text:
    DAVID KERVICK, EXECUTOR (ESTATE OF RUTH FARRELL) v. SILVER HILL HOSPITAL ET AL.
    (AC 29783)
    Gruendel, Harper and Pellegrino, Js.

      Argued December 9, 2010 —
    officially released May 3, 2011

      Sandra J. Akoury, for the appellant (plaintiff).

      Catherine S. Nietzel, for the appellee (defendant Silver Hill Hospital).

      David J. Robertson, with whom, on the brief, were Madonna A. Sacco and Rachel E. Katz, for the appellee (defendant Ellyn Shander).
   Opinion

GRUENDEL, J.

The plaintiff, David Kervick, executor of the estate of Ruth Farrell (decedent), appeals from the judgment of the trial court rendered in favor of the defendants, Silver Hill Hospital (hospital) and Ellyn Shander, following a jury trial. The dispositive issues in this appeal are whether the court improperly (1) refused to poll the jury regarding possible exposure to pretrial publicity and (2) denied Kervick’s motion for summary judgment as to the apportionment defendant, David Kervick, in his individual capacity. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. On January 21, 2002, the decedent admitted herself to the hospital for treatment for numerous illnesses, including major depression and personality disorder. At the time of her admission, the decedent was diagnosed with extremely high suicide ideation and had previously attempted suicide by hanging herself over the bathroom door of her hospital room. As such, the admitting doctor ordered that the decedent’s bathroom door remain locked. Nonetheless, the day after the decedent’s admission, Shander, the decedent’s treating psychiatrist, ordered that the bathroom door be unlocked and reduced supervision of the decedent from full time to fifteen minute intervals. On January 28, 2002, the decedent committed suicide by hanging herself over the unlocked bathroom door in the same hospital room in which she had previously attempted to do so.

On February 6, 2004, Kervick filed this medical malpractice action, claiming that the defendants had failed to meet the standard of care owed to the decedent as a patient of the hospital and that this failure resulted in the decedent’s death. In June, 2004, the defendants filed apportionment complaints against Kervick, alleging that his negligence, “abuse and hostile behavior” toward the decedent were the proximate causes of her suicide. Subsequently, Kervick moved to preclude the defendants from presenting expert testimony as to the possible causal connection between his alleged behavior and the decedent’s suicide. On November 14, 2007, the court granted Kervick’s motion to preclude, finding that the defendants had failed to disclose their proffered experts in a timely manner. Then, on November 19, 2007, Kervick moved for summary judgment on the apportionment complaints arguing that, without expert testimony as to the possible causal link between his alleged behavior and the decedent’s suicide, the defendants would be unable to prevail in their apportionment claims against him. Thereafter, the court denied Kervick’s motion for summary judgment as untimely without considering farther the merits thereof.

On November 23, 2007, the Friday immediately following Thanksgiving, an extensive article (article) regarding the decedent’s suicide was published in the New York Times. A. Cowan, “Lawsuit Over a Suicide at a Hospital for the Elite,” N.Y. Times, November 23, 2007, p. Bl. At the time the article was published, the jury had been impaneled, although evidence was not scheduled to begin until November 27, 2007. Given the inflammatory nature of the article, Kervick believed that any juror exposed to the article’s contents would be unfairly prejudiced. Thus, immediately upon appearing in court on November 27, 2007, counsel for Kervick requested that the court poll the jury as to its exposure to the article to determine whether any of the jurors had been unduly influenced thereby. The court denied the request to poll the jury, concluding that it would “be more prudent simply to instruct them to ignore anything in the press or on the media.” The jury then returned a verdict in favor of the defendants without considering the merits of the defendants’ apportionment complaints. On February 25, 2008, the court denied Kervick’s motions to set aside and to impeach the verdict, rendering judgment in favor of the defendants on November 5, 2008. This appeal followed.

Kervick now claims that the court improperly declined to poll the jury regarding its exposure to the article and the possible influence the article may have had on the jury’s impartial decision making. Additionally, Kervick claims that the court improperly denied his motion for summary judgment as untimely. We address each of these claims in turn.

I

Kervick first claims that the court improperly denied his request to poll the jury as to its exposure to the article. Specifically, he maintains that the court’s refusal to poll the jury constituted an abuse of discretion, especially in light of the inflammatory nature of the article and the potential prejudice and undue influence that exposure would have on the jury. We agree.

The following additional facts are relevant to the resolution of this claim. Counsel for Kervick first notified the court of the article on November 27, 2007, the day that evidence was scheduled to begin before the jury. It bears repeating that the jury had been impaneled at the time the article was published, although it is undisputed that a judge had not previously instructed the jury to avoid media coverage of the case. After Kervick’s counsel requested that the jury be polled, the following colloquy ensued:

“The Court: I saw the article that appeared in the New York Times on Friday, the Friday after Thanksgiving, which I would expect for a lot of working people who get the Times at their office or read it on the train or whatever, would have been a day when they maybe failed to pick it up, because while it’s not a holiday, nevertheless, it’s a, was a day when a lot of business activities closed. The stock market was only opened for half a day. . . . [The article] seemed to be, it didn’t seem to be pro plaintiff or pro defendant. . . . There were some factual matters in there. Rather than asking the jury and calling their attention to the [article] . . . wouldn’t it be more prudent simply to instruct them to ignore anything in the press or on the media? . . .

“[Kervick’s Counsel]: I would like to have the court find out if anyone has read it. Because I don’t know how people interpret what they read. I don’t know if it was influential or not. . . .

“The Court: Well, I expect that if it comes to their attention that somebody has read it, then we’ll be hearing about it.

“[Kervick’s Counsel]: Well, how are we going to hear about it, unless we ask?

* * *

“The Court: Now, look, if you have an agreement and you came to me and you said: ‘We’ve agreed upon this procedure. This is what we want to do with respect to the article.’ Then I might be wiling to listen. But the jurors are here. We’re ready to hear evidence. If you don’t have a plan, we’re not [putting] one together at the last moment. . . .

“[Kervick’s Counsel]: Judge ... I don’t think we need agreement of counsel on—

“The Court: Well, you haven’t convinced me that in light of the nature of the article, there’s any need to make an inquiry.”

The court then declined to inquire further into whether the jury had read or otherwise been exposed to the article. Kervick now claims that the court’s reasoning in denying the request to poll the jury demonstrates an abuse of discretion given the possible prejudice the article may have exacted on the jury. In support of his claim, Kervick argues that, without inquiring into whether any jurors read the article, there was no way of determining whether the jury had been unduly influenced before the start of trial.

Before addressing the merits of Kervick’s claim, we begin by setting forth the applicable standard of review and legal principles governing our analysis. Article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, provides in relevant part: “The right of a trial by jury shall remain inviolate . . . .’’Of course, the right to a jury trial would be a mere nullity were it not for the guarantee of jury impartiality. As our Supreme Court has noted, “[j]ury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut .... [This is because] [t]he modem jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court. ... To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment [we previously have held, pursuant to our supervisory authority over the administration of justice, that] a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality. • • •

“The form and scope [of that preliminary inquiry] may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto. . . .

“Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jur[or] [bias or] misconduct will necessarily be fact specific. No one factor is determinative as to the proper form and scope of a proceeding. It is the trial court that must, in the exercise of its discretion, weigh the relevant factors and determine the proper balance between them. . . . Consequently, the trial court has wide latitude in fashioning the proper response to allegations of juror bias. . . . We [therefore] have [a] limited . . . role, on appeal, to a consideration of whether the trial court’s review of alleged jur[or] misconduct [or bias] can fairly be characterized as an abuse of its discretion.” (Citations omitted; internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 672-73, 835 A.2d 895 (2003).

In Merriam, our Supreme Court addressed the issue of pretrial publicity and its effect on jury impartiality in the criminal context. In Merriam, “the defendant informed the court that two newspaper articles regarding the case had been published .... The defendant characterized these articles as . . . rather disturbing . . . [and moved] that the trial court poll the jury to see if they [had] read anything in any . . . newspaper . . . and just warn them not to. The defendant, however, made no request that the court make any specific inquiry into whether any juror or jurors had read either of the two articles ....

“The trial court denied the defendant’s request, noting that the jurors previously had been instructed to avoid media coverage of the case and that there was no indication that jurors had disregarded those instructions. The court further observed that the two articles identified by the defendant were brief and not notorious . . . [and] that, during the voir dire of prospective jurors, counsel had inquired of those prospective jurors whether they had had any exposure to the case, [to which] each such venireperson had answered in the negative.” (Emphasis added; internal quotation marks omitted.) Id., 674. Finally, in upholding the trial court’s decision not to poll the jury, our Supreme Court rejected the defendant’s contention that the mere existence of the articles required the court to poll the jury “in light of the fact that the court previously had instructed the jurors ... to avoid exposure to any media accounts of the case.” (Emphasis added.) Id., 675.

Here, none of the safeguards of jury impartiality identified in Merriam are present. Importantly, at no time prior to publication of the article were the jurors in this case instructed by a judge to avoid media coverage of the ensuing trial. Cf. State v. Marshall, 166 Conn. 593, 598, 353 A.2d 756 (1974) (holding that trial court did not abuse discretion in failing to poll jury where instructions to avoid media coverage given before publication of newspaper article). Additionally, neither party’s counsel had the opportunity to question prospective jurors as to their exposure to the article, as the article had not yet been published at the time of voir dire. Unlike in Merriam, the article here is extensive, factually detailed and so overtly inflammatory that it is difficult to conceive how a juror would remain impartial if exposed to its contents. Moreover, Kervick, the plaintiff in the present case, unlike the defendant in Merriam, requested that the court make the specific inquiry into whether any juror or jurors had read the article. See State v. Merriam, supra, 264 Conn. 674. Indeed, we fail to see how the possibility of jury partiality could be addressed without inquiring into whether the jury members had even become aware of the article itself.

Given these circumstances, we conclude that the court was obligated to conduct a preliminary inquiry to evaluate the extent, if any, of juror bias as caused by exposure to the article. We further conclude that any cursory questioning of Kervick’s counsel on November 27, 2007, was insufficient to dispel the possibility of juror bias pursuant to Merriam. As the colloquy between the court and Kervick’s counsel indicates, the court failed to undertake the preliminary inquiry that Merriam necessitates, concluding instead that it would “be more prudent simply to instruct [the jurors] to ignore anything in the press or on the media” regarding the case. Of course, by the time the court made this ruling, the article had been published, and the possibility that it had already prejudiced jury members could not be cured with a prophylactic instruction. The fact that the court declined to consider fully the request of Kervick’s counsel to poll the jury in the absence of the parties’ agreement in this regard is also improper. Where, as here, the possibility of jury bias is adequately presented to the court, it is the obligation of the court, not the parties, to determine the appropriate procedures to be employed to ensure the jury is impartial. See State v. Merriam, supra, 264 Conn. 672. This in turn ensures that the constitutional guarantee of an impartial jury is faithfully adhered to. See Conn. Const., art. I, § 19.

In sum, the existence of the inflammatory article, coupled with the fact that the jury had not previously been instructed by a judge to avoid media coverage, was sufficient “information ... to indicate the possibility of juror . . . partiality”; State v. Merriam, supra, 264 Conn. 672; and, as such, the court was required to conduct a preliminary inquiry to this effect pursuant to Merriam-, id.; that it did not do. Accordingly, the court’s ruling denying the request by Kervick’s counsel to poll the jury as to its exposure to the article constituted an abuse of discretion and, at a minimum, jeopardized Kervick’s constitutional right to an impartial jury. Therefore, the judgment of the trial court is reversed, and the case is remanded for a new trial according to law.

II

Kervick next claims that the court improperly denied his motion for summary judgment on the apportionment complaints against him in his individual capacity. Specifically, he claims that the court’s denial of his motion for summary judgment as untimely constitutes an abuse of discretion. We disagree, yet in light of our ruling in part I of this opinion remanding the case for a new trial, we conclude that the court must consider the merits of Kervick’s motion upon remand.

The following additional facts are relevant to the resolution of this claim. The central theory on which the apportionment complaints are predicated is Kervick’s negligence, as manifested by his allegedly abusive behavior toward the decedent. As such, the defendants were obligated to prove the elements of their negligence cause of action, including causation. In October, 2007, the defendants filed disclosures of expert witnesses in preparation for offering expert testimony as to the causal link between Kervick’s behavior and the decedent’s suicide. Kervick then filed motions to preclude the proffered expert testimony, claiming, inter alia, that the defendants’ disclosures were untimely. On November 14, 2007, the court granted Kervick’s motions to preclude. On November 19, 2007, Kervick moved for summary judgment on the apportionment complaints, arguing that, without expert testimony as to the causal link between his alleged negligence and the decedent’s suicide, the defendants could not prevail on their negligence claims. The court did not hold a hearing on Kervick’s motion for summary judgment, and the matter was only briefly addressed before the court on November 27, 2007. At that time the following colloquy took place:

“The Court: [Y]ou were looking for summary judgment on the apportionment complaint as I recall?

“[Kervick’s Counsel]: Yes, Your Honor.

“The Court: The problem with that is there wasn’t time to put the [defendants] on notice as to the fact that, that’s exactly what you were trying to accomplish and so we were in no position to handle that.

“[Kervick’s Counsel]: Okay.

“[The Court]: So that’s why that was denied, not on the merits, just because of a timing issue.”

Kervick now claims that the court’s ruling summarily denying the motion for summary judgment as untimely was improper, especially given the fact that the motion was filed within five days of the court’s ruling granting the motion to preclude the expert testimony offered by the defendants.

Because the court denied Kervick’s motion for summary judgment, not on the merits but, rather, as untimely, we review the court’s ruling for an abuse of discretion. See Singhaviroj v. Board of Education, 124 Conn. App. 228, 235, 4 A.3d 851 (2010). “In reviewing a claim of abuse of discretion, we have stated that [discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. . . . Therefore, [i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required.” (Internal quotation marks omitted.) Hurley v. Heart Physicians, P.C., 298 Conn. 371, 392-93, 3 A.3d 892 (2010).

“Practice Book § 17-44 provides in relevant part that [t]he pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge. In matters vested to the discretion of the court, our appellate courts must make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Singhaviroj v. Board of Education, supra, 124 Conn. App. 234-35.

In the present case, the court summarily denied Kervick’s motion for summary judgment as untimely, concluding on November 27, 2007, that it was “[j]ust too late, just too late for that.” Although we acknowledge that Kervick’s motion for summary judgment was filed within five days of the court’s ruling granting his motion to preclude the expert testimony proffered by the defendants, we cannot say that the court’s ruling denying the motion for summary judgment as untimely constituted an abuse of discretion in this case. It is undisputed that the motion for summary judgment was filed on the eve of trial and was first addressed by the court on the same day evidence was scheduled to begin. Thus, in light of the ample discretion afforded a trial judge in determining whether a pending motion for summary judgment shall delay trial and the particular facts of this case, we cannot say that the court abused its discretion in refusing to decide the merits of Kervick’s motion for summary judgment. See Singhaviroj v. Board of Education, supra, 124 Conn. App. 235.

Our analysis, however, does not end there. Because we conclude that a new trial is necessary in this case, we further conclude that the court must consider the merits of Kervick’s motion for summary judgment in the first instance on remand. This is appropriate considering the fact that the court’s previous ruling denying Kervick’s motion for summary judgment was based solely on “a timing issue,” rather than the merits thereof. Because there will be no such “timing issue” on remand, the court will have an adequate opportunity to address the merits of Kervick’s motion for summary judgment.

Accordingly, we conclude that the court did not abuse its discretion by denying Kervick’s motion for summary judgment as untimely. Nonetheless, upon remand the court is to consider the merits of Kervick’s motion, as there will be sufficient time to do so prior to the new trial.

The judgment is reversed and the case is remanded for consideration of the apportionment defendant’s motion for summary judgment on the apportionment complaints and for a new trial.

In this opinion the other judges concurred.

       Because these two issues are dispositive, we decline to address Kervick’s remaining claims that the court improperly denied his motion to strike, improperly denied his motion to bifurcate the trial, improperly denied his motion to set aside the verdict, improperly denied his motion to impeach the verdict and that he was denied a fair trial by the improper conduct of counsel for Shander.

       The defendants filed apportionment complaints against David Kervick in his individual capacity. For convenience, we will refer to the apportionment plaintiffs as the defendants in this opinion. Prior to trial, Kervick moved for summary judgment as to the apportionment complaints, which the court denied as untimely. Kervick now appeals from this ruling.

       Several months before her suicide, the decedent executed a will naming Kervick executor of her estate. Kervick was also named as one of two beneficiaries of the decedent’s will.

       Kervick became acquainted with the decedent during a prior stay at the hospital, and there is evidence that the two shared a romantic relationship for some time before the decedent’s suicide.

       Although we decline to reiterate the contents of the article here, we note that counsel for the hospital conceded during oral argument in this appeal that a juror who read the article would be tainted by such exposure.

       Although counsel for the hospital represented during oral argument in this appeal that the jury members had been informed by a clerk to avoid media coverage of the case prior to trial, we do not equate an instruction by a clerk with that by a judge. Furthermore, the record before us contains no evidence of such an instruction.

       As but one example, the article stated that the decedent “told the hospital’s medical staff how [Kervick] used drugs in her presence . . . and tied her to a bed and forced her to watch pornography.” A. Cowan, supra, p. B5.

       See part I of this opinion.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CHAD E. MANSFIELD
    (AC 31381)
    DiPentima, C. J., and Beach and Borden, Js.

      Argued February 17 —
    officially released May 3, 2011

      Todd A. Bussert, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Helen McLellan, senior assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The sole issue in this appeal is whether the situational prong of General Statutes § 53-21 (a) (l) is void for vagueness as applied to this case. The defendant, Chad E. Mansfield, appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of § 53-21 (a) (1). We reject the defendant’s claim that the statute is void for vagueness as applied and, accordingly, affirm the judgment of the trial court.

The state charged the defendant in a one count long form information with a violation of § 53-21 (a) (1), specifically as follows: “on or about the late evening hours of the 19th or the early morning hours of the 20th of January, 2007 in the city of New Haven, the [defendant] did wilfully and/or unlawfully [cause] or [permit] a child under the age of sixteen years to be placed in such a situation that her morals were likely to be impaired ... in violation of section 53-21 (a) (1) of the Connecticut General Statutes.” After a jury trial, the defendant was found guilty and the court rendered its judgment of conviction, sentencing the defendant to ten years incarceration, execution suspended after six years, followed by five years of probation with certain conditions. This appeal followed.

The jury reasonably could have found the following facts. On January 19, 2007, at approximately 10:30 p.m. the victim, who was fifteen years old, was walking on Grand Avenue in New Haven to a party. The defendant, who was thirty-four years old, was driving his pickup truck on Grand Avenue. In a very dark area near a vacant building, he slowed his truck down, pulled alongside of the victim, and yelled, “[h]ey you in the black coat.” When the victim looked in his direction, the defendant said to her that “his private area was hard.” When the defendant asked the victim, “[h]ow old are you,” the victim answered, “I’m only twelve,” giving a younger age in the hope that he would drive off. The defendant then said to her, “[w]ell, you’re old enough to get [a] cock put inside you,” and “[a]ll I want to do is spread your legs and lick what’s in between.” The defendant then pulled his truck into a driveway, cutting off the victim’s walking path, while the victim, fearful of what might happen next, ran in the opposite direction where a nearby motorist, Jean Bidón, and his wife, Sujey, were in their car. Meanwhile, the defendant had started to get out of his truck, when Jean Bidón confronted him by asking, “[w]hat are you doing?” The defendant then jumped back into his truck, backed it up and sped away. Meanwhile, the victim had entered the Bidons’ car, and they drove her to the party. On the way, the victim, who was visibly frightened and startled, told them what the defendant had said to her. After dropping the victim off at the party, the Bidons called the police and gave them the license plate number of the defendant’s truck, which led to his arrest and identification by both the victim and Jean Bidón.

The defendant claims that his conviction should be reversed because “[t]he risk of injury statute is unconstitutionally vague as applied to this case, where [he] was convicted of causing a situation likely to impair the morals of a minor, namely, making comments of a sexual nature to a [fifteen] year old.” More specifically, the defendant contends that the statute is vague as applied in this case because (1) “[a] ‘situation’ involving impairment of a minor’s morals has never been held to extend to speech alone,” and, therefore, the prior judicial gloss on the statute could not have given him adequate notice of the criminality of his conduct and (2) “[t]o the extent [his] comments to [the victim] can be construed as an overture to engage in sexual activity, [the victim] was of an age to consent.”

We first note that the defendant does not claim that the evidence was insufficient to support the conviction. Thus, he implicitly concedes that his conduct was wilful or unlawful, and that he created a situation likely to impair the morals of one less than sixteen years old. See State v. Scruggs, 279 Conn. 698, 713, 905 A.2d 24 (2006). His sole claim is that, as applied, the statute did not give him fair notice that what he claims to be solely verbal sexual overtures to the victim was criminal. We disagree.

The standards applicable to an “as applied” vagueness challenge to a criminal statute are well settled. “A statute . . . [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. . . . Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. A statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, making every presumption in favor of its validity. ... To demonstrate that [a statute] is unconstitutionally vague as applied to [her], the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [she] had inadequate notice of what was prohibited or that [she was] the victim of arbitrary and discriminatory enforcement. . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Internal quotation marks omitted.) State v. Skidd, 104 Conn. App. 46, 56, 932 A.2d 416 (2007). We conclude that the statute is not unconstitutionally vague as applied to the facts of this case.

The combination of the defendant’s vulgar sexual speech and threatening conduct falls within the parameters of case law holding similar speech and conduct violative of the situation prong of the statute. As the state points out, our courts consistently have held sexual speech and threatening conduct toward a minor to be within the confines of the situation prong of the risk of injury statute. See, e.g., State v. Eastwood, 83 Conn. App. 452, 454-55, 850 A.2d 234 (2004) (defendant threateningly demanded that ten and eleven year old boys enter his car and accompany him to nearby town), cert. denied, 286 Conn. 914, 945 A.2d 978 (2008); State v. Payne, 40 Conn. App. 1, 3, 669 A.2d 582 (1995) (defendant forced young boys by threat to urinate into cup), affd, 240 Conn. 766, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004); State v. Erzen, 29 Conn. App. 591, 592, 617 A.2d 177 (1992) (defendant asked young girls to unzip his zipper, exposed his penis and, when one frightened victim said she was going to leave, asked her to stay); see also State v. Aziegbemi, 111 Conn. App. 259, 261, 959 A.2d 1 (defendant in car told young female victim she was “ ‘pretty’,” asked to be her “ ‘friend’,” and blocked her path and attempted to pull her into vehicle), cert. denied, 290 Conn. 901, 962 A.2d 128 (2008). Furthermore, the defendant became startled when confronted by Jean Bidon and sped away, permitting the inference that he knew what he was doing was criminally prohibited. See State v. Erzen, supra, 599.

The defendant’s contention that the state’s case rested only on his sexual speech to the victim is not supported by the record. The information did not limit the state’s case to speech alone. Furthermore, there was evidence of threatening and frightening behavior by the defendant with regard to the victim, namely, he pulled his vehicle into a driveway and cut off her walking path, causing her to run the other way afraid of what might happen next, and he followed this behavior by exiting his vehicle. Finally, the court’s instructions to the jury summarized the case in precisely those terms. The court, consistent with the information and the evidence, stated: “Physical contact of the child is not important. The state alleges that the defendant created such a situation [to impair the morals of a minor] by driving alongside the complainant, soliciting her to engage in sex with him, and blocking her passage along the sidewalk with his vehicle.” Thus, this is not, as the defendant argues, a case of sexual speech alone; it is a case of sexual speech plus threatening conduct.

Finally, the defendant argues that the statute is unconstitutionally vague because the victim was of an age to consent to the sexual overture of the defendant. We disagree with the premise of the defendant’s argument. First, she at no time gave any indication of consent. Second, even if she had, the victim was legally incapable of consenting to the defendant’s overture. The defendant, who was thirty-four years old at the time, asked to perform cunnilingus on the fifteen year old victim. The version of our Penal Code in effect at the time of the defendant’s conduct provided that: “ ‘[s]exuai intercourse’ means . . . cunnilingus between persons . . General Statutes (Rev. to 2007) § 53a-65 (2); and “[a] person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .” General Statutes (Rev. to 2007) § 53a-71 (a). Thus, if the victim had complied with the defendant’s request, he would have been guilty of sexual assault in the second degree, a class B felony when the victim is under sixteen years of age. See General Statutes (Rev. to 2007) § 53a-71 (b).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired . . . shall be guilty of a class C felony . . .

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       Although the defendant did not raise this claim in the trial court, he argues, and the state agrees, as do we, that the claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       The defendant claims in his brief that “[t]here is no known decision by this [c] ourt or the Supreme Court where words alone were deemed sufficient to satisfy the statute.” In light of our conclusion that this is not a case of sexual words alone, but instead sexual words plus threatening conduct, we need not consider this claim.

       The fact that, as the defendant argues, the victim actually may not have seen him exit his vehicle is of no moment in this context, because the focus of the statute is on the defendant’s conduct and its likely — not actual— effect on a minor in the victim’s situation. See State v. Eastwood, supra, 83 Conn. App. 476 (Section 53-21 [a] [1] precludes “the creation of a situation that is likely to impair the morals of a victim younger than sixteen years of age. Lack of an actual injury to . . . the . . . morals of the victim is irrelevant . . . actual injury is not an element of the offense. . . . [T]he creation of aprohibited situation is sufficient.” [Emphasis in original; internal quotation marks omitted.]).

       In 2007, this age differential was amended to include an actor more than three years older than the victim. See Public Acts 2007, No. 07-143, § 1.


author: ALVORD, J.

text:
    KIRTIDA ZATAKIA v. ECOAIR CORPORATION
    (AC 32146)
    Lavine, Alvord and Peters, Js.

      Argued March 10 —
    officially released May 3, 2011

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and Joshua H. Brown, for the appellant (defendant).

      Patricia M. Rondon, with whom were Vandana Padinjaremarath, and, on the brief, Krishna Palagummi, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, Ecoair Corporation, appeals from the judgment of the trial court, rendered after trial to the court, in favor of the plaintiff, Kirtida Zatakia, on her complaint to collect an unpaid balance of a debt evidenced by a promissory note. The defendant claims, inter alia, that the trial court improperly (1) considered a matter in avoidance of an affirmative allegation despite the plaintiffs failure to plead it in the reply to the defendant’s special defenses pursuant to Practice Book § 10-57 and (2) concluded that the defendant acknowledged indebtedness sufficient to toll the applicable statutes of limitations. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendant is a Delaware corporation doing business in Connecticut. From 1992 through 1995, the defendant engaged in business with Globe Scott Motors Private Limited (Globe). On March 2,1995, the defendant, acting through its executive vice president and secretary, William Lavelle, executed a promissory note to Globe in the amount of $125,000 in consideration for past due services (note). The note called for $125,000 to be paid on October 2, 1997, with monthly interest payments due at a rate of 10 percent per year.

On April 26, 2001, the plaintiff purchased the note from Globe for 25,000 Indian rupees. On August 28, 2001, the plaintiff made a demand on the defendant for payment of the note. The defendant, via letter signed by Peter S. Knudsen, Jr., the defendant’s president, acknowledged the debt and the assignment of the note on September 26, 2001 (2001 letter), but made no payments.

The plaintiff commenced this action during April, 2008. In the defendant’s response to the complaint, it asserted a number of special defenses, including that the action was barred by the applicable statutes of limitations, General Statutes §§ 42a-3-118 and 52-576. The plaintiff filed a general denial of the special defenses.

On March 5,2010, the case went to trial, at which time the plaintiff produced a letter printed on the defendant’s letterhead, dated October 3, 2005, addressed to the plaintiff and signed by Knudsen (2005 letter). The 2005 letter was sent by T.M. Byxbee Company, P.C., the auditors of the defendant’s financial records (auditors). It stated in relevant part: “Our auditors . . . are conducting an audit of our financial statements. Please confirm directly to them the following information relating to our note payable to you at September 30, 2005: Date of Note: March 2, 1995; Original amount of note: $125,000.00; Unpaid principal balance: $125,000.00; Maturity date: October 2, 1997; Interest rate: 10 [percent]; Date to which interest has been paid: April 28, 1996 .... Please indicate in the space provided below whether the above is in agreement with your records. If it is not, please furnish our auditors any information you may have that will help them reconcile the difference.”

The court allowed the 2005 letter to be entered into evidence as an exhibit despite the defendant’s objections that, inter alia: (1) the 2005 letter was not alleged in the complaint and the complaint was not amended to conform with the evidence presented at trial, (2) the defendant was unfairly surprised by the introduction of the 2005 letter for the first time during trial and (3) the 2005 letter was not properly introduced as a business record. The court found that the 2005 letter was “relevant to paragraph eight of the complaint, where the plaintiff made demand for payment of the note” and that it was an allowable business record. The court was not persuaded by the defendant’s claim that the 2005 letter was improperly before the court because it was not alleged in the complaint, stating that “any exhibit put into evidence doesn’t have to necessarily be alleged in the complaint.”

Additionally, the court heard testimony from Knudsen, who (1) admitted to recognizing the 2005 letter, (2) acknowledged signing it, (3) described the defendant’s custom of allowing the auditors to draft letters on the defendant’s letterhead, over his signature, for the purpose of requesting information for the audit, (4) characterized the 2005 letter as a request to verify the amount and terms of the note and (5) explained that the auditors collected the information reflected in the audit letters by interviewing him and the defendant’s bookkeeper and accountant. At the conclusion of the trial, the parties filed simultaneous posttrial briefs, at which point the defendant argued, inter alia, that the plaintiff could not claim that the defendant acknowledged the debt in the 2005 letter because she did not plead it as a matter in avoidance of the affirmative allegations in the defendant’s special defenses. The plaintiff argued, inter alia, that the defendant had failed to conduct any discovery during which she would have had the opportunity to make the defendant aware of the 2005 letter, and, therefore, the defendant was precluded from arguing against its admission.

In its written decision issued on March 23, 2010, the court found that the 2005 letter constituted a “clear acknowledgement” of debt sufficient to remove the bar of the statutes of limitations. To support this conclusion, the court found that the 2005 letter, “while prepared by the defendant’s auditors, was written on the defendant’s letterhead and signed by the defendant’s [president]. It clearly delineates the terms of the note and refers to it as ‘our note payable to you.’ . . . [N]othing in the correspondence indicates that the defendant did not intend to pay the debt, or that it intended to rely on any statute of limitations.” Accordingly, the trial court rendered judgment in favor of the plaintiff in the amount of $315,384.95. This appeal followed.

I

The defendant first argues that the trial court improperly considered the plaintiffs claim in avoidance of the statutes of limitations special defenses because it was not pleaded in the reply to the special defenses in accordance with Practice Book § 10-57. We disagree.

As an initial matter, we set forth the appropriate standard of review. Our Supreme Court has stated that “when a party properly objects to a violation of the rules of practice, the trial court may disregard the improperly raised claim if doing so is not an abuse of discretion. Accordingly . . . we review the trial court’s decision under an abuse of discretion standard.” Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273-74, 819 A.2d 773 (2003). Thus, we review the trial court’s decision in the present case under the same abuse of discretion standard.

“When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness .... Furthermore, we have stated in other contexts in which an abuse of discretion standard has been employed that this court will rarely overturn the decision of the trial court.” (Citation omitted; internal quotation marks omitted.) Id., 274.

In the present case, the defendant understood that the lapsing of the statutes of limitations was an issue to be considered by the court, as the defendant introduced this defense. At trial, the defendant was apprised of the existence and importance of the 2005 letter several times and had the opportunity to respond on each occasion. Before the plaintiff presented evidence, her counsel announced that the plaintiffs position was “that the statute [was] tolled and has not run out on this matter due to the affirmation and the acknowledgment of the debt up and through 2005.” The defendant’s counsel responded that “the documents to which [the plaintiffs] counsel refers are not mentioned in the [c]omplaint.” After the 2005 letter was admitted as an exhibit, the plaintiffs counsel again expressed her intention to argue that the 2005 letter was an acknowledgment of the debt. In addition, both parties examined the witness, Knudsen, and had the opportunity to investigate fully his role in signing the 2005 letter, as well as the circumstances under which the auditors would draft this type of letter. At the conclusion of the trial, the court allowed both parties to file simultaneous posttrial briefs, at which juncture the defendant was provided an additional opportunity to respond to the plaintiffs claim in avoidance of the defendant’s statutes of limitations special defenses.

Thus, the issue was squarely before the court when it made its decision, and the defendant was permitted repeatedly to respond to the plaintiffs claim in avoidance of the statutes of limitations special defenses. We acknowledge that it would have been a better practice for the plaintiff to have alleged the matter in avoidance in her reply to the special defenses. Nonetheless, under the facts of this case, we cannot conclude that it was an abuse of discretion for the court to consider the plaintiffs claim in avoidance. Moreover, the plaintiff could have amended her pleadings to conform to the evidence at trial.

II

The defendant next contends that the court improperly concluded that this action was not time barred by the applicable statutes of limitations, as set forth in §§ 42a-3-118 and 52-576 (a). Specifically, the defendant contends that the court’s finding that it acknowledged the debt in the 2005 letter, thereby tolling the statutes, was clearly erroneous. We are not persuaded.

“The Statute of Limitations creates a defense to an action. It does not erase the debt. Hence, the defense can be lost by an unequivocal acknowledgment of the debt, such as a new promise, an unqualified recognition of the debt, or a payment on account. . . . Whether partial payment constitutes unequivocal acknowledgment of the whole debt from which an unconditional promise to pay can be implied thereby tolling the statute of limitations is a question for the trier of fact. . . .

“A general acknowledgment of an indebtedness may be sufficient to remove the bar of the statute. The governing principle is this: The determination of whether a sufficient acknowledgment has been made depends upon proof that the defendant has by an express or implied recognition of the debt voluntarily renounced the protection of the statute. . . . But an implication of a promise to pay cannot arise if it appears that although the debt was directly acknowledged, this acknowledgment was accompanied by expressions which showed that the defendant did not intend to pay it, and did not intend to deprive himself of the right to rely on the Statute of Limitations .... [A] general acknowledgment may be inferred from acquiescence as well as from silence, as where the existence of the debt has been asserted in the debtor’s presence and he did not contradict the assertion. . . .

“We review the trial court’s finding . . . under a clearly erroneous standard. ... [A] finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Citations omitted; internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn. App. 447, 461-63, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002).

In the present case, the court noted that the 2005 letter was written on the defendant’s letterhead and signed by its president. It found significant that the 2005 letter stated, “our note payable to you.” Further, the court identified nothing in the 2005 letter that indicated that the defendant did not intend to pay the debt, or that it intended to rely on the statutes of limitations. These findings were supported by the plain language of the 2005 letter, interpreted in conjunction with Knudsen’s testimony. Under the circumstances of this case, we cannot conclude that the trial court’s finding that “the correspondence [was] a clear acknowledgment of indebtedness” sufficient to toll the applicable statutes of limitations was clearly erroneous. Accordingly, the defendant cannot prevail on this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 10-57 provides in relevant part that a “[mjatter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply. . . .”

       In addition, the defendant claims that “[t]he record contains nothing to support the trial court’s conclusion that [the defendant’s auditors] sent the 2005 letter; the trial court did not find that the plaintiff ever received the October 2005 letter; even if the finding is implicit there was no evidence to support it.” This claim, however, was not argued at trial. Practice Book § 60-5 provides in relevant part that this court “shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Additionally, this court previously has stated that it “will not consider issues which are brought to the court’s attention for the first time by way of the appellant’s brief.” (Internal quotation marks omitted.) Torrington v. Zoning Commission, 63 Conn. App. 776, 780 n.1, 778 A.2d 1027 (2001), affd, 261 Conn. 759, 806 A.2d 1020 (2002). Accordingly, we decline to review this claim.

       The trial court found that the only payment that was ever made was $2000 during 1997.

       See footnote 1 of this opinion.


author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. JOHNNIE ARTHUR
    (AC 32586)
    Gruendel, Robinson and Alvord, Js.

      Argued March 15 —
    officially released May 3, 2011

      Auden Grogins, special public defender, for the appellant (defendant).

      RoccoA. Chiarenza, deputy assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Melanie Cradle, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Johnnie Arthur, appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a) (2), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that (1) the trial court abused its discretion in denying his motion to suppress evidence of his pretrial identification, (2) the court abused its discretion in admitting into evidence a tape-recorded statement pursuant to 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), and (3) the evidence adduced at trial was insufficient to sustain the jury’s finding that he perpetrated the crimes. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On the evening of September 29, 2007, the victim, Andrew Garnett, attended a party at the Sports Haven nightclub in New Haven with friends, including Dionte Dixon. While there, they met Nancy Sonemaneevong, Barbara “Shanita” Green and the defendant’s girlfriend, Robin DiBenedetto. Green informed Dixon that she had a crush on his friend, Eugene Wright, and Dixon arranged for her to meet Wright later that evening. When the party ended, those individuals departed for Wright’s apartment at 30 Glade Street in West Haven. Dixon drove his own car, the victim rode in a second vehicle with other friends, and DiBenedetto drove Sonemaneevong and Green in her red Pontiac Grand Am. At that time, DiBenedetto was speaking with the defendant on her cellular telephone.

When the vehicles arrived at the parking lot at 30 Glade Street in the early morning horns of September 30, 2007, Green immediately entered Wright’s apartment. At that time, the victim and Dixon entered the Pontiac Grand Am and began flirting with DiBenedetto and Sonemaneevong. When Sonemaneevong needed to use a bathroom, Dixon escorted her into Wright’s apartment. The victim remained in the vehicle with DiBenedetto, who still was on the telephone with the defendant.

A bystander in the parking lot, Jamie Henderson, observed a man he knew as “Drew” speaking to the female driver of the red Pontiac vehicle. He then witnessed a gray Ford Taurus enter the parking lot, from which a male wearing a dark colored hoodie and hat emerged looking “like he meant business.” With a hand in the hoodie, the man asked DiBenedetto to leave with him, and she refused. The victim informed the man that “ ‘[s]he good. She with us.’ ” The man then fired multiple gunshots at him from close range. As the victim crawled on the ground, the Ford Taurus and the Pontiac Grand Am fled the scene.

Officer Radames Gonce of the West Haven police department, who at the time was responding to an unrelated call nearby, heard the gunshots emanate from the Glade Street area. As Gonce drove toward Glade Street, he saw several vehicles driving away at a high rate of speed, including a gray Ford Taurus with a New York license plate. When he arrived at the parking lot outside Wright’s apartment, Gonce found the victim lying on the ground. The victim subsequently was transported by ambulance to Yale-New Haven Hospital, where he was treated for life threatening injuries that included, inter aha, a collapsed lung, three gunshot wounds to the chest and one gunshot wound to his left thigh. Following emergency surgery, the victim recuperated in the hospital for seven days.

While investigating the scene of the shooting, Detective Anthony Simone of the West Haven police department learned that the red Pontiac Grand Am had been located and asked the operator to return to the Glade Street parking lot. When the vehicle arrived, the operator was identified as DiBenedetto, who then was transported to police headquarters. Simone subsequently interviewed Henderson, Sonemaneevong and Green, from which he learned that DiBenedetto’s boyfriend may have been involved in the shooting. He then interviewed DiBenedetto, who was uncooperative and identified her boyfriend only as “Johnnie.” Further investigation revealed that DiBenedetto had been talking on her cellular telephone with the defendant up to the time of the incident and that she had two cellular telephones registered in her name, both of which were used during that conversation. Telephone records, which were admitted into evidence at trial, established that DiBenedetto’s initial conversation in the early morning hours of September 30, 2007, lasted forty-one minutes and three seconds, from 3:10 a.m. to 3:51 a.m. Telephone records also established that although the signal from DiBenedetto’s other telephone was routed through a cell tower in New Haven at 3:10 a.m., it was routed through a tower on Campbell Avenue in West Haven from 3:51 a.m. to 3:56 a.m. The Campbell Avenue tower is in the vicinity of Glade Street and was used by both of DiBenedetto’s cellular telephones at that time. Additional calls between DiBenedetto’s two telephones were made at 3:52 a.m., 3:55 a.m. and 3:57 a.m. The police received a 911 call reporting the shooting at 3:57 a.m.

Simone’s investigation also revealed that DiBenedetto lived at 719 Orchard Street in New Haven with the defendant. When police arrived at that property on the day of the shooting, they found a silver Ford Taurus with a New York license plate in the backyard. Gonce arrived later and confirmed that the vehicle looked like the one he observed fleeing the Glade Street area moments after the shooting. The police seized the vehicle, and a search revealed a cellular telephone and a photograph of the defendant with friends at what appeared to be the party at the Sports Haven nightclub hours earlier. The police also learned that DiBenedetto had rented the vehicle from Enterprise Rental Car from September 28, 2007, through October 1, 2007.

When Simone interviewed the defendant, he confirmed that he had attended the party at the Sports Haven nightclub a day earlier. The defendant stated that he attended with friends and that he did not drive there “because he doesn’t drive.” The defendant did not provide any further information to police at that time. Nonetheless, Brenda Ollison, DiBenedetto’s upstairs neighbor at 719 Orchard Street, testified at trial that she observed the defendant driving the Ford Taurus on the weekend in question.

As a result of their preliminary investigation, the police obtained a description of the person who had shot the victim. Simone detailed that description at trial as follows: “Black male, approximately five foot nine, at the time wearing dark pants with a design on the rear pockets, a dark hooded sweatshirt with red drawstrings and a red and white design on the front, and a black fitted baseball style cap.” DiBenedetto’s sister, Lori Ann Johnson, testified that she had cared for DiBenedetto’s son on the evening of September 29, 2007, so that DiBenedetto could attend the party at the Sports Haven nightclub. When Johnson went to DiBenedetto’s residence at 719 Orchard Street on October 1, 2007, DiBenedetto and the defendant were there. Johnson observed the defendant’s recently washed clothes on a chair. She saw a black “zip-up,” a black tee shirt and dark jeans, which she stated the defendant had worn to the Sports Haven nightclub. When shown the outfit worn by the defendant in the photograph found in the search of the Ford Taurus, Johnson identified it as the same outfit she had seen drying on the chair at 719 Orchard Street. Johnson further testified that DiBenedetto drove a “red Pontiac Grand Am GT” at the time of the shooting.

While recovering from surgery at the hospital, the victim spoke with Detective Usha Carr of the West Haven police department. Carr testified that the victim stated that, on the night of the shooting, he was “hanging out” in the parking lot at 30 Glade Street with friends. While the victim was chatting with a white female in a red Pontiac Grand Am, “a black male drove up” in a silver Ford Taurus. The man repeatedly told the woman with whom the victim had been speaking to leave with him. The victim told the man that “ ‘[s]he good. She with us.’ ” The victim’s next recollection was the smell of gunpowder. During the interview, Carr showed the victim a photographic array, informing him that the shooter “might or might not be” in the array. The victim selected the defendant’s photograph as that of his assailant. The victim refused to sign the photographic array or to provide a recorded statement, however, because he did not want to be labeled a “snitch.” At trial, the victim identified the defendant in court as the individual that he had selected from the photographic array.

The defendant thereafter was arrested and charged with criminal attempt to commit murder, assault in the first degree, criminal possession of a firearm and carrying a pistol or revolver without a permit. While incarcerated at the MacDougall-Walker Correctional Institution, the defendant received a visit from DiBenedetto and his mother, Judith Wright, on January 23,2009. The visit transpired in a noncontact area, which contains “a glass that separates [the inmate from the visitors] with a booth and the visitors are on the opposite side of them and they make contact through two . . . phone headsets.” On the date in question, Correction Officer Rudolfo Santana observed the defendant “looking over his shoulder, towards where I was standing, kind of suspiciously, sort of nervous. So I started observing him a little bit more closely. I noticed that he was moving his right hand, like trying to hide something, bringing it up, bringing it down, and every time I looked towards him, he would bring it down. So I approached him from the backside and I noticed he had his right hand against the window with a piece of paper and I asked him for it. He handed it to me with no problem. I looked at the piece of paper. I saw it had some information on it, so I stated to him to continue with his visit, and I walked out of that particular area there. He [stood] up, followed] me, and asked me what I was going to do with the paper and [told me] to throw it away, and I gave him a direct order to go sit back down and continue with his visit.” Santana identified the defendant in court as that inmate. Santana further testified that he brought the paper to a supervisor immediately.

The paper was admitted as a full exhibit at trial, and the clerk of court read its contents. The paper first listed two telephone numbers, both of which bore the 203 area code, and then stated: “(NAME) Drew Tell him please don’t cooperate with the courts, [a]nd to tell his friends not too. And if [I] would of known what [I] know now it wouldn’t never happened, [d]on’t never tell him your real name ok ma. Ask him if he could just help me, by not cooperating, ciy too ma, don’t talk to nobody but him ma, ok just him. I need that nigga to not cooperate with them anymore. [I]f that’s done, with the victim theirs no case.” At trial, the victim testified that, after the shooting, he learned that the defendant was his cousin.

At the conclusion of the state’s case in his criminal trial, the defendant moved for a judgment of acquittal on all charges, arguing primarily that the state had not proven beyond a reasonable doubt that the defendant had shot the victim. The court denied that motion, and the jury thereafter found the defendant guilty on all counts. The court rendered judgment accordingly and sentenced the defendant to a total effective term of twenty-five years incarceration. This appeal followed.

I

The defendant claims that the court abused its discretion in denying his motion to suppress evidence of his pretrial identification by the victim. “[Bjecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect.” (Emphasis added; internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 547-48, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

As our Supreme Court has explained, “[o]nly if the procedures used to identify the accused are unnecessarily suggestive are we required to analyze the factors that determine the reliability of an identification for due process purposes.” State v. Miller, 202 Conn. 463, 470, 522 A.2d 249 (1987). In his principal appellate brief, the defendant concedes that essential prerequisite is lacking, stating that “[i]n the instant case, the defendant does not claim that the photo array used to obtain [the victim’s] pretrial [identification] of the defendant was overly suggestive.” The court agreed with that assessment, expressly crediting the testimony of Carr and finding that “[t]here is no evidence of any coercion on the part of the detective.” The court further credited the fact that Carr informed the victim that his assailant “may or may not be” in the photographic array in denying the motion to suppress. On our careful review of the record, we agree with the court’s determination that the victim’s pretrial identification of the defendant was not overly suggestive. It thus did not abuse its discretion in denying the defendant’s motion to suppress.

II

The defendant next claims that the court abused its discretion in admitting into evidence a tape-recorded statement pursuant to State v. Whelan, supra, 200 Conn. 743. We disagree.

The following additional facts are relevant to this claim. Ollison lived on the floor above DiBenedetto’s residence at 719 Orchard Street. On October 4,2007, she made the following tape-recorded statement to police:

“[Detective Simone]: Brenda, for the record for me, could you state your name and spell your last name?

“[Ollison]: Brenda Ollison ....

“[Detective Simone]: Okay, Brenda. Brenda, we’ve been here throughout the past few days on and off. You’re aware that we were investigating a shooting . . . that took place in West Haven on Glade Street?

“[Ollison]: Yes.

“[Detective Simone]: And you’re aware that on Sunday we were here, and we towed from the back lot here a Ford Taurus with New York plates?

“[Ollison]: Yes.

“[Detective Simone]: You, you’re familiar with that car?

“[Ollison]: Yes, I am.

“[Detective Simone]: Okay. Could you tell us how that car came to be here?

“[Ollison]: Um, actually I seen the car Friday, Saturday and Sunday.

“[Detective Simone]: Okay.

“[Ollison]: And, um, parked in the back. I seen Johnnie driving it.

“[Detective Simone]: Johnnie, we’re talking about [DiBenedetto’s] boyfriend?

“[Ollison]: [DiBenedetto’s] boyfriend.

“[Detective Simone]: Johnnie Arthur?

“[Ollison]: Johnnie Arthur.

“[Detective Simone]: Okay.

“[Ollison]: I . . . didn’t know his last name.

“[Detective Simone]: Okay.

“[Ollison]: But I seen him in the car one time, and that was basically it.

“[Detective Simone]: And did you see Johnnie driving that car ... at least on one occasion?

“[Ollison]: Yes.

“[Detective Simone]: Okay.

“[Detective Sergeant Walter Casey]: Just one thing, that car, what color was the car?

“[Ollison]: Um, gray, like gray/silver.

“[Detective Sergeant Casey]: Okay.

“[Ollison]: A Ford Taurus with New York plates.”

At trial, Ollison initially testified during direct examination that she had seen the defendant, whom she identified in court, drive that vehicle one time on the weekend in question. On cross-examination, Ollison’s testimony changed. Before testifying that she suffers from short-term memory loss, the following colloquy occurred:

“[The Defendant’s Counsel]: Did [the police] ask you if you had seen [the defendant] in the car?

“[Ollison]: They asked me if I had seen him in the car, but I said I seen him one time in the car, and it was early, it was like early during the day.

“[The Defendant’s Counsel]: Right.

“[Ollison]: And the car had been parked back there, because I have a dog. I had to let my dog out.

“[The Defendant’s Counsel]: Right. When you say you saw him in the car, you didn’t see him driving the car?

“[Ollison]: No.

“[The Defendant’s Counsel]: No. You just saw him?

“[Ollison]: Just parked, and he was in the car.”

On redirect examination, the state questioned Ollison about that testimony. When the prosecutor inquired as to whether she recalled telling the police that she had seen the defendant driving the vehicle, Ollision testified: “No. I never seen him drove the car, I just seen him in the car.” At that time, the state sought to have Ollison’s tape-recorded statement admitted into evidence as a prior inconsistent statement, to which the defendant objected. After hearing from the prosecutor and defense counsel outside the presence of the jury, the court ultimately admitted the statement pursuant to Whelan. The defendant now challenges the propriety of that evidentiary ruling.

In State v. Whelan, supra, 200 Conn. 753, our Supreme Court determined that an out-of-court statement is admissible as substantive evidence if (1) the statement is a prior inconsistent statement, (2) it is signed by the declarant, (3) the declarant has personal knowledge of the facts stated therein, and (4) the declarant testifies at trial and is subject to cross-examination. A prior tape-recorded statement that satisfies these conditions also is admissible as substantive evidence. Id., 754 n.9. “The admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the . . . discretion of the trial court. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 56, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006). In addition, we note that “once the proponent of a prior inconsistent statement has established that the statement satisfies the requirements of Whelan, that statement, like statements satisfying the requirements of other hearsay exceptions, is presumptively admissible.” State v. Mukhtaar, 253 Conn. 280, 306, 750 A.2d 1059 (2000).

The defendant’s claim hinges on his contention that Ollison’s tape-recorded statement was not inconsistent with her trial testimony. He argues that because Ollison initially testified that she had seen him driving the Ford Taurus, her tape-recorded statement could not be deemed inconsistent with her testimony at trial. The defendant is mistaken.

“Whether there are inconsistencies between the two statements is properly a matter for the trial court. . . . Inconsistencies may be shown not only by contradictory statements but also by omissions. In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined. . . . Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement . . . and the same principle governs the case of the forgetful witness. ... A statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus, inconsistencies may be found in changes in position .... The trial court has considerable discretion to determine whether evasive answers are inconsistent with prior statements.” (Emphasis in original; internal quotation marks omitted.) State v. Simpson, 286 Conn. 634, 649, 945 A.2d 449 (2008).

The record plainly discloses a change in position on the part of Ollison. Whereas on direct examination she stated that she had witnessed the defendant driving the Ford Taurus “one time” on the weekend in question, she testified on cross-examination and redirect examination that she never saw him driving the vehicle but, rather, only saw him sitting in it while parked. The inconsistency in that testimony requires no elaboration. In light of that inconsistency, the court properly determined that the tape-recorded statement satisfied the requirements of Whelan and, hence, was presumptively admissible. See State v. Mukhtaar, supra, 253 Conn. 306. We therefore conclude that the court did not abuse its discretion in admitting OUison’s tape-recorded statement into evidence.

Ill

The defendant also raises a claim of evidential insufficiency. Specifically, he maintains that the evidence concerning the identity of the perpetrator was insufficient to establish his participation in the charged crimes. We do not agree.

“[T]he [d]ue [pjrocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . . The standard of review for a sufficiency of the evidence claim employs a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support [its] verdict. . . .

“It is axiomatic that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] 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. . . . Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [jury] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of eveiy hypothesis of innocence posed by the defendant that, had it been found credible by the [jury] would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [jury’s] verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Reid, 123 Conn. App. 383, 391-92, 1 A.3d 1204, cert. denied, 298 Conn. 929, 5 A.3d 490 (2010).

In the present case, there is a reasonable view of the evidence that supports the jury’s finding that the defendant perpetrated the charged crimes. The jury was presented with evidence that, only days after the shooting, the victim selected the defendant’s photograph as that of his assailant from the photographic array, a selection he confirmed in court during the trial.

In addition, the state presented an abundance of circumstantial evidence indicating that the defendant was the person who had shot the victim in the parking lot at 30 Glade Street. Sonemaneevong testified that DiBenedetto was talking to the defendant on her cellular telephone as they traveled from the Sports Haven nightclub to the parking lot. The cellular telephone records introduced into evidence established that both telephones used in that conversation were registered in DiBenedetto’s name and further demonstrated that the signal of the telephone used by the defendant during that forty-one minute conversation initially was routed through a cell tower in New Haven but thereafter was routed through the Campbell Avenue tower in the vicinity of Glade Street from 3:51 a.m. to 3:56 a.m. Those records further indicate that additional calls between those two telephones were placed at 3:52 a.m., 3:55 a.m. and 3:57 a.m. The jury heard evidence that police received a 911 call reporting the shooting at 3:57 a.m.

The jury also heard the testimony of Henderson, who witnessed the shooting. At that time, Henderson was in the parking lot waiting for a friend to arrive. He observed a red vehicle driven by a white female parked in the lot, who was talking for approximately twenty minutes to a black male he knew as “Drew.” Henderson then observed a gray Ford Taurus enter the parking lot, from which a male wearing a dark colored hoodie and hat emerged looking “like he meant business.” With a hand in his hoodie, the man approached the red vehicle and began speaking with the female driver, whom it appeared the man knew. A moment later, Henderson watched as the man fired several shots at “Drew” from an “arm[’s] reach” distance. Henderson then observed “Drew” crawling on the ground as both the red vehicle driven by the white female and the Ford Taurus driven by the assailant fled.

The jury learned that, in the moments after shots had been fired, Gonce witnessed a gray Ford Taurus with a New York license plate driving away from Glade Street at a high rate of speed. The jury also learned that on the day of the shooting, the police discovered a silver Ford Taurus with a New York license plate in the backyard of DiBenedetto’s residence at 719 Orchard Street, which Gonce later confirmed looked like the vehicle he had observed fleeing the Glade Street area immediately after the shooting. DiBenedetto had rented the vehicle from Enterprise Rental Car from September 28, 2007 through October 1, 2007. Contrary to the defendant’s statement to the police that “he doesn’t drive,” the jury was presented with evidence that DiBenedetto’s upstairs neighbor witnessed the defendant driving that vehicle on the weekend in question. In addition, the police found in the vehicle a photograph of the defendant, which was introduced into evidence, wearing an outfit that DiBenedetto’s sister testified that the defendant had worn to the Sports Haven nightclub on the night of the shooting. Johnson also testified that she observed that recently washed outfit drying on a chair in DiBenedetto’s residence two days after the shooting. That outfit matched the description of the shooter’s attire described by Henderson in his testimony.

Finally, the note that Santana confiscated from the defendant during his visit with DiBenedetto and his mother at the MacDougall-Walker Correctional Institution was admitted into evidence. In that note, the defendant asked his mother to contact “Drew” in an effort to convince him and his friends not to cooperate with the criminal investigation. The defendant further stated that if the victim refused to cooperate, there would be no case against him. From that piece of evidence, the jury could connect Henderson’s identification of the victim as “Drew” to the defendant’s similar identification of the victim in the note. Equally significant, the jury could derive evidence of consciousness of guilt from that note. See, e.g., State v. Gray, 221 Conn. 713, 725-26, 607 A.2d 391 (guilty consciousness is perhaps strongest evidence that person is guilty doer), cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Leecan, 198 Conn. 517, 534, 504 A.2d 480 (noting that our Supreme Court repeatedly “has approved the admission of threats against or attempted intimidation of witnesses as evidence of consciousness of guilt”), cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

Construing the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have concluded beyond a reasonable doubt that the defendant was the person who shot the victim in the parking lot at 30 Glade Street on September 30, 2007. Accordingly, his claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The party at the Sports Haven nightclub was an album release party featuring a rap music concert.

       At trial, the defendant stipulated on the record both that he “was a person prohibited from possessing a firearm pursuant to the . . . general statutes” and that he “did not hold a Connecticut state [revolver] or pistol permit.”

       The defendant objected at trial to the admission of the victim’s pretrial identification, thereby preserving his claim for appeal.

       Although the defendant also relies on § 6-10 of the Connecticut Code of Evidence, that section pertains to the admission of a prior inconsistent statement for impeachment, not substantive, purposes and hence is inapplicable to the present case. As the commentary to that rule states, “[t]he substantive admissibility of prior inconsistent statements is treated elsewhere in the Code.” Conn. Code Evid. § 6-10 (a), commentary.