author: Heiman, J.

text:
    State of Connecticut v. Michael C. Reddick
    (10500)
    Landau, Heiman and Schaller, Js.

      Argued September 20
    decision released December 28, 1993

      Paul M. Vogt, special public defender, with whom, on the brief, were Sally S. King and Matthew J. Cholewa, special public defenders, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4).

On appeal the defendant asserts that the trial court improperly (1) allowed into evidence an impermissively suggestive in-court identification of the defendant, (2) refused to order the state to produce the transcript of testimony given by a witness in a prior prosecution involving this defendant in a different judicial district, (3) permitted the jury, on the issue of identity, to consider evidence of the defendant’s involvement in another bank robbery, (4) admitted into evidence, as an indication of consciousness of guilt, the fact of the defendant’s flight, (5) denied his motion for acquittal made at the completion of all of the evidence, (6) conducted itself in such a manner, throughout the trial, so as to deny the defendant his constitutionally guaranteed right to due process of law, and (7) restricted the cross-examination of a witness, thus preventing him from eliciting evidence of the bias or prejudice of the witness. The defendant further asserts that the aggregate effect of the trial court’s improper actions “deprived [him] of his right to a fair trial” and was not harmless error. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On January 24, 1990, at about 1:15 p.m., two black males entered a Connecticut National Bank branch at 1334 Main Street in Stratford. When they entered the bank, there were no customers on the premises. One of the men was in his early twenties, about six feet in height and weighed about 150 pounds. His face was long and oval, and he had some hair on the sides of his cheeks and alight complexion. The second was older, about five foot seven or eight inches tall, and weighed about 180 pounds. He had pudgy cheeks and acne scars. He had darker skin than the other individual.

The shorter man approached Patricia Baptist, who was employed as a teller, and asked whether the bank had savings incentives for college. At that time, the taller male stood behind and to the left of the shorter male. In response to the question, Baptist indicated that the man would have to speak with a bank officer at the front of the lobby and pointed to the area where the officers’ desks were located. Both men left the area of the tellers’ station and walked in the direction that had been indicated by Baptist. Shortly thereafter, they returned to the tellers’ station and the shorter man again asked Baptist about the existence of savings incentives for college. She again referred them to the officers’ platform and both men left the area of the tellers’ station, again going toward the officers’ platform.

The two men again approached Baptist and this time the shorter man asked Baptist a question relating to savings and bonds for college tuition. At that point, the men stood next to each other at her station. She told him that the bank offered something like that but that he would still have to talk with one of the officers. The shorter man stepped aside and said to the taller man, “Why don’t you do your business here?” The taller man moved directly in front of Baptist and said, “This is a robbery.” Baptist saw that he was holding a silver colored gun in front of his chest with his right hand.

Baptist unlocked her money drawer and pulled a packet of “bait money” that activated a silent alarm. She proceeded to hand loose bills to the taller man. The shorter man stepped up next to the taller man, looked at the money and said that he wanted fifties and hundreds. Baptist then proceeded to hand the shorter man $500 in strapped $1 bills. He dropped the packet back over the counter, again stating that he wanted fifties and hundreds. Warning Baptist that they did not want any smoke bombs or alarms, the two men left the bank. Baptist reported what had occurred and the police and Federal Bureau of Investigation were notified of the robbery.

On the day of the robbery, Baptist examined a number of mug shots at the Stratford police station but was unable to identify anyone as the bank robbers. On January 31,1990, the police showed Baptist an array of photographs from which she identified both men. The photograph of the shorter man was that of the defendant, while the photograph of the taller man was that of Edward Singer.

On February 7,1990, West Haven police went to the defendant’s residence to arrest him for another bank robbery in West Haven committed one hour before the Stratford robbery. At the time of that arrest, the defendant attempted to flee. At the time of the attempted flight, the police had not yet advised the defendant of the crime for which they attempted to make the arrest.

The jury returned a verdict of guilty and the defendant filed motions for judgment of acquittal and for a new trial, both of which were denied by the trial court. This appeal followed.

I

The defendant first asserts that the trial court improperly permitted Baptist to make an in-court identification of the defendant. The following additional facts are necessary to a proper resolution of this claim.

At trial, during June, 1991, the prosecutor asked Baptist to look around the courtroom and see whether she recognized anyone as having been in the bank on January 24, 1990. She indicated that she could not really tell. She further testified that the police showed her photographs at the police station on the day of the robbery and she was unable to identify the robbers from among the photographs. She also stated that on January 31,1990, a detective brought a photographic array to her place of employment. On that day, she identified one of the photographs as that of the defendant. She further identified a series of photographs, taken by the surveillance cameras at the bank on the day of the robbery, that showed her and the two robbers. The state requested that the court require the defendant to approach the witness stand for the purpose of asking the witness about the defendant’s physical characteristics. The defendant stated that he had no objection to that procedure. In the absence of the jury, the trial court instructed the sheriff to remove the defendant’s leg irons and his glasses, “because [the state was] asking him to appear the way he appeared that day.” Baptist told the jury that the shape of the defendant’s head, his cheeks and nose were similar to those of the robber, and that his height and weight were similar. She also testified that his face was similar to the face of the shorter robber. The prosecution finally asked whether she could then say that it was the defendant that she saw on January 24,1990. Over the defendant’s objection that the question had been asked and answered, she responded that the defendant was the person that she saw in the bank.

The defendant claims that the trial court abused its discretion in allowing Baptist to make her in-court identification of the defendant, and violated his constitutional rights. The defendant claims that (1) Baptist had already indicated her inability to identify him, (2) she identified the defendant while holding the photographic array, which suggested to her the identity of the defendant, and (3) the trial court’s statement, in the absence of the jury, “because you are asking him to appear as he appeared that day,” indicated to the witness that the trial court believed the defendant was one of the robbers. We are unpersuaded.

The defendant neither moved to strike the evidence of which he now complains, nor objected to the in-court identification other than on the ground that the question had been asked and answered. “We review evidentiary rulings solely on the ground on which the party’s objection is based.” State v. Ulen, 31 Conn. App. 20, 27, 623 A.2d 70, cert denied, 226 Conn. 905, 625 A.2d 1378 (1993); State v. Baldwin, 224 Conn. 347, 362, 618 A.2d 513 (1993); State v. Dukes, 29 Conn. App. 409, 416, 616 A.2d 800 (1992), cert. denied, 224 Conn. 928, 619 A.2d 851 (1993).

Under our law, the trial court is vested with wide and liberal discretion in determining the admissibility of evidence claimed to be repetitious, remote or irrelevant. See State v. Devanney, 12 Conn. App. 288, 291, 530 A.2d 650 (1987). “On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, the trial court, in exercising its broad discretion, could legally act as it did, and we will not intervene unless there is a clear abuse of the court’s discretion.” Id. Our examination of the record fails to disclose any abuse of discretion on the part of the trial court. The record reveals that the witness answered the original question, whether she could identify anyone in the courtroom as having been involved in the robbery, by saying that she could not really tell. After she had reviewed the surveillance photographs and the photographic array that she had previously seen, and after examining the defendant close up without his glasses, she then testified that she was able to identify the defendant as one of the perpetrators of the bank robbery. The trial court did not abuse its discretion in overruling the defendant’s objection on the ground claimed by the defendant.

As a second string to his bow, the defendant asserts that the procedure under which Baptist identified him was unconstitutional. The defendant asserts that the remark of the trial court had the effect of influencing her identification. Further, the defendant claims that the remark placed him in the position that if he pursued this line on cross-examination, damaging information would have been disclosed to the jury. He posits that this resulted in a deprivation of his fifth amendment rights under the federal constitution. The defendant has not provided us with either an analysis to support the claim or citation of authority to support his thesis.

We first note that the defendant failed to raise this issue properly before the trial court either at trial or by posttrial motions. At trial, the defendant objected only to the claimed repetitive nature of the identification question. In the posttrial motion for judgment of acquittal, the defendant claimed only that the identification of the defendant was contradicted by various witnesses. We also note that the defendant does not seek the review of this court under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Thus, the defendant has failed to provide us with the requisite legal record on which to afford review. Even had the defendant perfected the record, however, the claim would be to no avail.

“The United States Supreme Court has set standards as to when a pretrial identification must be excluded and under what circumstances an in-court identification that follows an impermissible pretrial identification must be excluded. See Neil v. Biggers, 409 U.S. 188, 200-201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Coleman v. Alabama, 399 U.S. 1, 5-6, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); Foster v. California, 394 U.S. 440, 442, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Gilbert v. California, 388 U.S. 263, 272, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); United States v. Wade, 388 U.S. 218, 241, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). The court, however, has not set any guidelines for in-court identification procedures or indicated that in-court identifications must be made in a way that is not suggestive. United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986). Generally, an in-court testimonial identification need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable misidentification. United States v. Domina, supra, 1368; State v. Nelson, 4 Conn. App. 514, 516, 495 A.2d 298 (1985); Fortune v. State, 549 P.2d 380, 383 (Okla. Crim. App. 1976). ‘The Supreme Court has not extended its exclusionary rule to in-court identification procedures that are suggestive because of the trial setting.’ United States v. Domina, supra, 1369. ‘There is no constitutional requirement that an in-court identification confrontation be conducted as a lineup or be otherwise free of suggestion. An in-court testimonial identification must be excluded if it is the product of an out-of-court confrontation arranged by the state, which was unnecessarily suggestive and conducive to irreparable misidentification.’ Commonwealth v. Wheeler, 3 Mass. App. 387, 391, 331 N.E.2d 815 (1975). ‘[Without more, the mere exposure of the accused to a witness in the suggestive setting of a criminal trial does not amount to the sort of impermissible confrontation with which the due process clause is concerned.’ Middletown v. United States, 401 A.2d 109, 132 (D.C. App. 1979).

“ ‘We know of no authority which would prohibit, as unduly suggestive, an exclusively in-court identification. Mangrum v. State, 155 Ga. App. 334, 335, 270 S.E.2d 874 (1980).’ State v. Nelson, supra, 516. The defendant’s protection against the obvious suggestiveness in any courtroom identification confrontation is his right to cross-examination. Laury v. State, 260 A.2d 907, 909 (Del. 1969); State v. Drew, 360 So. 2d 500, 516 (La. 1978); Cooper v. State, 599 P.2d 419, 422 (Okla. Crim. App. 1979); see Manson v. Brathwaite, 432 U.S. 98, 113 n.14, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). The innate weakness in any in-court testimonial identification is grounds for assailing its weight rather than its admissibility. In re W.K., 323 A.2d 442, 444 (D.C. App. 1974).

“The manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court. United States v. Satterfield, 572 F.2d 687, 690 (9th Cir. 1978); United States v. Williams, 436 F.2d 1166, 1168 (9th Cir. 1970); United States v. King, 433 F.2d 937, 938 (9th Cir. 1970); People v. Powell, 105 App. Div. 2d 712, 714, 481 N.Y.S.2d 157 (1984); see United States v. Williams, 704 F.2d 315, 319 (6th Cir. 1983).” State v. Smith, 200 Conn. 465, 469-70, 512 A.2d 189 (1986); State v. Wooten, 227 Conn. 677, 697, 631 A.2d 271 (1993); State v. Rose, 29 Conn. App. 421, 429, 615 A.2d 1058, cert. denied, 224 Conn. 928, 618 A.2d 529 (1992).

The defendant’s claim is without merit.

II

The defendant next asserts that “[t]he trial court committed constitutional error in not ordering the prosecution to produce the transcript of testimony given by Bernilda Lopez from a previous trial.” We disagree.

Certain additional facts are necessary to a proper resolution of this claim. On January 24, 1990, Lopez was employed at the West Haven office of the Bank of Boston, Connecticut. On that date, a robbery occurred at that bank branch shortly after the robbery in this case. The trial court admitted evidence of the West Haven robbery under the similar crimes theory and for identification purposes.

Upon completion of the direct examination of Lopez, the defendant sought production of any statements given by the witness with respect to the West Haven robbery. The state’s attorney produced a statement given by Lopez to the West Haven police. The defendant called to the trial court’s attention the fact that Lopez had testified in a prior trial involving the West Haven robbery, and the defendant requested that the state’s attorney produce the transcript of the testimony of the witness. The state’s attorney responded that he was uncertain whether the entire transcript had been transcribed by the court reporter, that he had turned over to the defendant’s counsel all of the transcript that he had in his possession and that the remainder of the transcript was not in the possession of his office or the office of the state’s attorney who had prosecuted the West Haven robbery. Counsel for the defendant conceded that he did not know the status of the transcript and also recognized that he could obtain the transcript from the court reporter.

The trial court found that the testimony of the witness was a statement within the confines of Practice Book § 749. The trial court further found that it was not subject to the production provision of Practice Book § 752 because the state did not possess the transcript, a condition precedent to the ordering of its production under that rule of practice. We agree with the trial court.

We first point out that despite the assertion in the defendant’s brief that the failure to produce Jencks Act; 18 U.S.C. § 3500 et seq.; type material might be a denial of his sixth amendment rights, he failed to advance this claim before the trial court. We also note that the defendant does not seek the review of this court under the doctrine of State v. Golding, supra, or under the doctrine of plain error. See Practice Book § 4185. Thus, the defendant fails to provide us with any basis on which we may afford review of this unpreserved claim.

The defendant claims that the trial court misinterpreted the meaning of the phrase “in the possession of the state” as used in Practice Book § 752. He posits that the phrase is not limited to the prosecuting authority or to law enforcement agencies such as the state and local police, but that it must extend as well to agencies that are not under the control of the prosecuting authority, in this case, a court reporter or monitor. We do not agree.

The authority to appoint the official court reporter and the assistants to the court reporter for each judicial district is vested in the judges of the Superior Court. Therefore, the court reporters are officials employed by the judicial branch of government.

The defendant posits that the use of the term “in the possession of the state” extends to the state as a whole, unlimited in its scope and application. He thus asserts that because the court reporter is an employee of the judicial branch, the reporter’s notes and transcripts are implicitly in the possession of the state. We do not agree with such an expansive reading and interpretation of the phrase.

The defendant relies on Demers v. State, 209 Conn. 143, 547 A.2d 28 (1988), to support his contention that the state is bound to produce the transcript of prior testimony even where the transcript may not have been transcribed or where the court reporter’s notes and the transcript are in the possession and control of the reporter, a person over whom the state’s attorney may not exercise any control. This reliance is misplaced. In Demers, the unproduced report was in the hands of a police department other than the one involved in the prosecution of the criminal action and in a different judicial district. In holding that the failure to produce that report violated the state’s duty to disclose, our Supreme Court stated that “[t]he State’s duty of disclosure is imposed not only upon its prosecutor, but also on the State as a whole, including its investigative agencies. Therefore, if the [exculpatory material] were held by the . . . police department we would be compelled to conclude that, constructively, the State’s attorney had both access to and control over the documents. . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 153. Here, while the state had access to the court reporter’s notes or a transcript by exercise of the power of subpoena, it did not have control over the material or its custodian. We also note that no claim has been made of the state’s concealment of the material, and, in this instance, the material was equally available to the defendant by the use of a subpoena. See State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985).

While the decisions of federal courts of appeals treating questions under the Jencks Act do not control our determination of the meaning of our rules of practice, they are, nonetheless, instructive. The United States Courts of Appeals have consistently held that a court reporter is not an agent of the government for purposes of the Jencks Act. See, e.g., United States v. Cagnina, 697 F.2d 915, 922 (11th Cir.), cert. denied, 464 U.S. 856, 104 S. Ct. 175, 78 L. Ed. 2d 157 (1983); United States v. Lurz, 666 F.2d 69, 79 (4th Cir. 1981), cert. denied, 459 U.S. 843, 103 S. Ct. 95, 74 L. Ed. 2d 87 (1982). “Clearly, the government cannot be required to produce that which it does not control and never possessed or inspected.” (Internal quotation marks omitted.) United States v. Hutcher, 622 F.2d 1083, 1088 (2d Cir.), cert. denied, 449 U.S. 875, 101 S. Ct. 218, 66 L. Ed. 2d 96 (1980). As did the Second Circuit, we reject “a notion of ‘possession’ which is so elastic as to embrace materials that the prosecution never had in its files [and] never inspected. . . .” Id. We also reject the idea that the state may be charged with producing a court reporter’s transcript while in the possession of the court reporter, an appointee of the judges.

The defendant’s claim is without merit.

Ill

The defendant next asserts that the trial court improperly allowed evidence of the defendant’s involvement in another bank robbery to be considered by the jury in this case. We disagree.

Certain additional facts are necessary to a proper resolution of this issue. During trial, the state offered evidence to prove that one hour after the bank robbery in Stratford, a bank robbery occurred at the Bank of Boston’s West Haven office. The West Haven robbery was committed by two black males, one tall and light skinned and the other shorter and dark skinned. The shorter of the two approached a customer service representative and asked about the availability of “savings accounts, student loans or student savings accounts, something to that effect.” The two individuals left that area and went to the tellers’ area. They were then observed rushing from the bank. One of the employees of the branch was unable to identify the defendant as one of the participants in that robbery while another employee did identify the defendant as a participant.

Over the defendant’s objection, the trial court permitted the state to introduce evidence of that robbery to the jury. The trial court found that the evidence was probative of the identification of the accused and of a plan, method or scheme in the commission of criminal acts. The trial court found that the probative value of the evidence outweighed any possible prejudice to the defendant. The trial court examined the similarities between the two crimes and determined that the West Haven robbery occurred about one hour after the Stratford robbery. The trial court found that both robberies were committed by two black males, one shorter than the other with a darker complexion. In both robberies, the robbers made inquiries about student loans and savings accounts, a red Toyota was used as the escape car, Edward Singer was identified as the taller of the two individuals and the defendant was identified as the shorter.

Evidence of the commission of other crimes by a defendant is inadmissible to prove the defendant guilty of the crime charged against him; State v. Talton, 197 Conn. 280, 289, 497 A.2d 35 (1985); State v. Periere, 186 Conn. 599, 610, 442 A.2d 1342 (1982); or to show the defendant’s bad character or criminal tendencies. State v. Santiago, 224 Conn. 325, 338, 618 A.2d 32 (1992). “Evidence of [a defendant’s prior] misconduct, however, may be allowed for the purpose of proving . . . intent, identity, malice, motive or a system of criminal activity.’ . . .” State v. Sierra, 213 Conn. 422, 428-29, 468 A.2d 448 (1990). Before evidence of prior acts of misconduct are admissible, the trial court must find that such evidence is encompassed in one of the exceptions and that the probative value of the proffered evidence outweighs its prejudicial effect. Id., 429.

While we recognize that the balancing of the probative value of evidence against its prejudicial effect is inherently difficult, we will reverse a trial court’s decision only “when it is manifest that an abuse of discretion or an injustice has occurred.” State v. Santiago, supra, 338-39; State v. Marra, 215 Conn. 716, 738, 579 A.2d 9 (1990).

Despite the fact that the evidence was admitted for both identity and common scheme, the evidence was more clearly directed at the identification of the defendant as a participant in both robberies through an identification from photographs by an eyewitness and by an in-court identification. Thus, the trial court could have reasonably found that the evidence had significant probative value on the issue of both identification and common scheme, especially where the similarities of the crimes are so striking, a circumstance that makes the evidence that much more probative. See State v. Baldwin, 224 Conn. 347, 355, 618 A.2d 513 (1993).

The proffered evidence was relevant to both the issue of the identity of the defendant as the perpetrator of the crime charged as well as evidence of a system of common criminal activity. See State v. Cooper, 227 Conn. 417, 424, 630 A.2d 1043 (1993); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Lopez, 14 Conn. App. 536, 538, 541 A.2d 902 (1988).

Here, the trial court carefully weighed and balanced the probative value of the evidence against its prejudicial effect and determined that the prejudice did not outweigh the probative value. Moreover, the trial court gave a limiting instruction at the time that the evidence was received and an in depth instruction at the time of the charge to the jury as to the limitation on the use of the evidence. We recognize that “[ejvidence is prejudicial when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” (Internal quotation marks omitted.) State v. Baldwin, supra, 357. Thus, the trial court ensured the proper use of the evidence for its limited purpose and also acted to ensure that the evidence would not be prejudicial.

Since we have concluded that the trial court acted properly in admitting the evidence, we need not address the additional issue concerning the transcripts of the prior testimony, which was resolved in another section of this opinion.

We conclude that the trial court acted properly and did not abuse its discretion in determining that the probative value of the testimony outweighed any prejudicial effect that it might have on the jury.

IV

The defendant next asserts that the trial court acted improperly in admitting into evidence testimony concerning the defendant’s attempted flight as consciousness of guilt. We disagree.

Certain additional facts are necessary to a proper resolution of this issue. On the day of the robbery, a member of the West Haven police department, together with Singer, went to a residence in Hamden. Two days later, they returned to the same residence in Hamden, and this time spoke with Maxine Reddick. On the same day, they went to a duplex on Shelton Avenue in New Haven. They did not find the defendant there at that time. The West Haven police returned to the Shelton Avenue address on several other occasions between January 26 and February 6, 1990, but did not see the defendant.

On February 7, West Haven police officers accompanied by a New Haven police officer returned to the Shelton Avenue building, entered and went to the third floor. They were holding an arrest warrant for the defendant. One of the officers knocked on the door of the apartment and announced that it was the police with a warrant. The defendant jumped out of a window to an adjacent rooftop and was apprehended and taken into custody by officers stationed outside of the building. At the time that the defendant attempted to evade being taken into custody, the officers had not yet advised him as to the nature of the warrant that they were holding. The warrant had been issued in connection with the West Haven bank robbery. The defendant had, on January 31, 1990, been positively identified as a participant in the Stratford robbery.

The trial court, over the objection of the defendant, admitted the evidence of the defendant’s attempted flight as evidence of consciousness of guilt.

“Flight, when unexplained, tends to prove a consciousness of guilt.” (Internal quotation marks omitted.) State v. Rosa, 170 Conn. 417, 432-33, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976); State v. Davis, 32 Conn. App. 21, 36, 628 A.2d 11 (1993). Flight is in the nature of circumstantial evidence. State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Davis, supra. Thus, “all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does, not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration.” State v. Piskorski, supra.

Here, the police merely indicated that they had a warrant. They did not announce for whom the warrant had issued or the crime for which the person named therein was to be arrested. There was no direct evidence that anyone had told the defendant that the police were looking for him. The conduct of the police, however, gave rise to a permissible inference that the defendant had knowledge of the interest of the police in his whereabouts. We cannot say that the evidence of the defendant’s conduct, in attempting to leave through a third floor window, was irrelevant to the issue of consciousness of guilt. See id., 723-24.

The defendant asserts for the first time on appeal that the trial court did not perform a balancing test to determine whether the prejudicial value of the evidence of flight outweighed its probative value. A review of the record reveals that this issue was not raised before the trial court. We decline to afford review of this unpreserved claim.

The trial court acted properly and did not abuse its discretion in admitting the evidence of flight.

V

The defendant next asserts that the trial court improperly denied the defendant’s motion for acquittal, made at the completion of the defendant’s case. The defendant asserts that the evidence was insufficient for the jury to find that the defendant was a participant in the robbery because his identification was based on contradictory testimony. The defendant then posits that “[bjecause the jury could not have reasonably credited that testimony, its verdict cannot stand, and Reddick is constitutionally entitled to an acquittal.” The defendant provides us with no authority for this constitutional assertion. “Robing garden variety claims [such as insufficiency of evidence] in the majestic garb of constitutional claims does not make such claims constitutional in nature.” State v. Ulen, 31 Conn. App. 20, 37, 623 A.2d 70 (1993).

We disagree with the assertion that the evidence was insufficient to warrant the jury’s concluding beyond a reasonable doubt that the defendant was properly identified as a participant in the robbery.

Baptist identified a photograph of the defendant as that of one of the robbers several days after the incident. Further, she identified a series of surveillance photographs taken on the date of the robbery as being of the person who had committed the robbery. Additionally, after having first indicated that she was unable to identify anyone in the courtroom as a participant in the robbery, she identified the defendant as one of the robbers when he was presented before her, close up and without his glasses. Her testimony was subject to cross-examination, had the defendant desired to exercise that right.

When we are called on to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993); State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. State v. Salz, supra; State v. Rivera, supra.

It is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, U.S. , 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Rivera, supra, 201. It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992); State v. Rivera, supra. Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. State v. Rivera, supra. “If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” State v. Smith, 138 Conn. 196, 200, 82 A.2d 816 (1951); State v. Rivera, supra, 202.

“The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] 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. Rivera, supra, quoting State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983).

As we have stated, the issue of whether the defendant in fact perpetrated the crime was an issue of fact to be resolved by the jury. State v. Rivera, supra. The jury had before it the evidence of the unequivocal and certain identification from the photographic array of the defendant made two days after the robbery. The jury also had before it Baptist’s response to the inquiry of the state’s attorney that she could not really tell if the perpetrator was in the courtroom. The jury also had before it her decisive identification of the defendant made when she had the opportunity to view him close up without his glasses. Thus, the jury was in a unique position to determine the credibility of Baptist as well as the factual basis for her identification of the defendant as the perpetrator of the crime. The jury had the opportunity to weigh her inability to answer the question about the identity of the defendant at the first request of the state’s attorney against her second attempt. In this context, we rely on “the good sense and judgment of American juries to weigh evidence with some element of untrustworthiness since such evidence is customary grist for the jury mill.” (Internal quotation marks omitted.) State v. Fullwood, 193 Conn. 238, 254, 476 A.2d 550 (1984); State v. Rivera, supra, 203.

The defendant’s claim that the evidence was insufficient to identify him as a participant in the commission of the crime is without merit.

VI

The defendant next argues that the actions of the trial court throughout the trial denied him the constitutional right to due process. We are unpersuaded.

The defendant concedes that this claim was not raised before the trial court. He seeks review of this unpreserved claim under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “[W]e hold 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 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. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) Id., 239-40.

We note at the outset that, in one instance of claimed misconduct, the jury was not present and the defendant makes the argument, without foundation, that the witness was somehow influenced by the comment of the trial court. We will not resort to speculation and conjecture as a basis on which to make a factual determination that is not supported by the record. “[A]ny misconduct that occurred outside the presence of the jury could not possibly have had an impact on its verdict.” State v. Tatum, 219 Conn. 721, 742, 595 A.2d 322 (1991). If, in fact, the witness was influenced by any statement made by the trial judge outside of the presence of the jury, such information could have been elicited in cross-examination and used to undermine the credibility of the witness.

We again set forth certain long established principles concerning the obligations and responsibilities of the trial judge in conducting a criminal trial. “Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. . . . Consistent with his neutral role, the trial judge is free to question witnesses or otherwise intervene in a case in an effort to clarify testimony and assist the jury in understanding the evidence so long as he does not appear partisan in doing so.” (Citations omitted; internal quotation marks omitted.) Id., 740.

“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, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991).

We have reviewed each of the claims of alleged misconduct cited by the defendant and conclude that in each of those instances the trial court was properly meeting its obligation to ensure a fair trial. Id.

The defendant’s claim is without merit.

VII

The defendant next claims that the trial court improperly prevented him from eliciting evidence of motive or bias on the part of Baptist, one of the state’s principal witnesses.

The defendant concedes that this issue was not properly preserved for appellate review and again seeks review under the doctrine of State v. Golding, supra.

Certain additional facts are necessary for an understanding of this issue. During cross-examination, Baptist was asked questions concerning her employment at the bank. She testified that she had been promoted to senior teller a short time before the robbery occurred. She was then asked whether that level was the highest level to which she could go as a teller. She answered the question in the negative. After the answer had been given, the state interposed an objection.

Nothing in the record supports a claim that the trial court in any way impeded, limited or restricted the cross-examination of Baptist. The question to which the state interposed a late objection had been answered and no motion to strike the answer was ever made. Consequently, the answer stood. Contrary to the assertion in the defendant’s brief, the record is devoid of any objection by the state to a line of questioning and the record is equally devoid of any indication on the part of the trial court that it was making any ruling whatsoever, let alone a ruling designed to foreclose an avenue of inquiry.

In this instance, the defendant cannot satisfy the first Golding prong and is thus not entitled to review. Id., 239.

The defendant’s claim is without merit.

VIII

Finally, the defendant asserts that even if none of his claims is sufficient individually to require a reversal of his conviction, the cumulative effect of all of the claimed improper actions by the trial court is sufficient to mandate a conclusion that the defendant’s right to due process has been violated.

We note at the outset that the defendant fails to supply us with legal precedent or an analysis under either the state or federal constitutions to support this assertion. We also note that we have considered separately each of the claims made by the defendant and have found them to be without merit.

Our Supreme Court has rejected a claim that a group of instructional claims of error, none of which was found to constitute reversible error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial; State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992); and also rejected a claim that the cumulative effect of a variety of alleged improprieties should be the basis of a claim of constitutional violation; State v. Robinson, 227 Conn. 711, 747, 631 A.2d 288 (1993). We also reject as untenable the creation of “a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.” State v. Robinson, supra, 747.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . . .”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       Baptist described bait money as “marked $5 bills, and $100 bills, in a $100 strap, that is clipped into a money clip [and] activates a silent alarm” when it is pulled out of the money drawer.

       The question and answer concerning the preliminary attempt at identification were as follows:
      “[State’s Attorney]: Okay. Now, I would like you to look around the courtroom today, and see if you recognize any of the parties that were in your bank on the date of January 24 of 1990?
      “[Baptist]: I really can’t tell.”

       We note that no claim was made that Baptist’s out-of-court identification of the defendant was unnecessarily suggestive or otherwise violative of the defendant’s rights. See Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. Williamson, 206 Conn. 685, 693, 539 A.2d 561 (1988); State v. Plaza, 23 Conn. App. 543, 547, 583 A.2d 995 (1990), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991). Thus, no attack is made concerning the out-of-court identification by Baptist nor against her identification of the photographic array from which she made her out-of-court identification nor the identification made from the video photographs taken by the surveillance cameras at the time of the robbery.

       We note at the outset that nothing in the record indicates that Baptist was looking at the photographic array when she made the identification. Even if she were, it would not avail the defendant.

       In his postverdict motion for judgment of acquittal, the defendant, in discussing his claim regarding identification, alleged that “ftjhe issue of identification is speculative at best in view of the contradictory testimony of the various witnesses to the Connecticut National Bank robbery.”

       In the course of the colloquy between defense counsel and the court, counsel stated in part: “I haven’t a clue as to what the status of transcripts are in that particular case.” He also stated that “if we were going to basically retry the West Haven case, it essentially involves my requiring a transcript to be obtained from that court. ...”

       Practice Book § 749 provides: “The term statement as used in Sec. 748 means:
      “(1) A written statement made by a person and signed or otherwise adopted or approved by him; or
      “(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       General Statutes § 51-60 (a) provides: “The judges of the superior court shall appoint one skillful stenographer for each judicial district to be the official court reporter of the superior court therein, and shall appoint as many stenographers to be assistant court reporters for the court as the judges or an authorized committee thereof determines the business of the court requires.”

       See part II.

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

       The trial court, in its charge to the jury, carefully set forth the effect of any questions or comments that it may have made during the trial. The trial court charged the jury in pertinent part: “You should not draw any inferences, whatsoever, from any question that I may have asked of any witness in the case. During the course of the trial, I occasionally asked a question of a witness in order to bring out a fact not then, in my judgment, fully covered or explained, if there was some confusion in my mind. Hopefully, it alleviated some that may have coexisted in yours. Do not assume that I hold any opinion on the matters to which any question I may have asked may have been directed. Remember, at all times, that you are the jurors, you are at liberty to disregard all comments of the court in arriving at your own findings as to the facts.”
      “In the absence of some indication to the contrary, other than conjecture by the defendant, we are constrained to presume that the jurors followed the trial court's instructions . . . .” State v. Gaffney, 209 Conn. 416, 422, 551 A.2d 414 (1988).

       After the question had been answered in the negative by the witness the following occurred:
      “[Assistant State’s Attorney]: Objection, at this point, relevancy.
      “[Defense Counsel]: Bias.
      “The Court: Bias?
      “[Defense Counsel]: Yes
      “The Court: In what respect?
      “[Defense Counsel]: In respect to affinity to the employer, apparently.
      “The Court: To what? How do you tie it into whether or not a gun was transferred from one to another?
      “[Defense Counsel]: Absolutely not, Your Honor.
      “The Court: What is it?
      “[Defense Counsel]: The references we have heard the witness testify as to following the bank procedures.
      “The Court: Yes.
      “[Defense Counsel]: Most, and apparently minimizing the fear for herself.
      “The Court: Right.
      “[Defense Counsel]: My question is what status she occupied in the bank to put the bank ahead of herself.
      “The Court: Because of her concern for her own and her coworkers welfare, and those of others, correct?
      “[Defense Counsel]: I would hope that is what the witness would testify to.
      “The Court: Well, that is what she already said, and I think it’s collateral because fear is not an ingredient of an armed robbery, not at first—
      “[Defense Counsel]: But it is an ingredient of an ability to articulate and remember.
      “The Court: That may be, but it’s not an essential element of the offense, so it does not have to be fear. She has testified to her fear. I think we will take a lunch break and come back at 2:00, 2:05, whenever we are all here. . . .”
      Upon the resumption of the trial after the luncheon recess, the testimony resumed with neither a motion to strike the answer nor any ruling by the trial court.


source: Caselaw Access Project

author: Freedman, J. Lavery, J.,

license: Public Domain

text:
    State of Connecticut v. Lionel Brown
    (11067)
    Foti, Lavery and Freedman, Js.

      Argued September 20
    decision released December 28, 1993

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Philip D’Eramo, assistant state’s attorney, and, on the brief, Eugene J. Callahan, state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted larceny in the third degree in violation of General Statutes §§ 53a-124 (a) (2) and 53a-49 (a), conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-124 (a) (2), criminal impersonation in violation of General Statutes § 53a-130 (a) (1) and forgery in the third degree in violation of General Statutes § 53a-140 (a). The defendant claims that (1) the trial court improperly denied his motion for a new trial because (a) the trial court failed to hold a hearing once it received information alleging jury misconduct, and (b) the order to sequester the witnesses had been violated, (2) the evidence was insufficient to support the defendant’s conviction for forgery in the third degree, (3) the evidence was insufficient to support the defendant’s conviction of attempted larceny in the third degree, and (4) the conviction of attempted larceny in the third degree together with the conviction of conspiracy to commit larceny in the third degree constitutes double jeopardy. We reverse the judgment of the trial court in part and affirm it in part.

The jury could have reasonably found the following facts. On May 8,1991, at approximately 2:45 p.m., the defendant entered the Gateway Bank in Wilton. He identified himself as Clifford Sailor and attempted to make a split deposit involving two checks. One check for deposit was made out to and endorsed by Clifford Sailor in the amount of $728; the other check, in the amount of $960 made payable to and endorsed by Sailor, was to be cashed.

The teller was suspicious of the defendant because she was acquainted with Sailor, who is white, and the defendant is black. According to the teller, the endorsements on the checks appeared to be Sailor’s. Because the defendant could not produce any identification, the teller refused to make the transactions. The defendant then left the bank, taking the checks with him. The teller notified the bank manager of the incident and the manager put an alert signal into the bank computer system.

Soon thereafter, a man, who identified himself as Robert Black, attempted to make a split deposit involving three checks: two for deposit in the amounts of $776.10 and $78, and the third to be cashed in the amount of $880. All three were payable to Robert Black and endorsed in general on the back. He too lacked identification. The bank manager refused to make the transactions and the second man left. The bank manager then observed this man join the defendant and a woman in a car. The bank manager wrote down the license plate number of the car and called the Wilton police.

Shortly thereafter, Officer Gary Garuder of the Wilton police department stopped the car and arrested the three occupants. The driver, the woman, had identification in several names, along with $600 in cash. One of the men, the second man to enter the bank, had $453. The defendant had valid identification, $32, a deposit slip with Clifford Sailor’s address written on it, a paper on which another name and address were written, and two checks totaling $1192 made out to Barbara Matison. Garuder seized a manila envelope from the car. Among the items in the envelope were various bank papers, checks, checkbooks, torn signature cards, customer receipts, and change of name forms.

After the verdict, the defendant filed a motion for a new trial and moved for a judgment of acquittal on all charges. These motions were denied by the court.

I

The defendant first claims that the trial court improperly denied his motion for a new trial because his state and federal constitutional rights were violated when the trial court failed to conduct a hearing regarding allegations of jury misconduct and the violation of the order sequestering the witnesses. We disagree.

A

The following additional facts are relevant to the claim of jury misconduct. The trial court received an anonymous note after the verdict was returned but before sentencing. The note was from “a concerned citizen and a discenchanted [sic] friend.” The author was concerned about a recent trial and related that, while out with friends, a friend named Dana told of being on a jury in the trial of “a black man ... on trial for cashing bad checks.” According to the letter, Dana reported that the jurors overheard the sheriffs “betting that the defendant would be found guilty because he was black and from New York.” In addition, the letter stated that Dana told the author that she had overheard one sheriff tell another that a Wilton detective showed one of the witnesses some pictures because “the witness couldn't remember what the guy looked like.”

The trial court gave the letter to the chief sheriff who directed a copy to the state’s attorney. The trial court did not direct a copy to defense counsel. Defense counsel did not learn of the letter until the day of sentencing. At that time, the defendant orally amended his motion for a new trial to include the alleged jury misconduct and violation of the sequestration order. The court heard brief argument on both the motion for judgment of acquittal and the motion for a new trial. The court denied both motions and an exception was taken.

“[T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. ... A necessary component of the right to an impartial jury is the right to have the jury decide the case solely on the basis of the evidence and arguments given them in the adversary arena after proper instructions on the law by the court. . . . Consideration of extrinsic evidence is jury misconduct and has been found to be sufficient to violate the constitutional right to trial by an impartial jury. . . . Whether juror consideration of extrinsic evidence was prejudicial to a defendant depends on the magnitude of the juror’s deviation from his proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury’s verdict. . . .

“Although the trial court enjoys broad discretion in determining whether jury misconduct occurred, and, if so, whether such misconduct prejudiced the defendant . . . the court must have some factual basis on which to exercise that discretion. . . .” (Citations omitted; internal quotation marks omitted.) State v. Migliaro, 28 Conn. App. 388, 395, 611 A.2d 422 (1992).

In Migliaro, a juror brought two medical books to court during jury deliberations. The books were taken from the juror before she entered the deliberation room. The trial court declined to conduct a hearing of any kind. We remanded the matter to the trial court to determine whether jury misconduct had occurred and, if so, whether the defendant was prejudiced thereby. Id., 397.

Likewise, in State v. Gonzalez, 25 Conn. App. 433, 596 A.2d 443 (1991), aff'd, 222 Conn. 718, 609 A.2d 1003 (1992), we remanded the matter to the trial court to determine whether there was jury misconduct and, if so, whether the defendant was prejudiced thereby. In Gonzalez, a juror sent a note to the judge that read: “ ‘Your Honor, something was said by [another juror] that may have prejudiced the jury. May I speak to you about it?’ ” Id., 437. The court refused to discuss it with the juror or to inquire into the “something said.”

In Migliaro, the trial court had no way of knowing whether the “juror or any other juror had utilized information from the books during the course of deliberations.” State v. Migliaro, supra, 396. In addition, the “medical evidence was critical to the jury’s resolution of the issue” in the case and the medical testimony concerned the “most hotly contested issue in the case.” Id.

In Gonzalez, the note stated only that there was “something” said that may have been prejudicial. State v. Gonzalez, supra. Therefore, the trial court had no information as to what constituted the possible misconduct.

Here, unlike Migliaro and Gonzalez, the note itself set forth with specificity what the author alleged to be the misconduct. The trial court knew that the alleged misconduct was that the jurors overheard the sheriffs betting on the outcome of the case and that the jurors also overheard one sheriff tell another that a Wilton detective had shown a picture to a witness. No hearing was necessary, therefore, to determine what had occurred or what the jurors may have overheard.

The trial court had a sufficient factual basis on which to determine whether jury misconduct had occurred and, if so, whether such misconduct had prejudiced the defendant. While the trial court did not articulate its decision, it is obvious that it either found that no jury misconduct had occurred, or, if it had, that there was no prejudice to the defendant. The fact that a sheriff may have bet that the defendant would be convicted because of his race or that a witness was coached could be helpful to the defendant in that it would tend to discredit the merits of the case and the credibility of the witness.

“A trial court has wide discretion in deciding how to pursue an inquiry into the nature and effect of information that comes to a juror improperly as well as its potential effect upon the jury if it learns of it.” State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989). The decision of the trial court in reviewing alleged jury misconduct will be reversed only where it can fairly be said that the court abused its discretion. See id. The defendant has failed to demonstrate that the trial court abused its discretion in failing to conduct a hearing into the alleged jury misconduct, or in finding either that there was no jury misconduct or, if there was, that the defendant was not prejudiced thereby.

B

The following additional facts are relevant to the claim that the order sequestering the witnesses was violated. At the commencement of trial, defense counsel requested and the trial court granted a motion to sequester. No additional or supplemental prohibitions were requested or included in the order. The anonymous note received by the court alleged that some jurors had overheard the sheriffs discussing the fact that a Wilton detective had shown a witness some pictures of the defendant because the witness could not remember what the defendant looked like. The defendant claims that this communication between the detective and the witness violated the sequestration order.

“The primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others. . . . Such orders may be effectuated upon a party’s motion by court order. That order may impose a broader prohibition than that provided by the sequestration statute. . . . An inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted. . . .” (Citations omitted; internal quotation marks omitted.) State v. Crumble, 24 Conn. App. 57, 61, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991). If a party desires a broader prohibition than the sequestration statute provides, that party must request an order specifying that prohibition. State v. Williams, 169 Conn. 322, 331, 363 A.2d 72 (1975).

In this case, the defendant made no special requests with respect to the sequestration order. The order is, therefore, limited to the language of the sequestration statute. See id. As provided by § 54-85a, only a witness who was present in the courtroom “during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying” would violate the sequestration order. Here, no violation of the sequestration order occurred when a detective showed a witness some pictures, even if the detective was also a witness.

Therefore, the trial court properly denied the defendant’s motion for a new trial.

II

The defendant next claims that his conviction of forgery in the third degree should be reversed because the evidence was insufficient to support that conviction. We agree.

“To determine the sufficiency of the evidence to sustain a conviction, we apply a twofold test. ... We first construe the evidence in the light most favorable to sustaining the verdict. . . . We then determine whether, from that evidence and all the reasonable inferences which it yields, [the jury] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. ... In this examination, 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 .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Maxwell, 29 Conn. App. 704, 708, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993).

“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. . . . [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.” (Citations omitted; internal quotation marks omitted.) State v. Lee, 32 Conn. App. 84, 97, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993).

To prove forgery in the third degree, the state must establish beyond a reasonable doubt that the defendant, with intent to defraud, deceive or injure another, falsely made, completed, or altered a written instrument, or issued or possessed any written instrument that he knew to be forged. General Statutes § 53a-140. At trial the only evidence produced concerning the forgery of the checks was (1) the manila envelope and its contents, (2) the defendant’s conduct, and (3) the bank teller’s statement that the endorsements on the checks looked like Sailor’s signature. There was no evidence that the endorsements were not that of Sailor. This evidence, construed in the light most favorable to sustaining the verdict, is not sufficient to establish forgery beyond a reasonable doubt. The state claims that the circumstantial evidence of the contents of the manila envelope taken together with the defendant’s conduct adequately evidences a forgery scheme involving the defendant. The state claims that the jury was entitled to infer that the checks were forged.

“Although the jurors may draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture.” State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984). Because there was no evidence, whatsoever, as to the authenticity of the endorsements on the checks, to find beyond a reasonable doubt that the checks were forged would require speculation and conjecture on the part of the jury. We conclude, therefore, that as a matter of law the state did not prove beyond a reasonable doubt that the checks were forged. As a result, an essential element of the crime of forgery in the third degree was not proven beyond a reasonable doubt, and the conviction for forgery in the third degree must be reversed.

Ill

The defendant next claims that his conviction of attempted larceny in the third degree should be reversed because the evidence was insufficient to support that conviction. We agree.

To prove attempted larceny in the third degree the state must prove beyond a reasonable doubt that the defendant, acting with the mental state required for the commission of larceny in the third degree, intentionally does anything that is an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. General Statutes § 53a-49. “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .” General Statutes § 53a-119. “A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and . . . the value of the property . . . exceeds one thousand dollars . . . General Statutes § 53a-124.

The grade of a larceny offense is determined by the value of the property taken. The value of the property is ascertained as set forth in General Statutes § 53a-121 (a). Section 53a-121 (b) provides that “[a]mounts included in thefts committed pursuant to one scheme or course of conduct, whether from the same person or several persons, may be aggregated in determining the grade of the offense.” (Emphasis added.)

The state asserts that the aggregation clause of General Statutes § 53a-121 (b) provides that in determining the grade of larceny of which the defendant may be convicted, the jury should aggregate the amount of the check the defendant attempted to cash together with the amount of the check the second man to enter the bank attempted to cash. We do not agree.

The language of § 53a-121 (b) refers only to aggregation for thefts committed. There is no provision providing for aggregation for thefts attempted. “A guiding principle of our inquiry is that criminal statutes . . . should be strictly construed in favor of the accused.” State v. Whiteman, 204 Conn. 98, 101, 526 A.2d 869 (1987). “It is a fundamental tenet of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. . . . We must construe statutory language strictly to avoid imposing criminal liability where none is expressly intended by the legislature. . . .” (Citations omitted; internal quotation marks omitted.) State v. Jacobson, 31 Conn. App. 797, 802, 627 A.2d 474 (1993).

Additionally, “[i]n construing a statutory provision, we first look to its language, and if that language is plain and unambiguous, we need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature. ...” (Citations omitted; internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 590, 628 A.2d 1286 (1993). Here, the relevant language of General Statutes § 53a-121 (b) is plain and unambiguous. To aggregate amounts included in thefts “pursuant to one scheme or course of conduct, whether from the same person or several persons,” the thefts by the very language of the statute must have been committed and not merely attempted.

In reviewing the sufficiency of the evidence this court construes the evidence in the light most favorable to sustaining the verdict. State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983). It must determine whether the fact finder reasonably could have concluded, on 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. State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978). “It is axiomatic that the state is required to prove all the essential elements of the crimes charged beyond a reasonable doubt in order to obtain a conviction.” In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Foster, 202 Conn. 520, 537-38, 522 A.2d 277 (1987).

At trial, the only evidence produced concerning the value of the property that the defendant attempted to obtain from the bank was the check the defendant attempted to cash in the amount of $960. Because we hold that General Statutes § 53a-121 (b), the aggregation statute, is not applicable to an attempted larceny, the value of the property that the second man attempted to obtain from the bank may not be used in ascertaining value for the purpose of determining the grade of larceny. The amount the defendant attempted to obtain did not exceed the $1000 minimum set forth for larceny in the third degree. Therefore, the state failed to prove an essential element of the crime of attempted larceny in the third degree, and the conviction of that crime must be reversed.

On many occasions, however, our Supreme Court and this court have modified judgments after reversal, rather than remand for a new trial, or for a judgment of acquittal. See State v. Carpenter, 214 Conn. 77, 85, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, U.S. , 112 S. Ct. 877, 116 L. Ed. 2d 181 (1992); State v. McGann, 199 Conn. 163, 178-79, 506 A.2d 109 (1986); State v. Saracino, 178 Conn. 416, 421, 423 A.2d 102 (1979); State v. Grant, 177 Conn. 140, 149, 411 A.2d 917 (1979); State v. Jacobson, 31 Conn. App. 797, 804-806, 627 A.2d 474, cert. granted, 227 Conn. 914, 632 A.2d 697 (1993); State v. Falcon, 26 Conn. App. 259, 267-68, 600 A.2d 1364 (1991), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992); State v. McNeil, 21 Conn. App. 519, 524, 574 A.2d 1314, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990); State v. Aleksiewicz, 20 Conn. App. 643, 651, 569 A.2d 567 (1990); State v. Horne, 19 Conn. App. 111, 144-46, 562 A.2d 43 (1989), rev’d on other grounds, 215 Cohn. 538, 577 A.2d 694 (1990). “ ‘It is axiomatic that this court is vested with the authority to remand a case for resentencing. See, e.g., State v. Hanson, 210 Conn 519, 556 A.2d 1007 (1989); State v. Carpenter, 19 Conn. App. 48, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). In doing so, however, it is not this court’s function to prescribe the new sentence. Miller v. Commissioner of Correction, 29 Conn. App. 773, 780, 617 A.2d 933 (1992); State v. Schaeffer, 5 Conn. App. 378, 390, 498 A.2d 134 (1985). The appropriate disposition is a remand to the trial court with direction to resentence the defendant.’ State v. Dennis, 30 Conn. App. 416, 426, 621 A.2d 292, cert. denied, 226 Conn. 901, 625 A.2d 1376 (1993).” State v. Jacobson, supra, 805-806.

While it is clear that a conviction may not stand on the aggregate, it is equally clear that the jury could have found, as it in fact had to find, that sufficient evidence was presented to justify a determination that the defendant committed an attempted larceny in the fourth degree in violation of General Statutes § 53a-125. It is evident that the jury’s verdict in the present case necessarily presupposes a threshold determination that all of the elements of attempted larceny in the fourth degree had been proven beyond a reasonable doubt, since it is a lesser included offense of attempted larceny in the third degree. In order for the jury to have determined that the value of the checks exceeded $1000 for the greater offense, it must have necessarily determined that the aggregate included the value of the check of $960, which exceeds the value of $500 for attempted larceny in the fourth degree.

IV

The defendant’s claim that the conviction of attempted larceny in the third degree, using the aggregation section of the larceny statute, together with the conviction of conspiracy to commit larceny in the third degree constitutes double jeopardy is founded largely on the fact that both offenses require the consideration of the acts of another person. Because we reverse the conviction of attempted larceny in the third degree and remand the matter with direction to render judgment of conviction of attempted larceny in the fourth degree, which involves the conduct of only the defendant, the defendant’s double jeopardy claim is no longer viable.

The judgment is reversed as to the charges of forgery in the third degree and attempted larceny in the third degree, and the case remanded with direction to render a judgment of acquittal on the charge of forgery in the third degree and of guilty of attempted larceny in the fourth degree in violation of General Statutes § 53a-125 (a), and to resentence the defendant in accordance therewith.

In this opinion Foti, J., concurred.

Lavery, J.,

dissenting. Although I concur with the rest of the majority opinion, I believe that our precedents require a trial court to conduct some minimal investigation where it appears that the jury may have been exposed to prejudicial extrinsic evidence. Therefore, I must respectfully dissent from part I (A) of the majority opinion.

It is well established that the trial court has broad discretion to determine whether jury misconduct occurred, and, if so, whether such misconduct prejudiced the defendant. State v. Migliaro, 28 Conn. App. 388, 395, 611 A.2d 422 (1992). It is equally well established that the court must have some factual basis on which to exercise that discretion. State v. Gonzalez, 25 Conn. App. 433, 439, 596 A.2d 443 (1991), aff’d, 222-Conn. 718, 609 A.2d 1003 (1992). “In exercising this discretion the trial court must zealously protect the rights of the accused.” State v. Cubano, 203 Conn. 81, 89, 523 A.2d 495 (1987), quoting Wainwright v. Witt, 469 U.S. 412, 429-30, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985).

“Where it appears . . . that the jury panel may have been exposed to prejudicial extrinsic evidence, the trial court must conduct an investigation . . . .” (Emphasis added.) State v. Migliaro, supra, 396; State v. Harris, 32 Conn. App. 831, 632 A.2d 50 (1993). The trial court can use whatever inquisitorial tools are necessary and appropriate to determine whether there was a reasonable possibility of prejudice. State v. Migliaro, supra. It is important, however, that “[a] basic factual inquiry into the substantive content of the alleged misconduct [be made] before the trial court [exercises] its discretion in determining the scope or extent of any investigation needed.” Id., 397, quoting State v. Gonzalez, supra, 440. “Where the trial court had the opportunity to observe jurors and to examine them at a posttrial hearing, we will not question that court’s findings absent a showing of clear error.” (Emphasis added.) State v. Leonard, 31 Conn. App. 178, 195, 623 A.2d 1052, cert. granted on other grounds, 226 Conn. 912, 628 A.2d 985 (1993).

Here, the letter indicated that two potentially prejudicial statements may have been made in front of the jury. Two sheriffs bet that the defendant would be convicted because he was black and from New York. Another sheriff stated that one of the state’s witnesses had to be coached with photographs. Although not signed, the letter accurately stated that the defendant was black, a New York resident and accused of cashing bad checks. Further, the letter correctly recited the uncommon first name of one of the jurors. These factual similarities increase the letter’s reliability and reinforce the appearance that the jury may have been prejudicially exposed.

The majority posits that the statements made by the sheriff would aid the defendant by demonstrating the weakness of the state’s case. Therefore, the majority concludes, the statements could never be prejudicial. This is, at best, conjecture. A reviewing court should not speculate on the juror’s exposure or the effect thereof. Speed v. DiLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990).

A review of the case law involving juror misconduct reveals only five cases in which the trial court failed to conduct some form of factual investigation. Three of the cases were affirmed on review. State v. McCall, 187 Conn. 73, 82, 444 A.2d 896 (1982) (investigation unnecessary as judge source of potential prejudicial exposure); Hamill v. Neikind, 171 Conn. 357, 360 n.4, 370 A.2d 959 (1976) (investigation superfluous where juror’s posttrial comment to defense attorney so innocuous as not to risk new trial); State v. Hobson, 8 Conn. App. 13, 22-23, 511 A.2d 348, cert. denied, 201 Conn. 808, 515 A.2d 379 (1986), cert. denied, 480 U.S. 917, 107 S. Ct. 1370, 97 L. Ed. 2d 686 (1987) (no investigation required where misconduct internal to jury deliberations). In the two remaining cases, State v. Migliaro, supra, and State v. Gonzalez, supra, this court remanded the matters specifically because the trial court failed to investigate.

In Gonzalez, the case was remanded so the trial court could investigate the nature and effect of the possible exposure. In Migliaro, the trial court knew the nature and source but not the effect of the potentially prejudicial information on the jury. We required the trial court to conduct a hearing to determine the effect. Likewise, the letter in this case revealed the source and nature of the exposure. The trial court had no way of knowing, however, the effect of that exposure on the jury.

The case law does not require, nor do I suggest, that every allegation of jury misconduct requires a full evidentiary hearing. Although the threshold allegation of misconduct that would necessitate an investigation is low; State v. Migliaro, supra (investigation required where it appears jury may have been exposed); the intensity of the investigation required is also low. Id. As we have often stated, the trial court can use whatever inquisitorial tools are necessary and appropriate. Thus, simply interviewing a juror in chambers is sufficient. See, e.g., State v. Cubano, supra; State v. Sims, 12 Conn. App. 239, 244, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988); State v. Grant, 8 Conn. App. 158, 164, 511 A.2d 369 (1986). I believe that our precedents require trial courts to perform at least some minimal investigation before exercising their discretion.

The trial court received the letter prior to sentencing; thus, the judgment was not yet final. The letter created the appearance that the jury may have been prejudicially exposed. Therefore, the trial court was required to make some basic factual inquiry about possible misconduct. It did not. I would remand this case for a hearing.

Accordingly, I respectfully dissent from part I (A) of the majority opinion.

       The defendant was also charged with similar offenses arising out of an incident that occurred at People’s Bank. He was acquitted of those charges.

       The defendant did not include this claim in his statement of issues but, because he did adequately discuss it in his brief, we will address it here.

       The defendant included this claim as part of his second issue on appeal. We have elected to treat it separately.

       A split deposit is the simultaneous depositing of one or more checks and the cashing of another.

       The defendant alleges deprivations of his right to a fair and impartial jury trial, and his right to due process and equal protection of the law, pursuant to the fifth, sixth, and fourteenth amendments to the United States constitution and article first, §§ 8 and 20, of the Connecticut constitution.

       Because the defendant has not provided an independent analysis to support his state constitutional claim, we will not review it. Our Supreme Court and this court have declined to review a defendant’s state constitutional claim, deeming it to have been abandoned, when the defendant has not separately briefed and analyzed that claim. See, e.g., State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Redente, 19 Conn. App. 521, 531 n.5, 563 A.2d 1365 (1989); State v. Thompson, 17 Conn. App. 490, 498 n.5, 554 A.2d 297, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989). That decimation, however, does not mean that we are not able to review such a claim if we choose to do so. State v. Hoeplinger, 27 Conn. App. 643, 652 n.2, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992); State v. Geisler, 25 Conn. App. 282, 283-84 n.2, 594 A.2d 985 (1991), aff’d, 222 Conn. 672, 610 A.2d 1225 (1992).

       There was in fact a juror named Dana L. Clarke who was a member of the jury in the defendant’s case.

       It was during the sentencing hearing that the court notified the defendant that it had received an anonymous letter the previous day.

       General Statutes § 54-85a provides: “In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.” See also Practice Book § 876.

       See footnote 9.

       General Statutes § 53a-140 (a) provides: “A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes, or alters a written instrument, or issues or possesses any written instrument which he knows to be forged.”

       For the discussion of the standard of review regarding sufficiency of the evidence see part II.

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-121 (a) provides: “For the purposes of this part, the value of property or services shall be ascertained as follows: (1) Except as otherwise specified in this section, value means the market value of the property or services at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property or services within a reasonable time after the crime. (2) Whether or not they have been issued or delivered, written instruments, except those having a readily ascertainable market value such as some public and corporate bonds and securities, shall be evaluated as follows: (A) The value of an instrument constituting evidence of debt, such as a check, draft or promissory note, shall be deemed the amount due or collectible thereon, such figure ordinarily being the face amount of the indebtedness less any portion thereof which has been satisfied; (B) the value of any other instrument which creates, releases, discharges or otherwise affects any valuable legal right, privilege or obligation shall be deemed the greatest amount of economic loss which the owner of the instrument might reasonably suffer by virtue of the loss of the instrument. (3) When the value of property or services cannot be satisfactorily ascertained pursuant to the standards set forth in this section, its value shall be deemed to be an amount less than fifty dollars.”

       “Commit” means “to carry into action . . . perpetrate.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993).

       General Statutes § 53a-125 (a) provides: “A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds five hundred dollars.”

       We note that the defendant has not claimed on appeal that the trial court improperly instructed the jury in any regard. See State v. Falcon, 26 Conn. App. 259, 268, 600 A.2d 1364 (1991). The defendant requested that the court instruct on a lesser included offense of attempted larceny in the fourth degree. The trial court instructed as to larceny in the fourth degree as to the People’s Bank incident and indicated that the instructions would not be repeated for the Gateway Bank incident. The court instructed that “the amount would indicate the degree of larceny,” and that “greater than $1000, larceny in the third degree, greater than $500 but did not exceed $1000, larceny in the fourth degree.” The defendant did note his exception to the charge indicating that it was not clear, and did raise as a claim for a new trial that the court failed to instruct on larceny in the fourth degree.


author: Lavery, J.

text:
    Allan S. Mall v. Myrna LaBow
    (11289)
    O’Connell, Lavery and Schaller, Js.

      Argued October 29
    decision released December 28, 1993

      Myrna LaBow, pro se, the appellant (defendant).

      Warren P. Joblin, amicus curiae.
   Lavery, J.

The defendant appeals following the trial court’s denial of her motion to vacate a property execution issued to enforce a judgment against her. The defendant claims that the trial court improperly (1) permitted an assignee of a judgment to obtain a property execution, (2) acted with prejudice toward the plaintiff, (3) rewarded an attorney who acted unethically, (4) failed to dismiss in light of fraud by the true owner of the judgment, and (5) failed to give full faith and credit to a New York proceeding. We affirm the judgment of the trial court.

This appeal arises out of the marriage dissolution of Myrna and Ronald LaBow granted in 1978. On July 24, 1980, Allan S. Mall, one of the attorneys who represented the defendant during the dissolution, obtained a judgment against her for unpaid legal fees of $20,000 plus interest. Five years later, Mall assigned that judgment to Warren P. Joblin, as trustee for an undisclosed beneficiary. Joblin paid Mall $32,584.40 and Mall signed an agreement of assignment on February 9, 1985. In the assignment agreement, Mall relinquished all claims to the judgment and appointed Joblin as his attorney-in-fact regarding this judgment.

Joblin obtained a bank execution against the defendant’s funds on account at the Westport Bank and Trust in Westport on February 26,1992. The execution listed Mall as the judgment creditor; Joblin was listed as the judgment creditor’s attorney. The Westport Bank and Trust froze the defendant’s funds on March 19,1992, in accordance with the execution.

The defendant moved to vacate the execution on March 23,1992. After a hearing, the trial court denied the motion on April 14, 1992. This appeal resulted.

Preliminarily, we must address the unusual procedural posture of this case. Although named as a party, Mall is not a participant in this action. Mall assigned all of his interest in the judgment to Joblin. Joblin, as the judgment creditor, has attempted to collect the judgment and has acted in Mall’s place since the assignment. This court granted Joblin amicus status and permission to file a brief in support of the plaintiff’s position. This appeal was decided solely on the basis of the record and the briefs and argument of the defendant and amicus party.

The defendant’s central claim on appeal is that the trial court improperly permitted an assignee of a judgment to obtain a property execution to satisfy the judgment. She argues that, once a judgment has been rendered, only the party who won the judgment can collect on it. Thus, once Mall obtained a judgment against the defendant, Joblin could not buy that judgment and collect from her. Further, the defendant claims that Joblin’s purchase of Mali’s judgment was champerty.

The defendant is incorrect. Judgments are assignable. Ciulewicz v. Doyle, 172 Conn. 177, 180, 374 A.2d 175 (1976) (common-law prohibition against assignments inapplicable to judgments); Newman v. Gaul, 102 Conn. 425, 434-35, 129 A. 221 (1925) (assignee of judgment may foreclose); Rogers v. Hendrick, 85 Conn. 260, 268-69, 82 A. 586 (1912) (attorney may purchase judgment and bring suit on it). A judgment is a chose in action. Hamilton v. New Haven, 82 Conn. 208, 211, 73 A. 1 (1909). The assignee of a chose in action stands in the shoes of the assignor. Second Exeter Corp. v. Epstein, 5 Conn. App. 427, 430, 499 A.2d 429 (1985). A valid assignment transfers to the assignee exclusive ownership of all of the assignor’s rights to the subject assigned and extinguishes all of those rights in the assignor. Bouchard v. People’s Bank, 219 Conn. 465, 473, 594 A.2d 1 (1991). Thus, an assignee of a judgment acquires the right to collect on the judgment.

This conclusion is also supported by the Connecticut statutes governing postjudgment remedies. The General Statutes define judgment creditors as “person[s] in whose favor a money judgment was rendered, or any person[s] succeeding to such rights. ” (Emphasis added.) General Statutes § 52-350a (10). A person succeeds to rights when “ ‘[o]ne . . . follows another in ownership or control of property.’ ” Bouchard v. People’s Bank, supra, 472. Mall had a money judgment rendered in his favor; Joblin succeeded to those rights by assignment. Therefore, Joblin was the defendant’s judgment creditor, having available to him all of the statutory postjudgment remedies. See General Statutes §§ 52-350Í through 52-400e.

Finally, assignment of a judgment is not champerty. At common law, champerty was the unlawful maintenance of one side of a quarrel in consideration of some bargain to obtain part of the disputed thing. State v. One 1981 BMW Automobile, 15 Conn. App. 589, 601 n.12, 546 A.2d 879 (1988). “[T]he common-law doctrines of champerty and maintenance as applied to civil actions have never been adopted in this state, and the only test is whether a particular transaction is against public policy. Rulnick v. Shulman, 106 Conn. 66, 70, 136 A. 865 [1927].” Rice v. Farrell, 129 Conn. 362, 365, 28 A.2d 7 (1942). “An attorney at law, acting in good faith and not for the purpose of exciting or maintaining litigation . . . may purchase a judgment for value and bring a suit upon it in his own name without violating the law regarding barratry, champerty, or maintenance, or any rule of public policy . . . .” Rogers v. Hendrick, supra, 269.

The defendant asserts a litany of claims against Joblin but presents little in the way of support. The defendant has pointed to no evidence of fraud in the record in the purchase of this judgment. Nor has she shown that Joblin bought the judgment to foster litigation. Similarly, her claims of trial court prejudice and unethical conduct by Joblin are wholly unsubstantiated. All of her claims were heard at trial and were found merit-less by the trial court. Absent a showing that convinces us that the trial court’s factual rulings were clearly erroneous, we affirm the judgment.

Finally, the defendant claims that the trial court improperly failed to give full faith and credit to a New York proceeding. After Mall obtained assignment of the judgment, he moved to collect on the Connecticut judgment in New York. The defendant obtained a temporary restraining order from the Supreme Court of New York, preventing collection pending a hearing on her motion to deny collection on the judgment permanently. The defendant claims that the Connecticut trial court was bound by that order.

“As a matter of federal law, the full faith and credit clause requires a state court to accord to the judgment of another state the same credit, validity and effect as the state that rendered the judgment would give it.” Packer Plastics, Inc. v. Laundon, 214 Conn. 52, 56, 570 A.2d 687 (1990), citing Underwriters National Assurance Co. v. North Carolina Life & Accident & Health Ins. Guaranty Assn., 455 U.S. 691, 704, 102 S. Ct. 1357, 71 L. Ed. 2d 558 (1982). The full faith and credit clause, however, is inapplicable to this case. The judgment at issue in this case was rendered by a Connecticut Superior Court. Our courts are not bound by the temporary orders of a foreign jurisdiction regarding enforcement, in that jurisdiction, of judgments rendered by this state’s courts. See id.

The judgment is affirmed.

In this opinion the other judges concurred.

       This case was heard in conjunction with Colleran v. LaBow, 33 Conn. App. 365, 635 A.2d 874 (1993). Although related, the two cases were considered, and have been reported, separately.

       The motion was actually entitled: “Motion for immediate relief for vacatur of an existing execution in force at the Westport Bank & Trust Company freezing all of Myrna LaBow’s funds and additional relief granting full faith and credit to all of the New York court orders with accompanying papers signed by Judge Herman Cahn, on March 11, 1992.”

       The defendant also claims that Joblin was improperly substituted for Mall after the judgment had been rendered. Although she properly cites First Federal Savings & Loan Assn. of Waterbury v. Mangan, 17 Conn. Sup. 42, 43 (1950), for the proposition that parties cannot be substituted after judgment, that case is inapplicable. Joblin’s motion to substitute was denied; he was never substituted for Mall.

       General Statutes § 52-350b provides that General Statutes § 52-350a applies to all postjudgment proceedings commenced on or after July 14, 1983. Although Mall obtained this judgment in 1980, no postjudgment proceedings occurred until after assignment in 1985. Thus, § 52-350a applies.