text:
    STATE OF CONNECTICUT v. JAMES BUTLER
    (AC 23371)
    Schaller, West and Hennessy, Js.

      Argued October 29, 2003 —
    officially released January 13, 2004

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and John J. Davenport, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, James Butler, appeals from the judgments of conviction, rendered after a jury trial, of five counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and two counts of conspiracy to commit robbeiy in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4). On appeal, the defendant claims that the trial court improperly (1) refused to permit a defense witness to testify, (2) instructed the jury on circumstantial evidence and (3) invaded the province of the jury in commenting on the admissibility of his statement to the police. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On October 16, 2000, the defendant and his accomplice, Charles Spells, entered the Mobil gasoline station on Watertown Avenue in Waterbury. Both men wore masks to conceal their identity, and the defendant also carried a shotgun. The men took $160 in cash, lottery tickets and the store clerk’s watch. The defendant aimed the shotgun at a customer and dragged him into an aisle before he took the man’s wallet. The defendant aimed the shotgun at another customer and forced her to the floor and demanded her money.

On October 20,2000, the defendant and Spells entered the Cumberland Farms convenience store on Water-town Avenue in Waterbury. Both men were dressed in black, wore masks and the defendant carried a shotgun. The men took $400 from the cash register. Spells struck one customer with a blunt metal object and took the man’s wallet. Another customer surrendered her car keys to the defendant and informed him that there was more than $300 in the vehicle. The two men took the keys and left in the vehicle.

Neither the customers nor the clerks could identify the perpetrators of the crime because the men were wearing masks. They, however, provided general descriptions of the men: Both were African-American, one was approximately six feet tall and the other was approximately five feet, seven inches tall. Those descriptions fit the defendant and Spells, respectively. The police found the customer’s vehicle abandoned in a nearby parking lot and her purse on a nearby street. More than $300 in cash and a laptop computer were missing from the vehicle. The police also found a black mask that contained several strands of head hair in the vehicle.

On October 30, 2000, the defendant turned himself in to the Waterbury police department on an outstanding warrant. The defendant was interrogated, confessed to the crimes and implicated Spells as his accomplice. In giving his statement to the police, the defendant provided details of the two crimes of which only a participant would have been aware. He knew where the customer’s vehicle had been abandoned and told the police where the keys could be located. Utilizing the defendant’s confession, the police found the keys. The defendant also stated that the car used in the Mobil gasoline station robbery belonged to Chiquita Diggs, the girlfriend of Spells. The defendant further confessed that after the robbery, Spells gave him $50, took the black mask and they went their separate ways. The police subsequently interviewed Diggs. Diggs informed the police of the location of the shotgun, which was recovered in Lakewood Lake. The defendant recanted his confession at trial.

I

The defendant’s first claim is that the court improperly refused to permit a defense witness to testify. Specifically, the defendant claims that the court abused its discretion when it excluded Diggs’ testimony on the issue of third party guilt. We disagree.

The following additional facts are relevant to the defendant’s claim. Diggs testified outside the presence of the jurors that she was staying at the home of Spells at the time of the October 16, 2000 robbery. Spells was armed with a shotgun when he entered the home. She testified that James Gardner and Levelle Kelly accompanied him. Spells was in possession of a laptop computer, a watch and a checkbook. Diggs also stated that after Spells was arrested, Gardner threatened her with a shotgun to keep quiet and drove her to Lakewood Lake where he disposed of the shotgun. The court did not allow the defendant to present Diggs’ testimony regarding the issue of third party guilt because her testimony did not establish a direct link to the robberies.

“Both this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. . . . The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . . The admissibility of evidence of third party culpability is governed by the rules relating to relevancy. ... No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. . . . The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 564, 747 A.2d 487 (2000).

The court did not abuse its discretion in refusing to allow Diggs to testify on the issue of third party guilt. The testimony of Diggs merely would have corroborated the state’s case. The testimony given by Diggs outside the presence of the jury was consistent with the defendant’s confession. The defendant confessed that he had parted ways with Spells after the robbery and that Spells took the gun and mask, as well as the items stolen during the robbery. Diggs testified that Spells came home with the gun, mask and the items stolen in the robbery. Furthermore, Diggs’ testimony that Gardner and Kelly were with Spells around the time of the robberies and that Gardner threatened her with the shotgun before he threw it into the lake does not directly link either of them to the robberies. We conclude that none of Diggs’ testimony was inconsistent with the defendant’s guilt and was excluded properly. The court, therefore, did not abuse its discretion by refusing to admit Diggs’ testimony on the issue of third party guilt.

II

The defendant also claims that the court’s instructions on circumstantial evidence and the presumption of innocence were improper. Specifically, the defendant argues that the court’s instructions diluted the state’s burden of proving him guilty beyond a reasonable doubt. We are not persuaded.

The claim arises from a portion of the court’s instructions on circumstantial evidence that reads as follows: “Therefore, before you decide that a fact has been proven by circumstantial evidence, you must consider all the evidence in light of reason, experience and common sense. Now, in this case, as in all criminal prosecutions, the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt.” (Emphasis added.) The court continued with its instruction and repeated, on no fewer than twenty-five separate occasions, that the state’s burden of proof was proof beyond a reasonable doubt. Furthermore, the court specifically stated that if the jury does not “find that all of the elements, that means each and every one of the three, are proven beyond a reasonable doubt, your verdict must be not guilty.”

Because the claim has not been preserved, the defendant asks us to examine the matter under the doctrine of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). 3We will review the defendant’s claim because the first two prongs of Golding are satisfied. There is an adequate record for review, and “the right not to be convicted except by proof beyond a reasonable doubt is a constitutional right.” (Internal quotation marks omitted.) State v. Zaporta, 36 Conn. App. 250, 264, 650 A.2d 582 (1994), aff'd, 237 Conn. 58, 676 A.2d 814 (1996).

We follow the rationale set forth in State v. Zaporta, supra, 36 Conn. App. 250, in which the defendant claimed that the court erroneously charged the jury on circumstantial evidence when it stated that “you must consider all of the evidence in light of reason, experience, and common sense . . . .” (Internal quotation marks omitted.) Id., 266. This court held that the statement “was not, in and of itself, erroneous.” Id. This court further held that “[t]he instruction on circumstantial evidence given in this case did not suggest to the jury that the state’s burden of proof was something less than beyond a reasonable doubt, but rather, gave no guidance as to the proper standard of proof.” Id. This court in Zaporta specifically cited the fact that the trial court had repeated the state’s burden of proof throughout the charge. Id., 267.

In this case, the defendant argues that the jury charge, “[therefore, before you decide that a fact has been proven by circumstantial evidence, you must consider all the evidence in light of reason, experience and com mon sense,” (emphasis added) is improper. Looking at the charge as a whole, we conclude that the court did not impermissibly dilute the state’s burden of proof. The court stated throughout the instruction that the state’s burden of proof was proof beyond a reasonable doubt. Furthermore, the court specifically stated that the defendant could not be found guilty unless each element of the crime was proven beyond a reasonable doubt by the state.

We are satisfied that the court’s instructions, when read as a whole, did not dilute the state’s burden of proof. Consequently, the defendant has failed to satisfy the third prong of Golding because he was not clearly deprived of a fair trial.

Ill

The defendant’s last claim is that the court improperly invaded the province of the jury when it commented on the admissibility of the defendant’s confession. We disagree.

That claim arises from the following portion of the court’s instruction: “This statement was held by the court to be admissible. That means you can consider it. Let me say to you that this ruling on my part meant no more than just that. And in the performance of my duty, I concluded that the circumstances surrounding the making of that statement were such that you could have that statement before you for your consideration. That is not my — that is not meant to say that I endorse the reliability or truthfulness of the statement. It is up to you, as the ultimate finders of fact, to make that determination based on all the evidence. I am just saying that it is something that you can hear, something that you will have with you in the deliberation room .... I’m not endorsing the reliability or the truthfulness of the statement. That is up to you to determine based on all of the evidence. That those are facts to be found by the jury. Accordingly, my ruling is not to be taken by you as giving to that statement any more weight in your deliberations than you conclude it should have. It is totally up to you.” (Emphasis added.)

Because the claim has not been preserved, the defendant asks us to examine the matter under the doctrine of State v. Golding, supra, 213 Conn. 239-40. We will review the defendant’s claim because the first two prongs of Golding are satisfied. There is an adequate record for review, and “[d]ue process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury . . . .” (Internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985).

“A trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence. . . . The purpose of marshaling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. . . . Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case. . . . The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter.” (Citation omitted; internal quotation marks omitted.) State v. Young, 68 Conn. App. 10, 17, 791 A.2d 581, cert. denied, 260 Conn. 909, 795 A.2d 547 (2002).

The defendant argues that by informing the jury of its decision to allow it to consider the confession in arriving at the verdict, the court somehow endorsed the confession as probative evidence. A review of the entire jury charge establishes that there is no reasonable possibility that the jury was misled by the court’s instruction. The court specifically directed the jurors on numerous occasions throughout the charge that the reliability of the confession was a determination of fact to be made solely by them. The court stated that although it had admitted the confession into evidence, it did not endorse its reliability or truthfulness. Although we agree with the defendant that in this case, the court could have ended the problem by not commenting on the admissibility of the confession, we do not believe that it follows that the jury would have seen that as the court placing its imprimatur on the confession.

Reviewing the charge in its entirety, we conclude that the court did not unfairly comment on the evidence. The court repeatedly instructed that the jurors were the sole finders of fact, that every element of the crimes charged had to be proved beyond a reasonable doubt and that if the state failed to prove any element beyond a reasonable doubt, they should find the defendant not guilty. Accordingly, the court’s instructions did not invade the province of the jury and, consequently, they did not unduly prejudice the defendant or deprive him of a fair trial.

The judgments are affirmed.

In this opinion the other judges concurred.

       Spells earlier had confessed to the crime and implicated the defendant as his accomplice.

       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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The court clarified the charge as it related to the defendant’s confession at the end of its instruction: “You recall that the state offered into evidence testimony as to a statement made out of court by the accused, which it claimed [was] in the nature of a confession or admission by him tending to show his guilt of the crimes charged. I held the statement to be admissible. Let me say to you, this ruling on my part meant no more than just that. In the performance of my duty, I concluded that the circumstances surrounding the making of that statement were such that you should have the statement before you for your consideration. [The] reliability or credibility of the confession or statement is a determination of fact to be determined by you. I simply determine that it is appropriate for you to taire this statement into consideration. I’m not endorsing its reliability or its truthfulness. Again, that’s up to you based on the evidence.”


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    NANCY ELLIS v. ALLIED SNOW PLOWING, REMOVAL AND SANDING SERVICES CORPORATION ET AL.
    (AC 23496)
    Foti, Flynn and Peters, Js.
    Argued November 17, 2003 —
    officially released January 13, 2004

      Lorinda S. Coon, with whom, on the brief, was William J. Scully, for the appellant (named defendant).

      Lori M. Comforti, for the appellee (plaintiff).
   Opinion

PETERS, J.

The Mashantucket Pequot Tribal Nation is a Native American tribe that, because it has obtained federal recognition, has sovereign immunity from state court tort actions. See Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S. Ct. 1700, 140 L. Ed. 2d 981 (1998); Kizis v. Morse Diesel International, Inc., 260 Conn. 46, 52-53, 794 A.2d 498 (2002); see also 25 U.S.C. § 1758; General Statutes § 47-59a. The issue in this case is whether the tribe’s sovereign immunity entitles a general contractor to claim sovereign immunity from state court jurisdiction to hear a tort claim arising out of the contractor’s alleged negligence in performing snow removal duties on tribally owned land. The trial court, concluding that it had jurisdiction to proceed, denied the general contractor’s motion to dismiss. We agree.

The plaintiff, Nancy Ellis, filed an amended complaint against the defendant Allied Snow Plowing, Removal and Sanding Services Corporation. She alleged that the defendant’s negligent failure to clear snow and ice from a tribaily owned parking lot in Norwich had caused her to be injured when she fell while attempting to board a bus. The plaintiff was at the parking lot in the course of her employment as a bus driver for Entertainment Tours, Inc., a company engaged in bringing patrons to the tribe’s casino.

The defendant filed a motion to dismiss the plaintiffs complaint for lack of subject matter jurisdiction. The defendant asserted that the tribal court had exclusive jurisdiction to adjudicate the plaintiffs claim because (1) the defendant conducted its snow removal business as the tribe’s agent, servant or employee and (2) the alleged incident had taken place on tribal land.

The trial court denied the defendant’s motion to dismiss. The court emphasized that it was undisputed that (1) neither the plaintiff nor the defendant was a member of the tribe, (2) the parking lot, although on tribal land, was not on the reservation itself and (3) the action was not against the tribe itself.

The defendant has appealed to this court from the trial court’s denial of its motion to dismiss. Because an appeal from such a denial raises a question of law, our review of the defendant’s appeal is plenary. South ern New England Telephone Co. v. Dept. of Public Utility Control, 64 Conn. App. 134, 137, 779 A.2d 817 (2001), appeal dismissed, 260 Conn. 180, 799 A.2d 294 (2002).

The defendant has proffered three arguments in favor of its claim to tribal sovereign immunity, two of which it raised at trial. As at trial, the defendant maintains that (1) the organic documents adopted by the tribe designate its tribal court as the exclusive forum for adjudication of claims of tortious misconduct and (2) the responsibilities that the defendant assumed for snow removal on behalf of the tribe confer upon it the status and immunity of an agent or a representative of the tribe. In addition, the defendant now asserts that the nondelegable duty of the tribe to maintain its property in a safe condition requires recourse to the tribal court to protect the tribe’s economic interests. We are not persuaded.

I

AVAILABILITY OF A TRIBAL FORUM

The defendant’s first argument is a structural claim based on the existence of a tribal forum in which the plaintiff may pursue her personal injury claim. Because of the tribe’s unequivocal waiver of its sovereign immunity in its own court, the defendant maintains that only the tribal court may hear the plaintiff’s claim. We disagree.

The defendant relies heavily on our Supreme Court’s recent articulation of tribal sovereign immunity in Kizis v. Morse Diesel International, Inc., supra, 260 Conn. 46. In that case, as in this one, the question was whether nonmembers of a Native American tribe could assert the tribe’s claim to sovereign immunity. The nonmembers were tribal employees whose allegedly tortious misconduct had occurred on the reservation. The Supreme Court held that tribal immunity was available to them as “individual tribal officials acting in their representative capacity and within the scope of their authority.” (Emphasis added; internal quotation marks omitted.) Id., 54. In arriving at this conclusion, the court enforced a provision in the applicable tribal laws that broadly described the jurisdiction of the tribal court to encompass “without limitation, disputes arising between any person or entity and the Tribal Gaming Authority, including customers, employees, or any gaming manager operating under a gaming management agreement with the Tribal Gaming Authority, or any person or entity which may be in privity with such persons or entities . . . .” (Internal quotation marks omitted.) Id., 56, citing Mohegan Const., art. XIII, § 2.

The defendant notes that, like the Mohegan Tribe described in Kizis, the Mashantucket Pequot Tribal Nation has established a tribal court with jurisdiction over “actions founded upon a tort of the Tribe or its agents, servants, or employees acting within the scope of their employment.” Mashantucket Pequot Tribal Laws, tit. XII, c. 1, § 2 (a). According to the defendant, Kizis requires us to hold that the Mashantucket Pequot tribal court has exclusive jurisdiction over the plaintiffs tort action in this case. We disagree.

We are not persuaded that Kizis stands for the proposition that a properly authorized tribal court with broad tribal authority unfailingly ousts the Superior Court of jurisdiction to hear any case that is in any way related to tribal activities. It is instructive that the Kizis court cited Strate v. A-1 Contractors, 520 U.S. 438, 117 S. Ct. 1404, 137 L. Ed. 2d 661 (1997), in support of its decision. Kizis v. Morse Diesel International, Inc., supra, 260 Conn. 57. In Strate, the issue was whether a nonmember of a tribe was entitled to pursue, in federal court, a personal injury claim arising out of a collision between her automobile and a truck driven by a nonmember employee of a nonmember general contractor engaged in performing landscaping services for the tribe. Strate v. A-1 Contractors, supra, 443. The United States Supreme Court held that the District Court, rather than the tribal court, had jurisdiction to hear the case. It concluded that tribes generally lack civil authority over the tortious conduct of nonmembers of the tribe unless the underlying activity directly affects the tribe’s political integrity, economic security, health or welfare. Id., 459. A “run of the mill” highway accident, the court held, did not manifest any such adverse impact. Id., 457.

It follows, as the trial court held in this case, that the tribal court does not have exclusive jurisdiction to adjudicate this “run of the mill” slip and fall accident. Although the plaintiff might have pursued her claim in the tribal court, she was not obligated to do so.

II

THE DEFENDANT AS A TRIBAL OFFICIAL

The defendant also maintains that, because its responsibilities for snow removal arose out of its contract with the Mashantucket Pequot Tribal Nation, it is entitled to sovereign immunity as an agent or representative of the tribe. According to the defendant, it is entitled to the same immunity that Kizis afforded to the two tribal employees of the Mohegan Tribe. We disagree.

Kizis held that “[t]he doctrine of tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority.” (Internal quotation marks omitted.) Kizis v. Morse Diesel International, Inc., supra, 260 Conn. 54. In Kizis, the tribal officials were two employees who allegedly had negligently placed fieldstone in an entranceway to the tribe’s casino. In this case, the defendant allegedly had negligently allowed snow and ice to remain on the tribe’s parking lot. In both cases, the defendant notes, a nonmember of a tribe raised a claim that tribal property was not being maintained safely.

The defendant’s reliance on Kizis assumes that, for present purposes, there is an equivalence between tribal employees and general contractors, as long as both are acting on behalf of the tribe. This assumption is not well founded. Our case law establishes that there is a “fundamental distinction between an employee and an independent contractor [which] depends upon the existence or nonexistence of the right to control the means and methods of work.” (Emphasis in original; internal quotation marks omitted.) Hunte v. Blumenthal, 238 Conn. 146, 154, 680 A.2d 1231 (1996).

We agree with the plaintiff that the terms of the agreement between the defendant and the tribe demonstrate that the tribe did not reserve a right to control the defendant’s performance of its snow removal services. The agreement unambiguously (1) describes the defendant as an independent contractor, (2) allocates to the defendant the sole responsibility for risks associated with the snow removal business, (3) makes the defendant “solely and exclusively responsible” for the payment of “damages . . . [for the] bodily injury . . . of any person ... in connection with [the] Contractor’s performance of its obligations” and (4) imposes the requirement for obtaining insurance on the defendant. It seems to us a fair reading of this agreement that the parties intended to create a wall of separation between the defendant’s performance of its snow removal responsibilities and the contractual responsibilities of the tribe.

The defendant has not articulated any claim for status as a tribal official other than as an agent of the tribe. The defendant’s agreement with the tribe, however, expressly assigned to the defendant, and not to the tribe, the responsibility of providing protection against slip and fall accidents on the tribal parking lot. Indeed, the defendant’s relationship to the tribe more closely resembles that described in Strate v. A-1 Contractors, supra, 520 U.S. 438, in which a suit alleging negligence by an employee of a tribal general contractor was held to fall within the jurisdiction of the civil court rather than that of the tribal court. Id., 459.

In sum, we are persuaded that the defendant has not established any relationship between itself and the tribe that would support the defendant’s claim to sovereign immunity. Without more, the defendant, a general contractor, does not qualify for the immunity afforded to a tribal official.

Ill

THE TRIBE’S NONDELEGABLE DUTY

The defendant’s final argument focuses on that part of Strate v. A-1 Contractors, supra, 520 U.S. 438, that confers exclusive jurisdiction on tribal courts to adjudicate a dispute between nonmembers of a tribe if that dispute “has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” (Internal quotation marks omitted.) Id., 457. The defendant maintains that pursuit of the plaintiffs action in the Superior Court would have an adverse effect on the tribe’s economic interest in the safe maintenance of tribal land. It bases this argument on the tribe’s non-delegable duty to ensure the safety of tribally owned property. We are not persuaded.

It is a given that, as a landowner, the tribe has a nondelegable duty to keep its properties safe. See Gazo v. Stamford, 255 Conn. 245, 252-53, 765 A.2d 505 (2001). As Gazo held, this nondelegable duty includes the responsibility to keep tribal properties free from snow and ice and thereby to protect third persons from injuries resulting from a slip and fall. Id. That, of course, is precisely the nature of the injuries described in the plaintiffs complaint.

Relying on the law of nondelegable duty, the defendant posits that holding it responsible for the plaintiffs slip and fall will have an adverse impact on the tribe’s economic interest. It does not delineate the nature of that impact with any precision. Presumably, it arises out of the risk that the present litigation might adversely affect the tribe’s ability to defend itself from a suit in tribal court alleging breach of the tribe’s own duty to ensure the safety of tribal property.

It is undisputable that the tribe and the defendant each owed a duty to the plaintiff to clear the tribal parking lot of snow and ice in timely fashion. The tribe’s breach of its duty is not a defense to an action for breach of the defendant’s duty. The defendant’s breach of its duty is not a defense to the tribe. See id.

Under these circumstances, we cannot discern any way in which the plaintiffs action in the Superior Court could have a direct adverse effect on an economic interest of the tribe. If the plaintiff succeeds in obtaining a judgment against the defendant, her recovery in that forum would relieve the tribe of responsibility to the extent that the judgment is paid. In the event that the plaintiff pursued a claim against the tribe in tribal court, the tribe would be free to defend against such litigation in whatever manner it deemed appropriate. Because the tribe is no longer a party to the action against the defendant, it would not be bound by adverse findings of fact or rulings of law that may be made in this action.

We are, therefore, unpersuaded that the tribe faces a serious risk of a direct adverse economic impact on tribal economic well being if the plaintiff proceeds with her action against the defendant in the Superior Court. With appropriate foresight, the tribe sought to limit its economic exposure by hiring the defendant to assume responsibility for slip and fall accidents on tribal parking lots. The significance of this limitation of liability far exceeds the remote possibility that the tribe will be unfairly burdened if the plaintiff chooses to pursue an action against the tribe in tribal court.

The trial court had subject matter jurisdiction to adjudicate the merits of the plaintiffs cause of action. It properly denied the defendant’s motion to dismiss that action on the ground of tribal sovereign immunity.

The denial of the defendant’s motion to dismiss is affirmed.

In this opinion the other judges concurred.

       The plaintiffs original complaint contained a count alleging liability on the part of the defendant Mashantucket Pequot Tribal Nation. She has not appealed from the dismissal of that count on the ground of tribal sovereign immunity. In this opinion, we refer to Allied Snow Plowing, Removal and Sanding Services Corporation as the defendant.

       Entertainment Tours, Inc., was permitted to intervene as a plaintiff to protect its interests under workers’ compensation law. See General Statutes § 31-293.

       Although the denial of a motion to dismiss ordinarily is an interlocutory ruling that is not immediately appealable, the defendant’s appeal is properly before us. The denial of a motion to dismiss based on a colorable claim of sovereign immunity triggers an immediate right to appeal. Flanagan v. Blumenthal, 265 Conn. 350, 352-53 n.4, 828 A.2d 572 (2003).

       The parties agree that this case does not concern any issue of exhaustion of tribal court remedies.

       In the tribal court, the plaintiff would not have been entitled to a jury trial and would have had only a limited right to receive damages for pain and suffering. Mashantucket Pequot Tribal Laws, tit. XII, c. 1, § 2 (b) (4).

       As a general rule, an employer is liable for the negligence of its agents but not the negligence of independent contractors. Pelletier v. Sordoni/ Skanska Construction Co., 264 Conn. 509, 517, 825 A.2d 72 (2003). “The explanation for [this rule] most commonly given is that, since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor’s own enterprise, and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it.” 2 Restatement (Second), Torts § 409, comment (b), p. 370 (1965).

       Although there is no evidence of record that this issue was ever raised in the trial court, it is an issue of law over which our jurisdiction is plenary. See Ammirata v. Zoning Board of Appeals, 264 Conn. 737, 744-45, 826 A.2d 170 (2003). The parties have briefed the merits of the defendant’s argument. We will, therefore, address its merits.

       The agreement between the defendant and the tribe makes it clear that the tribe will not be economically at risk for any damages that the plaintiff may recover. The agreement has no indemnity provision.

       For the applicable principles of claim preclusion and issue preclusion, see, e.g., Cumberland Farms, Inc. v. Groton, 262 Conn. 45, 57-58 n.16, 808 A.2d 1107 (2002); 1 Restatement (Second) Judgments §§ 24, 27 (1982).


text:
    MARGHERITA DEL CORE v. MOHICAN HISTORIC HOUSING ASSOCIATES
    (AC 24058)
    Lavery, C. J., and Bishop and Peters, Js.
    Argued December 2, 2003 —
    officially released January 13, 2004

      Michael D. Colonese, with whom, on the brief, was Dana M. Horton, for the appellant (plaintiff).

      John B. Farley, with whom was Kevin J. Greene, for the appellee (defendant).
   Opinion

PETERS, J.

This case arises out of a man’s burial in a pauper’s grave because his sister did not hear of his death soon enough to make more suitable arrangements. The brother’s landlord, who knew that the sister was her brother’s next of kin, did not notify her of the death for several months. The principal issue before us is whether the landlord owed the sister a duty of prompt notification. The trial court, concluding that the landlord did not have such a duty, granted the defendant’s motion to strike the plaintiffs complaint. We agree and affirm the judgment in favor of the defendant.

The plaintiff, Margherita Del Core, filed a four count complaint charging the defendant, Mohican Historic Housing Associates, with wrongful interference with her right to possession and disposition of the remains of her deceased brother, Anthony Caruso. In response, the defendant filed a motion to strike the complaint on the grounds that it failed to state a cognizable legal duty and failed to allege facts to support a claim of intentional infliction of emotional distress.

The trial court granted the defendant’s motion to strike the complaint. “For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted.” (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).

Because the plaintiffs appeal raises the same claims of law that were at issue at trial, our review of these claims is plenary. See Southern New England Telephone Co. v. Dept. of Public Utility Control, 64 Conn. App. 134, 137, 779 A.2d 817 (2001), appeal dismissed, 260 Conn. 180, 799 A.2d 294 (2002).

I

COUNT ONE: NEGLIGENCE

The first count in the plaintiffs complaint alleged that the defendant negligently had interfered with her right to possession of the body of her brother. The defendant maintained, and the trial court concluded, that this count did not state an actionable claim of negligence. We agree.

For present purposes, the underlying facts are undisputed. The brother was one of the defendant’s tenants from 1998 until his death at Yale-New Haven Hospital on July 24, 2001. Although the defendant had been informed that the plaintiff was the brother’s next of kin, it did not respond to efforts by the hospital to obtain that information after the brother’s death. In the absence of that information, the hospital arranged for the brother’s burial in a pauper’s grave in Hamden. Four months later, the defendant informed the plaintiff of the death.

In support of its motion to strike the first count, the defendant argued that these alleged facts do not support a claim for negligence. The plaintiffs allegations of negligence, in its view, were fatally flawed because they failed to establish the existence of any legal relationship that would have imposed on the defendant a duty of care to the plaintiff. In opposition, the plaintiff argued that the defendant had a duty of timely notification because it was aware of her status as next of kin. It was foreseeable, in her view, that a delay in notification would prevent her from making arrangements for the proper burial of her brother.

The trial court agreed with the defendant. The court accepted the plaintiffs proposition that the facts the defendant allegedly knew might have made it foreseeable that the plaintiff would have difficulty in caring for her deceased brother’s body. Nonetheless, the court held that those facts did not establish that the defendant had a duty to notify the plaintiff of her brother’s death. It stressed the absence of Connecticut precedents recognizing a cause of action for negligent interference with the possession and disposition of a dead body.

In this appeal, the plaintiff renews her claim that, under the circumstances she has alleged, the defendant should have anticipated the harm that would likely flow from its negligent failure to notify her promptly of her brother’s death. She acknowledges that she has neither a contractual nor a statutoiy claim against the defendant. She recognizes that, to prevail on a claim of common-law negligence, she must establish duty as well as foreseeability. See Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614-16, 783 A.2d 462 (2001).

The challenge for the plaintiff, therefore, is to establish that the defendant had a legal duty to protect her right to provide a decent burial for her deceased brother. The test for the existence of a legal duty is twofold. It entails “(1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.” (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505 (2001).

Focusing on a public policy analysis, the plaintiff maintains that she has a common-law claim against a person who negligently prevents the proper interment of a dead body. The importance of her claim is undeniable. “Few things are more cherished, respected, or sacred than the right to bury our dead. There is a cognizable and compensable interest ... in the comfort of knowing that the deceased has been given a comfortable and dignified resting place.” (Internal quotation marks omitted.) Vogelaar v. United States, 665 F. Sup. 1295, 1306 (E.D. Mich. 1987).

To implement the public policy of respect for the right to bury one’s dead, the plaintiff urges us to adopt § 868 of the Restatement (Second) of Torts. Section 868 provides: “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.” (Emphasis added.) 4 Restatement (Second), Torts § 868, p. 274 (1979). The trial court declined to adopt this provision.

In our view, however, Connecticut should recognize a claim for negligent interference with the right of a family member to control the proper burial of a deceased. Recognition of this principle, however, will not provide a remedy for this plaintiff unless she can establish that this defendant owed her a duty to facilitate her right to bury her brother promptly.

The plaintiff has failed to allege facts that would suffice to show that the defendant had any duty to her. The cases on which she relies share one overarching distinguishing fact, namely, that each of the defendants, at a relevant time, had physical custody of the body of the deceased person. For example, in Mackey v. United States, 8 F.3d 826, 827 (D.C. Cir. 1993), the defendants were a hospital and a custodial mental health institution. In Larson v. Chase, 47 Minn. 307, 308, 50 N.W. 238 (1891), the defendant was the custodian of a dead body. In Estate of Finn v. New York, 76 Misc. 2d 388, 389-90, 350 N.Y.S.2d 552 (1973), the defendant was the city hospital where the deceased died. In Vogelaar v. United States, supra, 665 F. Sup. 1297, the defendant was the United States government, which had responsibility for the identification of the remains of a soldier who died in Vietnam.

Due respect for the burial rights of family members may reasonably be held to impose a duty of notification on those who have the right to control the body of the deceased. There is, however, an unbridgeable gap between those cases and the claim, in this case, that an owner of rental property owes such a duty to its tenants.

It bears emphasis that the only alleged relationship between the defendant and the deceased person was a landlord-tenant relationship. The plaintiff has not alleged that the defendant ever assumed any responsibility for her brother’s welfare. Specifically, she has not alleged that the defendant ever exercised custodial control over her brother’s body or that it had some special responsibility for its tenants, such as a convalescent home might have.

Under the circumstances as pleaded, we cannot discern a public policy basis for imposing on this defendant a common-law duty to notify the plaintiff of her brother’s death. As the defendant aptly notes, if it were to be held liable, so would a neighbor who reads an obituary or a fellow worker or an employer. We are not persuaded that the plaintiffs unfortunate inability to arrange for the burial of her brother is a sufficient basis for charging this defendant with negligence.

II

COUNT TWO: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In the second count of her complaint, the plaintiff claimed that the defendant caused her to suffer severe mental and physical anguish and emotional distress by intentionally interfering with her right to bury her brother. As in count one, the alleged interference was the failure to notify the plaintiff, in a timely fashion, of her brother’s death.

The trial court characterized this count as one for intentional infliction of emotional distress. It held the count was not actionable as pleaded because the plaintiff had failed to allege any facts to show that the defendant had engaged in extreme and outrageous conduct. See Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).

On appeal, the plaintiff does not dispute the proposition that a claim for intentional infliction of emotional distress requires allegations that the court found missing from her complaint. She argues, instead, that the missing allegations are irrelevant because count two rested not on a claim of infliction of emotional distress but on a claim that the defendant had caused her to suffer severe mental and physical anguish.

Like the trial court, we think that this is a distinction without a difference. Even if we were to accept the plaintiffs characterization of count two, we would nonetheless agree with the court’s bottom line. The plaintiff has failed to allege any basis for her claim that the defendant’s alleged conduct constituted the intentional infliction of mental or physical anguish. She has not cited a single case to support her claim.

Ill

COUNT THREE: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

In the third count of her complaint, the plaintiff claimed that the defendant negligently caused her to suffer emotional distress by failing to notify her of her brother’s death. She alleged no additional facts in support of this claim.

The trial court struck the third count. It noted that one facet of a claim for negligent infliction of emotional distress is a showing of negligence. Having previously ruled that the allegations contained in count one were insufficient to establish negligence, the court concluded that the plaintiff, for the same reasons, could not prevail on this count.

The plaintiff does not challenge the court’s analysis of the law of negligent infliction of emotional distress. The court’s analysis is fully supported both by logic and by our case law. See, e.g., Perodeau v. Hartford, 259 Conn. 729, 754-55, 792 A.2d 752 (2002); Roach v. Ivari International Centers, Inc., 77 Conn. App. 93, 102-103, 822 A.2d 316 (2003).

The plaintiffs disagreement with the court’s ruling on count three devolves, therefore, into a reargument of her claim of negligence in count one. We need not restate here why we disagree with her claim that the defendant negligently impaired her right to make proper burial arrangements for her brother.

We conclude, therefore, that each of the three counts of the plaintiffs complaint fails to establish an actionable claim against the defendant. We sympathize with the plaintiffs dismay at her brother’s burial in a pauper’s grave. Nonetheless, the defendant was, for legal purposes, a bystander in the events that led to that unfortunate outcome. Because the defendant owed the plaintiff no duty to prevent her brother’s unsuitable burial, the defendant bears no responsibility either for her inability to care for her brother’s body or for her resultant mental and physical anguish.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the court rendered judgment only on the first three counts stated in the plaintiffs complaint, the parties subsequently stipulated to the dismissal of the remaining count,.

       The complaint did not allege that the defendant knew or should have known the plaintiffs address or telephone number.

       We need not pursue that issue further in light of our conclusion that the plaintiff failed to establish that the defendant owed her a duty to notify. See Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 529, 832 A.2d 1180 (2003).

       Indeed, as the defendant observes, the most closely analogous statute is General Statutes § 47a-11d, which gives a landlord the option of notifying the next of kin upon the death of a tenant if the landlord wishes to expedite repossession of the leasehold. Perhaps it was the existence of this option that led the defendant to notify the plaintiff when it did so.

       The defendant has cited several cases holding that a defendant had no duty to provide prompt notification of a death to the next of kin.

       We need not decide, in this case, how broadly the class of family members should be defined. For today, it is sufficient that a sister unquestionably is a family member.


author: BISHOP, J.

text:
    ZOFIA MROCZEK v. TADEUSZ KRET
    (AC 23911)
    Foti, Bishop and McLachlan, Js.

      Argued October 14, 2003 —
    officially released January 20, 2004

      Duane Lueders, for the appellant (plaintiff).

      Rodd J. Mantell, with whom was Christopher P. Krie-sen, for the appellee (defendant).
   Opinion

BISHOP, J.

In this personal injury action, the plaintiff, Zofia Mroczek, appeals from the judgment of the trial court, rendered after a juiy verdict in favor of the defendant, Tadeusz Kret. On appeal, the plaintiff claims that the court improperly barred her engineering expert from testifying that in his opinion, the area in which the plaintiff fell was unsafe. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our discussion of the issue on appeal. On October 9, 1999, the plaintiff visited the home of the defendant. Between the hours of 11 p.m. and 1 a.m., the plaintiff exited the home and descended a flight of concrete steps leading from the front door to the driveway. At the bottom of the steps, there was a concrete landing connected to the driveway by a sloping paved bituminous walkway. At trial, the plaintiff claimed that she fell in that area and sustained personal injuries. By way of special defense, the defendant claimed that the plaintiff was contributorily negligent.

On March 10,2000, the plaintiff instituted the present suit in which she claimed that the defendant’s negligence in maintaining the sloping walkway caused her to suffer personal injuries. At trial, she had the burden of proving, inter alia, that the sloping walkway on which she allegedly fell was unsafe. In her pretrial disclosures, the plaintiff provided notice of her intention to have an engineering expert, Morton Fine, testify at trial in regard to the condition of the sloping walkway. Shortly after receiving that disclosure, the defendant deposed Fine, who testified that in his opinion, the slope of the walkway rendered it unsafe. During his deposition, he was not, however, able to cite any objective standards to support that opinion.

The defendant subsequently filed a motion in limine seeking an order from the court precluding Fine from offering his opinion at trial that the sloping walkway was unsafe. The court granted the motion, ruling in relevant part that “the witness is not going to be permitted to give his opinion that the stairs were dangerous or that the stair’s landing should have been flat. It’s something that the jurors — matter of common knowledge.” In addition, prior to Fine’s testimony at trial, the court stated that “the relative safety, dangerousness, steepness, et cetera, of this [slope] is a matter not requiring expert testimony. It’s a matter within the everyday awareness and judgment of the jurors . . . .’’Fine was, however, permitted to testify about the slope’s measurements, and the photographs he took depicting the angle of the walkway were admitted as evidence.

The trial took place in late October, 2002. During the plaintiffs case-in-chief, Fine testified regarding his measurements of the sloping walkway and offered various photographs of the walkway but, in accord with the court’s ruling on the defendant’s motion in limine, did not offer an opinion that the walkway was unsafe. Additionally, both the plaintiff and the defendant testified as to the physical characteristics of the area in question. After the jury returned a verdict in favor of the defendant and the court rendered judgment accordingly, the plaintiff brought this appeal. With that factual context in mind, we now turn to the merits of the plaintiffs claim.

It is well established that the court has broad discretion in ruling on the admissibility of opinion testimony, and “unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed.” State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); Mack v. Lavalley, 55 Conn. App. 150, 156-57, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999). For the reasons set forth, we conclude that in the present case, the court did not abuse its discretion in precluding Fine’s opinion testimony.

Our Supreme Court has held that “in cases involving questions of science and skill, or relating to some art or trade, experts are permitted to give opinions,” however, that principle does not embrace those questions “the knowledge of which is presumed to be common to all men.” Taylor v. Monroe, 43 Conn. 36, 43 (1875); see also State v. McNally, 39 Conn. App. 419, 424, 665 A.2d 137 (stating that expert opinion unnecessary when jury capable of determining issue on basis of its own knowledge, experience), cert. denied, 235 Conn. 931, 667 A.2d 1269 (1995); 2 Jones on Evidence (6th Ed. 1972) § 14:1, p. 580 (“special skill will not entitle a witness to give an expert opinion if the subject is one where the . . . jury is capable of forming its own conclusions from facts which are susceptible of proof in common form”). Thus, an expert may properly be precluded from stating his or her opinion on subjects that are within the common knowledge of persons of ordinary education, experience and opportunities for observation because such an opinion would not aid the jury in determining the questions at issue. The determinative question in the present case, therefore, is whether the court abused its discretion in concluding that the jurors, as persons of common understanding, were as capable as Fine of comprehending the primary facts of the subject at issue, i.e., the safety of the slope on which the plaintiff allegedly fell, and of drawing correct conclusions from those facts.

Our review of the record reveals that Fine admitted at his deposition that his opinion was not based on any objective standards. From that, the court reasonably could have concluded that Fine’s opinion was not based on expertise, but rather on knowledge that was within the ken of the ordinary person. As such, the court reasonably could have concluded that the question, whether the area in which the plaintiff fell was unsafe, did not concern a technical matter and, thus, Fine’s opinion would not have contributed to the common knowledge of the jurors. In short, it was within the court’s discretion to determine that the relative safety of the subject area was a matter of observation and common judgment about which a person of ordinary experience would be as capable of forming an opinion as was Fine. In the present case, the jury had the opportunity to assess the dangerousness of the sloping walkway through photographs of the area adduced as evidence at trial as well as through the testimony of its physical characteristics offered by Fine and the parties. Thus, sufficient evidence was introduced at trial that permitted the jury to visualize the slope and, therefore, to determine, by application of common knowledge and experience, whether the slope was unsafe.

Under those circumstances, we conclude that the court did not abuse its discretion in precluding Fine’s testimony. As a consequence, the plaintiffs claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the court abused its discretion by refusing to submit her proposed interrogatories to the jury and that that refusal unnecessarily subjected her appellate claims to the general verdict rule.
      “ ‘A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.’ Finley v. Aetna Life & Casualty Co., [202 Conn. 190, 203, 520 A.2d 208 (1987), overruled in part on other grounds, Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993)]. It follows that where the court has denied a proper request for interrogatories ... the general verdict rule does not apply so as to preclude appellate review of error relating to any ground upon which the jury may have rested its verdict and to which an appropriate interrogatory has been directed.” Pedersen v. Vahidy, 209 Conn. 510, 514, 552 A.2d 419 (1989).

        Here, the plaintiff submitted to the court the following proposed interrogatories: “1. Do you find that the Plaintiff . . . fell where she testified she fell, namely the sloped area of the driveway immediately adjacent to the concrete landing at the base of the stairs? ... 2. Do you find that the area where the Plaintiff . . . testified she feE was dangerous and defective at the time of her fall? ... 3. Do you find that the Plaintiff . . . was contribu-torily negligent?” The court refused to submit the interrogatories to the jury, finding that they were unnecessary and potentially confusing.
      Although we emphasize that the court has broad discretion in deciding whether to submit interrogatories to the jury, we also recognize that “the use of interrogatories has long been accepted practice in this state, and that their use to avoid the implications of a general verdict has long been favored by this court.” Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979). As a response to the plaintiffs third proposed interrogatory would have aided this court in divining the basis for the jury’s verdict for the defendant, it was proper and should have been submitted. We conclude, therefore, that the general verdict rule does not apply to preclude review of the plaintiffs remaining claim.

       At Ms deposition Fine gave the following relevant testimony:
      “[The Defendant’s Counsel]: So, your opinion is that there is a slope in the Macktop that renders it unsafe?
      “[The Witness]: Yes.
      “[The Defendant’s Counsel]: Okay. Did you check to see if the . . . bmld-ing code has a section applicable to the slope that you find defective?
      “[The Witness]: I could not find a specific reference to tMs type of a situation.
      “[The Defendant’s Counsel]: Did you check to see if the life safety code, to see if there is a code section governing the slope that you found defective?
      “[The Witness]: Not a specific item that addresses this particular issue.
      “[The Defendant’s Counsel]: Okay. So, then isn’t it true that there are not building or safety code sections that apply to the area that you found defective?
      “[The Witness]: I don’t think the building code or life safety code applies to this particular situation.
      “[The Defendant’s Counsel]: And isn’t it true that you were unable to find any budding or safety code violations in the area that you were told [the plaintiff] fell?
      “[The Witness]: Not any specific code violations, no.”
      In regard to his opimon that the area where the plaintiff fell was unsafe, Fine further testified that his opinion was not based on any specific code sections:
      “[The Defendant’s Counsel]: Let me ask the question again just so we understand. Your opimon is not based on any objective code, correct?
      “[The Witness]: I guess the answer is no.
      “[The Defendant’s Counsel]: Your opimon that the area is unsafe is not based on any specific code section that applies?
      “[The Witness]: I tMnk that’s correct.”

       We note that although the court also used the phrase “ultimate issue” in rendering its decision, it is clear from our review of the transcript in its entirely that the court excluded Pine’s opinion on the ground that the subject in issue was a matter within the common knowledge of lay people and thus, the jury.

       See footnote 2.

       We further note that our Supreme Court has held, in a similar factual context, that it was not improper to have the finder of fact decide the safety of a ramp without the aid of an expert. In Lunny v. Pepe, 116 Conn. 684, 165 A. 552 (1933), the plaintiff brought an action for damages for injuries she received in walking off a ramp in the defendant’s store. A salient issue at trial was whether the ramp was reasonably safe. The court, acting as the finder of fact, personally inspected the ramp and ultimately reached a conclusion that the ramp was unsafe. Id., 687. On appeal, our Supreme Court affirmed the judgment of the trial court and declared that “[t]he question whether or not the ramp was reasonably safe under all the circumstances was not a matter resting wholly upon the testimony of expert witnesses, but one upon which a non-expert might reasonably reach an opinion founded upon his personal knowledge.” Id. Although we recognize that Ininny does not stand for the proposition that it would invariably be improper to admit opinion testimony in such a circumstance, its holding buttresses our conclusion that it was not an abuse of discretion for the court to exclude an opinion on an issue within the contemplated knowledge and experience of ordinary people.


author: DUPONT, J.

text:
    JANET P. KREMENITZER v. MARTIN W. KREMENITZER
    (AC 23677)
    Foti, Schaller and Dupont, Js.
    Argued October 17, 2003 —
    officially released January 20, 2004

      Dianne M. Andersen, for the appellant (defendant).

      William J. Kupinse, Jr., for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendant, Martin W. Kremenitzer, appeals from the judgment of the trial court that granted the motion filed by the plaintiff, Janet P. Kremenitzer, to correct a qualified domestic relations order (QDRO). The defendant claims that the court incorrectly granted the plaintiffs postjudgment motion to correct the QDRO by valuing his 401 (k) plan as of the date of the dissolution of the marriage of the parties rather than as of the “last valuation date prior to the date distribution is to occur,” as provided in the QDRO. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The plaintiff and the defendant signed a separation agreement, dated May 22, 2001, which was incoiporated on the same date into the judgment of dissolution of their marriage. One of the terms of the agreement provided for a division of retirement assets. The issue in this appeal involves the inteipretation of § 11.1, “Article XI: Retirement,” of the agreement. It dictates the division of various retirement accounts and states in relevant part: “These [retirement] accounts shall be totaled and an equalization shall be accomplished. A Qualified Domestic Relations Order will be necessary to accomplish the division. . . . [T]he Court shall retain jurisdiction, with regard to the order, until such time as the division has been implemented. The division shall be made on the basis of values as of the day of dissolution or as close to that date as values can be obtained.”

The court approved the QDRO on January 23, 2002. Paragraph four of the QDRO states that “[p]ayment to the [plaintiff] pursuant to this Order shall occur as soon as administratively possible after this Order is deemed a QDRO by the Plan Administrator.” In paragraph five, the QDRO states that “50% of the [defendant’s] account balance as of May 22,2001, adjusted for gains and losses from such date to the last valuation date prior to the date distribution is to occur, shall be disbursed to the [plaintiff]. . . .” Between May 22, 2001, the date of the judgment of the dissolution of the parties’ marriage, and the proposed date of distribution as described in the QDRO, the value of the assets in the defendant’s possession decreased significantly. The plaintiffs motion to correct the QDRO was granted prior to any distribution of the defendant’s 401 (k) plan. The court corrected the QDRO, striking the language that required an adjustment for gains and losses from May 22, 2001, to the last valuation date prior to distribution.

The defendant’s sole claim on appeal is that the court incorrectly granted the plaintiffs postjudgment motion to correct. We are unaware of any appellate decision that directly controls the outcome of the defendant’s claim. The defendant contends that the court impermis-sibly modified a property award. According to the defendant, the language of the QDRO as executed “clearly confirms the intent of the separation agreement and the judgment.” Thus, it is the defendant’s contention that the QDRO as executed and the judgment of dissolution, which incorporated the parties’ agreement, are in harmony as to intent, and that the correction by the court of the QDRO to delete the language adjusting the valuation to reflect gains and losses since the date of dissolution was an impermissible assignment of property after the judgment of dissolution.

We agree that a property award is nonmodifiable and that except for fraud, a court has no continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of the property of one party to the other. See Billings v. Billings, 54 Conn. App. 142, 148, 732 A.2d 814 (1999). We do not agree, however, that the intent of the parties as stated in the separation agreement is synonymous with the language of the QDRO that is at issue.

In deciding the motion to correct, the court was faced with two contradictory documents. Neither, when viewed separately, is ambiguous. The separation agreement signed by the parties provides for a valuation of the assets as of the date of dissolution; the QDRO signed by counsel for both parties provides for a valuation as of the date of the last valuation prior to distribution. The right of the plaintiff to a portion of the defendant’s retirement benefits was created by the separation agreement. The QDRO was necessary to implement the judgment that had incorporated the parties’ agreement. The QDRO was the vehicle for enforcing the judgment of the corut. Beyond our determination that the language of the QDRO differed from the language of the separation agreement and the judgment of dissolution as to the date of valuation, there is no necessity to discuss the intent of the signatories as to the QDRO. It is the intent of the parties when executing the separation agreement that controls our discussion.

The plaintiff in this case did not seek a correction of the agreement or of the judgment, but of the QDRO. Thus, the claim of the defendant that the court imper-missibly opened and modified a judgment must fail. See Taylor v. Taylor, 57 Conn. App. 528, 531, 752 A.2d 1113 (2000); Holcombe v. Holcombe, 22 Conn. App. 363, 576 A.2d 1317 (1990).

As background to our discussion of the issue to be resolved, we note certain principles. “In a marriage dissolution action, an agreement of the parties executed at the time of the dissolution and incorporated into the judgment is a contract of the parties.” (Internal quotation marks omitted.) Sullivan v. Sullivan, 66 Conn. App. 501, 504, 784 A.2d 1047 (2001); see also Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). Separation agreements incorporated by reference into dissolution judgments ar e to be interpreted consistently with accepted principles governing contracts. Sweeny v. Sweeny, 9 Conn. App. 498, 500-501, 519 A.2d 1237 (1987). A court has an affirmative obligation to determine that a separation agreement is fair and equitable before incorporating it by reference into a dissolution judgment. General Statutes § 46b-66 (a); Jucker v. Jucker, 190 Conn. 674, 676, 461 A.2d 1384 (1983).

Although in this case we are concerned with the interpretation of a separation agreement, it is useful to review cases where no separation agreement exists, and a court determines the distribution of assets. In the absence of any exceptional intervening circumstances, the date a dissolution of marriage is granted is the proper time to determine the value of the parties’ estate upon which to base division. An increase in the value of property following the date of dissolution does not constitute an exceptional circumstance. Sunbury v. Sunbury, 216 Conn. 673, 676, 583 A.2d 636 (1990). Logically, there is no reason why the same date should not be used when there has been a decrease in the value of property. The usual rule in the interpretation of dissolution judgments, when no separation agreement exists, is that financial awards are based on the parties’ current (date of the judgment) financial circumstances. Wendt v. Wendt, 59 Conn. App. 656, 661, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000); Cuneo v. Cuneo, 12 Conn. App. 702, 709, 533 A.2d 1226 (1987).

In this appeal we are concerned with the intent of the parties as expressed in the separation agreement. If a contract is unambiguous within its four comers, the intent of the parties is a question of law, requiring plenary review. Issler v. Issler, supra, 250 Conn. 235. If, however, a contract is ambiguous, the clearly erroneous standard of review is used because the intent of the parties is a question of fact. Amodio v. Amodio, 56 Conn. App. 459, 470, 743 A.2d 1135, cert. granted on other grounds, 253 Conn. 910, 754 A.2d 160 (2000) (appeal withdrawn September 27, 2000).

A word is ambiguous when it is “capable of being interpreted by reasonably well-informed persons in either of two or more senses.” (Internal quotation marks omitted.) Aetna Life & Casualty Co. v. Braccidiferro, 34 Conn. App. 833, 840, 643 A.2d 1305 (1994), cert. granted on other grounds, 232 Conn. 901, 651 A.2d 743 (1995) (appeals withdrawn September 1,1995). Ambiguous also means “unclear or uncertain . . . [or] that which is susceptible of more than one interpretation” or “understood in more ways than one.” (Citation omitted; internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 538, 441 A.2d 151 (1981).

The plain words of the agreement in this case are not ambiguous. They unmistakably provide that the intent of the parties, as evidenced in the separation agreement, was to divide the asset “on the basis of values as of the day of dissolution or as close to that date as values can be obtained.” See Perritt v. Perritt, 54 Conn. App. 95, 730 A.2d 1234 (1999). That intent, as a matter of law, controls the date of valuation of the asset, which is the date of the judgment of dissolution of the marriage.

The judgment is affirmed.

In this opinion the other judges concurred.

      A qualified domestic relations order is an order of the court assigning to an alternate payee, in compliance with the Internal Revenue Code, 26 U.S.C. § 414 (p), the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1056 (d) (3), and General Statutes § 46b-81, a portion or all of the benefits payable to a participant in a retirement plan. In this case, the defendant is the participant in a 401 (k) retirement plan, and the plaintiff is the alternate payee.

       The separation agreement also provides that the agreement was to settle all claims and demands, and “any and all claims which either of [the] parties may have upon or against the property and estate of the other for maintenance, alimony, support and for any other matters whatsoever.” Article IV of the agreement provides that “it is the intention of the parties that this agreement be absolute, unconditional and irrevocable. . . .”

       Another QDRO also was approved by the court, but it did not involve the 401 (k) plan and is not the subject of this litigation.

       In Sunbury, an initial appeal had concerned periodic alimony; Sunbury v. Sunbury, 13 Conn. App. 651, 662, 538 A.2d 1082 (1988); but our Supreme Court’s subsequent remand of the matter required the 1 rial court to consider all financial orders, including the division of assets. Sunbury v. Sunbury, 210 Conn. 170, 174-75, 553 A.2d 612 (1989). After the required hearing, a second appeal was brought to determine the appropriate date for valuation of assets. In deciding on the date of the judgment of dissolution of the marriage, the second Sunbury case notes the need for a fixed benchmark for valuation in most dissolution of marriage cases. Sunbury v. Sunbury, supra, 216 Conn. 677.

       The defendant, in his reply brief, stresses that no evidence was taken or offered by the parties as to intent. If the separation agreement language were ambiguous, the intent of the parties would be a question of fact to be determined on remand in an evidentiary hearing. See Page v. Page, 77 Conn. App. 748, 749, 825 A.2d 187 (2003).


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. FREDERICK ACKER
    (AC 23407)
    Dranginis, West and Hennessy, Js.

      Argued October 16, 2003 —
    officially released January 20, 2004

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, Mary E. Card, senior assistant state’s attorney, and Robin S. Schwartz, former deputy assistant state’s attorney, for the appellant (state).

      Michael T. Meehan, for the appellee (defendant).
   Opinion

DRANGINIS, J.

The dispositive issue in this appeal is whether, in a prosecution under General Statutes § 22-363, also known as our “nuisance dog” statute, the state must prove the identity of the specific dog or dogs causing the nuisance. We hold that it does not and, accordingly, reverse the judgments of the trial court.

The court found the following facts. The defendant, Frederick Acker, is the operator of a commercial kennel known as the Animal Adoption Network, Inc. The kennel is located in a residential neighborhood in Monroe, is licensed to board fifty dogs and has harbored up to thirty dogs at various times. The defendant lives in a house on the property and supervises the daily operation of the kennel.

From 1999 to 2001, more than 130 complaints were lodged against the kennel for excessive dog barking. The state charged the defendant with nineteen separate counts of nuisance. In July, 2002, the defendant filed a motion to dismiss the charge in Docket Number CR 171445, which the parties agreed would control the disposition of the other files. On August 15, 2002, the court granted the defendant’s motion to dismiss on the ground that the state did not have sufficient evidence to prove which specific dog or dogs had engaged in excessive barking. This appeal followed.

“Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Doe v. Rapoport, 80 Conn. App. 111, 119, 833 A.2d 926 (2003).

“A statute is enacted as a whole and must be read as a whole rather than as separate parts or sections. . . . Similarly, when the court engages in statutory analysis, it considers] the statute as a whole . . . [and reconciles] its . . . parts ... to render a reasonable overall interpretation.” (Citation omitted; internal quotation marks omitted.) Esposito v. Waldbaum’s, Inc., 78 Conn. App. 472, 478, 827 A.2d 747 (2003).

In interpreting § 22-363, we start by examining the language of the statute, which provides in relevant part that “[n]o person shall own or harbor a dog or dogs which is or are a nuisance by reason of . . . excessive barking . . . [or] is or are a source of annoyance to any sick person residing in the immediate vicinity. . . .” (Emphasis added.) The first sentence of the statute, by its terms, prohibits human conduct, that is, the owning or harboring of a nuisance dog or dogs. It confirms the common-law recognition that dogs that are not properly controlled by their owners or keepers can be a nuisance. See Herbert v. Smyth, 155 Conn. 78, 81, 230 A.2d 235 (1967).

By utilizing the ancient grammar school exercise of diagramming a sentence, one must conclude that the word “person” is the subject of the sentence, and that the words “own” and “harbor” are the verbs. The words “dog” or “dogs” are the direct object of the verbs, and the phrase, “which is or are a nuisance by reason of . . . excessive barking,” is a restrictive clause modifying the direct object, that is, which dogs may not be owned or harbored, i.e., dogs that are a nuisance because they bark excessively. The sanction of restraining or disposing pertains only to a dog or to dogs that are a nuisance due to excessive barking, as required by Scudder v. Greenwich, 127 Conn. 71, 14 A.2d 728 (1940). The statute recognizes the right of neighbors to the peaceful enjoyment of their property by prohibiting a person from owning or harboring a dog or dogs that bark excessively. The statute, however, may not be enforced to interfere with the property rights of a dog owner with respect to a kennel of properly licensed dogs. Id., 74.

The statute requires that we distinguish between dogs that bark and dogs that bark so much that they become a nuisance. It does not mean that the offending dog must be identified as Fido, Fifi or Filly.* ** To require the identification of a dog by name, license tag number or any other method of specific identification would render the statute unenforceable in instances such as this. We will not presume that the legislature enacts meaningless legislation, nor will we construe a statute in such a manner to render it meaningless. See State v. Gibbs, 254 Conn. 578, 602-603, 758 A.2d 327 (2000). For example, an indoor kennel or one surrounded by vegetation would make it impossible to see the dogs, much less identify the offending dogs. Enforcement of the statute would be rendered impossible if we were to construe the statute to require the specific identification of the nuisance dog or dogs.

The state argues that the defendant improperly relied on the legislative histoiy of § 22-363 to support his contention that in any prosecution pursuant to the statute, the state should identify the specific dog or dogs causing a nuisance. After examining the legislative history, we agree with the state.

Section 22-363 was enacted in 1925 and was amended, most notably for our analysis, in 1953 and 1969. The 1953 amendment added the requirement that all offending dogs be specifically identified, but created an exemption to that requirement for kennels. Following a minor change in 1957, the statute underwent a major revision in 1969, resulting essentially in the current version of § 22-363. Among other things, the legislature deleted the specificity requirement, thus making the exemption for kennels unnecessary. Because the legislative history is silent as to the legislature’s intent concerning those deletions, the defendants cannot rely on it to support a contrary interpretation. See Spears v. Garcia, 263 Conn. 22, 29, 818 A.2d 37 (2003).

Accordingly, the defendant’s “[rjeliance on [the] legislative silence is misplaced. It is a basic tenet of statutory construction that we rely on the intent of the legislature as that intent has been expressed. . . . Indeed, to rely on the absence of legislative history . . . would turn the process of statutory construction on its head. More importantly, we would be exceeding our constitutional limitations by infringing on the prerogative of the legislature to set public policy through its statutory enactments.” (Citations omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 79, 836 A.2d 224 (2003).

The judgments are reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       General Statutes § 22-363 provides: “No person shall own or harbor a dog or dogs which is or are a nuisance by reason of vicious disposition or excessive barking or other disturbance, or, by such barking or other disturbance, is or are a source of annoyance to any sick person residing in the immediate vicinity. Violation of any provision of this section shall be an infraction for the first offense and such person shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both for each subsequent offense and the court or judge may make such order concerning the restraint or disposal of such dog or dogs as may be deemed necessary.”

       The trial court granted the state’s motion to appeal pursuant to General Statutes § 54-96.

       The trial court relied on Scudder v. Greenwich, supra, 127 Conn. 71, to find that the statute required the defendant to identify the specific dog or dogs that were barking. We conclude that Scudder is instructive in preventing the arbitrary seizure and disposal of a dog or dogs, but that it does not impose a requirement on the state to identify the offending dog or dogs to prove a violation of General Statutes § 22-363. Scudder is distinguishable both procedurally and substantively from this matter. In Scudder, after a hearing to resolve complaints lodged against the plaintiffs’ licensed kennel, the town selectmen ordered that the kennel be limited to harboring only ten dogs older than three months. The trial court enjoined the enforcement of the order because the numerical limit was arbitrary and exceeded 1he selectmen’s statutory authority. Id., 73. Our Supreme Court upheld the ruling of the trial court, finding that “the order, under the statute, must concern a specific dog or dogs is the only reasonable conclusion.” Id., 74. It left to the complainants, however, the option to redress their claim of nuisance under the common law.

       See Commonwealth v. Ferreri, 30 Mass. App. 966, 968, 572 N.E.2d 585 (1991), a similar case, in which the court stated: “It was not incumbent upon the Commonwealth to show that the dogs in the defendant’s possession on the dates of the complaints were identical in being and number to the dogs which were the subject of the removal order.”

       General Statutes (1953 Rev.) § 1849d provides: “If any person makes complaint in writing to the selectmen of a town, a borough warden or the chief of police of a city that any dog or dogs owned or harbored within such town, borough or city is or are a nuisance by reason of vicious disposition or excessive barking or other disturbance, or that any such dog or dogs, by such barking or other disturbance, is or are a source of annoyance to any sick person residing in the immediate vicinity, such selectmen, borough warden or chief of police shall investigate such complaint and may make such order concerning the restraint or disposal of such dog or dogs as may be deemed necessary. Any person owning or harboring such dog or dogs who fails to comply with such order shall be fined not more than twenty-five dollars or imprisoned not more than thirty days or both, and the dog warden having jurisdiction may, after notice to the owner, capture and confine or kill such dog or dogs or return it or them to its or their owner or harborer, as may be directed by such selectmen, borough warden or chief of police. This section shall apply only with respect to a dog or to dogs individually and specifically identified in such complaint or order, provided such requirement of identification shall not apply in the case of any kennel when, on complaint, notice and hearing, such selectmen, borough warden or chief of police finds that such identification cannot be had and that the public health and safety is endangered by reason of the maintenance of such kennel." (Emphasis added.)


author: WEST, J.

text:
    STATE OF CONNECTICUT v. EDWIN SANTOS
    (AC 23766)
    West, DiPentima and Mihalakos, Js.
    Argued October 21, 2003 —
    officially released January 20, 2004

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Robert M. Brennan, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Edwin Santos, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a. On appeal, he claims that the state presented insufficient evidence to prove beyond a reasonable doubt each essential element of the charged offense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of May 8,2000, the victim, Carmelo DeJesus, drank a half-pint of rum with Antonio Perez near the comer of Park Avenue and Railroad Avenue in Bridgeport. As Perez relieved himself behind a store, the victim got into an argument with an individual who Perez later identified as the defendant. The victim told Perez that the defendant was looking to fight with the victim. A short time later, the defendant returned in a vehicle described as a “Blazer,” threw a beer bottle at the two men and drove off. Perez decided to return home and left the victim alone.

Mohammed Alqaisy, who worked at a store on the comer of Park and Railroad Avenues, briefly spoke with the victim while taking a cigarette break outside. Alqaisy testified that the victim seemed mad about something. The defendant then appeared from behind an ice machine close to where Alqaisy sat. He called the victim over to talk. The victim asked the defendant if he planned to shoot him. The defendant answered that he did not want to shoot him and pulled his shirt up to show him that he was not armed. The victim then walked around the comer with the defendant. Alqaisy testified that “five, ten, fifteen second[s]” later, he heard shooting. He walked past the ice machine and could see “two guys running and [the victim] on the floor.” Lieutenant Thomas Lula of the Bridgeport police department testified that it took approximately fourteen seconds to walk from the ice machine to the location where the victim was shot to death. He was shot at least ten times. The jury convicted the defendant, and the court sentenced him to an effective prison term of twenty years. This appeal followed.

The defendant claims that the state failed to present sufficient evidence to prove beyond a reasonable doubt the essential elements of the charged crime of conspiracy to commit murder. He specifically argues that the state failed to prove, beyond a reasonable doubt, that he intended to agree with another person to commit murder. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we constme the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so constmed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. James, 237 Conn. 390, 435, 678 A.2d 1338 (1996).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 617, 682 A.2d 972 (1996).

“Because the defendant was convicted of conspiracy to commit murder, we also must consider the essential elements of the crime of conspiracy. To establish the crime of conspiracy [to commit murder . . . the state must show] that an agreement was made between two or more persons to engage in conduct constituting [the crime of murder] and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . While the state must prove an agreement [to commit murder], the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts.” (Internal quotation marks omitted.) State v. Bond, 49 Conn. App. 183, 195, 713 A.2d 906, cert. denied, 247 Conn. 915, 722 A.2d 808 (1998).

From the cumulative impact of the evidence presented, there was sufficient evidence for the jury reasonably to conclude that the defendant had intended to agree with another person to murder the victim. In closing argument, the state’s theory of the agreement to murder the victim was articulated as follows: “You can draw a reasonable and logical conclusion beyond a reasonable doubt that there was an agreement because the defendant came up to the ice machine, opened his coat [and] got [DeJesus] to come back down Railroad Avenue. Several, ten to fifteen seconds later, Mohammed said, the shooting starts. Why would he open his coat at all if not to show him that he had no weapon to get him to go down there?”

The defendant asked the victim to approach the ice machine. The victim hesitated and expressed his concern that the defendant wanted to shoot him. The defendant pulled up his shirt to reveal that he had no weapon. The victim then walked with the defendant around the comer. Approximately fifteen seconds later, he was shot ten times. Alqaisy saw two men fleeing the scene. The evidence presented, and the reasonable and logical inferences that could be drawn from it, support the jury’s conclusion that an agreement was formed between the defendant and another person to kill the victim before asking him to approach the ice machine.

Having construed the evidence in the light most favorable to sustaining the verdict, we determine that on the facts so construed and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the defendant conspired with another individual to murder the victim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although Perez recanted his pretrial identification of the defendant and claimed that the defendant was not the person he saw arguing with the victim, the pretrial identification was admitted into evidence under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

       During his testimony, Alqaisy referred to the defendant as “Edwin” and to the victim as “Carmelo.”