author: Lavery, J.

text:
    Margaret M. Rau v. Robert J. Rau, Jr.
    (13006)
    Lavery, Heiman and Hennessy, Js.

      Argued January 10
    decision released March 14, 1995

      Gerard I. Adelman, with whom was James B. Streeto, for the appellant (plaintiff).

      Joseph J. Shainess, for the appellee (defendant).
   Lavery, J.

The plaintiff appeals from the trial court’s denial of her motion for modification of alimony. The controlling issue is whether an alimony award that stated that “said order of alimony is to terminate after the ninety-six (96) payments are made” is nonmodifiable during the ninety-six week period when the word nonmodifiable is not used in the original award. The trial court found the award to be nonmodifiable, we disagree and reverse the trial court’s judgment.

The marriage of the plaintiff and the defendant was dissolved on October 30, 1991. The award of alimony to the plaintiff was set forth as follows: “[Tjhe Defendant shall pay to the plaintiff the sum of $300 per week as periodic alimony for twenty-four (24) consecutive weeks; thereafter for the next twenty-four (24) consecutive weeks, said sum is to be reduced to $200 per week; thereafter for the next period of twenty-four (24) consecutive weeks, said sum is to be reduced to $150, and thereafter for the next period of twenty-four (24) consecutive weeks, said sum is to be reduced to $100 per week for a total period of ninety-six (96) weeks. Said order of periodic alimony is to terminate after the ninety-six (96) payments are made.”

On August 11,1993, within the time period in which alimony payments were required to be made, the plaintiff filed a motion to modify the alimony award. In her motion, she alleged a change of circumstances that she claimed justified an additional 208 weeks at $300 per week.

The same trial court that heard the original dissolution denied the motion to modify. That court stated that “there was no explicit language in this [original] order that the alimony was to terminate as to the amount and time after ninety-six weeks. However, the court has a clear recollection that it intended that this periodic alimony be nonmodifiable as to time or amount.”

General Statutes § 46b-86 (a) provides in pertinent part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony . . . may at any time thereafter be . . . modified by said court upon a showing of a substantial change in the circumstances of either party . . . .” Section 46b-86 thus provides for continuing jurisdiction over alimony awards, absent a provision in the decree to the contrary. Barnard v. Barnard, 214 Conn. 99, 117 n.7, 570 A.2d 690 (1990) (“General Statutes § 46b-86 [a] proscribes modification ‘[u]nless and to the extent that the decree precludes modification’ ”).

This statutory provision “suggests a legislative preference favoring the modifiability of orders for periodic alimony . . . [and requires that] the decree itself must preclude modification for this relief to be unavailable.” Scoville v. Scoville, 179 Conn. 277, 279, 426 A.2d 271 (1979). If an order for periodic alimony is meant to be nonmodifiable, the decree must contain language to that effect. Cummock v. Cummock, 180 Conn. 218, 222-23, 429 A.2d 474 (1980); Neal v. Neal, 7 Conn. App. 624, 625, 510 A.2d 210 (1986). Such a preclusion of modification must be clear and unambiguous. McGuinness v. McGuinness, 185 Conn. 7, 9, 440 A.2d 804 (1981); Lilley v. Lilley, 6 Conn. App. 253, 255, 504 A.2d 563, cert. denied, 200 Conn. 801, 509 A.2d 216 (1986). If a provision purportedly precluding modification is ambiguous, the order will be held to be modifiable. Bronson v. Bronson, 1 Conn. App. 337, 339, 471 A.2d 977 (1984), citing Cummock v. Cummock, supra, 222-23.

In determining whether the alimony award is modifiable or nonmodifiable, only the dissolution decree itself may be used. Lilley v. Lilley, supra, 6 Conn. App. 256. In Lilley, the plaintiff moved for the modification of the alimony award. The trial court denied the motion for modification, asserting that the original degree was nonmodifiable. We reversed, noting that the judgment of dissolution was silent as to the modifiability of its order for periodic alimony. Consequently, the trial court’s action in searching for the parties’ intent was improper. We noted that the court “may look only to the dissolution decree itself when determining whether its provision for periodic alimony is modifiable. In the absence of an express, unambiguous statement in the decree precluding modification, § 46b-86 (a) permits the modification of an order for periodic alimony . . . .” Id.

In this case, the original dissolution decree contains no language regarding the modifiability of the alimony order. The trial court and the defendant rely on the language in the original decree that “alimony is to terminate after the ninety-six (96) payments are made.”

The Supreme Court addressed an order containing identical language in Scoville v. Scoville, supra, 179 Conn. 277. The decree in Scoville awarded alimony of $100 per month for three years. It went on to state that “[a]t the end of the three year period, the payment order of alimony shall terminate.” The plaintiff subsequently filed a motion for modification, which was denied. The issue of whether there was a proper showing of a substantial change in circumstances was not reached by the trial court because it held the award non-modifiable. This is precisely the situation in the present case.

The Supreme Court held “[w]e are confronted here with an ambiguous order regarding alimony. This court has treated as modifiable alimony orders with similar ambiguities.” Scoville v. Scoville, supra, 179 Conn. 280. The Scoville court went on to conclude: “[I]n that part of the instant order stating ‘[a]t the end of the three year period, the payment order of alimony shall terminate,’ it is implicit that during that period there be no intervening material change in circumstances warranting modification. . . . The trial court should have reached and decided the issue of whether there was a substantial change in circumstances justifying modification of the alimony order.” Id. This case is controlled by Scoville.

The judgment is reversed and the case is remanded for a new hearing on the plaintiff’s motion to modify.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    State of Connecticut v. James Egan
    (12389)
    Dupont, C. J., and Heiman and Spear, Js.

      Argued December 8, 1994
    decision released March 14, 1995

      Francis J. DiScala, with whom was Abram Heisler, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Philip D Eramo, assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from a judgment of conviction of sexual assault in the second degree in violation of General Statutes (Rev. to 1991) § 53a-71 (a) (l). On appeal, the defendant claims that the trial court improperly (1) found that he had waived the social worker-client privilege and (2) admitted into evidence a partial tape recording of his conversation with the police. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts: The victim was the thirteen year old daughter of the defendant’s girlfriend. On January 10,1992, the defendant offered to drive the victim to her friend’s house. On the way to the friend’s house, the defendant stopped at a store. After making a purchase, the defendant drove to the far corner of the store’s dimly lit parking lot. The defendant began touching the victim’s breasts on the outside of her blouse and then again under her blouse. The defendant proceeded to rub her vaginal area and inserted his finger in her vagina. He told the victim not to tell her mother and then drove her to her friend’s house.

At her friend’s house, the victim began crying and related the incident to her friend. At school on the following Tuesday, January 14, someone gave the school psychologist a note that the victim had written to a friend about the incident. The psychologist called the victim into his office, and she described the event to him. The victim’s mother was called to the school, and the victim told her what had occurred.

The defendant and the victim’s mother met a few days later for dinner. During this meeting, the defendant told the victim’s mother that he did not remember molesting her daughter, but that if she said it was true he must have done it because the victim would not lie.

I

The defendant first claims that the trial court improperly found that he had waived his social worker-client privilege and thus incorrectly admitted into evidence the testimony of a social worker regarding an interview that she had with the defendant. We are not persuaded.

The following additional facts are necessary to the disposition of this issue. On March 24,1992, the defendant’s attorney referred him to the Meriden-Wallingford sexual offenders program for evaluation. A social worker met with the defendant, evaluated his condition and discussed the incident with him. The social worker prepared a report, and in June, 1992, the defendant’s attorney sent a copy of the report to the victim’s mother. The mother subsequently sent the report and the attorney’s letter to the state’s attorney’s office.

The defendant argues that the social worker’s evaluation was privileged under both General Statutes § 52-146q and the attorney-client privilege. The defendant spoke with the social worker in late March, 1992, but § 52-146q, which codified the social worker-client privilege, was not enacted until June 22, 1992, with an effective date of July 1, 1992. Therefore, because the communication was made before the statute was in existence, the defendant’s communication was not privileged under § 52-146q.

The communication, however, was privileged under the common law attorney-client privilege because the defendant met with the social worker at his counsel’s behest. “In State v. Toste, 178 Conn. 626, 628, 424 A.2d 293 (1979), we joined the majority of jurisdictions in holding that [wjhere a psychiatric expert, whether psychiatrist or psychologist, is retained by a criminal defendant or by his counsel for the sole purpose of aiding the accused and his counsel in the preparation of his defense, the attorney-client privilege bars the state from calling the expert as a witness.” (Internal quotation marks omitted.) State v. Ross, 230 Conn. 183, 211, 646 A.2d 1318 (1994). This privilege, however, is not absolute, and a party seeking to invoke the privilege must act so as to maintain “a justified expectation that his communications would not be publicly disclosed . . . .” State v. White, 169 Conn. 223, 234, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975).

The defendant failed to maintain a justified expectation of confidentiality because he released the social worker’s report to the victim’s mother without any restrictions as to its use. Because the defendant had effectively waived his attorney-client privilege with regard to his conversations with the social worker, the trial court properly admitted the social worker’s testimony into evidence.

II

The defendant claims that the trial court improperly admitted into evidence a tape recording of a conversation he had with a Westport police detective. He argues that because one hour of the interview was not recorded due to police negligence, the remaining thirty minutes of the interview, which was recorded, should not have been admitted as it was unreliable and prejudicial and in violation of his state and federal due process rights.

Whether a recording or part of a recorded statement should be admitted into evidence is within the trial court’s discretion. State v. Hauck, 172 Conn. 140, 149, 374 A.2d 150 (1976). “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Carr, 172 Conn. 458, 464, 374 A.2d 1107 (1977).

In light of this deferential standard, we conclude that the trial court did not abuse its discretion by admitting the partial tape into evidence. The defendant claims that the unrecorded portion of the interview may have shown that he was intoxicated during the interview and that the interviewing detective used unfairly suggestive methods of interrogation. During the hearing on the motion to suppress, the trial court heard testimony from both Detective Anthony Giunta and the defendant. From this testimony, the court concluded that under the totality of the circumstances the tape should be admitted. In addition, the jury heard testimony from Giunta regarding what had transpired during the entire interview. At trial, the defendant testified and gave his account of the interview. The jury also had before it the defendant’s written statement. This information provided the jury with a sufficient background to evaluate the reliability of the tape as well as reconstruct the entire interview, including the unrecorded portion of the interview. Given these safeguards, we conclude that the trial court did not abuse its discretion by admitting the incomplete tape recording.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

       At oral argument, the defendant withdrew his claim that the trial judge’s absence from the courtroom during the voir dire violated his constitutional right to a fair and impartial trial. We, therefore, do not review this claim.

       General Statutes § 52-146q (b) provides in pertinent part: “All communications and records shall be confidential and, except as provided in subsection (c) of this section, a social worker shall not disclose any such communications and records unless the person or his authorized representative consents to such disclosure. Any consent given shall specify the individual or agency to which the communications and records are to be disclosed, the scope of the communications and records to be disclosed, the purpose of the disclosure and the expiration date of the consent. A copy of the consent form shall accompany any communications and records disclosed. . . .”

       We choose not to review either the federal or state constitutional claims because the defendant, by failing to cite any legal argument or authority, did not adequately brief the issues. See Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991); New Haven Firebird Society v. Board of Fire Commissioners, 32 Conn. App. 585, 591, 630 A.2d 131 (1993).


author: Per Curiam.

text:
    State of Connecticut v. Thomas Sanders
    (13157)
    O’Connell, Landau and Spear, Js.
    Argued January 10
    decision released March 14, 1995

      Lewis H. Chimes, special public defender, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48, and larceny in the third degree in violation of General Statutes § 53a-124 (a) (1). We affirm the judgment of the trial court.

In view of our disposition of the case, a recitation of the facts would serve no purpose. The defendant’s appeal is based on seven claims, which he argues are grounds for either an acquittal or a new trial. Because none of these claims was raised at trial, the defendant seeks review of four of them under the Evans-Golding doctrine and review of the remaining three under the plain error doctrine.

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “ ‘The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.’ ” State v. Cardany, 35 Conn. App. 728, 733, 646 A.2d 291, cert. denied, 231 Conn. 942, 648 A.2d 149 (1994), quoting State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994); Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992).

Quixotic efforts to gain review of unpreserved claims are not new to appellate jurisprudence. In 1982, justice Parskey aptly articulated the challenge confronting an appellant in such a situation. “Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender. If a word to the wise will do it, then suffice it to observe that the Evans . . . bypass to this court is a narrow constitutional path and not the appellate Champs-Elysees.” State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982). We remain as unenamored of mislabeling nonconstitutional claims as was Justice Parskey.

We have carefully considered the defendant’s brief and oral argument and conclude that none of his claims is reviewable under the first two prongs of Golding.

The defendant seeks review of the remaining three claims under the plain error doctrine. Practice Book § 4185. Review under the plain error doctrine is not lightly invoked and “ ‘is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceeding.’ ” State v. King, 216 Conn. 585, 591, 583 A.2d 896 (1990); Small v. South Norwalk Savings Bank, 205 Conn. 751, 759, 535 A.2d 1292 (1988); State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). We review claims under the plain error exception sparingly because more frequent use would undermine the fundamental requirement that claims be raised at trial. Birchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983). The defendant’s claims do not qualify for review under the plain error doctrine.

We conclude that no issue raised by the defendant is entitled to review.

The judgment is affirmed.

        State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       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 the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”


author: Landau, J.

text:
    C and P Excavating Contractors, Inc. v. Ardmare Construction Company, Inc., et al.
    (13035)
    Dupont, C. J., and Landau and Hennessy, Js.
    Argued December 6, 1994
    decision released March 14, 1995

      Richard J. Falcigno, with whom, on the brief, were Theodore R. Tyma and Monica M. Copertino, for the appellants (defendant Arnie’s Heating, Plumbing & Air Conditioning, Inc., et al.).

      Philip J. Miolene, with whom, on the brief, was James M. Nugent, for the appellee (plaintiff).

      Edward L. Cleary, for the appellee (named defendant).
   Landau, J.

This is an appeal by the defendants Arnie’s Heating, Plumbing & Air Conditioning, Inc. (Arnie’s), and Westchester Fire Insurance Company (Westchester) from the judgment of the trial court, rendered pursuant to an arbitrator’s report, in favor of the plaintiff. These defendants claim that the trial court improperly rendered judgment against them when it concluded that their claim for a trial de novo was untimely. The plaintiff, C & P Excavating Contractors, Inc., argues that the claim for a trial de novo was not timely filed; see Practice Book § 546S; and that the record is inadequate for appellate review. Because we dismiss the appeal, sua sponte, we do not reach these issues.

The following facts are relevant to our disposition of this appeal. By complaint dated March 10,1992, the plaintiff commenced this action, in three counts, against three defendants. Count one was directed against Ardmare and alleged that Ardmare failed to pay for goods and services provided to it by the plaintiff. Count two alleged that Amie’s failed to pay for work completed by the plaintiff. Count three alleged liability on the part of Westchester for its failure to compensate the plaintiff on the performance bond insuring Amie’s performance. On June 29,1992, Ardmare filed an answer and a cross claim against Amie’s and Westchester. In the cross claims, Ardmare alleged that Arnie’s failed to pay for goods and services provided to it by Ardmare and that Westchester failed to pay on its performance bond insuring Arnie’s performance.

Pursuant to Practice Book § 546N,* ** the trial court referred this action for an arbitration hearing. The arbitrator filed her report on September 14, 1993, and mailed it to the parties on September 27,1993. In the report, she recommended judgment for the plaintiff on counts two and three of its complaint. Although the arbitrator discussed the circumstances pertaining to count one, she made no recommendation as to that count.

Arnie’s and Westchester filed a claim for a trial de novo on October 22, 1993. On November 8, 1993, the trial court ruled that the claim was “untimely” and rendered judgment “as per report of arbitrator,” that is, in favor of the plaintiff on counts two and three. Judgment has yet to enter, however, on count one and the cross claims. Arnie’s and Westchester appeal from the judgment on counts two and three.

Because count one and both cross claims are still pending, our analysis of the issues presented by the parties must be arrested to permit an inquiry as to whether a final judgment has been rendered in this case. “ ‘The lack of a final judgment is a threshold question that implicates the subject matter jurisdiction of this court.’ Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 822, 627 A.2d 478 (1993), citing Walton v. New Hartford, 223 Conn. 155, 162 n.9, 612 A.2d 1153 (1992). Where there is no final judgment, we cannot reach the merits of the appeal. General Statutes § 52-263; Practice Book § 4000; Smith v. Otis Elevator Co., 33 Conn. App. 99, 102, 633 A.2d 731 (1993).” Akerson v. Bridgeport, 36 Conn. App. 158, 159, 649 A.2d 796 (1994). “ ‘The finality requirement underlying our appellate review represents a clear and firm policy against piecemeal appeals. State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).’ ” T.P. Brewer Construction Co. v. F & G Associates, 34 Conn. App. 714, 715, 643 A.2d 308 (1994).

Practice Book § 4002 enumerates the circumstances under which an appeal may be taken from a judgment disposing of only some of the counts of a complaint. Pursuant to § 4002, judgments disposing of some of the counts of a complaint are final if such judgments dispose of counts that are directed against a party against whom no relief is sought in the remaining counts. This provision, however, is limited by its terms to actions in which judgment on fewer than all of the counts has been rendered by rulings on motions to strike, motions for summary judgment or motions to dismiss. See Practice Book § 4002 (b) and (c). The rules of practice do not address the present situation where a partial judgment has been rendered after trial.

It might be argued that the types of judgments set out in § 4002 are merely illustrative of the ways final judgments may be obtained and that the reasons behind the rule apply as well to judgments rendered after trial that dispose of only some of the counts of a complaint. Prior to 1992, § 4002 provided that “a judgment disposing of certain of the issues between the parties or of part or all of the issues between some of them in such a manner as to be final but not terminating the litigation, such as a judgment rendered pursuant to subsection (b), (c) or (d) of this rule, may be treated as a final judgment for the purpose of an appeal . . . .” (Emphasis added.) Subsection (c) provided for appeals from partial judgments, rendered pursuant to motions to strike, to dismiss or for summary judgment, that disposed of counts directed against a party against whom no relief was sought in the remaining counts. In 1992, the “such as” language was deleted from the rule, indicating an intention that the types of judgments listed in subsection (c) are meant to be exclusive. We conclude, therefore, that § 4002 does not apply in this case.

This conclusion, however, does not end our analysis. We must next consider the two-prong test of finality set forth in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31.

The first prong of Curdo is not satisfied in this case. The trial court’s judgment did not terminate a separate and distinct proceeding because it rendered judgment on two counts of a three count complaint and left undecided those issues involved in the third count. Moreover, the court did not render judgment as to the cross claims.

The second prong of Curdo focuses on the potential harm to the appellants’ rights; id., 33; in this case, the rights of Amie’s and Westchester. The trial court’s ruling on two of the five causes of action in this case did not so conclude the rights of Arnie’s and Westchester that disposition of the remaining three causes of action cannot affect them. A judgment against Ardmare on count one of the plaintiff’s complaint could have an impact on the nature and amount of liability incurred by Arnie’s and Westchester. Also, Arnie’s and Westchester may be found liable in Ardmare’s cross claim and thus be subject to pay twice if judgment is rendered against them. For these reasons, we conclude that the second prong of Curdo is not satisfied. Because there is no final judgment in this case, this court lacks jurisdiction to hear the appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The plaintiff brought this action against three defendants: Ardmare Construction Company, Inc. (Ardmare), Amie’s and Westchester. Amie’s, a general contractor, entered into a contract to perform a project for the board of education of the town of Greenwich. Amie’s subcontracted part of its work to Ardmare, which in turn subcontracted part of its work to the plaintiff. Westchester issued a performance bond for the Greenwich project on behalf of Amie’s.

       Practice Book § 546S provides in pertinent part: “(a) A decision of the arbitrator shall become a judgment of the court if no claim for a trial de novo is filed in accordance with subsection (c). . . .
      “(c) A claim for a trial de novo must be filed with the court clerk within twenty days of the filing of the arbitrator’s decision. . . .”

       Ardmare directed its cross claim against Eastchester Fire Insurance Company. Regardless, Westchester filed an answer in response to the cross claim. We choose to do exactly what the trial court and the parties did, i.e., recognize that discretion may be the better part of valor and ignore the faulty nomenclature “in the spirit of the purpose of our rules, namely, to facilitate business and advance justice.” O’Bymachow v. O’Bymachow, 10 Conn. App. 76, 78, 521 A.2d 599 (1987).

       Practice Book § 546N provides: “The court, on its own motion, may refer to an arbitrator any civil action in which the damages, legal interest or property in demand is less than fifteen thousand dollars exclusive of interest and costs and in which a claim for a trial by jury and a claim for the trial list have been filed.”

       Practice Book § 4002 provides in pertinent part: “(a) A judgment pursuant to subsections (b) or (c) of this rule that disposes of certain of the issues between the parties or of part or all of the issues between some of them may be treated as a final judgment for the purpose of an appeal by the party or parties against whom the judgment is rendered, notwithstanding that the cause remains undisposed of on other issues or as to other parties. . . .
      “(b) ... When fewer than all of the counts of a complaint, counterclaim or cross complaint have been stricken, the trial court may, upon motion pursuant to this subsection, render judgment upon such stricken counts if (1) such counts are directed against a party against whom no relief is sought in the remaining counts of such pleading, or (2) the parties consent to entry of judgment and the trial court makes a written finding or written determination that the issues involved in the stricken counts are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified. . . .
      “(c) . . . When fewer than all of the counts of a complaint, counterclaim or cross complaint have been dismissed, or when summary judgment has been granted upon fewer than all of the counts of a complaint, counterclaim or cross complaint, such partial dismissal or partial summary judgment shall constitute a final judgment if (1) such counts are directed against a party against whom no relief is sought in the remaining counts of such pleading, or (2) the parties consent to the rendition of judgment and the trial court makes a written finding or written determination that the issues involved in the counts as to which a motion to dismiss or for summary judgment has been granted are of such significance to the determination of the outcome of the case that the delay incident to the appeal would be justified.”


author: Schaller, J.

text:
    State of Connecticut v. Cornell Mitchell
    (12589)
    Heiman, Schaller and Hennessy, Js.
    Argued December 8, 1994
    decision released March 14, 1995

      Ross M. Delaney, assistant public defender, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, and William Bumpus, former assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgments of conviction rendered in two separate proceedings. In the first proceeding, the defendant was convicted, following his guilty plea, of larceny in the sixth degree in violation of General Statutes § 53a-125b and being a persistent larceny offender in violation of General Statutes § 53a-40 (c). In the second proceeding, the defendant was convicted of burglary in the third degree in violation of General Statutes § 53a-103. The defendant claims on appeal that (1) his five year sentence for being a persistent larceny offender should be set aside because he was illegally sentenced in violation of his constitutional right not to be subjected to multiple punishments for the same crime, and (2) his conviction for burglary in the third degree should be reversed because the long form information failed to allege an essential element of the offense in violation of his right under article first, §§8 and 9, of the Connecticut constitution. We affirm the judgment of the trial court.

With respect to the first proceeding concerning the larceny charges, the relevant facts are as follows. The defendant was arrested for attempting to steal a pair of boots from the Bradlees department store at 1250 Park Street in Hartford. On March 15, 1993, the defendant was charged with one count of larceny in the sixth degree, and one count of being a persistent larceny offender for the attempted theft. The defendant pleaded guilty to both charges on March 17,1993. The defendant was sentenced to three months with respect to larceny in the sixth degree, and five years on the persistent larceny offender count.

With respect to the second proceeding involving the charge of burglary in the third degree, the jury reasonably could have found the following facts. On November 15, 1992, Officers Alfred Fernino and Aurelio Rinaldi responded separately to a dispatcher’s report that the burglar alarm of Connecticut Linen Company, located at 439 Homestead Avenue in Hartford, had been activated. Both officers conducted a search outside of the premises, but they found nothing out of the ordinary. After the officers had left, the burglar alarm was again activated. Upon being notified by the dispatcher that the burglar alarm had again been activated, the officers drove to the scene to investigate. Fernino noticed a blue duffel bag placed next to the rear wall of the building and immediately informed Rinaldi by radio. Fernino noticed that the bag contained white towels. He then located another blue duffel bag next to a fence that separated the property from railroad tracks. Fernino found the defendant hiding near the tracks. By this time, Rinaldi had arrived at the rear of the building, and the officers proceeded to arrest the defendant. A search of the defendant produced a screwdriver and a camping knife. After placing the defendant in the cruiser, the officers continued their investigation. The officers located another duffel bag also filled with towels in a shopping cart. The defendant admitted that the shopping cart belonged to him and that he had put the bag in the cart. The officers also discovered that the lock on the rear door had been pried open and that the marks on the lock matched the shape of the defendant’s knife. The towels in the duffel bags were found to be the property of Connecticut Linen Company. The defendant was convicted, following a jury trial, of three counts, including burglary in the third degree in violation of General Statutes § 53a-103.

I

The defendant claims that his right under the fifth amendment to the United States constitution that he not be subjected to multiple punishments for the same crime was violated by the trial court when it imposed an illegal sentence. We conclude that this claim is moot.

The trial court sentenced the defendant to a term of three months for the larceny in the sixth degree conviction and then sentenced the defendant to a term of five years on the persistent larceny offender count. Section 53a-125b classifies larceny in the sixth degree as a class C misdemeanor. General Statutes § 53a-40 (h) allows the court to sentence a persistent larceny offender who has committed larceny in the sixth degree to the term of imprisonment authorized for a class D felony by General Statutes § 53a-35. Section 53a-40 (h) provides in relevant part: “When any person has been found to be a persistent larceny offender . . . the court, in lieu of imposing the sentence authorized by section 53a-36 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment for a class D felony authorized by section 53a-35 . . . .” (Emphasis added.) The trial court improperly sentenced the defendant on both counts.

The trial court may sentence the defendant as a persistent larceny offender or on the underlying larceny count, but not both. General Statutes § 53a-40 (c). Practice Book § 935 provides in relevant part: “The judicial authority may at any time correct an illegal sentence . . . .” Accordingly, the defendant may challenge the legality of a sentence at any time, and we have the authority to correct the illegal sentence. State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989); State v. Guckian, 27 Conn. App. 225, 245, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993).

Even though Practice Book § 935 allows this court to correct an illegal sentence, the claim is moot in this case because the sentence has already been corrected. The trial court acting pursuant to an order of the sentence review division of the Superior Court resentenced the defendant to three years and three months for being a persistent larceny offender under § 53a-40 (h).

Notwithstanding the correction, the defendant argues that the imposition of the illegal sentence by the trial court violated his constitutional right not to be punished for the same crime twice. That argument is unavailing. Until all avenues for challenging the legality of the defendant’s sentence are exhausted, “jeopardy does not attach . . . .” State v. Langley, 156 Conn. 598, 601, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712 (1969). It is well established that resentencing does not “involve double jeopardy” in cases where the defendant’s first sentence was illegal. Id., 602; see also Mathes v. United States, 254 F.2d 938, 939 (9th Cir. 1958); Robinson v. United States, 144 F.2d 392, 397 (6th Cir. 1944); McCleary v. Hudspeth, 124 F.2d 445, 447 (10th Cir. 1941), cert. denied, 316 U.S. 670, 62 S. Ct. 1043, 86 L. Ed. 1745 (1942). “The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine that a prisoner, whose guilt is established, by a regular verdict, is to escape punishment altogether, because the court committed an error in passing the sentence. In re Bonner, 151 U.S. 242, 260, 14 S. Ct. 323, 38 L. Ed. 149 [1894] (quoting from the Supreme Court of Pennsylvania in Beale v. Commonwealth, 25 Pa. St. 11, 22).” (Internal quotation marks omitted.) State v. Langley, supra, 603.

II

The defendant next claims that the judgment of conviction of burglary in the third degree should be set aside because the information fails to charge a cognizable criminal offense in violation of article first, §§ 8 and 9, of the Connecticut constitution. The defendant also argues that under article first, § 8, the trial court lacked jurisdiction because the information was defective.

The long form information filed by the state charging the defendant with burglary in the third degree under General Statutes § 53a-103 (a), omitted the word unlawfully. Even though the information omitted the word unlawfully, the trial court instructed the jury that in order for the defendant to be guilty of burglary in the third degree the state must prove beyond a reasonable doubt “that the defendant knowingly entered or remained unlawfully in the premises . . . you must further find that the unlawful entry or remaining was effected or occurred with defendant’s intent to commit a crime in that building.”

Practice Book § 811 allows a defendant to raise a jurisdictional claim that an information is defective.8 State v. McMurray, 217 Conn. 243, 249, 585 A.2d 677 (1991); State v. Vincent, 194 Conn. 198, 204 n.10, 479 A.2d 237 (1984). We note that Practice Book § 815 affords a defendant an opportunity to ask for dismissal of the charges based on “defects in the indictment or information including failure to charge an offense” by filing a pretrial motion. The defendant did not raise the issue of a defect in the long form information before or during the trial.

Moreover, “[w]hen reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state.” State v. McMurray, supra, 217 Conn. 250; see also Hagner v. United States, 285 U.S. 427, 433, 52 S. Ct. 217, 76 L. Ed. 861 (1932); United States v. Hooker, 841 F.2d 1225, 1228-29 (4th Cir. 1988); United States v. Previte, 648 F.2d 73, 80 (1st Cir. 1981); United States v. Fistel, 460 F.2d 157,161 (2d Cir. 1972). “Under the applicable standard of review, a conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had. United States v. Fistel, supra, 161, quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S. Ct. 1591, 16 L. Ed. 2d 675 (1966).” (Internal quotation marks omitted.) State v. McMurray, supra, 250. “The underlying purpose of the constitutional right to be informed of the nature and cause of a criminal charge is to inform ‘the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise’ and to make the charge ‘definite enough to enable [the defendant] to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .’ State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979), citing Russell v. United States, 369 U.S. 749, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962).” State v. McMurray, supra, 249; see also State v. Cates, 202 Conn. 615, 625-26, 522 A.2d 788 (1987); State v. Vincent, supra, 194 Conn. 205. “The offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial.” State v. Stepney, 191 Conn. 233, 240, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

“ ‘The defendant can gain nothing from his present claim without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. State v. Rafanello, 151 Conn. 453, 457, 199 A.2d 13 (1964); State v. Mola, [128 Conn. 407, 410, 23 A.2d 126 (1941)]; 5 Wharton, Criminal Law and Procedures § 2056.’ State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979).” State v. Vincent, supra, 194 Conn. 205-206 n.12; see also State v. Roque, 190 Conn. 143, 156, 460 A.2d 26 (1983). In order to prevail on a claim that the information was defective, the defendant must show that “[his] ability to prepare a defense was . . . prejudiced . . . .” State v. Monar, 22 Conn. App. 567, 574, 579 A.2d 104, cert. denied, 216 Conn. 828, 582 A.2d 206 (1990); see also State v. Stepney, supra, 191 Conn. 241.

Construing the information liberally in favor of the state, it sufficiently apprised the defendant of the nature of the charge and provided sufficient details to prevent any future prosecution on the same charges. The information mentioned the statute that the defendant was charged with having violated and facts essential for the defendant to prepare his defense. A reasonable construction of the information as presented warrants a conclusion that the defendant was informed of the offense of which he was later convicted. Moreover, the defendant has failed to demonstrate that the alleged failure of the state to charge an essential element of the offense prevented him from adequately preparing his defense or caused any prejudicial surprise to his case.

The defendant argues that the jury may have been misled by the alleged defective information during deliberations. The trial court in this case, however, instructed the jury as to the state’s burden to prove beyond a reasonable doubt that the defendant had entered or remained in the building unlawfully in order for them to find the defendant guilty of burglary in the third degree. The defendant has not challenged in any manner the trial judge’s instructions to the jury; therefore, those instructions are presumed to have been correct. State v. Coleman, 167 Conn. 260, 268, 355 A.2d 11 (1974); Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 451, 254 A.2d 907 (1969); State v. Mallette, 153 Conn. 584, 587, 219 A.2d 447 (1966). “ ‘It is essential to any orderly trial that the jury be presumed, in the absence of a fair indication to the contrary, to have followed the instruction of the court as to the law.’ ” State v. Coleman, supra, 268, quoting State v. Bausman, 162 Conn. 308, 314, 294 A.2d 312 (1974). The defendant has raised no claim that the jury failed to follow the instructions of the court regarding the elements of the offense to be proven by the state.

Furthermore, the defendant did not request a bill of particulars to gain additional information about the state’s case. In Connecticut, “ ‘it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.’ ” State v. Vincent, supra, 194 Conn. 205, quoting State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); State v. Sumner, supra, 178 Conn. 167; see also State v. Davis, 141 Conn. 319, 320-21, 106 A.2d 159 (1954). The defendant’s failure to request a bill of particulars combined with the fact that the information provided the applicable statutory section and other details of the offense charged makes the required showing of prejudice impossible here. See State v. Vincent, supra, 205. “The defendant’s claim of error merely raises the spectre of prejudice, and we have held such a showing legally insufficient upon which to challenge an information.” Id., 205 n.12.

The defendant also contends that the conviction should be reversed because the trial court lacked jurisdiction due to the allegedly defective information under article first, § 8, of the Connecticut constitution. Our Supreme Court has not determined whether a trial court lacks jurisdiction when a substitute long form information omits an essential element of the crime, even though it included the relevant statute, and where the defendant did not suffer any prejudice by the omission. State v. McMurray, supra, 217 Conn. 249. We find persuasive Justice Bogdanski’s well reasoned concurrence in State v. Coleman, supra, 167 Conn. 280-81, in which he stated that “[wjhere the short form accusation is not itself fatally defective, however, omissions in supplemental bills of particulars do not deprive the trial court of jurisdiction. I believe the more sensible view to be that nonprejudicial nonjurisdictional defects in the bill of particulars do not require dismissal.”

The defendant argues further that his right to personal liberty guaranteed by article first, § 9, of the Connecticut constitution has been violated and, therefore, his conviction of third degree burglary should be set aside. The defendant has not shown that he was in any way prejudiced by the omission of the word unlawfully, moreover, the defendant has not argued that he did not receive a fair trial. The state’s evidence presented at trial was compelling, and, on the basis of that evidence, the jury could have concluded beyond a reasonable doubt that the defendant was guilty. Moreover, the defendant fails to provide any decisional law that would support his assertion that article first, § 9, provides a remedy in case of a defective information. “Due process is not to be regarded as a giant vacuum cleaner which sucks up any claims of error which may occur to a party upon microscopic examination of the trial record.” State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982); State v. McMurray, supra, 217 Conn. 253.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-40 (c) provides: “A persistent larceny offender is a person who (1) stands convicted of larceny in the third degree in violation of the provisions of section 53a-124 in effect prior to October 1,1982, or larceny in the fourth, fifth or sixth degree and (2) has been, at separate times prior to the commission of the present larceny, twice convicted of the crime of larceny.”

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”
      The defendant was also convicted on one count of possession of burglar’s tools in violation of General Statutes § 53a-106, and one count of larceny in the fifth degree in violation of General Statutes § 53a-125a in this proceeding. The defendant makes no claims with respect to these convictions.

       The convictions in the two separate proceedings were consolidated for sentencing. The defendant also received the following sentences with respect to the second proceeding: burglary in the third degree, three years; larceny in the fifth degree, three months; possession of burglar tools, one year. All sentences were ordered to run consecutively. The total effective sentence from both proceedings was nine years and six months.

       The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

       On January 25,1994, the sentence review division addressed the claim of illegality. The division ordered the total effective sentence reduced to seven and one-half years.

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation . . . .”
      Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       The long form information charging the defendant with third degree burglary states: “The undersigned Assistant State’s Attorney accuses Cornell Mitchell of the crime of BURGLARY IN THE THIRD DEGREE and further alleges that at or near 439 Homestead Avenue, Hartford, Connecticut, at approximately 9 p.m., on or about November 15,1992, the said Cornell Mitchell entered a building with the intent to commit a crime therein in violation of Connecticut General Statutes § 53a-103.”

       Practice Book § 811 provides in pertinent part: “[D]efenses and objections alleging lack of jurisdiction over the offense charged or failure of the indictment or information to charge an offense may be raised . . . at any time during the pendency of the proceedings.”

       It is well established that article first, § 8, is the appropriate avenue to address a claim of a defective information. State v. McMurray, supra, 217 Conn. 248-49; State v. Cates, supra, 202 Conn. 624-25.


author: Hennessy, J.

text:
    Mildred Drew et al. v. K-Mart Corporation
    (12726)
    Dupont, C. J., and Landau and Hennessy, Js.
    Argued December 6, 1994
    decision released March 14, 1995

      W. Martyn Philpot, Jr., for the appellant (named plaintiff).

      Frederick J. Trotta, with whom, on the brief, were Eileen M. Condon and Joseph F. Trotta, for the appellee (defendant).
   Hennessy, J.

The plaintiff Mildred Drew appeals from the judgment of the trial court, following a jury trial, in favor of the defendant, K-Mart Corporation (K-Mart), on all counts of her complaint. The plaintiff claims that the trial court improperly (1) denied her motion to amend the revised complaint, (2) instructed the jury to disregard the defendant’s regulations relative to the apprehension of shoplifters, (3) prevented plaintiff’s counsel from mentioning the issue of humiliation during closing argument, (4) failed to grant a mistrial when the plaintiff’s son was questioned about a previous misdemeanor conviction, (5) refused to allow the defendant’s responses to requests for admission into evidence, and (6) directed a verdict in favor of the defendant on the fourth count of the revised complaint, alleging intentional infliction of emotional distress.

The jury could reasonably have found the following facts. On November 21,1987, the plaintiff and her son were at a K-Mart store in Orange. The plaintiff’s son was wearing one new Timberland boot and one casual walking shoe. Upon leaving the store, the plaintiffs son was approached by a K-Mart loss prevention manager who identified himself, inquired about the boot and asked the plaintiffs son if he had a receipt. This confrontation escalated into a physical altercation between K-Mart’s security personnel and the plaintiff’s son. At one point, the plaintiff was involved in the melee, and she was subsequently arrested by the police.

The plaintiff and her son brought suit against K-Mart for injuries and damages resulting from the altercation outside the store. The action was tried on the third, fourth and fifth counts of a revised complaint containing five counts. The first two counts, which became inoperative when the plaintiff’s son withdrew from the lawsuit, alleged causes of action for false imprisonment and intentional infliction of emotional distress on behalf of the plaintiff’s son. The third count alleged that the plaintiff sustained injury as a result of the negligence of K-Mart’s personnel in the confrontation of her son following the suspected shoplifting incident. The fourth count alleged a cause of action for intentional infliction of emotional distress on behalf of the plaintiff. The fifth count alleged a cause of action for assault and battery on behalf of the plaintiff.

At the close of the evidence, the trial court granted the defendant’s motion for a directed verdict on the fourth count of the complaint alleging intentional infliction of emotional distress. Following deliberations, the jury returned a verdict in favor of the defendant on both the third and fifth counts of the complaint. The trial court thereafter denied the plaintiff’s motion to set aside the verdict, and rendered judgment for the defendant on these counts.

I

The plaintiff first claims that the trial court improperly denied two motions to amend the revised complaint. The plaintiff argues that the trial court’s refusal to allow the filing of at least one of two substitute complaints she offered was an abuse of discretion because amended pleadings may be allowed at any time and the proposed substitute complaints would not have inconvenienced the defendant or delayed the trial. We disagree.

The following additional facts are necessary for resolution of this issue. The revised complaint was filed on January 6, 1989. The defendant filed an answer and special defenses on November 16, 1989. The plaintiff filed a reply to the special defenses on November 20, 1989. On April 26,1993, on the first day of trial, after the plaintiff’s son had withdrawn his claims, the plaintiff made two oral motions to file substitute complaints. The first proposed substitute complaint added a count for the false imprisonment of the plaintiff, and an additional count for intentional infliction of emotional distress. The second proposed substitute complaint included onh' the three counts from the revised complaint, but contained allegations of detainment of the plaintiff that had not appeared in the revised complaint. The trial court denied both motions to file the substitute complaints.

It is within the discretion of the trial court to allow an amendment to pleadings at any time. Capitol Restorations Corp. v. Construction Services of Bristol, Inc., 25 Conn. App. 681, 685, 596 A.2d 927 (1991). “Factors to be considered in determining whether leave to amend should be granted are the length of the delay, the fairness to the opposing party, and the negligence, if any, of the party offering the amendment.” Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 360, 525 A.2d 57 (1987). The trial court’s ruling on a motion to amend a pleading can be reversed only upon a clear showing of an abuse of discretion. Falby v. Zarembski, 221 Conn. 14, 24, 602 A.2d 1 (1992); Capitol Restorations Corp. v. Construction Services of Bristol, Inc., supra, 685.

In denying the plaintiff’s first motion to file a substitute complaint, the trial court considered that no amendments had been proposed since the filing of the revised complaint more than four years earlier, and that the false imprisonment claim was an entirely new cause of action raised for the first time on the day of trial. Later that same day, the plaintiff introduced the second proposed substitute complaint, telling the trial court that its three counts mirrored the counts involving the plaintiff that appeared in the revised complaint. The trial court denied this motion to file a substitute complaint because the third, fourth and fifth counts of the revised complaint formed the operative complaint, and a substitute complaint was not necessary. We further note that the second proposed substitute complaint did not mirror the revised complaint and, upon inspection by the trial court, the motion to amend could have been denied for this reason as well. We conclude that the trial court was acting well within the bounds of its discretion in denying each of these motions.

II

The plaintiff next claims that the trial court improperly instructed the jury to disregard the defendant’s in-house regulations relative to the apprehension of shoplifters. The plaintiff argues that the instruction given by the trial court on the issue of negligence was, as a result of the challenged portion, unduly narrow. It is unnecessary for us to review this issue because it has not been properly preserved.

Practice Book § 315 provides that a claimed error in giving a charge to the jury will be reviewed on appeal only if the party submitted a written request to charge or took an exception to the charge and clearly stated the reasons for the exception. See also Rossi v. Stanback, 36 Conn. App. 328, 335, 650 A.2d 920 (1994). “The purpose of the rule is to alert the court to claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” (Internal quotation marks omitted.) Id., quoting Berry v. Loiseau, 223 Conn. 786, 814, 614 A.2d 414 (1992).

A review of the record indicates that the plaintiff did request a general charge on negligence but did not request a specific charge on negligence and its relationship to the defendant’s in-house regulations relative to the apprehension of shoplifters. At the conclusion of the trial court’s charge to the jury, the plaintiff’s counsel made a general objection to the charge given on the negligence count, but did not specify what his objection was or offer argument in support of his objection. Our Supreme Court has held that an “imprecise reference” does not reasonably alert the trial court to possible deficiencies in the charge. Berry v. Loiseau, supra, 223 Conn. 816. “Counsel thus failed to ‘state distinctly the matter objected to and the ground of objection’ as required by Practice Book § 315 for appellate review.” Id. Accordingly, we do not reach the merits of this claim.

Ill

The plaintiff next claims that the court improperly admonished her attorney not to mention the issue of humiliation during closing argument. The plaintiff argues that the judge’s “surprisingly vigorous reprimand of counsel . . . created an unexpected and prejudicial chill over the trial court proceedings” and thereby deprived the plaintiff of “a fair and balanced atmosphere” for the resolution of her claim. The plaintiff claims, essentially, that the trial judge should have disqualified herself or declared a mistrial.

“We [do] not ordinarily review on appeal a claim that a trial judge should have disqualified himself or declared a mistrial at a certain stage of the proceedings when no such request was made during the trial.” Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982) (citing what is now Practice Book § 4185); see also State v. Burnhannan, 34 Conn. App. 537, 541, 642 A.2d 59 (1994).

The facts of this case are clearly distinguishable from cases where judicial improprieties have been reviewed as plain error. In Cameron v. Cameron, supra, 187 Conn. 163, for example, there were numerous incidents in which the comments of the trial judge evinced profound bias against both the defendant and the defendant’s attorney. Here, the plaintiffs appellate argument of prejudicial bias on the part of the trial judge revolves around a single incident, outside the presence of the jury, in which the trial judge’s comments are not blatantly objectionable. Although a challenge to egregious judicial conduct would be entitled to review under the plain error doctrine; Cameron v. Cameron, supra, 168; this is not such a case. See State v. Burnhannan, supra, 34 Conn. App. 541. We decline to review this claim.

IV

The plaintiff next alleges that the court improperly failed to grant a mistrial when the plaintiff’s son was questioned about a previous misdemeanor arrest. We disagree.

The following additional facts are relevant to the resolution of this claim. During cross-examination of the plaintiffs son, defense counsel asked a question concerning the plaintiffs son’s 1986 arrest and conviction for the possession of marijuana, a misdemeanor. The plaintiff immediately objected to this question and the objection was sustained by the trial court. The plaintiff then requested that the jury be dismissed, and, in the absence of the jury, moved for a mistrial. Defense counsel conceded that the question he had asked was improper, and explained that he had become confused between the inadmissible misdemeanor conviction and a series of felony convictions that the court had ruled would be admissible for impeachment purposes. The trial court denied the motion for a mistrial on the ground that the improper inquiry into a misdemeanor conviction would not prejudice the plaintiffs case when the defendant would be allowed to cross-examine the plaintiffs son on a number of felony convictions, including three involving possession of narcotics with intent to sell. When the jury returned, however, the trial court instructed it to disregard the last question asked by defense counsel.

“A mistrial, as a general principle, should only be granted when it is apparent to the trial court that because of an incident during the trial a party cannot have a fair trial. . . . The trial court has wide discretion in ruling on motions for mistrial.” (Citations omitted.) Shelnitz v. Greenberg, 200 Conn. 58, 80, 509 A.2d 1023 (1986); see also Allen v. Pathmark of Bridgeport, Inc., 176 Conn. 124, 129, 405 A.2d 59 (1978). A cautionary instruction is a relevant factor to be considered in determining if the trial court properly exercised its discretion; Shelnitz v. Greenberg, supra, 80; as is the absence of bad faith on the part of a cross-examining counsel; State v. Hafner, 168 Conn. 230, 251, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975).

In this case, defense counsel admitted that he made a mistake in questioning the witness about a prior misdemeanor conviction, and there is no evidence of bad faith in the attempt to introduce evidence of this conviction. Thereafter, the court instructed the jury to disregard the question, and cross-examination proceeded as to the plaintiff's son’s prior felony convictions. Under these facts, we cannot find that the trial court abused its discretion in denying the plaintiff’s motion for a mistrial.

.V

The plaintiff next claims that the trial court improperly prevented her from introducing the defendant’s prior inconsistent response to a request for admission into evidence. We are not persuaded.

The following additional facts are relevant to the resolution of this claim. While questioning Thomas D. Moss, an assistant manager of the K-Mart store who was involved in the incident, the plaintiff asked if he had seen a K-Mart employee examine the receipt for the boot that the plaintiff’s son was wearing. Moss answered that he did not remember seeing any K-Mart employee examine the receipt. The plaintiff then offered the defendant’s response to one set of the plaintiff’s requests for admissions as a full exhibit, plaintiff’s exhibit H. The plaintiff argued that the response to request number seven was a prior inconsistent statement and a judicial admission. The court denied the plaintiff’s request to introduce the exhibit.

The plaintiff next asked Moss if it was the policy of the defendant, at the time of the events in question, to allow a suspected shoplifter who is determined not to have shoplifted to leave. Moss answered yes, and the plaintiff then offered the defendant’s response to request for admissions number ten as a full exhibit. The plaintiff argued that this response was also a prior inconsistent statement and a judicial admission. We will address the issues of whether these responses to requests for admissions were prior inconsistent statements or judicial admissions in turn.

A

It is axiomatic that for a statement to be admissible as a prior inconsistent statement it must be inconsistent with the testimony of the party at trial. State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935,100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Reed, 174 Conn. 287, 302-303, 386 A.2d 243 (1978). It is the province of the trial court to determine whether a prior statement is in fact inconsistent with statements advanced at trial. State v. Piskorski, supra, 710; State v. Reed, supra, 302-303. The inconsistent statement must also be “substantial and related to a material matter.” State v. Piskorski, supra, 710. As in all evidentiary matters, the trial court has broad discretion in passing on the admissibility of prior inconsistent statements. In re Bassel C., 33 Conn. App. 90, 95, 633 A.2d 733 (1993).

The first statement that the defendant sought to introduce as inconsistent was a denial that the defendant’s employees had failed to inspect the receipt for the boots proffered by the plaintiff and her son. This was offered following Moss’ testimony, “To my recollection, I did not see anyone inspect a receipt.” These statements are not inconsistent, and the trial court properly excluded from evidence the denial of request for admission number seven and the full exhibit H on this basis.

The second statement the defendant sought to introduce as a prior inconsistent statement was a denial that it was the defendant’s policy that suspected shoplifters who were found not to have shoplifted were allowed to leave the premises. This was offered in response to Moss’ testimony that it was the policy of the defendant to allow such persons to leave. The court ruled that the prior statement in the request for admissions was not relevant to the issues before the court. The only claim of negligence by the plaintiff was that the defendant negligently failed to inspect the receipt; there was no allegation in the complaint that the defendant negligently failed to follow its internal procedures. We hold, under these circumstances, that the trial court did not abuse its discretion in concluding that a prior inconsistent statement as to the defendant’s policy regarding persons mistakenly detained as shoplifters was irrelevant to the issues at trial.

B

The plaintiff also argues that responses to requests for admission automatically become judicial admissions and therefore should be admitted as such during trial. We do not agree.

Practice Book § 240, relating to requests for admission, provides that “[a]ny matter admitted under this section is conclusively established unless the court on motion permits its withdrawal or amendment . . . .” (Emphasis added.) The plaintiff misconstrues this language to mean that any response to a request for admission is conclusively established. “A judicial admission dispenses with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it. It may take the shape of a formal stipulation, or may be informal, as where a party upon the witness stand unequivocally concedes a fact for the purpose of the trial.” (Emphasis added; internal quotation marks omitted.) Real Estate Auctions, Inc. v. Senie, 28 Conn. App. 563, 572, 611 A.2d 452 (1992).

We are aware of no case in which the denial of a request for admission has been treated as a judicial admission for evidentiary purposes. The trial court properly refused to admit the defendant’s denial of requests for admissions as judicial admissions.

VI

The plaintiff’s final contention is that the trial court improperly directed a verdict in favor of the defendant on the fourth count of the revised complaint, which alleged intentional actions of the defendants resulting in severe emotional distress to the plaintiff. We do not agree.

In order for the plaintiff to prevail in a claim for intentional infliction of emotional distress, four elements must be established. “It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. . . . Thus, [i]t is the intent to cause injury that is the gravamen of the tort . . . .” (Citations omitted; internal quotation marks omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991).

The plaintiff testified that one of the defendant’s employees, in attempting to reach over her to reach her son, pushed her so hard that she could feel his genitals against her and asked him if he was attempting to rape her. The plaintiff also testified that during the melee her skirt and slip were up in plain view of the crowd that had gathered in the parking lot. The daughter of a woman with whom the plaintiff worked witnessed this series of events and the plaintiff testified that this was cause for great humiliation.

The court granted a motion by the defendant for a directed verdict as to this count concluding as a matter of law that the plaintiff failed to prove either that the acts of the defendant were intended to inflict emotional distress, or that the emotional trauma experienced by the plaintiff was severe. We agree. Even when viewed in the light most favorable to the plaintiff, these facts do not support a finding of intent to cause emotional injury or that the plaintiff suffered serious emotional distress.

The judgment is affirmed.

In this opinion the other judges concurred.

       This action was originally brought by both Mildred Drew and her son Demetrius Drew. Demetrius Drew withdrew his claims on April 26,1993, leaving Mildred Drew as the sole plaintiff. We refer to her as the plaintiff in this opinion.

       The plaintiff also claims that the trial court improperly imposed a blanket prohibition on any amendments to the pleadings. The bases of this claim are the trial court’s statements that a substitute complaint was not necessary and that the state of the pleadings was adequate for the purposes of proceeding with the trial. Our review of the transcripts indicates that the comments of which the plaintiff complains cannot reasonably be construed as an improper prohibition on future amendments to the pleadings.

       Practice Book § 315 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       Furthermore, the trial court had informed counsel, prior to the defendant’s closing argument, that it would be explicitly instructing the jury that they could not rely on the defendant’s employees’ failure to adhere to procedures as a basis for finding negligence. The plaintiffs counsel failed to offer more than a general objection to the proposed charge at this time as well.

       The plaintiffs third issue in the table of contents of her brief is framed as whether: “The trial court erred in preventing plaintiffs counsel from mentioning the issue of humiliation during closing argument.” Most of the plaintiffs argument, however, focuses on the issue of whether the trial judge displayed partiality through this ruling and not the merits of the ruling.
      To the extent that the plaintiff challenges the propriety of the trial court’s admonition not to bring up the issue of humiliation as an element of damages in its closing argument, we note that this occurred after the plaintiff had spoken of this issue in closing argument. The plaintiff was prohibited from raising the issue only in rebuttal of the defendant’s closing argument. Furthermore, because the jury ultimately returned a verdict for the defendant on both counts of the complaint, the issue of damages was never considered by the jury and any claimed error relating to closing argument on damages is thereby harmless. See McSwiggan v. Kaminsky, 35 Conn. App. 673, 680-81, 647 A.2d 5, cert. denied, 231 Conn. 934, 649 A.2d 256 (1994).

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

       During closing argument, the plaintiffs counsel suggested that the jury should consider the humiliation experienced by the plaintiff in its award of damages. When the plaintiffs counsel completed his argument, the jury was excused and the trial court informed counsel of its intention to charge the jury on certain issues, including a charge that the jury could not award damages for humiliation. At this point, the trial court added “since that is perfectly clear in black letter law, that comes pretty close to an abuse of closing argument, and if you mention anything again that has to do with the claims that have been dismissed by the court, I will hold you in contempt.” The trial court then called for the jury to be returned to the courtroom.

       The preliminary statement of issues and the briefs of both parties identify the misdemeanor as a larceny, but in their arguments the parties correctly identify the misdemeanor as possession of marijuana.

       Request for admissions number seven on exhibit H provided: “The defendants, its servants, agents and/or employees failed to even inspect the receipt displayed by the plaintiff, Demetrius Drew, which evidenced his purchase of the boots in question.” The defendant’s response was: “Denied.”