author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. JEFFREY PERRY
    (AC 16716)
    Foti, Schaller and Spear, Js.
    Argued December 17, 1997
    officially released March 17, 1998

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Lisa Herskowitz, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Clark, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Jeffrey Perry, appeals from the judgment of conviction, rendered after a jury trial, of (1) murder in violation of General Statutes § 53a-54a, and (2) carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the state failed to prove beyond a reasonable doubt the essential element that the pistol that the defendant was allegedly carrying had a barrel less than twelve inches in length, and that the trial court improperly (1) admitted a witness’ unreliable, tape-recorded statement to the police as substantive evidence, (2) admitted testimony of the defendant’s alleged flight following the shooting as consciousness of guilt evidence, and (3) precluded the defendant from eliciting relevant testimony regarding his defense of mistaken identification. We reverse the judgment of the trial court with respect to the conviction of carrying a pistol without a permit. We affirm the judgment in all other respects.

The jury reasonably could have found the following facts. On the evening of March 5, 1992, police arrived at the Oasis nightclub on Winchester Avenue in New Haven in response to a shooting. The street entrance to the club opened into a long, narrow hallway, approximately twenty-eight feet in length, leading to an interior door to the bar. The victim, Kenneth Hazard, was lying in the hallway with a gunshot wound to his chest.

Earlier that evening, Michael Faison, Earl Holloway and the victim, all friends, had started to leave the bar when the victim turned and walked back toward the interior door to the bar. The defendant then walked from the bar into the hallway, spoke to the victim, pulled a gun out of his jacket and shot him.

The defendant was found guilty of the charges of murder and carrying a pistol without a permit, but was acquitted of attempted first degree assault in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1). This appeal followed.

I

The defendant first claims that the evidence presented at trial was insufficient to support his conviction under § 29-35 of carrying a pistol without a permit. Specifically, he asserts that the state did not prove beyond a reasonable doubt that the barrel of the gun was less than twelve inches in length, an essential element of that crime. We agree.

The standard for reviewing sufficiency of the evidence claims is well settled in this state. “When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Foster, 45 Conn. App. 369, 375, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997); see State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); State v. Torres, 47 Conn. App. 205, 219, 703 A.2d 1164 (1997); State v. Roy, 38 Conn. App. 481, 488, 662 A.2d 799 (1995), cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996).

We recognize that where a violation of § 29-35 is charged, “the length of the barrel is ... an element of [the] crime and must be proven beyond a reasonable doubt.” State v. Hamilton, 30 Conn. App. 68, 73, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994). To that end, the state argues that the jury should have been able to invoke its common sense in assessing the circumstantial evidence that was presented regarding the length of the gun barrel.

The state relies principally on State v. Williams, 231 Conn. 235, 251-52, 645 A.2d 999 (1994), for the proposition that the state need not present direct numerical evidence regarding the length of a gun barrel, but may rely solely on circumstantial evidence of length to support a conviction. In Williams, despite the fact that the gun that had been the murder weapon was never introduced into evidence, there was eyewitness testimony that the defendant “pulled a ‘small handgun’ out of his ‘waist length jacket.’ Further, the jury heard from . . . other eyewitnesses to the shooting, who described the article of clothing from which the defendant pulled the gun as a ‘beige, sweater-like coat’ and a ‘dark sweater.’ ” Id., 252. The Williams court concluded that “[f]rom this evidence the jury could have reasonably inferred that the handgun that the defendant pulled from the pocket of a small sized outer garment that he wore was less than twelve inches long and that . . . the state had proved this element . . . beyond a reasonable doubt.” Id. Moreover, the court noted that “it is extremely unlikely that anyone would describe as ‘small’ a handgun that had a barrel of one foot or longer.” Id.

The state cites several more cases in support of its contention that courts in this state have upheld convictions based solely on circumstantial evidence of gun barrel length. See State v. Crosby, 36 Conn. App. 805, 821, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995) (testimony that gun not as long as piece of paper shown to witness that was less than twelve inches in length); State v. Gonzalez, 25 Conn. App. 433, 444, 596 A.2d 443 (1991), aff'd, 222 Conn. 718, 609 A.2d 1003 (1992) (small caliber gun pulled from defendant’s back pocket). Our review of these cases, however, reveals that they, unlike the present case, evinced at least a modicum of descriptive evidence regarding either the barrel length or the gun itself.

Here, the gun was not introduced into evidence and the only descriptive evidence of the gun came from the testimony of prosecution witness Faison. According to Faison, who allegedly was standing in close proximity to both the defendant and the victim immediately prior to the shooting, the gun was “black” and the defendant pulled the gun “out of his jacket or coat.” While circumstantial evidence concerning the length of the gun barrel may sustain a conviction under the statute, we are persuaded that some measure of descriptive evidence from which the jury may properly infer the barrel length is necessary in order for the state to satisfy its burden of proof. Because of the dearth of evidence in this case with respect to the gun and the length of its barrel or circumstances permitting an inference as to length, we conclude that the evidence was insufficient to sustain the defendant’s conviction on the charge of carrying a pistol without a permit.

II

The defendant next claims that the trial court improperly admitted as substantive evidence the prior inconsistent tape-recorded statement of prosecution witness Bobby Kelly. The defendant asserts that in addition to the circumstances under which Kelly gave his statement to the police, the fact that Kelly neither signed nor acknowledged giving the statement rendered it unreliable and therefore inadmissible according to the principles enunciated in State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). We are unpersuaded.

In Whelan, our Supreme Court abandoned the traditional view that prior inconsistent statements are admissible for impeachment purposes but are not admissible as substantive evidence. Id., 748-53. By rejecting the traditional view, the court effectively adopted an exception to the hearsay rule. “[T]he substantive use of prior written inconsistent statements, signed by the declar-ant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination”; id., 753; was allowed, the court reasoned, because “when the declarant is in court, under oath, and subject to cross-examination before the [fact finder] concerning both his out-of-court and in-court statements, the usual dangers of hearsay are largely nonexistent . . . .” (Internal quotation marks omitted.) Id., 750-51.

At trial, Kelly reluctantly took the stand and testified that he had been sleep deprived, intoxicated and high on crack cocaine when he gave his statement to the police, and that he would have said anything to obtain leniency regarding the prior pending felony charges against him. While the defendant asserts on appeal that these circumstances bear on the inherent unreliability of Kelly’s statement, that claim was never made by the defendant at trial. Instead, the defendant’s objection at trial regarding the admissibility of Kelly’s statement was that because Kelly did not sign or acknowledge the statement that he gave to the police, it did not satisfy the reliability prerequisite under Whelan.

Our review of the transcript reveals that Kelly, while on the stand testifying, identified the voice on the tape-recorded statement as his own. Our Supreme Court has previously held that “the general rationale of Whelan concerning written statements also applies to tape-recorded statements . . . [and] the requirement that such statements be signed is unnecessary because the recording of the witness’ voice imparts the same measure of reliability as a signature.” (Citation omitted.) State v. Woodson, 227 Conn. 1, 21, 629 A.2d 386 (1993). We therefore find no merit in this claim.

III

The defendant next claims that the trial court both improperly admitted the testimony of Gregory Atkinson regarding the defendant’s alleged flight following the shooting and instructed the jury that such testimony regarding the defendant’s flight could be used as evidence of consciousness of guilt. We disagree.

Atkinson testified to the fact that he had seen the defendant on Starr Street in New Haven every day for several months prior to the shooting, but that he never saw the defendant again in that particular location after the shooting. The defendant asserts that this testimony regarding the defendant’s alleged flight was irrelevant because the state failed to demonstrate that the defendant knew that he was wanted by the police and that his alleged flight was sudden and unplanned. We are unaware of any legal authority that puts such a burden on the determination of relevance. Conversely, because evidence is admissible only if it is relevant, “[t]he trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion.” (Emphasis added; internal quotation marks omitted.) Baxter v. Cardiology Associates of New Haven, P.C., 46 Conn. App. 377, 390, 699 A.2d 271, cert. denied, 243 Conn. 933, 702 A.2d 640 (1997), quoting Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 569, 657 A.2d 212 (1995).

With respect to whether Atkinson’s testimony regarding the defendant’s alleged flight was properly found to be relevant by the trial court, we have previously stated that “[e]vidence of flight may be used to infer consciousness of guilt. . . . The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” (Citation omitted; internal quotation marks omitted.) State v. Tyson, 43 Conn. App. 61, 66, 682 A.2d 536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996). Furthermore, “[i]t is well established that flight of a person accused of a crime is an element which, when considered with other facts of the case, is relevant to the accused’s guilt.” (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 765, 670 A.2d 276 (1996), quoting State v. Bell, 188 Conn. 406, 412, 450 A.2d 356 (1982). Accordingly, because we “will indulge every reasonable presumption in favor of the trial court’s ruling”; State v. Wideman, 36 Conn. App. 190, 197, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995); we conclude that the trial court properly exercised its discretion in finding that Atkinson’s testimony regarding the defendant’s alleged flight was relevant.

We next address whether the trial court properly exercised its discretion in determining that the relevant evidence of the defendant’s alleged flight was more probative than prejudicial. “ ‘Because of the difficulties inherent, in [the probative-prejudicial] balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.’ ” State v. McClendon, 45 Conn. App. 658, 677, 697 A.2d 1143, cert. granted on other grounds, 243 Conn. 943, 704 A.2d 799 (1997), quoting State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982).

In the present case, the trial court sanitized Atkinson’s testimony of any references to drug dealing at the Starr Street location before it was presented to the jury in an effort to reduce the prejudicial effect of the testimony. Furthermore, references to the defendant’s drug dealing activities were previously admitted during trial without objection from the defendant. Specifically, the defendant did not object to the admission into evidence of either (1) a portion of Kelly’s tape-recorded statement that mentioned the defendant’s drug dealing or (2) the testimony of Faison, which also mentioned the defendant’s regular presence on Starr Street.

We conclude, therefore, that there was no abuse of discretion by the trial court in either admitting evidence or instructing the jury regarding the defendant’s alleged flight as consciousness of guilt evidence.

IV

The defendant’s final claim is that the trial court improperly precluded him from eliciting testimony from Detective Joseph Greene of the New Haven police department that would have buttressed the defense of mistaken identification. After recalling Greene, the defense attempted to question him as to whether an employee of the Oasis bar to whom Greene had spoken on the night of the shooting had seen the gunman, or whether anyone else who was present at the bar that night was able to identify the gunman. The trial court sustained the state’s multiple hearsay objections, despite the defendant’s protestations that the questions did not call for hearsay answers because Greene, as an investigating officer, could answer from personal knowledge. While the defendant does not dispute that his questioning of Greene called for hearsay responses, he nonetheless asserts that the trial court improperly precluded this line of questioning because the information that the defendant hoped to elicit from Greene was relevant and critical to his mistaken identification defense.

The defendant now claims that his constitutional rights to due process, to a fair trial and to present a defense were violated by the trial court’s decision to preclude his further questioning of Greene. Because this claim is unpreserved, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). For the reasons stated below, we find that the defendant’s claim does not satisfy the Golding requirements for review.

Initially, the first prong of Golding review requires that there be an adequate record available for the reviewing court. It is well settled that it is the appellant’s responsibility to ensure that such an adequate appellate record exists. State v. Denby, 35 Conn. App. 609, 618, 646 A.2d 909 (1994), aff'd, 235 Conn. 477, 668 A.2d 682 (1995). We have previously stated that if an appellant wants “to provide this court with an adequate appellate record, he should . . . [present] an offer of proof. . . . In the absence of an appropriate offer of proof, this court cannot speculate as to what line of questioning defense counsel intended to follow. . . . Without an adequate record on which to review the rulings of the trial court, this court must assume that the trial court acted properly.” (Citation omitted; internal quotation marks omitted.) Id. The defendant made no offer of proof regarding the line of questioning that was intended for Greene. We do not view the record as adequate to satisfy the first prong of Golding.

Even if the record could be viewed as adequate, the second prong of Golding is not satisfied because our Supreme Court has held that “[although an accused does, of course, have a federal constitutional right to present a defense, the right to present relevant testimony is not without limitation. . . . [T]he proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible . . . .Rules for the admission and exclusion of evidence should be found offensive to notions of fundamental fairness embodied in the United States Constitution only when, (1) without a rational basis, they disadvantage the defendant more severely than they do the State, or (2) [they] arbitrarily exclude reliable defensive evidence without achieving a superior social benefit.” (Citations omitted; internal quotation marks omitted.) State v. Porter, 241 Conn. 57, 133-34, 698 A.2d 739 (1997).

The defendant does not argue that the hearsay rules are either irrational, arbitrarily exclusionary or that they disadvantage him more severely than they do the state. Because the hearsay rules are in no way offensive to or inconsistent with the constitutional notions of fundamental fairness, we conclude that the defendant’s claim is not one of constitutional magnitude. Accordingly, because the requirements for Golding review are not met, we decline to review this claim.

The judgment is reversed only as to the conviction of violating § 29-35 and the case is remanded with direction to render a judgment of acquittal as to that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       The defendant seeks review of this unpreserved claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will review this claim “[b]ecause there is abundant authority that . . . claims of insufficiency of the evidence fall within the ameliorative penumbra of State v. Golding, supra [233] . . . (Citation omitted.) State v. Estrada, 26 Conn. App. 641, 659, 603 A.2d 1179, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992).

       General Statutes § 29-27 provides: “The term ‘pistol’ and the term ‘revolver’, as used in sections 29-28 to 29-38, inclusive, mean any firearm having a barrel less than twelve inches in length.”

       In so holding, our Supreme Court overruled its previous position in State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977), that direct numerical evidence regarding the length of a gun barrel was necessary to support a conviction for carrying a pistol without a permit.

       Faison testified that he was standing only six to eight inches from the defendant when the defendant drew the gun from his jacket, but there was no testimony as to the distance between the defendant and the victim. There was no testimony that the defendant pointed the gun at Faison, thereby allowing an inference that the barrel was less than twelve inches. A demonstration was performed showing the respective positions of Faison, the defendant and the victim, but the record is devoid of any testimony from which the length of the gun barrel could be inferred. The state argues that the defendant had the burden of eliciting testimony as to the distances shown by the demonstration. We disagree because the state had the burden of proof on the essential element of barrel length.

         The Whelan court carefully circumscribed its holding to allow for the substantive use of only those statements that satisfied the prescribed indicia of reliability. The court noted that it was “unwilling to abrogate, without adequate precautions, the traditional view prohibiting [the] substantive use [of prior inconsistent statements]. . . . [S]ome out-of-court declarations lacking [the requisite] safeguards of reliability and accuracy must continue to be governed by the hearsay rule.” State v. Whelan, supra, 200 Conn. 752.

       In Golding, the court held: “[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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    BERKELEY FEDERAL BANK AND TRUST, FSB v. FRANK F. OGALIN ET AL.
    (AC 17206)
    O’Connell, C. J., and Foti and Lavery, Js.
    Argued January 13
    officially released March 17, 1998

      Roy W. Moss, for the appellant (named defendant et al.).

      Valerie E. Maze, with whom, on the brief, were Matthew J. Forstadt and Marshall Goldberg, for the appel-lee (plaintiff).
   Opinion

LAVERY, J.

This is an appeal by the named defendant et al. from a judgment of foreclosure by sale rendered by the trial court following its acceptance of an attorney trial referee’s report. On appeal, the defendants claim that the trial court improperly accepted the attorney trial referee’s report because (1) the referee improperly admitted hearsay evidence on the value of the mortgage debt, and (2) the plaintiffs notice of default was defective. We reverse the judgment of the trial court only as to the calculation of the late charges.

The attorney trial referee found the following facts. On June 4, 1987, the defendants executed a note dated June 4, 1987, for the principal amount of $225,000 in favor of the Bank Mart and secured by a mortgage on the property of the defendants at 1451 North Peters Lane, Stratford. The mortgage and note, after various assignments, is owned by the plaintiff. Notice of default and notice of the plaintiffs right to accelerate the balance of the loan was dated July 6, 1992, and received by the defendants on July 9,1992. The notice of acceleration provided for a right to cure a default within forty-five days of the date of the notice. The acceleration notice provision was satisfied by the notice providing forty-five days from July 6,1992, to allow the defendants to cure their default by August 20, 1992, a date that could be specifically determined from the notice and that was at least thirty days from the date of the receipt of the letter. The defendants failed to cure the default.

The computer generated records of Gateway Bank and the plaintiff, which were kept in the ordinary course of business, reflected entries made when transactions took place, were regularly updated and were required to be kept by each institution in the course of its business. The defendants’ special defense of lack of notice was found not proven and the giving of notice was found to have been proven by the plaintiff.

The attorney trial referee recommended judgment for the plaintiff, finding the debt to be $323,266.81 as of June 16, 1996. Foreclosure by sale was also recommended. The attorney trial referee’s report was filed on April 17, 1996. On April 28, 1997, the trial court accepted the report and rendered a judgment of foreclosure by sale. The trial court found that the total amount of the debt was $349,780.99. As part of that debt, $4081.99 was awarded to the plaintiff as late fees.

I

The defendants’ first claim is that the trial court improperly accepted the attorney trial referee’s report because the referee admitted inadmissible hearsay evidence on the value of the mortgage debt. Specifically, the defendants claim that the following bank records— a computer generated printout showing the total payoff amount of the mortgage, a summary of escrow advances, a computer generated transaction history concerning the defendants’ loan, a computer generated “collection card” and the notice of default—are inadmissible hearsay and that the plaintiff failed to satisfy the statutory requirements for the admission of business records as a hearsay exception. We disagree.

Unless the default notice and computer generated printouts come within an exception to the hearsay rule, the documents are inadmissible because they are out-of-court statements offered to establish the truth of the facts contained in the statements. Shadhali, Inc. v. Hintlian, 41 Conn. App. 225, 227, 675 A.2d 3, cert. denied, 237 Conn. 926, 677 A.2d 948 (1996). The documents in question were admitted under the business records exception to the hearsay rule over the defendants’ objections on hearsay grounds. See General Statutes § 52-180. “General Statutes § 52-180 permits hearsay evidence to be admitted if (1) [the] writing was made in the regular course of business, (2) it was the regular course of the business to make such a writing, and (3) the writing was made at the time of the transaction or occurrence or within a reasonable time thereof. State v. Scott, 31 Conn. App. 660, 665, 626 A.2d 817 (1993). To qualify a document as a business record, the party offering it must present a witness who testifies that these three requirements have been met. State v. Lawler, 30 Conn. App. 827, 831-32, 622 A.2d 1040 (1993). The trial court has discretion to determine whether the statute is satisfied and appellate courts must construe the statute liberally when reviewing abuse of discretion. State v. Scott, supra [665]; State v. Lawler, supra [832], Connecticut Bank & Trust Co., N.A. v. Reckert, 33 Conn. App. 702, 709-10, 638 A.2d 44 (1994).” (Internal quotation marks omitted.) Shadhali, Inc. v. Hintlian, supra, 227-28. “[T]he essential hallmark of admissibility under § 52-180 is the trustworthiness of the document; American Oil Co. v. Valenti, 179 Conn. 349, 358-59, 426 A.2d 305 (1979) . . . .” (Citations omitted.) Jefferson Garden Associates v. Greene, 202 Conn. 128, 141, 520 A.2d 173 (1987).

We hold that the attorney trial referee did not abuse his discretion by admitting the exhibits in question pursuant to the business records exception to the hearsay rule. One exhibit was the plaintiffs computer generated printout showing the total payoff amount of the debt as of the date of trial, January 16, 1996. At trial, Jan Carter, the plaintiffs research loan servicing supervisor, testified that the exhibit was an accurate copy of the information contained in the plaintiffs computers concerning the mortgage loan of the defendants. In addition, Carter testified that (1) computer records are maintained in the regular course of banking business generally and at Berkeley Federal Bank, (2) computer records are updated promptly when there is any change in account information, and (3) she utilizes computers at Berkeley on a regular basis in her position, and that she also reviews the information on the computer system for accuracy and requests maintenance changes based on research conducted to determine if adjustments are required to the records on the system. This testimony satisfies the requirements of § 52-180. Therefore, the exhibit was properly admitted to establish the defendants’ debt at the time of trial.

Carter also testified that another exhibit was a summary of escrow and other advances made from and on behalf of the defendants’ account. She further testified that she created the document from information she gathered on the plaintiffs computers, that the document was created for use in this litigation and that foreclosure litigation is conducted in the regular course of the plaintiffs business as a bank.

Linda Sock, who was the litigation manager of Gateway and Gateway’s assistant treasurer at the time of the default, testified in regard to the Gateway computer generated transaction history concerning the defendants’ mortgage loan. Sock testified that loan transaction histories are generated in the regular course of banking business, are a regular part of the business at Gateway and were updated automatically when there was action on an account.

Sock also testified concerning the exhibit that she identified as a copy of her computer generated collection card. That exhibit is a two part document, one part consisting of a computer printout containing loan balance information and the other a narrative by Sock. Sock testified that in the regular course of banking business, she would document conversations with the defendants or any action taken on the account, that it was the regular course of business at Gateway to make notes regarding contacts with debtors and that the notes were made immediately following contact with the customer.

On appeal, the defendants argue that Sock’s narrative was made for the purpose of litigation. This issue was not raised at trial. “We need not review any claim of error that was not properly raised at trial. [Practice Book § 4061.]” Jefferson Garden Associates v. Greene, supra, 202 Conn. 140. Even if we were to ignore the defendants’ procedural failure, we would still hold that this exhibit was admissible. Documents prepared for litigation are not automatically excluded on a per se basis. Id. The proper test is whether these documents “bear circumstantial indicia of lack of trustworthiness.” Id., 141. “Although this court has recognized that the trustworthiness of business records, under § 52-180, ‘comes from their being used for business and not for litigation’; Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 388-89, 461 A.2d 422 (1983); we have not thereby mandated the exclusion of multipurpose documents that have ancillary utility in subsequent litigation.” Id., 141. The plaintiff offered this exhibit into evidence for Sock’s written narrative record on the exhibit itself, documenting the defendant Frank F. Ogalin’s admission that the mortgage loan was in default and acknowledging receipt of the notice of default, and not as evidence of the amount of the debt. It was properly admitted by the attorney trial referee.

The notice of default was also introduced through Sock. She testified that she created the notice based on information that she personally took from the loan file and information on the Gateway computer. Further, she testified that it was a regular part of Gateway’s business practice to photocopy default letters the same day they were typed and to keep a copy in the bank’s records. Also, she testified that it was a normal part of Gateway’s business practice to mail default letters return receipt requested, and upon receiving the return receipt to staple it to the copy of the letter.

We conclude that it was not an abuse of discretion for the attorney trial referee to admit the computer printouts and the notice of default pursuant to § 52-180. Thus, it was also not an abuse of discretion for the trial court to accept the attorney trial referee’s report.

II

The defendants also claim that the trial court improperly accepted the attorney trial referee’s report because the plaintiff failed to provide the defendants with proper notice of the default according to the requirements of the mortgage. Specifically, the defendants argue that the notice of default failed to meet the requirements of paragraph 19 of the mortgage because (1) it referred to 15 Pamela Drive, whereas the mortgaged property itself is 1451 North Peters Lane, and (2) it failed to state that failure to cure the alleged default may result in a sale of the property.

The defendants’ claim that the notice was deficient because it referred to 15 Pamela Drive instead of 1451 North Peters Lane is without merit. The notice of default was addressed and sent to the defendants at 1451 North Peters Lane. The letter referenced the correct mortgage number. At trial, documents were introduced showing that the defendants received actual notice of the default. Further, Sock testified that Frank F. Ogalin acknowledged receipt of the notice of default letter and that he was in fact delinquent on the mortgage loan.

The defendants also claim that the notice of default was deficient in not stating that failure to cure may result in the sale of the property as required in paragraph 19 of the mortgage. Paragraph 19 of the mortgage provides in part: “Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Agreement. The notice shall specify . . . (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and foreclosure or sale of the Property.”

The notice of default received by the defendants stated in part: “Please be advised that absent curing the default within the time period indicated, Gateway bank may accelerate all sums secured by your mortgage without further demand upon you. We may also [invoke] any of the remedies permitted by law including the FORECLOSURE of the real property given to secure the mortgage.” The plaintiff properly notified the defendants of the possibility of foreclosure if they failed to cure. In Connecticut, foreclosures are either strict or by sale. General Statutes § 49-24. Therefore, by notifying the defendants of the possibility of foreclosure, the plaintiff properly satisfied the requirements of paragraph 19 of the mortgage.

Ill

Finally, this court, sua sponte, addresses the trial court’s assessment of late charges against the defendants. In a footnote in the plaintiffs brief, the plaintiff acknowledges that after the trial in the present case, we released our decision in Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, 40 Conn. App. 434, 671 A.2d 1303 (1996).

In Napert-Boyer Partnership, we held that a plaintiff may not recover late charges once the note has been accelerated and demand for payment has been made on the defendants. Id., 443. We agreed with the reasoning of the United States District Court for the District of Connecticut in Federal Deposit Ins. Corp. v. M.F.P. Realty Associates, 870 F. Sup. 451 (D. Conn. 1994), that “ ‘while a note may provide for a lender to collect late charges when an installment is not received by a due date, those installments are no longer “due” after the lender has accelerated the note and made demand upon the borrower.’ ” Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, supra, 40 Conn. App. 443, quoting Federal Deposit Ins. Corp. v. M.F.P. Realty Associates, supra, 455. “If the late charges are allowed to continue after demand for payment in full upon default, it would, in effect, become a penalty since the plaintiff is being compensated for the default by the higher interest rate.” Federal Deposit Ins. Corp. v. Napert-Boyer Partnership, supra, 443-44. We concluded that the trial court improperly assessed late fees against the defendants through the date of trial. Id., 444.

Paragraph six of the promissory note provides that the defendants will pay a late charge of 5 percent of any overdue payment of principal and interest. In a letter dated October 8,1992, the plaintiff made a formal demand for payment to the defendants and notified them that their loan had been accelerated, causing the entire unpaid balance to be due and payable immediately.

The plaintiff correctly states that the defendants have failed to claim that the calculation of late charges was erroneous, improper or not allowable. Nevertheless, equity requires us to remand this case to the trial court for the proper determination of the late charges to be assessed against the defendants consistent withNapert-Boyer Partnership.

The judgment is reversed only as to the determination of late charges and the case is remanded for further proceedings to redetermine those charges consistent with this opinion and to set a new sale date. The remainder of the judgment is affirmed.

In this opinion the other judges concurred.

       Subsequent encumbrancers were also named as defendants. In this opinion, we refer to Frank F. Ogalin and Vema T. Ogalin as the defendants.

       On July 15, 1993, Gateway Bank, the successor in interest to the Bank Mart, assigned the mortgage and note to Berkeley Federal Bank and Trust, FSB, the plaintiff.

       General Statutes § 52-180 provides in relevant part: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. . . .”

       For instance, one exhibit contains the handwritten notes of Sock concerning various conversations she had with the defendant Frank F. Ogalin in which he acknowledged the default and receipt of the notice of default.


author: PER CURIAM.

text:
    ALFRED J. RIOUX v. STATE ETHICS COMMISSION
    (AC 16983)
    Lavery, Hennessy and Daly, Js.
    Argued January 20
    officially released March 24, 1998

      Edward G. Pizzella, for the appellant (plaintiff).

      Susan Quinn Cobb, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Carolyn K Querijero and Gregory T. D’Auria, assistant attorneys general, for the appellee (defendant).
   Opinion

PER CURIAM.

In this appeal, the plaintiff challenges the judgment of the trial court affirming the decision by the state ethics commission that determined that the former high sheriff of Hartford County, Alfred J. Rioux, violated the state code of ethics. On February 13, 1996, the ethics commission concluded that Rioux had acted in violation of the state ethics code and ordered him to pay a civil penalty of $7000. On March 14, 1996, Rioux appealed that administrative decision to the Superior Court pursuant to General Statutes §§ 1-87 and 4-183. The trial court affirmed the commission’s decision.

Rioux claims that the trial court should have reversed the commission’s decision because (1) the findings and conclusions were not supported by the evidence, and (2) the commission misinterpreted the applicable statutes. Our examination of the record and our review of the briefs and arguments of the parties on appeal persuade us that the trial court’s judgment should be affirmed. The central issues regar ding the findings and conclusions of the commission were resolved properly in the trial court’s memorandum of decision. Rioux v. State Ethics Commission, 45 Conn. Sup. 242, 709 A.2d 613 (1997). Because that memorandum of decision fully addresses the arguments raised in the present appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Molnar v. Administrator, Unemployment Compensation Act, 239 Conn. 233, 235, 685 A.2d 1107 (1996); Val-Pak of Central Connecticut North, Inc. v. Commissioner of Revenue Services, 235 Conn. 737, 740, 669 A.2d 1211 (1996).

The judgment is affirmed.


author: SULLIVAN, J.

text:
    TOWN OF BRANFORD v. JAMES V. MONACO ET AL.
    (AC 17005)
    Foti, Sullivan and Dupont, Js.
    Argued January 15
    officially released March 24, 1998

      William S. Palmieri, with whom, on the brief, was JohnR. Williams, for the appellants (named defendant et al.).

      Timothy J. Lee, with whom, on the brief, was Leonard A. Fasano, for the appellee (plaintiff).

      David J. Sheldon, assistant United States attorney, with whom, on the brief, was Lisa M. Krai, assistant United States’ attorney, for the appellee (defendant United States of America).
   Opinion

SULLIVAN, J.

The defendants James V. Monaco and Mary E. Monaco appeal from the judgment of foreclosure by sale rendered in favor of the plaintiff town of Branford. The defendants claim that the trial court improperly granted the plaintiffs motion for judgment of foreclosure and its prior motion for summary judgment because the court (1) lacked subject matter jurisdiction and, alternatively, if it had jurisdiction, (2) failed to consider the defendants’ special defenses. The defendant United States of America (United States) is named in this action as a result of a lis pendens filed on the subject property in connection with a federal forfeiture action. We affirm the judgment of the trial court.

The following procedural history is undisputed. In 1992, prior to the institution of the present foreclosure action, the United States filed in federal court a forfeiture action pursuant to 18 U.S.C. § 981 (a) (1) (A) against property owned by the defendants and located at 22 Indian Woods Road in Branford. The complaint alleged that the property was used to commit or to facilitate the commission of a violation of the Controlled Substances Act, 21 U.S.C. § 801 (1994) et seq., or that the property was purchased with proceeds derived from a violation of that act.

In 1993, after the United States seized the property, the defendants signed a claimant occupancy and indemnity agreement. This agreement allowed the defendants to remain in occupancy of the property under certain conditions, one of which was that they pay all property taxes, both delinquent and current, during the pendency of the forfeiture proceeding. On June 4,1993, the defendants filed a motion to modify the agreement, claiming that they, as individual occupants of federally seized property, were entitled to vicarious immunity from having to pay the property taxes due to the plaintiff. The United States District Court for the District of Connecticut, Cabruñes, J., denied that motion. Thereafter, on February 14, 1996, the United States sought an order requiring the defendants to vacate the property because of their failure to pay the property taxes as required by the agreement. The District Court, Thompson, J., ordered the defendants to make a good faith effort to pay the tax arrearage pending the outcome of the forfeiture action. The federal forfeiture action is currently pending in the District Court.

In April, 1996, the plaintiff commenced the present action to foreclose municipal tax hens on the subject property pursuant to General Statutes § 12-181. On December 9, 1996, the defendants filed an answer and two special defenses. The first special defense stated merely that the property was seized by the federal government pending the civil forfeiture trial and that the outcome of that trial would determine the party responsible for payment of the taxes. The second special defense alleged that the trial court lacked subject matter jurisdiction. The trial court granted summary judgment in favor of the plaintiff on February 10, 1997. Subsequently, on March 10, 1997, the trial court rendered the judgment of foreclosure by sale. That judgment, which forms the basis of this appeal, covers tax liens due on the subject property from 1990 through 1995.

I

The defendants claim that the trial court improperly granted summary judgment in favor of the plaintiff because the court lacked subject matter jurisdiction. The issue presented by this claim is identical to that decided in Hartford v. Tucker, 225 Conn. 211, 621 A.2d 1339, cert. denied, 510 U.S. 868, 114 S. Ct. 192, 126 L. Ed. 2d 150 (1993), namely, whether the initiation of a federal forfeiture action requires a stay of a concurrent state court foreclosure action. In accordance with Tucker, we conclude that it does not.

In Tucker, the plaintiff initiated an action to foreclose municipal tax liens on property owned by the defendant. The trial court subsequently rendered a judgment of foreclosure by sale. During the period in which the defendant’s appeal of that judgment was pending, the federal government filed an action against the property pursuant to 21 U.S.C. § 881, the forfeiture provision of the Controlled Substances Act. After this court affirmed the decision of the trial court, the defendant filed a motion for rehearing claiming that the institution of the federal action required a stay of the state foreclosure action because the same res was at issue in both cases. On petition for certification from this court’s denial of the defendant’s motion for a rehearing, the defendant claimed that § 881 gave the federal courts exclusive jurisdiction over the property subject to foreclosure.

The Tucker court held that “[i]n the absence of unambiguous statutory language supporting a stay or evidence that Congress clearly intended that the federal government have exclusive jurisdiction . . . 21 U.S.C. § 881 does not bar concurrent state court jurisdiction.” Id., 216. The court relied on In re Newport Savings & Loan Assn., 928 F.2d 472 (1st Cir. 1991), in which a bank, “holding mortgages on property seized by the federal government under § 881, sought to initiate a foreclosure proceeding in the state court on the same property.” Hartford v. Tucker, supra, 225 Conn. 214-15. The Newport Savings court noted that § 881 (d) provides that the provisions of law relating to the seizure of property for violation of the customs laws apply to seizures of property under § 881. As stated in Tucker, the court in Newport Savings reasoned that since the customs laws permit the release of seized property upon the posting of bond, the customs laws “contemplate the exercise of concurrent jurisdiction over the same res so long as proper security is offered through the posting of a bond to protect the government’s interests.” Hartford v. Tucker, supra, 215. Thus, the Tucker court agreed with the conclusion in Newport Savings that “the enactment of § 881 (d) counsels against reading the forfeiture statute to provide for exclusive jurisdiction.” Id. In addition, the Tucker court determined that the anti-preemption provision of the Controlled Substances Act, 21 U.S.C. § 903, “evidences the fact that Congress specifically considered the issue of concurrent state proceedings and decided to allow them.” Id., citing United States v. $79,123.49 In United States Cash & Currency, 830 F.2d 94 (7th Cir. 1987). On the basis of the foregoing, we conclude that the state court had jurisdiction to render summary judgment in this matter and to render the judgment of foreclosure by sale.

II

The defendants next claim that if the trial court had jurisdiction, it improperly failed to consider their equitable defenses in ruling on the plaintiffs motion for summary judgment. We disagree.

The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . See Barrett v. Danbury Hospital, 232 Conn. 242, 250, 654 A.2d 748 (1995). “Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue.” Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). “It is not enough, however, for the opposing party merely to assert the existence of ... a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment.]” (Internal quotation marks omitted.) Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 665, 646 A.2d 143 (1994).

In support of its motion for summary judgment, the plaintiff filed an affidavit of the tax collector for the town, Janet Kaminsky, who averred that a tax lien existed against the subject property for arrearages in the years 1990 through 1995. The defendants do not contest the existence of the tax debt but rather assert that they alleged a legally sufficient defense that the court improperly failed to consider. The defendants asserted, as a special defense, that the outcome of the federal action will determine whether the outstanding taxes will be paid by the defendants or by the United States. They argue that it would be inequitable to foreclose on the subject property prior to the conclusion of the federal action because it will render them homeless. The defendants’ generalized claim of inequity does not constitute a legally sufficient defense to a foreclosure action. Petterson v. Weinstock, 106 Conn. 436, 138 A. 433 (1927). Furthermore, the order of the federal District Court required the defendants to make a good faith effort to pay the property taxes pending the outcome of the federal litigation. The defendants did not make any offer of proof or prove to the trial court that such an effort was made and, therefore, even if such a special defense was viable, it would fail in this case. Accordingly, we conclude that the trial court properly rendered the judgment of foreclosure in favor of the plaintiff.

The judgment is affirmed, and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       In this opinion, we refer to James V. Monaco and Mary E. Monaco as the defendants.

       Section 981 (a) (1) of title 18 of the United States Code provides in relevant part: “Except as provided in paragraph (2), the following property, real or personal, is subject to forfeiture to the United States:
      “(A) Any property, real or personal, involved in a transaction or attempted transaction in violation of section 5313(a) [providing for a reporting requirement on domestic coins and currency transactions] or 5324 (a) [prohibiting the structuring of transactions to evade reporting requirement] of title 31, or of section 1956 or 1957 [providing for civil forfeiture of property involved in money laundering] of this title, or any property traceable to such property. . . .”

       Section 881 (a) of title 21 of the United States Code provides in relevant part: “The foEowing shaE be subject to forfeiture to the United States and no property right shall exist in them . . . (7) AE real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facEitate the commission of, a violation of this title punishable by more than one year’s imprisonment, except that no property shaE be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner. . . .”

       The defendants asserted their claim of lack of subject matter jurisdiction as a special defense. A motion to dismiss is the proper procedural device to raise a claim of lack of subject matter jurisdiction. Practice Book § 143. Nevertheless, '‘[o]nce the question of lack of [subject matter] jurisdiction is raised, it must be disposed of no matter in what form it is presented.” (Internal quotation marks omitted.) State v. Booker, 28 Conn. App. 34, 39, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992), cert. denied, 507 U.S. 916, 113 S. Ct. 1271, 122 L. Ed. 2d 666 (1993).

       Section 903 of tille 21 of the United States Code provides: “No provision of this title shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this title and that State law so that the two cannot consistently stand together.”


text:
    ROBERT TURK v. JAN D. SILBERSTEIN
    (AC 16481)
    Landau, Spear and Daly, Js.
    Argued November 12, 1997
    officially released March 24, 1998

      Augustus R. Southworth III, with whom was Leslie R. Gold, for the appellant (defendant).

      II. James Stedronsky, for the appellee (plaintiff).
   Opinion

SPEAR, J.

The defendant appeals from the judgment of the trial court setting aside a verdict for the defendant on the ground of juror misconduct. The defendant claims that the trial court’s action was improper because (1) it applied the wrong legal standard in assessing the evidence of juror misconduct, (2) its factual and legal conclusions were not supported by the evidence, and (3) public policy precludes persons from seeking out jurors after trial and soliciting information that could be used to attack the verdict. We affirm the judgment of the trial court.

We glean the following factual and procedural history from the record and the trial court’s memorandum of decision. This medical malpractice case was ready for the jury’s consideration late on Thursday afternoon, August 15, 1996. At that time, there was only one alternate juror remaining, and one of the regular jurors would have been unable to serve after August 16,1996. Because of the possibility that the deliberations would not conclude on August 16, the parties agreed that the alternate juror would sit in on the deliberations, but would not participate. The alternate would become a regular juror if no verdict was reached by the close of business on August 16, 1996. The court gave the alternate clear and direct instructions that she was not to participate in the deliberations. The trial court also instructed the jurors that they were not to permit the alternate to participate in the deliberations. Because the jury returned a verdict for the defendant on August 16, 1996, the alternate never became a member of the panel.

On or about August 30, 1996, the plaintiffs wife encountered the alternate juror in a grocery store and the two women engaged in conversation. The alternate said that she had talked to the jury members during their deliberations. The plaintiff thereafter amended a previously filed motion to set aside the verdict to add a claim of misconduct by the alternate and regular jurors. After an evidentiary hearing in which the alternate and the regular jurors testified, the trial court found that “[t]he alternate juror spoke to the six regular jurors about the case; she participated in the deliberations; she added to the juiy’s information; she conveyed to the jury her opinion on various matters relating to the case that were being discussed; she communicated to the jury that she was in favor of the defendant; and she stated her opinion to the jury on what the evidence was or what the evidence meant.”

The trial court concluded that “[t]here was juror misconduct during deliberations and that such misconduct made it probable that the jurors’ minds were influenced by that misconduct so as to render them an unfair and partial jury.” The court set aside the verdict and this appeal followed.

We first address our standard of review regarding the plaintiffs claims. We review a trial court’s decision to set aside a verdict by determining whether there has been an abuse of discretion. State v. Ross, 230 Conn. 183, 227-28, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); see also Hunt v. Prior, 236 Conn. 421, 428 n.21, 673 A.2d 514 (1996); A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Whalen v. Ives, 37 Conn. App. 7, 21, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995).

I

The defendant first claims that the trial court’s action rests on untenable grounds because the court used the wrong legal standard in assessing the evidence presented at the hearing on the motion to set aside the verdict. The defendant posits that the plaintiff, as the movant, had the burden of demonstrating that he was actually prejudiced by the claimed juror misconduct. The defendant asserts that the trial court found only probable prejudice based on the trial court’s statement in its memorandum of decision that “such misconduct made it probable that the jurors’ minds were influenced by that misconduct so as to render them an unfair and partial jury.” (Emphasis added.) The defendant misconstrues what “actual prejudice” means as it has been defined in our case law.

Where juror misconduct is alleged in civil cases, the rule is that if the prevailing party is not implicated in the misconduct, “[t]he burden rests on the moving party ... to demonstrate that the juror misconduct complained of resulted in probable prejudice to him.” (Emphasis added.) Lukstas v. Saint Francis Hospital & Medical Center, 23 Conn. App. 680, 685, 583 A.2d 941 (1990); see Meyers v. Cornwell Quality Tools, Inc., 41 Conn. App. 19, 37, 674 A.2d 444 (1996). Our Supreme Court has made it clear that a party has been prejudiced by juror misconduct if “the misbehavior is such to make it probable that the juror’s mind was influenced by it so as to render him or her an unfair and prejudicial juror.” (Internal quotation marks omitted.) Williams v. Salamone, 192 Conn. 116, 122, 470 A.2d 694 (1984); see Speed v. DeLibero, 215 Conn. 308, 314, 575 A.2d 1021 (1990); Klingeman v. MacKay, 25 Conn. App. 217, 220, 594 A.2d 18, cert. denied, 220 Conn. 910, 597 A.2d 333 (1991).

The trial court enunciated the standard that was laid out in Williams v. Salamone, supra, 192 Conn. 122, virtually word for word. The defendant argues that for actual prejudice to exist, the misconduct must actually influence the juror. The short answer to this claim is that actual prejudice exists where the juror misconduct makes it “probable that the juror’s mind was influenced by it,” thereby rendering such a juror unfair and prejudiced. The trial court clearly applied the correct standard in assessing the evidence.

II

We next turn to the defendant’s claim that the court’s legal conclusions lacked foundation in the evidence. The defendant claims that the evidence does not show that the regular jurors were actually affected by the alternate’s participation in their deliberations. This contention is based on the trial court’s failure to ask the jurors whether the alternate’s participation affected them and, if so, how it affected them.

Our Supreme Court has stated that in cases where juror misconduct is claimed, “jurors [are] competent to testify to the occurrence of incidents during trial or during their deliberations which might have affected the result of the trial, but [cannot] testify as to the impact of such incidents on their verdict. . . . Upon receiving evidence as to those incidents, it is for the trial court to determine whether they warrant a reversal of the verdict.” (Citation omitted; internal quotation marks omitted.) Josephson v. Meyers, 180 Conn. 302, 311, 429 A.2d 877 (1980). Our Supreme Court has also held that although a trial court may inquire as to whether any juror prematurely stated an opinion on or evaluated the evidence, “[a]ny inquiry into the content of the opinion or the impact it had on the juror is clearly impermissible.” State v. Castonguay, 194 Conn. 416, 437, 481 A.2d 56 (1984). The trial court determines the effect, if any, of the misconduct and, in so doing, “enjoys broad discretion in determining whether misconduct prejudiced the [moving party].” Meyers v. Cornwell Quality Tools, Inc., supra, 41 Conn. App. 37. Contrary to the defendant’s assertion, the trial court was not precluded from finding misconduct because it did not ask the jurors whether or how the alternate’s actions affected them. Such questions clearly would have been improper.

The defendant also claims that the court’s fact-finding was clearly erroneous. With respect to this claim, we apply certain principles that have been enunciated so often and are so well known that little discussion is warranted here. Those principles are that (1) the trier is the judge of the credibility and the weight to be assigned evidence; Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 224, 694 A.2d 1319 (1997); D’Angelo v. McGoldrick, 239 Conn. 356, 365, 685 A.2d 319 (1996); (2) the trier is not required to accept evidence simply because it is not controverted; State v. Elliott, 39 Conn. App. 789, 797, 667 A.2d 1301 (1995); see State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993); and (3) a reviewing court does not substitute its judgment for that of the trier with respect to the credibility of the witnesses and the inferences to be drawn from their testimony. State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997); Tyson v. Warden, 24 Conn. App. 729, 736-37, 591 A.2d 817, cert. denied, 220 Conn. 909, 597 A.2d 340 (1991). The defendant fails in this claim primarily because of his mistaken impression that the plaintiff bore a higher evidentiary burden than the law requires. Our review of the evidence and application of the principles previously stated leads us to conclude that the trial court’s factual findings were not clearly erroneous.

Ill

The defendant’s last claim is that considerations of public policy dictate that the verdict should be reinstated because the alternate juror was approached, after the trial, by the wife of the plaintiff. He contends that if this judgment is allowed to stand, losing litigants or their agents may seek out jurors and attempt to elicit information that could be used to impeach verdicts.

The defendant offers no authority in support of his assertion that public policy requires reinstatement of this verdict, but invites us to apply the reasoning of Rule 12 (c) of the Local Rules of Civil Procedure for the United States District Court for the District of Connecticut. We decline the invitation. Such a plea is more properly addressed to the judges of the Superior Court in their rule making capacity.

The judgment is affirmed.

In this opinion the other judges concurred.

       Whether this procedure is proper is not an issue in this appeal. The risks involved in allowing an alternate to sit in during deliberations are obvious, as evidenced by the circumstances here.

       General Statutes § 51-245 prohibits such participation, providing in relevant part: “(a) After a cause has been committed to a jury, the jurors . . . shall not converse with any person who is not a member of the jury relative to the cause under consideration before they have returned their verdict. . . .
      “(b) If any juror converses with any person except other members of the jury concerning the cause while it is under consideration, or voluntarily suffers any other person to converse with him, the verdict, on motion, may be set aside. . . .”

       The defendant makes much of the rule allocating the burden of proof in criminal cases where juror misconduct is claimed. If the trial court is implicated in the juror misconduct, the state must prove that the misconduct was harmless error. Where “the trial court was in no way responsible for the juror misconduct ... we have repeatedly held that a defendant who offers proof of juror misconduct bears the burden of proving that actual prejudice resulted from that misconduct.” (Internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 628, 682 A.2d 972 (1996). The defendant claims that the language in Newsome somehow places a “higher standard” on the plaintiff here. His rationale for this assertion is not clear to us. In fact, the Connecticut cases that he cites employ the standard that the trial court actually used.

       There is no claim here that the prevailing party was implicated in the juror misconduct.

       Local Rule 12 (c) provides the District Court with continuing supervision over communications with jurors, even after a trial has been completed. Local Rule 12 (e) directs that no party, attorney or representative of either shall contact or communicate with any juror, juror’s relative, friend, etc., concerning the deliberations or verdict, either before, during or after the trial without the court’s permission granted for good cause shown. Moreover, jurors may not respond to inquiries by anyone concerning the deliberations or vote of the jury, except upon a showing of good cause. Anyone who violates the rule may be charged with contempt of court and punished accordingly.


author: FOTI, J.

text:
    PERCY MEJIA v. COMMISSIONER OF CORRECTION
    (AC 16603)
    Foti, Landau and Spear, Js.
    Argued January 20
    officially released March 24, 1998

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Michael E. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John Dropick, former assistant state’s attorney, for the appellee (state).
   Opinion,

FOTI, J.

The petitioner, Percy Mejia, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. Following the habeas court’s dismissal of his petition, the petitioner filed a request for certification to appeal to this court, which was granted. We affirm the judgment.

The petitioner claimed that he was denied effective assistance of counsel as guaranteed under the sixth amendment to the United States constitution. He alleged that his counsel did not (1) adequately prepare and present evidence in support of his defense of insulin shock, (2) adequately prepare and present mitigating evidence at the time of sentencing, and (3) make reasonable efforts to confirm and ensure that he completely understood and appreciated the plea bargain offer.

The charges at the petitioner’s underlying criminal trial stem from an incident in which, following an argument, he shot the victim in the back, causing his death. Following a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a (a), unlawful possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, carrying a pistol without a permit in violation of General Statutes § 29-35, and unlawful possession of a sawed-off shotgun in violation of General Statutes § 53a-211. The trial court imposed a total effective sentence of forty-five years. Our Supreme Court affirmed the petitioner’s conviction on direct appeal. See State v. Mejia, 233 Conn. 215, 658 A.2d 571 (1995).

The petitioner was represented at trial by assistant public defender Susan Brown. He told her that the shooting was an accident. He also told her that he suffered from diabetes and that this condition may have contributed to his actions. After having the petitioner examined by an endocrinologist, Brown determined that the petitioner’s medical condition would not provide the basis for a defense. When Brown informed the petitioner that his diabetes would not constitute a defense, he sought to have her dismissed as his attorney. When his motion was denied, he stopped cooperating with her in the defense of his case. Brown then filed a motion to have the petitioner examined for competency, which was granted. The petitioner was found to be incompetent and was institutionalized for approximately three months. Following a second hearing to determine the petitioner’s competency, the petitioner was found to be competent to understand the nature of the charges and to aid in his defense.

The habeas court concluded that the petitioner had failed to sustain his burden of proof on either prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The habeas court determined that the petitioner failed to demonstrate that his counsel’s representation of him was deficient or that he was prejudiced by the representation. We agree.

We see no need to engage in a lengthy analysis as to how the petitioner failed to demonstrate that Brown’s performance was deficient, but rather choose to conclude that the petitioner failed to show that he suffered actual prejudice as a result of his counsel’s performance. At no time during the habeas hearing did the petitioner show that there was anything his trial attorney could have done to obtain a different result. The petitioner failed even to suggest what evidence could or should have been offered in support of a defense of insulin shock. Moreover, the petitioner presented no evidence during the habeas hearing to show that his diabetes or his medications were in any way a factor in the murder.

The petitioner also claimed that Brown provided him with ineffective assistance at his sentencing hearing, even though she did not represent him at that proceeding. The petitioner claimed that Brown failed to provide relevant and vital information to substitute counsel in order to allow him to offer mitigating evidence at the petitioner’s sentencing.

The facts relevant to this claim are as follows. After the petitioner was convicted, he stopped cooperating with Brown. A second motion for a competency examination was filed and granted. The petitioner was found to be competent. The petitioner then filed a grievance against Brown. As a result, the petitioner’s case was assigned to another assistant public defender. The petitioner’s new counsel, Kenneth Simon, testified that after speaking with the petitioner, he had no reservations about representing him at the sentencing hearing. Simon also testified that he had no recollection of speaking to Brown about the petitioner’s case.

We see no need to discuss whether counsel can be ineffective in a proceeding in which she did not participate as counsel. We conclude that the petitioner has failed to meet his burden of demonstrating prejudice. We may not assume prejudice based on the petitioner’s bare allegation that his trial counsel failed to present unspecified information to his new counsel at sentencing.

The petitioner has failed to brief the third claim brought before the habeas court, namely, that he was denied effective assistance of counsel because his counsel did not make reasonable efforts to confirm and ensure that he completely understood and appreciated the plea bargain offer. We therefore consider that claim abandoned.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also seems to argue that his counsel was ineffective in that she failed to present evidence of lack of intent on the charge of murder. This claim was not presented before the habeas court and we will not address it except to note that the record discloses that counsel intended to have the petitioner testify on his own behalf that he did not intend to shoot the victim. She later advised the petitioner not to testify after discovering that he had an extensive criminal record in California.

       Carl Malchoff, an endocrinologist from the University of Connecticut Health Center, concluded that neither the petitioner’s diabetes nor his medications could have markedly influenced his behavior at or around the time of the killing.

       “ ‘In ordor for a criminal defendant to prevail on a constitutional claim of ineffective assistance of counsel, he must establish both (1) deficient performance, and (2) actual prejudice.’ ” Taft v. Commissioner of Correction, 47 Conn. App. 499, 503, 703 A.2d 1184 (1998), quoting Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992).

       The petitioner makes no claim of ineffective assistance against the attorney who represented him at sentencing, Kenneth Simon.

       “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).