, the party offering it must present a witness who testifies that these three requirements have been met. State v. Lawler, 30 Conn. App. 827, 831-32, 622 A.2d 1040 (1993). The trial court has discretion to determine whether the statute is satisfied and appellate courts must construe the statute liberally when reviewing abuse of discretion. State v. Scott, supra [665]; State v. Lawler, supra [832].’ Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 709-10, 638 A.2d 44 (1994).” Connecticut National Bank v. Marland, 45 Conn. App. 352, 360-61, 696 A.2d 374, cert. denied, 243 Conn. 907, 701 A.2d 328 (1997).

“Section 52-180 does not require that a business record be prepared by an organization itself in order to be admissible as a business record of that organization. State v. Wilson-Bey, 21 Conn. App. 162, 168-69, 572 A.2d 372, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990); Crest Plumbing & Heating Co. v. DiLoreto, 12 Conn. App. 468, 475, 531 A.2d 177 (1987). If, however, the organization does not prepare the document itself, then the entrant must have a duty to that organization to prepare the record in order for it to be admissible under § 52-180. See State v. Sharpe, 195 Conn. 651, 663, 491 A.2d 345 (1985); Mucci v. LeMonte, [157 Conn. 566, 569, 254 A.2d 879 (1969)]. Section 52-180 should be liberally construed. Jefferson Garden Associates v. Greene, 202 Conn. 128, 141, 520 A.2d 173 (1987); Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., [190 Conn. 371, 390, 461 A.2d 422 (1983)]. Appellate review of the admission of a document under § 52-180 is limited to determining whether the trial court abused its discretion. Jefferson Garden Associates v. Greene, supra [141].” River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 794-95, 595 A.2d 839 (1991).

Kuziak testified that the office of adult probation contracted with the alternative incarceration program for its services. The program provided regular attendance records, and it was Kuziak’s duty to keep those records. Kuziak testified that she had utilized the records regularly to keep track of persons on probation and that she had found them to be reliable. We conclude that the trial court properly admitted the attendance report under the business records exception.

As a second basis for admissibility, the trial court concluded that the report, even if hearsay, was admissible under the looser admissibility standards of probation revocation proceedings. See State v. White, 169 Conn. 223, 239-40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975) (hearsay testimony admissible at probation revocation if reliable and not unsupported). We need not reach that issue because our conclusion that the requirements for the business records exception are satisfied is dispositive of this appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The date of Hie underlying offense was November 22, 1992. Although the record is not clear, it appears that the defendant may have been credited for the time he was incarcerated and for good time accumulated prior to sentencing. Thus, one week after the imposition of the sentence, the defendant was able to meet with his probation officer.

       The report indicated that the defendant missed all the days for the week ending January 11, 1997. The defendant attacks the reliability of the report on this basis, since the report was dated January 10,1997. January 11,1997, however, was a Saturday.

       General Statutes § 52-180 provides in relevant part: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.
      * * *
      “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.”