author: SCHALLER,

text:
    IN RE HECTOR L. ET AL.

    (AC 18632)
    Lavery, Schaller and Hennessy, Js.

      Argued January 12
    released May 18, 1999

      Raymond J. Rigat, for the appellant (respondent father).

      Paula D. Sullivan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b~142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SCHALLER,

J. The respondent father appeals from the judgments of the trial court terminating his parental rights with respect to his four children. On appeal, the respondent claims that the trial court improperly (1) terminated his parental rights on the statutory ground of failure to achieve personal rehabilitation, (2) reviewed the evidence under the “clear and convincing evidence” standard, rather than the “beyond a reasonable doubt” standard, (3) found that there was no ongoing relationship between the respondent and his two youngest children because the trial court did not apply the correct legal standard and (4) found that the department of children and families (department) made reasonable efforts to reunite the children with the respondent. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The respondent and Eneida R. are the parents of four children. The department has been involved with this family since June, 1994. At that time, various services were offered to the family to help keep the children in the home. The department, however, received limited cooperation from the parents. In 1995, the two oldest children were removed from the home twice for brief periods of time.

Four weeks after the two youngest children, who are twins, were born in 1996, the respondent and Eneida were in a department store with three of the children. A police officer on private security duty watched the respondent put a pair of children’s shoes into a bag in Eneida’s shopping basket. Both the respondent and Eneida were detained when the security guard discovered that they had not paid for the shoes. Two security guards escorted the respondent to an upstairs room for questioning. At the top of the stairs, the respondent, who was carrying one of the children in a backpack, began fighting with the security guards. The police were called, and the respondent and Eneida were eventually subdued and arrested. A subsequent search of the respondent yielded thirty-eight packets of heroin and $568. After their parents’ arrest, the children were placed in foster care and, shortly thereafter, with relatives, where the children have remained. On November 5, 1996, all four children were adjudicated neglected and committed to the department.

On August 8,1997, the commissioner of children and families (petitioner) filed termination of parental rights petitions against the parents with respect to all four children. The petitions alleged the following statutory grounds with respect to both parents: failure to achieve personal rehabilitation pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B), and no ongoing parent-child relationship pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (D).

Termination hearings were held on April 13 and April 14, 1998. The trial court heard testimony from department social workers, a police officer, the clinical supervisor of a methadone clinic, a hospital record keeper, the children’s foster mothers and both parents. The court received into evidence the social history of the parents, social studies, the court-approved expectations, arrest and conviction records, a police report, substance abuse treatment records and a visitation schedule.

With respect to the statutory grounds for termination of parental rights, the trial court found by clear and convincing evidence that “the parents have failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the ages and needs of the children, such parents could assume a responsible position in the lives of the children.” The trial court also found, with respect to the twins, that the parents “have no ongoing parent-child relationship with the twins . . . .” The trial court found that the grounds had existed for more than one year and made the mandatory findings required by General Statutes (Rev. to 1997) § 17a-112 (e), now § 17a-112 (d). The trial court then terminated the parental rights of both parents, finding that it was in the best interests of the children. This appeal by the respondent followed. Additional facts will be set forth as they become relevant in the context of the respondent’s specific claims.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the disposi-tional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child.” (Citation omitted; internal quotation marks omitted.) In re Roshawn R., 51 Conn. App. 44, 52, 720 A.2d 1112 (1998).

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Id., 51.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Christina V., 38 Conn. App. 214, 220, 660 A.2d 863 (1995).

I

The respondent’s first claim is that the trial court improperly found that he had failed to achieve rehabilitation and that he is unlikely to do so within a reasonable time. The respondent specifically challenges the trial court’s conclusions, arguing that they are not legally correct or factually supported by the record. We disagree.

The respondent argues that there is nothing in the record other than evidence of his incarceration to suggest that he failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, he could not assume a responsible position in his children’s lives. Testifying on his own behalf at the hearing, the respondent’s position was basically that he is reforming himself in prison, and that he intends to take anger management programs and substance abuse programs. The respondent also testified that he hopes to be a good role model for his children after he gets out of prison, completes a halfway house program, finds a job, establishes a home and gets back on his feet again. He further testified that he was neither presently abusing drugs nor had he used drugs for the past three years. The respondent argues that there was no evidence presented at the termination hearing to indicate that his testimony was inaccurate and, therefore, that the trial court’s determination was clearly erroneous.

The trial court, however, is not bound by the uncon-tradicted testimony of any witness; Bieluch v. Bieluch, 199 Conn. 550, 555, 509 A.2d 8 (1986); see Acheson v. White, 195 Conn. 211, 217, 487 A.2d 197 (1985); and is in fact free to reject such testimony. See State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983). The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony and, therefore, has the right to accept part or disregard part of a witness’ testimony. Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982). Here, the trial court was under no obligation to give particular weight to the respondent’s testimony in its determination of whether he had achieved rehabilitation under § 17a-112 (c) (3) (B). The test is not whether any evidence was produced as to the respondent’s personal rehabilitation, but whether the record supports the trial court’s determination that the respondent had not achieved the standard of personal rehabilitation required under § 17a-112 (c) (3) (B). See In re Christina V., supra, 38 Conn. App. 220.

“ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” (Internal quotation marks omitted.) Id., 220. “[Section 17a-112 (c) (3) (B)] requires parental rights to be terminated if by clear and convincing evidence it is established that the respondent’s level of rehabilitation falls short of the level which would ‘encourage the belief that within a reasonable time, considering the age and needs of the child,’ the parent could assume a responsible position. . . . Thus, the statute requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular- child, and further, that such rehabilitation must be foreseeable ‘within a reasonable time.’ ” (Emphasis in original.) In re Luis C., 210 Conn. 157, 167, 554 A.2d 722 (1989).

Our review of the record discloses that the trial court concluded properly that there was clear and convincing evidence that the respondent failed to rehabilitate himself as required under the statute. At the adjudicatory phase of the termination hearing, the ultimate issue faced by the trial court was whether the respondent was better able to resume the responsibilities of parenting at the time of filing the termination petition than he had been at the time of the children’s commitment. See In re Michael M., 29 Conn. App. 112, 126, 614 A.2d 832 (1992).

In its memorandum of decision, the trial court noted that, since meeting the children’s mother in 1991, the respondent had been in jail for six and one-half years. Although the respondent had been incarcerated since the children were committed to the custody of the department in 1996, he had not taken any of the available substance abuse and parenting programs to achieve personal rehabilitation. Although the respondent could not avail himself of the rehabilitative programs available through the department because of his incarceration, it does not excuse his failure to use the resources offered by the department of correction. See In re Roshawn R, supra, 51 Conn. App. 53. The respondent’s lack of effort to improve his parenting since he was incarcerated did not warrant the belief that the respondent could achieve a responsible role in the lives of his four children within a reasonable period of time. Illustrative of the defendant’s rehabilitative status at the time of the hearing is his statement, “I never was a bad father to my kids, you know.” The respondent made this statement after admitting that he had a decade long criminal history, used a series of aliases so the police could not learn his identity, fought with police with his child in his backpack and possessed thirty-eight packets of heroin while he was shopping with his children.

Additionally, the record reflects that the respondent did not offer any plan to care for the children when he is released from prison, and the trial court determined that he was not able to do so. A social worker testified that, in a recent interview with the respondent, he had told her that when he is released from prison he plans to return to Puerto Rico. The social worker noted that the respondent made no mention of his children.

In its memorandum of decision, the trial court concluded that, considering their ages and needs, the children require a permanent, structured, caring and nurturing environment that the respondent was not able to offer the children at that time or within a reasonable time. The trial court found that giving the respondent additional time would not bring his performance as a parent within the acceptable statutory standards and that the children’s permanent placement could not be delayed. Although the respondent claimed that he ceased using drags, he did so only after he was incarcerated. Furthermore, the record discloses that the trial court based its conclusion on a plenary consideration of the factors identified in § 17a-112 (e) and did not grant the petition to terminate the respondent’s parental rights solely on the basis of the respondent’s incarceration. See In re Luis C., supra, 210 Conn. 168. In light of these findings, as supported by the record, we conclude that the trial court’s conclusion that the respondent failed to achieve a level of rehabilitation that would encourage the belief that, within a reasonable time, considering the children’s ages and needs, he could assume a responsible position in their lives was not clearly erroneous.

II

The respondent next claims that the trial court improperly reviewed the evidence under the “clear and convincing evidence” standard, rather than the “beyond a reasonable doubt” standard. Specifically, the respondent claims that the clear and convincing evidence standard of proof in a termination proceeding violates the constitution of Connecticut when used to determine whether a respondent parent has failed to achieve rehabilitation. This issue was not raised before the trial court and was not raised pursuant to the plain error doctrine on appeal. Accordingly, we decline to review this claim. See In re Jessica B., 50 Conn. App. 554, 570, 718 A.2d 997 (1998); State v. Hermann, 38 Conn. App. 56, 64, 658 A.2d 148, cert. denied, 235 Conn 903, 665 A.2d 904 (1995); cf. In re Jonathan P., 23 Conn. App. 207, 211, 579 A.2d 587 (1990).

Ill

The respondent next claims that the trial court used an incorrect legal standard when finding that there were no ongoing relationships between the respondent and the two youngest children. Specifically, the respondent claims that, with regard to the “no ongoing relationship” ground for termination, a finding of unfitness is a constitutional prerequisite to terminate parental rights. This issue was not raised before the trial court and was not raised pursuant to the plain error doctrine on appeal. Accordingly, we decline to review this claim. See In re Jessica B., supra, 50 Conn. App. 570; State v. Hermann, supra, 38 Conn. App. 64; cf. In re Jonathan P., supra, 23 Conn. App. 211.

IV

The respondent’s final claim is that the trial court improperly found that the department made reasonable efforts to reunite the children with the respondent pursuant to General Statutes § 17a-112 (c) (1). We disagree.

“Before a termination of parental rights can be granted, the trial court must be convinced that the department has made reasonable efforts to reunite the child with his or her family. The term ‘reasonable efforts’ was recently addressed by this court: ‘Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, the statute imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word “reasonable” nor the word “efforts” is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [.Reasonable efforts means doing everything reasonable, not everything possible.' In re Eden F., 48 Conn. App. 290, 311-12, 710 A.2d 771, cert. granted on other grounds, 245 Conn. 917, 717 A.2d 234 (1998). The trial court’s ruling on this issue should not be disturbed on appeal unless, in light of the evidence in the entire record, it is clearly erroneous. In re Tabitha P., 39 Conn. App. 353, 361, 664 A.2d 1168 (1995).” (Emphasis added.) In re Jessica B., supra, 50 Conn. App. 565-66.

The respondent claims that the department “could have done more” to provide reunification services while he was incarcerated. Yet, the respondent failed to identify the additional types of services the department could have provided him or how such services could have been offered while he was incarcerated. Additionally, the record reflects that the respondent knew what rehabilitation programs were available through the department of correction and, as noted earlier, he failed to take any of the substance abuse and parenting programs offered. Although the respondent could not avail himself of the programs normally available through the department because of the restraints imposed by his incarceration, he is not excused from making use of available programs offered by the department of correction. See In re Roshawn R., supra, 51 Conn. App. 53.

“[Reasonableness is an objective standard . . . and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case.” (Citation omitted.) In re Eden F., supra, 48 Conn. App. 312. In its memorandum of decision, the trial court found by clear and convincing evidence that the petitioner “made reasonable efforts to reunify the family, given the situation and circumstances, as far as possible.”

The record reflects that, even though the respondent was incarcerated, the department maintained his visits with the children. Once a month, the department transported the children to the prison to visit with their father. When the two youngest children reacted negatively and aggressively to the visits with their father, the department made an additional effort to continue these visits by having the foster mother, with whom the children felt safe and at ease, accompany the children and remain with them during the visits to the prison, thus giving the respondent every chance to develop positive relationships with the two youngest children.

In light of the trial court’s findings and conclusions and our thorough review of the record, we are not persuaded, considering the circumstances of this case, that the trial court’s conclusion that the department made reasonable efforts to reunite the family was clearly erroneous.

The judgments are affirmed.

In this opinion the other judges concurred.

       The parental rights of the respondent mother were also terminated. This appeal, however, concerns only the respondent father. We refer to him as the respondent in this opinion.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a [termination] petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) that termination is in the best interest of the child, and (3) that over an extended period of time, which . . . shall not be less than one year . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . (D) There is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . . .”

       At the time of the hearing, the respondent father was incarcerated and had been since the January 31, 1996 incident.

       General Statutes (Rev. to 1997) § 17a-112 (e) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom Ihe child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       The respondent asserts that his parental rights were terminated solely because of his confinement status and, therefore, he has been punished twice for the same offense in violation of the eighth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. The respondent, however, offers no analysis or authority to support this claim. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. Connecticut, National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). . . . State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998).” (Internal quotation marks omitted.) In re Tabitha T., 51 Conn. App. 595, 604, 722 A.2d 1232 (1999). We therefore decline to review this claim because it is inadequately briefed.

       The respondent testified that his maximum release date is May 14, 2000.

         In the dispositional phase of the termination hearing, “[t]he issue of whether parental rights should be terminated must be decided by 1he trial court on the basis of conditions existing at the time of the trial.” In re Michael M., 29 Conn. App. 112, 126 n.11, 614 A.2d 832 (1992).

       The court noted that even the respondent recognized that the children were well adjusted and being raised well in their current relative foster placements and, further, that the respondent did not object to their being adopted by their present caretakers.

       It is noteworthy that, at the termination hearing in 1998, the respondent claimed he had been drug free for three years; at the same time he stated that the thirty-eight packets of heroin found on him in 1996 were for his own personal use.

       We note, however, that in In re Marvin M., 48 Conn. App. 563, 580, 711 A.2d 756, cert. denied, 245 Conn. 916, 719 A.2d 900 (1998), we said: “The United Slates Supreme Court has already settled this issue. See Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). ‘A majority of the States have concluded that a “clear and convincing evidence” standard of proof strikes a fair balance between the rights of the natural parents and the State's legitimate concerns. . . . We hold that such a standard adequately conveys to the factfinder the level of subjective certainty about his factual conclusions necessary to satisfy due process. We further hold that determination of the precise burden equal to or greater than that standard is a matter of state law properly left to state legislatures and state courts.’ Id., 769-70. Our legislature has determined that ‘clear and convincing evidence’ is the appropriate standard in a termination proceeding. See § 17a-112 (c) . . . .” (Citation omitted.)

       We note, however, that because we have concluded that the evidence was sufficient to support the termination of the respondent’s parental rights under § 17a-112 (c) (3) (B), it would not be necessary to address the respondent’s constitutional challenge to § 17a-112 (c) (3) (D). “ ‘In a petition to terminate parental rights under section 17-43a [the predecessor to § 17a-112], the petitioner must list the grounds relied upon and, if any one of these grounds may be upheld, the order to terminate must stand. In re Juvenile Appeal (88-BC), 189 Conn. 66, 69, 454 A.2d 1262 (1983) (where a mother claimed there was insufficient evidence to terminate her rights on either of two grounds under § 17-43a [b], our conclusion that one of the grounds was supported by the evidence made it unnecessary to consider whether the second ground was supported). Since the [respondent unsuccessfully challenges] one of the statutory bases on which the trial court terminated her parental rights, we do not decide the constitutional issues she has raised in connection with the other . . . [ground].’ In re Juvenile Appeal (84-BC), [194 Conn. 252, 258, 479 A.2d 1204 (1984)].” In re Luis C., supra, 210 Conn. 170.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    CONSTANCE DANKO ET AL. v. REDWAY ENTERPRISES, INC., ET AL.
    (AC 17736)
    O’Connell, C. X, and Lavery and Hennossy, Js.
    Argued January 14
    officially released May 18, 1999

      Joshua D. Koskoff for the appellants (plaintiffs).

      Eric P. Smith, with whom was Dorm A. Swift, for the appellee (named defendant).
   Opinion

LAVERY, J.

The plaintiffs, Stanley Danko and Constance Danko, appeal from the judgment rendered following the trial court’s denial of their motion to set aside the verdict rendered in favor of the defendant Redway Enterprises, Inc. (Redway). The sole issue on appeal is whether the trial court improperly excluded from evidence Redway’s stricken apportionment complaint. We affirm the judgment of the trial court.

The following facts are relevant to the issue on appeal. On September 18, 1993, Constance Danko sustained an injury during a wedding reception at the Red House of Johnsonville, Inc. (Red House). She claimed that the injury was caused by a defective dance floor. By an amended complaint, the plaintiffs brought suit against Red House, Redway, from which the dance floor had been rented, Culinary Concepts, LLC (Culinary Concepts), which had rented the dance floor from Redway, and Shelby Williams Industry, Inc. (Shelby), the manufacturer of the dance floor. The plaintiffs subsequently withdrew their claims against Red House, Culinary Concepts and Shelby.

On July 7, 1997, pursuant to General Statutes § 52-102a, Redway moved to implead Red House because “it was a necessary party and should be made a defendant at this point because it has an interest in this controversy adverse to the plaintiffs . . . and its presence as a defendant is required so that a complete assessment of the percentage of responsibility of all parties can be made pursuant to [General Statutes] § 52-572b.” On August 11,1997, the plaintiffs moved to strike Redway’s apportionment complaint, and the trial court granted the plaintiffs’ motion.

At trial, on direct examination, a witness for Redway, Albert Redway III, testified that the dance floor was in a safe and usable condition prior to the time it was transported from Redway to Red House. During their cross-examination of this witness, the plaintiffs sought to introduce into evidence certain statements in Redway’s stricken apportionment complaint, claiming that those statements constituted an admission by Redway that the dance floor was in an unreasonably dangerous condition. Relying on our decision in DeJesus v. Craftsman Machinery Co., 16 Conn. App. 558, 564-68, 548 A.2d 736 (1988), the trial court denied the plaintiffs’ request. The plaintiffs claimed that the trial court’s reliance on DeJesus was improper, and they renewed this claim in their motion to set aside the verdict. The trial court denied the plaintiffs’ motion to set aside the verdict and this appeal followed.

The sole issue on appeal is whether the trial court improperly excluded from evidence Redway’s stricken apportionment complaint. The plaintiffs claim that the trial court, relying on the exception set forth in DeJesus v. Craftsman Machinery Co., supra, 16 Conn. App. 564-68, improperly excluded from evidence Redway’s stricken apportionment complaint. Because the trial court’s decision presupposed that a statement in a stricken pleading could be considered as an evidential admission, we must first determine whether the trial court’s assumption was correct. We conclude that a statement in a stricken pleading may be considered as an evidential admission.

As a general rule “statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions by the party making them, just as would any extrajudicial statements of the same import.” Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985). In Theron Ford Co. v. Dudley, 104 Conn. 519, 525, 133 A. 746 (1926), the trial court sustained a demurrer as to a special defense in the defendant’s pleading, and the plaintiff later sought to introduce into evidence as an admission a statement in the defendant’s demurred pleading. Our Supreme Court held that the plaintiff could have offered this statement into evidence. Id. In Dreier v. Upjohn Co., supra, 245, our Supreme Court cited its decision in Theron Ford Co. as authority for the general rule that statements in withdrawn or superseded pleadings may be considered as evidential admissions. The decisions in Theron Ford Co. and Dreier together establish that a statement in a stricken pleading may be considered as an evidential admission.

We must next determine whether the trial court, relying on our decision in DeJesus v. Craftsman Machinery Co., supra, 16 Conn. App. 564-68, improperly excluded from evidence Redway’s stricken apportionment complaint. The plaintiffs’ claim that the trial court’s reliance on DeJesus was misplaced. We disagree.

As we have already stated, it is a general rule that “statements in withdrawn or superseded pleadings, including complaints, may be considered as evidential admissions by the party making them, just as would any extrajudicial statements of the same import.” Dreier v. Upjohn Co., supra, 196 Conn. 244. In DeJesus v. Craftsman Machinery Co., supra, 16 Conn. App. 565, we held that “ [statements contained in third party pleadings are an exception to this general rule.” In DeJesus, the defendant moved to implead a third party. Id., 561. The motion was granted and the defendant filed a third party complaint that alleged that, if it was found liable to the plaintiff, the third party defendant should indemnify it for any losses or damages. Id. On appeal, the plaintiff claimed that the trial court had improperly failed to charge the jury that various allegations contained in the third party pleadings filed by the two defendants against each other could be deemed as admissions against the respective defendants. Id., 564.

In affirming the decision of the trial court, we concluded that statements made in third party pleadings cannot be used as admissions by the plaintiff in the original action. Id., 564-68. We observed that “[s]uch statements are made, arguendo, to discuss the hypothetical legal consequences if a certain fact should be determined by the trier, and are not admissions of the facts in question. . . . Third party pleadings are a tool for the assistance of the trier of fact in the determination of ultimate responsibility, if any, for proven liability and damages under the plaintiffs complaint. The cause of action alleged in the pleadings between the interplead-ing party and the interpleaded party is separate from, and not probative of, the proof of the plaintiffs cause of action which must stand on its own facts within the allegations of his complaint.” Id., 565-66.

The factors that prompted us to carve out an exception for third party pleadings in DeJesus militate in favor of extending this exception to include statements in an apportionment complaint. In the present case, Redway moved to implead Red House so that, if the jury rendered a verdict in favor of the plaintiffs, responsibility for the plaintiffs’ damages could be apportioned between Redway and Red House. The allegations contained in the apportionment complaint were contingent and premised on the jury’s finding against Redway on the initial question of whether the dance floor was in a defective and unreasonably dangerous condition. A contrary holding would place a defendant at his peril in that the allegations set forth in his complaint seeking apportionment in the event of liability in the principal action could be used in that action as admissions establishing liability. See generally Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 843 (D.C. Cir. 1981), cert. denied, 455 U.S. 994, 102 S. Ct. 1622, 71 L. Ed. 2d 855 (1982); Continental Ins. Co. of New York v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971); DeJesus v. Craftsman Machinery Co., supra, 16 Conn. App. 567. Accordingly, we conclude that the trial court properly excluded Redway’s stricken apportionment complaint from evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the plaintiffs initiated this lawsuit in February, 1995, Public Acts 1995, No. 95-111, § 1, specifically dealing with apportionment complaints, which was codified in General Statutes § 52-102b, does not govern this case. See Public Acts 1995, No. 95-111, § 2 (effective July 1, 1995).

       “The purpose and scope of a motion to strike are identical to those of a demurrer under the old rules of practice . . . .” (Citations omitted; internal quotation marks omitted.) Cavallo v. Derby Savings Bank, 188 Conn. 281, 283, 449 A.2d 986 (1982).


author: LANDAU, J.

text:
    MARJORIE SCHORSCH v. JOHN SCHORSCH
    (AC 16802)
    O’Connell, C. J., and Landau and Kulawiz, Js.

      Argued January 11
    officially released May 18, 1999

      Robert M. Wechsler, with whom, on the brief, was Rhonna W. Rogol, for the appellant (defendant).

      Gary I. Cohen, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, John Schorsch, appeals from the judgment of the trial court denying his postdis-solution motion to modify his alimony payments and granting the motion for contempt filed by the plaintiff, Marjorie Schorsch. On appeal, the defendant claims that the trial court improperly (1) failed to rule on the threshold question as to whether there was a substantial change in circumstances, (2) found that there was no change in the defendant’s financial circumstances since the time of the dissolution of the marriage, (3) compelled the defendant to deplete an asset awarded to him at the time of the dissolution and (4) failed to consider the plaintiffs earning capacity in making its financial awards. We reverse in part the judgment of the trial court.

The following facts are necessary for our resolution of this appeal. The judgment of dissolution of the parties’ marriage was rendered in August, 1979. The dissolution decree provided, among other things, that the defendant pay the plaintiff alimony in the amount of $3333.33 per month until the death of either of the parties or the plaintiffs remarriage. By motion filed June 23, 1994, the defendant sought to modify his alimony obligation based on the ground of a substantial change in the circumstances of the parties. At that time, the defendant also stopped paying alimony to the plaintiff. On April 22,1996, the plaintiff moved that the defendant be held in contempt for failing to pay alimony, save for one payment of $2000, since August, 1994.

With respect to the parties’ motions, the trial court found that “[a]t the time of the dissolution, the defendant was fifty-two years old. He had yearly income from divers sources totaling $112,000, gross, annually according to his financial affidavit filed at the time. The defendant also had a net worth of approximately $925,000. The defendant was an executive ... in mergers and acquisitions . . . who became involuntarily unemployed in 1990. He looked for other work without success. The defendant at the time of the modification hearing was sixty-eight. The defendant . . . has nonemployment income from several sources. These include social security income, IRA income, trust fund income and, the most substantial, income from a purchase money mortgage. . . . [T]he purchase money mortgage is the result of the sale and financing of a property which the defendant received at the time of dissolution. Approximately $4760 of the $6016 received monthly on the mortgage represents a repayment of the loan balance; the remainder is interest. The mortgage should be fully paid in four years of the hearing.”

The trial court denied the defendant’s motion to modify and granted the plaintiff’s motion to hold the defendant in contempt and entered orders accordingly. This appeal followed.

“A trial court is endowed with broad discretion in domestic relations cases. Our review of such decisions is confined to two questions: (1) whether the court correctly applied the law, and (2) whether it could reasonably have concluded as it did. Glinski v. Glinski, 26 Conn. App. 617, 620, 602 A.2d 1070 (1992).” (Internal quotation marks omitted.) Denley v. Denley, 38 Conn. App. 349, 351, 661 A.2d 628 (1995). “We review factual findings of the trial court under a clearly erroneous standard. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We examine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 132, 619 A.2d 863 (1993).” (Internal quotation marks omitted.) Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993).

I

The defendant’s first claim is that the trial court failed to rule on the threshold question as to whether there was a substantial change of circumstances when it denied the defendant’s motion to modify. In support of his claim, the defendant argues that “[i]t is not clear from the trial court’s decision, whether it actually ever made a determination as to changed financial circumstances. The court certainly did not do so expressly.” The defendant correctly posits that consideration by a trial court of a motion to modify involves a two tiered, or bifurcated inquiry.

“It is . . . well established that when a party . . . seeks a postjudgment modification of a dissolution decree . . . he or she must demonstrate that a substantial change in circumstances has arisen subsequent to the entry of [the dissolution decree or] the earlier modification.” Borkowski v. Borkowski, 228 Conn. 729, 736, 638 A.2d 1060 (1994). “ ‘Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony . . . are relevant to the question of modification.’ ” Id., 737, quoting Hardisty v. Hardisty, 183 Conn. 253, 258-59, 439 A.2d 307 (1981). “By so bifurcating the trial court’s inquiry, however, [our Supreme Court] did not mean to suggest that a trial court’s determination of whether a substantial change in circumstances has occurred, and its determination to modify alimony, are two completely separate inquiries. Rather, [our Supreme Court’s] bifurcation of the trial court’s modification inquiry was meant to reflect that, under our statutes and cases, modification of alimony can be entertained and premised upon a showing of a substantial change in the circumstances of either party to the original dissolution decree.” Borkowski v. Borkowski, supra, 737.

It does not escape appellate scrutiny that the question of a substantial change in circumstances was amply addressed by the trial court in its memorandum of decision, in which it notes the defendant’s financial status at the time of the dissolution and at the time of the hearing. It found that the defendant’s net worth in 1979 was approximately $925,000 with an annual gross income of $112,000. It found the defendant’s net worth in 1996 to be nearly $600,000 with an annual gross income of $106,800. The trial court found that the plaintiff was sixty-six years old at the time of the modification hearing. Following the dissolution, the plaintiff was self-employed but had stopped working in 1994 or 1995 for health reasons. She is essentially without assets and receives social security income of $125 per week. She “has marginal income, no assets, and is nearly destitute and in poor health.” Although not explicitly, the trial court determined that there was a substantial change of circumstances but denied the defendant’s request to modify downward the amount of alimony he must pay.

The defendant argues that the trial court ruled improperly, either (1) by failing to find a substantial change in his circumstances or (2) by finding a substantial change in his circumstances but nevertheless refusing to change the current order. Those alternatives suggested by the defendant are not the only bases for the ruling of the trial court. A fair reading of the decision of the trial court leads us to the more logical and compelling conclusion that the trial court did find a substantial change of circumstances of one or both of the parties and then concluded that the alimony order should remain the same.

II

The defendant’s second claim is that the trial court improperly determined that there was no change in his financial circumstances since the dissolution of the parties’ marriage. In view of our conclusion that the trial court improperly considered property awarded to the defendant at the time of dissolution in computing his current income, see part III below, we need not address that claim.

III

In his third claim, the defendant asserts that the trial court could not legally require him to deplete an asset awarded to him at the time of the dissolution to meet present alimony obligations. The defendant argues that the trial court improperly included in its calculation of his monthly income the principal payments he receives pursuant to a purchase money mortgage he holds on a piece of real estate that was awarded to him pursuant to the dissolution decree. The defendant claims that the trial court’s inclusion of principal in his income violates General Statutes § 46b-81. We agree.

The following facts are relevant to this issue. At the time the parties were divorced, the trial court, as part of the parties’ stipulated property division, awarded the defendant interest in real estate located in Philadelphia, Pennsylvania. Sometime after the dissolution, the defendant sold the real estate and took back a purchase money mortgage. At the time of the modification hearing, the monthly payments on the mortgage totaled $6800, of which approximately $4800 was principal.

“Courts have no inherent power to transfer property from one spouse to another; instead, that power must rest upon an enabling statute. Rubin v. Rubin, 204 Conn. 224, 228-29, 527 A.2d 1184 (1987). Under General Statutes § 46b-81 (a), the statute that enables the trial court to transfer property in a marital dissolution action, the court does not retain continuing jurisdiction over any portion of the judgment that constitutes an assignment of property. Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980). Therefore, a property division order generally cannot be modified by the trial court after the dissolution decree is entered, subject only to being opened within four months from the date the judgment is rendered under General Statutes § 52-212a.” Passamano v. Passamano, 228 Conn. 85, 88-89 n.4, 634 A.2d 891 (1993). Therefore, if the principal portion of the purchase money mortgage payments the defendant is receiving were part of the property distribution awarded at the time of dissolution, it may not properly be included in the defendant’s income for purposes of calculating a change in circumstances.

“The mere exchange of an asset awarded as property in a dissolution decree, for cash, the liquid form of the asset, does not transform the property into income.” Denley v. Denley, supra, 38 Conn. App. 353 (plaintiff awarded stock options as property in dissolution; money received from exercise of stock options simply conversion of asset); Simms v. Simms, 25 Conn. App. 231, 234, 593 A.2d 161, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991) (defendant declared capital account as asset in financial affidavit at time of dissolution; when defendant withdrew capital account, he received treasury bond that greatly increased in value at time of redemption; redemption of treasury bonds merely exchange of assets).

The defendant maintains that the practical effect of including the principal portion of the mortgage payment in his annual income is to force him to deplete an asset already distributed to him as part of the original property division by requiring him to pay progressively that asset to the plaintiff. We agree that the principal payments that the defendant is receiving on the purchase money mortgage he holds is merely an exchange of assets and may not be included in the calculation of his income.

IV

Finally, the defendant claims that the trial court failed to consider the plaintiffs earning capacity in making its financial awards. He argues that the trial court may consider earning capacity rather than earned income in arriving at its financial awards. He further posits that this principle is particularly applicable when there is evidence that a party voluntarily quits her job or avoids working to reduce or to eliminate actual earnings intentionally, citing Carey v. Carey, 29 Conn. App. 436, 440, 615 A.2d 516 (1992). The rule cited by the defendant is correct. The flaw in his argument, however, is that the trial court, in its memorandum of decision, specifically addressed the plaintiffs earning capacity when it found that “the plaintiff stopped working for health reasons, namely, emphysema and high blood pressure.” Moreover, it implicitly found that the plaintiff did not voluntarily cease her employment to reduce or to eliminate actual earnings intentionally.

In essence, the defendant is challenging the trial court’s finding of facts. “As an appellate court, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . The goal of our analysis is simply to decide whether the trial court’s conclusion was reasonable. . . . Glinski v. Glinski, supra, 26 Conn. App. 620.” (Internal quotation marks omitted.) Denley v. Denley, supra, 38 Conn. App. 354.

The judgment is reversed as to the denial of the motion to modify the award of alimony and the case is remanded for further proceedings on that motion consistent with this opinion.

In this opinion the other judges concurred.

       The defendant’s motion to modify alimony, dated June 20, 1994, was filed on June 23, 1994. The motion for contempt, dated April 18, 1996, was filed on April 22, 1996.

       In his preliminary statement of the issues on appeal, the defendant included a fifth claim—that a subsequent decision by the tried court, Harri,gan, J., which Judge I-Iarrigan later vacated, should be reinstated—which he withdrew in his brief. Although the defendant would have us consider certain portions of his argument despite that withdrawal, we cannot consider issues that are withdrawn.

       The parties stipulated that, in the absence of a modification, the defendant was $78,000 in arrears on his alimony payments through August 16, 1996, the date of the hearing on the parties’ motions.

       The trial court calculated the defendant’s gross income at the time of the modification hearing to be $106,800. Of that sum, the defendant claims that approximately $53,000 is attributable to principal payments under the purchase money mortgage.

       General Statutes § 46b-81 provides in relevant part: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either tire husband or wife all or any part of the estate of the other. . . .”

       The defendant’s claim that the plaintiff testified that she intends to work in the future is also marred. He asks us to conclude factually that which the trial court failed to find. We cannot and will not do so. See Elderkin v. Hamilton Pavilion Health Care, 40 Conn. App. 943, 944, 672 A.2d 978, cert. denied, 237 Conn. 925, 677 A.2d 947 (1996).


author: PER CURIAM.

text:
    MARIO S. ROSATO v. BEATRICE M. ROSATO
    (AC 14678)
    O’Connell, C. J., and Foti and Landau, Js.
    Considered April 7
    officially released April 14, 1999

      Beatrice Martone Rosato, pro se, in support of the motion.

      James P. Caulfield and Mark M. Wrenn, in opposition.

       April 14, 1999, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

PER CURIAM.

The matter now before this court arises out of a decision we rendered on March 5, 1996. Rosato v. Rosato, 40 Conn. App. 533, 671 A.2d 838 (1996). The defendant has filed three pleadings captioned (1) motion to present new evidence for consideration, (2) motion to present additional evidence for comprehension of issue for reconsideration and (3) motion to sustain my reconsideration motion and comprehension of issue for reconsideration, respectively. Because this court does not take evidence, those portions of the motions requesting permission to present new evidence must be dismissed. State v. Laws, 36 Conn. App. 401, 407, 651 A.2d 273, (1994), cert. denied, 232 Conn. 921, 656 A.2d 671 (1995) (only trial court has power and authority to take evidence). We will treat the remainder of the plaintiff’s pleadings as motions for reconsideration of our prior decision.

The genesis of these motions is the July 11, 1988 dissolution of the parties’ marriage when the trial court rendered financial and property distribution orders. Approximately six years later, on March 29, 1995, in response to the defendant’s motion for clarification, the trial court rendered a decision purporting to be a clarification. The plaintiff appealed to this court and, on March 5, 1996, we reversed the trial court’s order for the reason that it “was not a clarification, but an assignment of property interest” that could not be done three years postjudgment. Rosato v. Rosato, supra, 40 Conn. App. 536. The defendant now asks us to reconsider that decision. We decline to do so.

This is not a court of last resort. If a party disagrees with one of our decisions and feels that we have fallen into error, our rules of procedure provide three avenues of redress: (1) A motion may be filed in this court for reconsideration or reargument pursuant to Practice Book § 71-5 (formerly § 4121) within ten days from the date when the decision being challenged is officially released. (2) A motion may be filed in this court to correct a technical or other minor mistake pursuant to Practice Book § 60-2 (10) (formerly § 4183). (3) A petition may be filed seeking certification to the Supreme Court of Connecticut pursuant to Practice Book § 84-1 (formerly § 4126) within twenty days from the date an opinion is officially released or the issuance of notice of an order or judgment.

The defendant did not seek timely relief under any of these remedies, and the time for resort to them has long since expired.

We note that when our decision was rendered on March 5,1996, the defendant was represented by counsel. She has furnished us with a copy of a letter from that counsel that unequivocally explained her right to seek certification from the Supreme Court together with that counsel’s opinion that such certification was unlikely to be successful.

Although she was previously represented by counsel, the defendant now appears pro se. We recognize that it is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party. Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 519-20, 370 A.2d 1306 (1976); Oakland Heights Mobile Park, Inc. v. Simon, 36 Conn. App. 432, 436, 651 A.2d 281 (1994). Nevertheless, the statutes and rules of practice cannot be ignored completely. Schaffer v. Schaffer, 187 Conn. 224, 227-28 n.3, 445 A.2d 589 (1982) (even pro se litigants must comply with our rules of practice); Zanoni v. Hudon, 42 Conn. App. 70, 77, 678 A.2d 12 (1996) (“ ‘[although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law’ ”). Additionally, we emphasize that our liberal policy toward pro se parties is severely curtailed in cases where it interferes with the rights of other parties. The other party in this case, the plaintiff, has filed vigorous oppositions to the defendant’s motions. We cannot ignore the plaintiffs rights, which were established in the dissolution judgment more than ten years ago.

The rationale for time limits on postjudgment motions is found in the doctrine of finality of judgments. See Summerville v. Warden, 229 Conn. 397, 427, 641 A.2d 1356 (1994).

The motions are dismissed.

       The defendant’s original motion is dated February 15, 1999; the second motion is dated February 28,1999; the third motion is dated March 29,1999. Because of all these motions are of the same tenor, we will consider them together in this decision.

       General Statutes § 46b-86 (a), which grants continuing jurisdiction to the trial courts to modify alimony and support orders, expressly excludes continuing jurisdiction in the case of a property assignment.

       Query as to the application of this remedy in the present case because § 60-2 (10) is limited to “technical or other minor mistakes in a published opinion which do not affect the rescript.” (Emphasis added.)

       The relevant part of the defendant’s counsel’s letter is as follows: “Enclosed is a copy of the Court’s decision in the above-entitled matter. Unfortunately, the Judges hold that Judge Santos could not change the pension allocation decision to a specific percentage in 1995 for a 1988 divorce.
      “Our only recourse in attempting to hold onto Judge Santos’ decision is to file for Certification to the Supreme Court. Such an application must be filed within 20 days from publication of the opinion on March 5, 1996. It will take approximately one week to prepare the application. Therefore, if you wish us to file for Certification, we need to hear from you on or before March 18th. We will need an additional fee to handle Certification .... I do not believe that a petition for Certification is likely to be successful and would not recommend your expending the funds. However, one can never be sure and you might prevail.”


text:
    LINDSEY ALTSCHUL v. JOSE SALINAS, COMMISSIONER OF MOTOR VEHICLES
    (AC 17765)
    Lavery, Hennessy and Dupont, Js.
    Argued December 10, 1998
    officially released May 18, 1999

      Russell S. Palmer, with whom, on the brief, was Avertim J. Sprecher, for the appellant (plaintiff).

      Priscilla J. Green, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Lindsey Altschul, appeals from the trial court’s dismissal of his administrative appeal. On appeal, the plaintiff claims that (1) the trial court improperly determined that he refused to submit to a breath test pursuant to General Statutes (Rev. to 1997) § 14-227b (f), now § 14-227b (g), and (2) § 14-227b is constitutionally defective. We affirm the judgment of the trial court.

On May 26, 1997, at approximately 2:11 a.m., a state trooper observed the plaintiff operating a motor vehicle in an erratic manner on Interstate 84 and made the plaintiff stop his vehicle. The plaintiff emitted an odor of alcohol and informed the trooper that he had consumed a few pints of beer. The trooper administered three roadside field sobriety tests, each of which the plaintiff failed. The trooper arrested the plaintiff for operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a, and transported him to the state police barracks at Tolland.

At the barracks, the trooper advised the plaintiff of his Miranda rights and provided him with an implied consent advisory. Pursuant to General Statutes § 14-227b (b), the trooper afforded the plaintiff a reasonable opportunity to contact an attorney before deciding whether to submit to chemical testing. The plaintiff made three telephone calls between 2:40 and 3:05 a.m. and he was unable to contact an attorney. The trooper then asked the plaintiff to submit to a breath test. The plaintiff responded that without legal representation he could neither submit to nor refuse the test. The trooper construed the plaintiffs response as a refusal to submit to the test.

The defendant commissioner of motor vehicles subsequently suspended the plaintiffs operator’s license, and the plaintiff requested an administrative hearing. The hearing was limited to the four issues set forth in § 14-227b (f). A hearing officer found each issue in the affirmative and suspended the plaintiffs operator’s license. Pursuant to General Statutes § 4-183, the plaintiff appealed to the trial court from the suspension of his license. In affirming the decision of the hearing officer, the trial court concluded that the plaintiffs “refusal [to submit to the breath test] was amply supported by the record.” This appeal followed.

I

The plaintiff first claims that the trial court improperly affirmed the hearing officer’s determination that he refused to submit to a breath test pursuant to § 14-227b (f) (3). Specifically, he claims that “[w]hen an officer gives a person his Miranda warnings, then asks him to take a breath test, and the person responds by asking to exercise his just-stated [fifth amendment] right to counsel, he cannot be considered to have refused to submit to a breath test under § 14-227b.” We affirm the judgment of the trial court.

As a threshold matter, we must determine whether the plaintiff has a fifth amendment right to consult with counsel before taking or refusing a breath test. The plaintiff has “no constitutional right to refuse to take the breath test, since his breath constitutes ‘real or physical’ rather than ‘testimonial or communicative’ evidence and compulsion of physical evidence from the body of the [plaintiff] does not violate the privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 760-65, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).” Welch v. District Court of Vermont, 594 F.2d 903, 904 (2d Cir. 1979); see Buckley v. Muzio, 200 Conn. 1, 8, 509 A.2d 489 (1986) (“person has no constitutional right to withhold nontestimonial evidence when the state’s demand is supported by probable cause”). “The Supreme Court has held that the fifth amendment right to counsel protects an individual’s privilege against making incriminating statements against himself. Miranda v. Arizona, [384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)].” McVeigh v. Smith, 872 F.2d 725, 728 (6th Cir. 1989); see State v. Jones, 205 Conn. 638, 648, 534 A.2d 1199 (1987). Because the breath test did not implicate the plaintiff’s fifth amendment privilege against self-incrimination, he did not have a fifth amendment right to consult with counsel before deciding whether to take this test. See People v. Sudduth, 65 Cal. 2d 543, 546, 421 P.2d 401, 55 Cal. Rptr. 393 (1966); Standish v. Dept. of Revenue, 235 Kan. 900, 904, 683 P.2d 1276 (1984); Wall v. Holman, 902 S.W.2d 329, 330-31 (Mo. App. 1995) (“driver has no constitutional right to speak to an attorney prior to deciding whether to submit to a chemical test”). Section 14-227b (b) does, however, afford the plaintiff “a reasonable opportunity to telephone an attorney prior to the performance of such test” and, in this case, the plaintiff was given a reasonable opportunity to telephone an attorney.

Having determined that the plaintiff did not have a fifth amendment right to counsel, we must next determine whether the trial court improperly affirmed the hearing officer’s determination that the plaintiff refused to submit to the breath test pursuant to § 14-227b (f) (3). A license suspension hearing is limited to the determination of the four issues set forth in § 14-227b (f). Volck v. Muzio, 204 Conn. 507, 511-12, 529 A.2d 177 (1987); Buckley v. Muzio, supra, 200 Conn. 6-8; Piorek v. DelPonte, 28 Conn. App. 911, 610 A.2d 201 (1992). “In the context of a license suspension under the implied consent law, if the administrative determination of the four license suspension issues set forth in § 14-227b (f) is supported by substantial evidence in the record, that determination must be sustained. ” Schallenkamp v. DelPonte, 29 Conn. App. 576, 581, 616 A.2d 1157 (1992), aff'd, 229 Conn. 31, 639 A.2d 1018 (1994).

“As in any administrative appeal, the plaintiff bore the burden of proving that the commissioner’s decision to suspend [the plaintiffs] . . . operating privilege was clearly erroneous in view of the rehable, probative and substantial evidence on the whole record. . . . Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Citations omitted; internal quotation marks omitted.) Schallenkamp v. DelPonte, 229 Conn. 31, 39-40, 639 A.2d 1018 (1994).

The plaintiff claims that his actions did not constitute a refusal because he assumed that his Miranda rights, in particular his fifth amendment right to counsel, extended to the breath test. Although we have already established that the plaintiffs assumption concerning the scope of his Miranda rights was misplaced, we must determine whether the hearing officer’s determination that the plaintiff refused to submit to the test was supported by substantial evidence. Whether the plaintiffs actions constituted a refusal to submit to the breath test presents a question of fact; Piorek v. DelPonte, supra, 28 Conn. App. 911-12 (issue of fact whether motorist’s request to consult with attorney before submitting to chemical test constituted refusal under § 14-227b); Clark v. Muzio, 14 Conn. App. 212, 214, 540 A.2d 1063, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988); and, therefore, our review is limited to determining whether the hearing officer’s finding was supported by substantial evidence. See Schallenkamp v. DelPonte, supra, 229 Conn. 39-40.

At the administrative hearing, the plaintiff claimed that his actions did not constitute a refusal because he assumed that his Miranda rights extended to the breath test and the trooper did not dispel this assumption. As the trier of fact, however, the hearing officer was free to reject or to credit the plaintiffs testimony. Bancroft v. Commissioner of Motor Vehicles, 48 Conn. App. 391, 400, 710 A.2d 807, cert. denied, 245 Conn. 917, 717 A.2d 234 (1998). The trooper’s report was offered into evidence at the hearing, and there is no evidence in the report that would indicate that the plaintiff seemed confused about the scope of the Miranda warnings. Moreover, in his report, the trooper stated that he construed the plaintiffs conduct as a refusal to submit to the breath test. “ ‘[R]efusing’ to take a breath test may be accomplished by a failure to cooperate as well as by an expressed refusal.” State v. Corbeil, 41 Conn. App. 7, 19, 674 A.2d 454, cert. granted on other grounds, 237 Conn. 919, 676 A.2d 1374 (1996) (appeal dismissed upon death of defendant).

“In reviewing an administrative determination, we must take into account [that there is] contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. . . . Moreover, it is not the function of the trial court, nor of this court, to retry the cause. . . . [T]he determination of issues of fact are matters within [the] province [of the administrative agency].” (Citation omitted; internal quotation marks omitted.) Schallenkamp v. Del-Ponte, supra, 229 Conn. 41.

Because it is the hearing officer’s function to determine issues of fact, we cannot say, simply because of the existence of conflicting evidence, that the record failed to contain a substantial basis from which the hearing officer could have concluded that the plaintiff refused to submit to the breath test. See id. We therefore affirm the judgment of the trial court because the record contains substantial evidence in support of the hearing officer’s determination.

II

The plaintiff next claims that § 14-227b violated his right to due process under the fourteenth amendment to the federal constitution because this statute did not require the trooper to inform him that his Miranda rights did not extend to the breath test. Relying on the three part standard set forth in Connecticut v. Doehr, 501 U.S. 1, 11, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991), the plaintiff claims that the failure of § 14-227b to require the trooper to provide such notice resulted in a deprivation of his operator’s license without affording him procedural due process. We disagree.

As previously discussed, the plaintiff has no constitutional right to consult with counsel before deciding whether to take the breath test. Therefore, no constitutional deprivation can arise from the failure of the statute to provide that a person must be advised that such is the case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 14-227b (f), now § 14-227b (g), provides: “If such person contacts the department [of motor vehicles] to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension. At the request of such person or the hearing officer and upon a showing of good cause, the commissioner may grant one continuance for a period not to exceed fifteen days. If a continuance is granted, the commissioner shall extend the validity of the temporary operator’s license or nonresident operating privilege issued pursuant to subsection (c) of this section for a period not to exceed the period of such continuance. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both or while his ability to operate such motor vehicle was impaired by the consumption of intoxicating liquor; (2) was such person placed under arrest; (3) did such person refuse to submit to such test or analysis or did such person submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. In the hearing, the results of the test or analysis shall be sufficient to indicate the ratio of alcohol in the blood of such person at the time of operation, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such person is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and analysis thereof accurately indicate the blood alcohol content at the time of operation. The fees of any witness summoned to appear at the hearing shall be the same as provided by the general statutes for witnesses in criminal cases.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       General Statutes § 14-227b (b) provides: “If any such person, having been placed under arrest for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege may be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege may be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.” (Emphasis added.)

       See footnote 1.

       The fourteenth amendment to the constitution of the United States provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”


author: SULLIVAN, J.

text:
    KATHLEEN MATHER v. WAREHOUSE POINT MASONIC HALL CORPORATION
    (AC 18060)
    Hennessy, Sullivan and Dupont, Js.
    Argued February 17
    officially released May 18, 1999

      J. Christopher Kervick, with whom were Wendy L. Veilleux and, on the brief, Philip A. Post, for the appellant (plaintiff).

      James V. Somers, with whom were Kevin Roche and Laura A. Pascale, for the appellee (defendant).
   Opinion

SULLIVAN, J.

The plaintiff, Kathleen Mather, appeals from a judgment, rendered after a jury trial, in favor of the defendant, Warehouse Point Masonic Hall Corporation. The plaintiff claims that the trial court improperly (1) refused to allow her to pursue a negligence per se theory based on alleged violations of a superseded building code, (2) concluded that a previous building code was inadmissible as evidence, (3) permitted defense counsel to argue that the plaintiff had failed to prove her negligence per se claim and (4) instructed the jury regarding the building code.

The defendant claims that the general verdict rule precludes appellate review of these issues. We conclude that the general verdict rule precludes our review of this case and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff has been a tenant of the defendant since 1969. On September 20, 1991, the plaintiff fell off the stoop of the stairway on her porch while hanging a bedspread on the clothesline. When she moved into the apartment in 1969, there had been a railing on the stoop. The railing was removed several years later and never replaced, even though the building code then required such a railing. At the time of the accident, the building code had been changed and did not require a railing on the stoop.

The plaintiff filed a one count complaint, sounding in negligence. The complaint alleged common-law negligence as well as statutory negligence. The defendant denied the allegations and, by way of special defense, alleged contributory negligence on the part of the plaintiff. The plaintiff did not request any special interrogatories, and the jury returned a general verdict for the defendant.

The dispositive issue on appeal is whether the general verdict rule precludes appellate review of this case. The plaintiff argues that the general verdict rule should not apply where a defendant asserts contributorily negligent conduct by the plaintiff. Specifically, she asserts that the enactment of General Statutes § 52-572h, which replaced traditional contributory negligence with a comparative fault scheme, renders the general verdict rule inapplicable. This assertion is contrary to binding case law. Consequently, we find no merit to this claim.

“[T]he so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). “The rule rests on the sound policy of conservation of judicial resources .... Declining ... to afford appellate scrutiny of the appellant’s claims in [a case where the basis of the jury verdict is uncertain and may rely on various grounds] is consistent with the general principle of appellate jurisprudence that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated.” Id., 790. The general verdict rule applies with equal force where the defendant alleges that the plaintiff was contributorily negligent. LaFleur v. Farmington River Power Co., 187 Conn. 339, 343, 445 A.2d 924 (1982).

LaFleur controls this case. The plaintiff concedes that LaFleur controls but would have us reexamine that case. “It is not, however, within our province to overrule or discard the decisions of our Supreme Court.” State v. Oliver, 41 Conn. App. 139, 146, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996). Because the plaintiff raised no challenge to the jury’s presumed finding of contributory negligence, we conclude that the general verdict rule applies to this case and precludes appellate review.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also raised the question of whether the general verdict rule could be circumvented because comparative fault is not a defense to negligence per se. Comparative fault is, in fact, a defense to negligence per se; General Statutes § 52-572h; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 36; and does not preclude the application of the general verdict rule. LaFleur v. Farmington River Power Co., 187 Conn. 339, 343, 445 A.2d 924 (1982) (general verdict rule applied where plaintiff alleged, inter alia, negligence per se, and defendant denied negligence and asserted special defense of contributory negligence).


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. MIGDALIA RABELL
    (AC 18411)
    Foti, Hennessy and Stoughton, Js.
    Argued March 23
    officially released May 18, 1999

      Howard I. Gemeiner, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Kim McCabe Hart, assistant state’s attorney, for the appellant (state).
   Opinion

HENNESSY, J.

The defendant, Migdalia Rabell, appeals from the judgment of the trial court revoking her probation. On appeal, the defendant claims that the trial court improperly found sufficient evidence proving that the defendant had violated the terms of her probation. We affirm the judgment of the trial court.

Initially, it must be noted that the record in this case contains neither a written memorandum of decision nor a signed transcript. See Practice Book § 64-1. The duty to provide this court with a record adequate for review rests with the appellant. See Practice Book § 61-10; Statewide Grievance Committee v. Clarke, 48 Conn. App. 545, 547, 711 A.2d 746, cert. denied, 245 Conn. 923, 717 A.2d 239 (1998). We have often declined to review claims where the appellant has failed to provide us with an adequate record for review. See Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). In this matter, however, we exercise our discretion to review the defendant’s claim because the unsigned transcript is sufficient to reveal the basis of the trial court’s factual conclusions. See State v. Sandra O., 51 Conn. App. 463, 465, 724 A.2d 1127 (1999).

The following facts are relevant to the disposition of this appeal. The defendant was convicted of criminal trespass in the first degree in violation of General Statutes § 53a-107, criminal mischief in the third degree in violation of General Statutes § 53a-117 and threatening in violation of General Statutes § 53a-62. She received a total effective sentence of two years and six months in the custody of the commissioner of correction, execution suspended, and three years probation. One of the conditions of the defendant’s probation was that she have no contact with the victim of the underlying crime, Jennifer Poline.

Subsequent to her conviction, the defendant was charged with violating her probation pursuant to General Statutes § 53a-32 for making a threatening telephone call to Poline at her place of employment. On March 18, 1998, the defendant was convicted of violating the terms of her probation and was sentenced to forty-five days incarceration. This appeal followed.

The defendant claims that the evidence was insufficient to prove that she had violated the terms of her probation. Specifically, the defendant claims that the sole evidence presented, the voice identification of the defendant by Poline, was unreliable and, therefore, insufficient to support the conviction. We disagree.

“To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence 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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling .... A fact is more probable than not when it is supported by a fair preponderance of the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 482, 723 A.2d 817 (1999); see also State v. Askew, 53 Conn. App. 236, 729 A.2d 238 (1999).

The defendant claims that her identity as the caller was not established because the victim’s testimony was the only evidence offered to demonstrate the caller’s identity. “ ‘The issue of the caller’s identity is one of fact properly to be resolved by the [fact finder].’ State v. Jones, 234 Conn. 324, 333, 662 A.2d 1199 (1995).” State v. Marsala, 43 Conn. App. 527, 531, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997). Here, Poline testified that she positively identified the defendant as the caller. Poline further testified that she recognized the caller’s voice as the defendant’s from hearing it on five prior occasions. In addition, Poline testified that the caller told her that the caller would kill her the next time she went near the caller’s son, and that Poline’s current boyfriend was the father of the defendant’s son. On the basis of that evidence the trial court reasonably could have concluded by a fair preponderance of the evidence, from the cumulative effect of both the circumstantial and direct evidence, that it was the defendant who had made the telephone call to Poline. Moreover, because it was reasonable for the trial court to conclude that the defendant had called Poline despite the condition of her probation, the trial court’s finding that the defendant violated the terms of her probation was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge . . .


author: DALY, J.

text:
    STATE OF CONNECTICUT v. KEVIN MORAN
    (AC 17308)
    Schaller, Hennessy and Daly, Js.
    Argued December 7, 1998
    officially released May 25, 1999

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

      Frederick W. Fawcett, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims that the trial court improperly (1) instructed the jury that the defendant was required to prove his assertions by a fair preponderance of the evidence and (2) allowed rebuttal testimony that impeached the defendant on a collateral matter.

The juiy reasonably could have found the following facts. On July 17,1996, at about 9:30 p.m., Sundeep Gill, age sixteen, was working as a cashier at a gasoline station and convenience store operated by her parents and located at the comer of Boston and Noble Avenues in Bridgeport. Her sister, Navdeep Gill, age fourteen, was with her in the store and their mother was in the rear of the store. Her father was across the street at a similar establishment also owned by her parents.

Sundeep was standing in an enclosed cashier’s booth, which had a three foot square opening with a sliding window to serve the customers. Ramesh Gangareddi, a family friend, was with her. Navdeep was standing near the dairy case and saw the defendant enter the store. As Sundeep was preparing to close the cash register, she also saw the defendant enter the store. Her back was to the defendant, when she heard him say, “Give me the money. Give me everything you have.” When she turned around, she saw a knife in his hand.

Sundeep was unable to open the register and the defendant vaulted over the counter in front of the window, pulled the register out of the booth and ran to a waiting car. Navdeep ran to her mother in the rear of the store while Sundeep called the police. The total elapsed time was between four and six minutes. Nav-deep described the robber as being a white male, between five feet, ten inches and six feet tall with shoulder length, curly, dirty hair, big eyes and facial stubble. He was wearing a navy blue T-shirt with short sleeves and dark jeans. Two days later, both sisters went to the police station and independently selected the defendant’s photograph. Officer Ferdinand Ferrao arrested the defendant on August 2,1996, after viewing a wanted poster. The defendant’s appearance was the same as in the photograph selected by both sisters. At trial, Sundeep made an in-court identification of the defendant.

The defendant testified that he resided less than a block away from the scene and, when arrested, had not changed his appearance. He maintained that he was at home with his mother on the evening in question and testified that he remembered his whereabouts because it was the night that TWA flight 800 crashed and he had discussed the event with his mother. The defendant appeared clean shaven with short hair and wore a suit at the time of trial. He indicated that his hair was cut while incarcerated and that he shaved his mustache because he was not permitted to have scissors to groom it and, therefore, “you don’t really have a choice but to shave.” The defendant denied altering his appearance to obfuscate the in-court identification. On cross-examination, the defendant admitted that there was no rule concerning hair length at the Bridgeport Correctional Center (center). The state called Captain Charles Shephard of the correctional center who testified in rebuttal, over objection, that there was no rule requiring an inmate to get a haircut prior to trial.

I

The defendant claims that the trial court’s instruction on the defendant’s burden of proof was improper. The defendant failed to take exception to the charge at trial and seeks review of this unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, our Supreme Court held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 239-40.

We conclude that the record is adequate for review of the defendant’s claim. Because “the failure to instruct the jury adequately with regard to an essential element of the crime may result in a due process violation implicating the fairness of the trial”; State v. Jackson, 34 Conn. App. 599, 605-606, 642 A.2d 738, cert. granted [on other grounds], 231 Conn. 917, 648 A.2d 165 (1994) (appeal withdrawn October 18,1994); we conclude that the issue is one of constitutional magnitude implicating a fundamental right.

We now examine whether the alleged violation clearly exists and clearly deprived the defendant of a fair trial. We note that, “under the third prong of Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. . . . State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991). . . . State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). Our Supreme Court has further held that [a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Citations omitted; internal quotation marks omitted.) State v. Jackson, supra, 34 Conn. App. 606.

“In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” (Citations omitted; internal quotation marks omitted.) State v. Ash, 231 Conn. 484, 493-94, 651 A.2d 247 (1994).

In State v. Mullings, 202 Conn. 1, 13, 519 A.2d 58 (1987), and in the present case, the primary issue before the jury involved the identity of the robber, the defendant having offered an alibi defense. The challenged portion of the charge was delivered only once, during the court’s general instructions pertaining to the burden of proof and not during its specific instructions on the elements of the crime. In this case, the defendant claims as a constitutional violation the following language from the trial court’s charge: “The state has the burden at all times to establish each of the elements of the crime charged beyond a reasonable doubt. And should the defendant offer evidence, he has no burden of proving that which he wants to prove by proof beyond a reasonable doubt. He has a much lesser burden. He may be held to the burden of a fair preponderance of the evidence, the tipping of the scales one way or another in favor or not. You should keep in mind that regardless of whether direct evidence, circumstantial evidence, or a combination of the two is relied upon, in order for a conviction, all the elements of the crime must be proven beyond a reasonable doubt before you may find the defendant guilty.” (Emphasis added.)

The court further instructed the jury on at least ten occasions that it was the state’s burden to prove the elements of the crime charged beyond a reasonable doubt. This court has held that where the trial court repeatedly instructs that the burden is on the state, a single instance of misstating which party has the burden is unlikely to result in improperly shifting the burden. See State v. Castillo, 11 Conn. App. 621, 627-28, 528 A.2d 860, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987) (no constitutional deprivation when jury correctly charged “in a number of places during the charge”). Moreover, the court instructed the juiy several times that the defendant is presumed innocent until proven guilty.

We also note that substantial direct evidence was presented by the state to establish that the defendant was the perpetrator of the robbery. Sundeep Gill made a positive in-court identification of the defendant, and her testimony revealed that she had ample opportunity to observe the robber before, during and after the robbery.

In addition, the only evidence that the defendant offered pertained to his identity. Specifically, through his testimony and that of his mother, the defendant offered an alibi defense that he was elsewhere at the time of the robbery. The trial court correctly charged on the defendant’s burden of proof in relation to the only evidence that the defendant offered. The trial court instructed the jury that “[t]he other issue here is identification. It’s an issue in this case as to whether or not the defendant is the perpetrator, the one who committed the crime. The state has the burden of proving the identity beyond a reasonable doubt. It is not essential that a witness ... be free from doubt as to the correctness of their statement; however, you the jury must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you were not convinced beyond a reasonable doubt that this defendant was the person who committed the crime at that gas station, then you must find the defendant not guilty.”

The trial court then went on to charge the jury on the alibi testimony in context with testimony of the defendant’s mother. The trial court instructed the jury: “Remember, the defendant does not have to prove his claim that he was elsewhere. It is sufficient if on considering all the evidence there arises in your mind a reasonable doubt as to his presence at the scene of the crime when it was committed. If you do conclude that there is such doubt, then, of course, the defendant would be entitled to an acquittal of the charge of robbery in the first degree. But you must examine all the testimony bearing on that—the direct and cross-examination of both him and his mother in respect to that.” (Emphasis added.) Accordingly, we conclude that when the trial court instructed the jury on the alibi evidence offered by the defendant, it correctly and clearly stated that the state has the burden of proving identity beyond a reasonable doubt.

Having examined the charge as a whole, we conclude, as our Supreme Court concluded in Mullings, that it was not reasonably possible in this case that the isolated use of the phrase “may be held to the burden of a fair preponderance of the evidence, the tipping of the scales one way or another in favor or not” confused or misled the jury with regard to the state’s heavy burden of proof. See State v. Mullings, supra, 202 Conn. 13; see also State v. Milardo, 224 Conn. 397, 409, 618 A.2d 1347 (1993). Therefore, no constitutional violation clearly exists, and the defendant’s challenge to the trial court’s burden of proof instruction fails under the third prong of Golding.

II

The defendant also claims that the trial court improperly allowed the state to present rebuttal testimony to impeach him with evidence of a collateral matter. Specifically, the defendant denied that he changed his appearance to deceive anyone in the courtroom and testified that “when they took me to jail they cut the hair.” In rebuttal, the state, over objection, presented Shephard who testified that there was no requirement that an inmate cut his hair or shave. The defendant claimed that the evidence was collateral and objected.

“The determination of whether a matter is relevant to a material issue or is collateral generally rests within the sound discretion of the trial court.” State v. Valentine, 240 Conn. 395, 403, 692 A.2d 727 (1997). In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the trial court’s rulings on evidentiary matters. See 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 35, p. 159.

The extent to which rebuttal testimony may be carried is within the discretion of the trial court. See 1 B. Holden & J. Daly, supra, § 11, p. 64. “As a general rule, extrinsic evidence of a prior inconsistent statement may not be admitted to impeach the testimony of a witness on a collateral matter. . . . Thus, on cross-examination, a witness’ answer regarding a collateral matter is conclusive and cannot be contradicted later by extrinsic evidence. . . . Extrinsic evidence of a prior inconsistent statement may be admitted, however, to impeach a witness’ testimony on a noncollateral matter. ... A matter is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict the witness.” (Citations omitted; emphasis in original.) State v. Valentine, supra, 240 Conn. 403. “ ‘The party who initiates discussion on the issue is said to have “opened the door” to rebuttal by the opposing party.’ ” State v. Arbour, 29 Conn. App. 744, 750, 618 A.2d 60 (1992).

We have stated previously that the primary issue in the present case was one of identification. The defendant’s testimony that the center personnel cut his hair opened the door to rebuttal on that topic. Furthermore, the rebuttal testimony was relevant to show that the defendant cut his hair of his own volition to alter his appearance. Accordingly, we find no abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant incorrectly states in his brief that “the jury was told, as a matter of law and in the context of furnishing a general guide for evaluating any evidence proffered by the defendant, that it must hold the defendant to a preponderance of the evidence.” (Emphasis added.) Although the instructions as to the defendant’s burden were a correct statement in the event of an affirmative defense, no affirmative defense was offered in this case.