author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. KEITH AGGEN
    (AC 22653)
    Lavery, C. X, and SchaUer and Bishop, Js.

      Argued March 28
    officially released September 2, 2003

      Avery S. Chapman, special public defender, for the appellant (defendant).

      Theresa Anne Ferryman, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Keith Aggen, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l) and four counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2). On appeal, the defendant claims that the court improperly (1) denied his motion for a mistrial after his trial was severed from that of his codefendant, (2) admitted evidence of his uncharged misconduct and (3) refused to allow him to present evidence of the prior sexual assaults committed by another individual on the victims. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. From December, 1999, through the summer of 2000, the three male victims, who were between the ages of eleven and fifteen, stayed at the defendant’s apartment on the weekends to go fishing. The victims lived with their mother and stepfather during the remainder of the week. Two of the three victims had learning disabilities. The defendant had become friends with the victims’ mother and agreed to watch the victims. During the weekend visits, the defendant fondled and performed oral sex on the three victims. The defendant also attempted to have anal sex with one of the victims. In addition, the defendant played strip poker and watched pornographic movies with the victims. The victims’ mother learned of the defendant’s actions, the police were contacted and the defendant was arrested. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court improperly denied his motion for a mistrial after his trial was severed from that of his codefendant. The defendant argues that the court’s denial of the motion was improper, as the jury was prejudiced against him because it knew of the codefendant’s existence. We disagree.

Additional facts are necessary for the resolution of the defendant’s claim. At the time of the assaults, the defendant was living with Marty Marszaikowski. Marszalkowski was charged by the state with subjecting a child under the age of sixteen to sexual contact in violation of § 53-21 (2). The state filed a motion to join Marszaikowski’s trial with the defendant’s trial. The defendant opposed the joinder and argued that a joint trial would be prejudicial because the jury would receive evidence of Marszaikowski’s statements to the police in which Marszalkowski attempted to explain what happened at their apartment. The court determined that the statements would not be prejudicial to the defendant and that the defendant’s and Marzalkowski’s defenses were compatible. The court granted the state’s motion for joinder.

The defendant made a motion in limine to preclude any evidence regarding his prior uncharged misconduct involving F, a fifteen year old boy. After the selection of five jurors, the court heard the defendant’s motion, and the state proffered evidence of prior uncharged sexual assaults on F. Although the state and both defendants originally anticipated that the uncharged misconduct evidence would implicate both defendants equally, the evidence actually implicated only the defendant, not Marszalkowski. The court denied the defendant’s motion and ruled that F’s testimony was admissible. Marszalkowski then sought to sever his trial from the defendant’s trial. The court granted Marszaikowski’s motion, and the defendant sought a mistrial on the ground that the selected jurors already knew of Marszaikowski’s existence. The court denied the motion for a mistrial.

“In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 435, 773 A.2d 287 (2001), quoting State v. Newsome, 238 Conn. 588, 628-29, 682 A.2d 972 (1996).

“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome.” (Citation omitted; internal quotation marks omitted.) State v. Taft, 258 Conn. 412, 418, 781 A.2d 302 (2001).

The defendant specifically argues that a mistrial was warranted because the jurors’ knowledge of Marszalkowski would prejudice them against the defendant, as they had been exposed to “the knowledge that the victims [had] made accusations against two individuals . . . .” The defendant fails to explain why the existence of more than one accused would result in prejudice. Moreover, that argument is untenable because juries are routinely exposed to the knowledge that a victim made an accusation against more than one individual in any joint trial. Under the logic of the defendant’s argument, any joint trial would be overly prejudicial and warrant a mistrial. That would eliminate joint trials. We are not persuaded that the fact that the victims accused more than one person warrants a mistrial under those circumstances.

Furthermore, the defendant failed to demonstrate that he actually was prejudiced. Defense counsel stated at oral argument that he could “not tell how [that knowledge] affected the jury.” That statement highlights the lack of prejudice; there is nothing in the record to suggest that the five jurors’ knowledge of Marszalkowski affected the proceedings or prevented the defendant from receiving a fair trial. The court acted well within its discretion when it denied the defendant’s motion for a mistrial after the severance of Marszalkowski’s trial.

II

The defendant’s second claim is that the court improperly admitted evidence of the defendant’s uncharged misconduct. The defendant specifically argues that the evidence of uncharged misconduct did not fit within any exception to the general prohibition against evidence of uncharged misconduct.

The following additional facts are necessary for the resolution of the defendant’s claim. Prior to trial, the defendant filed a motion in limine to preclude any evidence of his prior uncharged misconduct against F. In response, the state proffered the testimony of F. F testified as to the following facts: In 1999, F was fifteen years old and had learning disabilities that required him to attend special classes. The defendant met F while F was fishing. The defendant talked to F about fishing, formed a relationship with F and invited F to the defendant’s apartment on several occasions. During those visits, the defendant performed oral and anal sex on F.

The state argued that this evidence was admissible under the common scheme or plan exception to the prohibition against evidence of uncharged misconduct. The court determined that the assaults on F were sufficiently similar to the assaults on the victims and that the evidence was more probative than it was prejudicial. The court denied the defendant’s motion in limine and admitted the uncharged misconduct evidence. At trial, F testified about substantially the same facts. The court issued limiting instructions to the jury before the evidence was admitted and in its closing instructions to the jury.

“The standard of review is clear. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Johnson, 65 Conn. App. 470, 475-76, 783 A.2d 1057, cert. denied, 258 Conn. 930, 783 A.2d 1031 (2001).

“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. ... On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. . . . We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect.” (Internal quotation marks omitted.) State v. Lepri, 56 Conn. App. 403, 407-408, 743 A.2d 626, cert. denied, 253 Conn. 902, 753 A.2d 938 (2000).

One exception to the general rule barring evidence of uncharged misconduct is that such evidence is admissible if it is offered to prove a common plan or scheme. Conn. Code Evid. § 4-5 (b). To be admissible under the common scheme exception, “the marks which the uncharged and the charged offenses have in common must be such that it may be logically inferred that if the defendant is guilty of one he must be guilty of the other.” State v. Esposito, 192 Conn. 166, 172, 471 A.2d 949 (1984). “To guide that analysis, [our Supreme Court has] held that [e]vidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan where the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness. . . . We are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in sex related crimes than other crimes.” (Citation omitted; internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 61-62, 644 A.2d 887 (1994).

In this case, the prior sexual assaults were not too remote in time from those with which the defendant was charged. The sexual assaults of F occurred nearly contemporaneously with the sexual assaults of the victims in this case. The defendant assaulted the victims in this case between December, 1999, and the summer of 2000. The defendant assaulted F sometime in 1999. The uncharged and charged misconduct therefore took place close enough in time.

The sexual assaults are practically identical in nature. The defendant performed oral sex and attempted anal sex on the victims in the present case and performed oral and anal sex on F. Further, the sexual assaults all took place at the defendant’s apartment, where he was able to separate the victims and F from their respective caregivers. Most strikingly, the defendant used fishing to foster his relationship with the victims and with F.

The victims and F also were extremely similar. All were boys, age fifteen or younger. Further, F and two of the three victims had learning disabilities. Therefore, the assaults on F were sufficiently similar to the assaults in the present case to be admissible under the common plan or scheme exception to the general rule barring evidence of uncharged misconduct. See State v. Lepri, supra, 56 Conn. App. 410 (common plan evidence properly admitted when defendant committed all assaults within weeks of each other, took victims to his house, was more interested in touching victims than being touched, and victims were all of similar age, race).

We also conclude that the uncharged misconduct evidence was more probative than it was prejudicial. As indicated, the similarity of the assaults on F to the conduct charged in the present case made the evidence highly probative. Any prejudice was reduced by the court’s two limiting instructions to the jury. See State v. Gibson, 75 Conn. App. 103, 114, 815 A.2d 172 (noting that limiting instructions often reduce potential prejudice of uncharged misconduct), cert. granted on other grounds, 263 Conn. 906, 819 A.2d 840 (2003). Therefore, the court did not abuse its discretion by admitting the evidence of uncharged misconduct.

Ill

The defendant’s final claim is that the court improperly refused to allow him to present evidence of prior sexual assaults on the victims that were committed by another individual who had been convicted of those assaults.

Additional facts are necessary for the resolution of the defendant’s claim. The defendant sought to introduce evidence of previous sexual assaults on the victims to show that they could have an alternate source of their knowledge and, thus, the ability to fabricate the allegations against him. The court essentially reserved ruling on the defendant’s motion until the trial developed.

Thereafter, the state presented expert evidence on the victims’ behavior, and the defendant renewed his motion. The defendant initially sought to recall the victims to question them about the sexual assault. Shortly thereafter, however, defense counsel specifically suggested a stipulation that would present the evidence but spare the victims from being recalled to testify. The court granted the defendant’s motion, but reserved the right to review how the evidence was presented. The court then suggested a joint stipulation, to which defense counsel replied, “Your Honor’s points are well taken. I don’t want to call those boys back if I can avoid it.” (Emphasis added.)

The evidence was admitted as a joint stipulation at the close of the defendant’s case-in-chief. The stipulation consisted of the defendant’s reading from the court transcript that outlined the prosecutor’s factual basis for a guilty plea by another individual for having assaulted the victims. The stipulation specifically included that “the boys indicated inappropriate sexual behavior on the part of this accused with them, [which] include [s] the claim of fellatio and touching in the anal area. And when the police interviewed [the] accused ... he admitted that, in fact, he had touched them inappropriately. And that on one occasion, he had placed a finger inside the anus of the nine year old victim.”

The record belies the defendant’s claim. The defendant suggested a stipulation. After the court ruled to allow the evidence and suggested a stipulation, the defendant indicated that he did not want to recall the victims to testify. The defendant did not indicate that a stipulation would be insufficient to present the evidence. Further, the stipulation presented the evidence that the defendant wanted the jury to hear. We are not persuaded that the defendant was precluded from presenting a defense.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . .

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1999) § 53-21 provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victims or others through whom the victims’ identity may be ascertained. See General Statutes § 54-86e.

       The defendant’s brief states that claim as whether a joint trial initially was ordered properly, but at oral argument counsel explained that the essence of the claim is that the motion for a mistrial was denied improperly. The state anticipated that this was a mistrial issue and briefed it as such. Therefore, we will address the claim as whether the defendant’s motion for a mistrial was denied improperly.

       F was not one of the victims in the charged crimes.

       F testified that on the various occasions when he was assaulted by the defendant, Marszalkowski was asleep.

       We note that the defendant should have designated his motion as a motion to dismiss the jury rather than as a motion for a mistrial because the jury had not been sworn. See State v. Safford, 21 Conn. App. 467, 471, 574 A.2d 1305, cert. denied, 216 Conn. 803, 577 A.2d 717 (1990). “A motion for a mistrial is treated as a motion to dismiss the jury”; State v. Aponte, 50 Conn. App. 114, 130, 718 A.2d 36, rev’d in part on other grounds, 249 Conn. 735, 738 A.2d 117 (1999); and both share the same standard of review. State v. Safford, supra, 471. We are not bound to treat the motion as labeled. See Drahan v. Board of Education, 42 Conn. App. 480, 489, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996). At trial and on appeal, however, both parties addressed the motion as a motion for a mistrial, and the trial court ruled on it as such. Thus, we address it in those terms to avoid confusion.

       The defendant also argues that Marszalkowski’s use of a peremptory challenge to strike a juror whom the defendant wanted to remain on the jury violated the defendant’s right to a jury of his peers. The defendant cites no authority for that proposition. Parties have the right to reject jurors through peremptory challenges, not to select them; State v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983); and the purpose of voir dire is to secure a fair and unprejudiced jury; State v. Johnson, 44 Conn. App. 125, 142, 688 A.2d 867 (1997); not a jury of the defendant’s personal liking. The defendant cannot show that Marszalkowski’s use of the peremptory challenge deprived the defendant of a fair and impartial jury.

       Immediately before F testified, the court instructed the jury as follows: “The testimony of this witness is being offered for a limited purpose. The evidence that you’re going to hear is offered on the issue of whether the defendant was engaged in some kind of common scheme or plan to sexually abuse adolescent males.
      “It’s not admitted for any other purpose and should not be considered by you for any other purpose. In particular, it is not admitted to prove the bad character of the defendant or his tendency to commit criminal acts. You may not consider this evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate any kind of criminal propensity.
      “In addition, this evidence, like all evidence, is subject to review by you. The weight that you give to it is for you to decide. If you do not find that this evidence is sufficient to prove a common scheme or plan, you must exclude the evidence from your minds and it is to have no influence on your decision.”

       Although the court phrased its ruling as a denial in part, it is clear from the transcript that it actually reserved ruling on the motion.

       Defense counsel stated: “The evidence is necessary to the defendant’s case. It is necessary to the defendant’s case because, simply put, the argument is going to be that the boys lied about this. And they were able to lie about it because they knew what to say. Something like this similar — so dreadfully similar had happened before.
      “And that the probative value of evidence outweighs its prejudicial effect. That’s probably the toughest one, I think, in terms of all of us. We have the statute. We do want to protect the privacy of the boys. But the defendant also has a sixth amendment right to put on a defense. So, I think that in this case, the probative value clearly outweighs any prejudicial effect.
      “In fact, if Your Honor sees fit to grant the motion, I am open to suggestions as to how painlessly to do it. Unfortunately, the transcripts of — and I have a transcript of the sentencing of the [individual] back in 1994,1 believe it is. Because of our statutes, [the transcripts] never refer to the boys’ names. And unless there is some stipulation that in fact, they were, or a stipulation that we can work out that would save the boys from returning to court to answer that question, I’m amenable to that.”


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. NOEL BERMUDEZ
    (AC 22949)
    Lavery, C. J., and Schaller and West, Js.

      Argued May 6
    officially released September 2, 2003

      Ralph C. Crozier, with whom, on the brief, was Michael P. Gannon, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Terence D. Mariani, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Noel Bermudez, appeals from the judgment of conviction, rendered after a jury trial, of three counts of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and one count of assault in the third degree in violation of General Statutes § 53a-61. On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction, (2) the prosecutor engaged in misconduct that violated the defendant’s right to a fair trial, (3) the court improperly excluded evidence of a witness’ prior inconsistent statements, (4) the court improperly admitted into evidence the defendant’s hospital records and (5) the court violated the defendant’s right to a fair trial by overemphasizing the jury instructions on manslaughter in the first degree. Because we conclude that the prosecutor engaged in misconduct that violated the defendant’s light to a fair trial, we reverse the judgment of the trial court and order a new trial.

The jury reasonably could have found the following facts. At approximately 4 a.m., on June 23,2000, a Chevrolet Tracker was stopped at a red traffic signal on Chase Avenue in Waterbury. The vehicle the defendant was driving approached the traffic light traveling in the same direction as the Tracker. It struck the rear end of the Tracker at a speed of more than ninety miles per hour. The occupants of the Tracker, Stacy Maia and Nicolina Baratta, both died as a result of the collision. Cecilio Quinones, a passenger in the front seat of the defendant’s vehicle, sustained fatal injuries as a result of the collision. Samuel Tirado, a second passenger in the defendant’s vehicle sustained serious but nonfatal injuries as a result of the collision. It was later determined that the defendant was under the influence of marijuana and phencyclidine, also known as PCP, at the time of the collision.

Immediately following the collision, the defendant climbed out of the windshield of his vehicle as the driver’s door would not open. The defendant pulled Quinones from the front seat of the vehicle. The defendant then collapsed next to Quinones on the street.

The defendant was arrested on an information dated October 2, 2000. The defendant was charged with three counts of manslaughter in the first degree in violation of § 53a-55 (a) (3) and one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). A jury trial began on January 10, 2002. After the state rested, the defendant sought to have all of the charges dismissed and to obtain a judgment of acquittal as to all four counts. The court denied the defendant’s motion for a judgment of acquittal. The defendant was convicted of three counts of manslaughter in the first degree and one count of the lesser included offense of assault in the third degree. This appealed followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the evidence was insufficient to sustain his conviction. Specifically, the defendant argues that there was insufficient evidence for the jury to find that he was driving the vehicle that collided with the Chevrolet Tracker at the red traffic signal. We disagree.

The following additional facts are relevant to the defendant’s claim. At trial, the state called two eyewitnesses to the collision. The first witness, Elliston Skyers, testified that he observed the collision from his place of employment. He proceeded to the accident scene and pulled Tirado from the backseat of the defendant’s vehicle. Skyers further testified that he witnessed the defendant attempting to pull Quinones from the front passenger seat of the vehicle.

The state called Thomas Meier, a member of the Waterbury fire department, as the second witness. Meier was working during the night of the collision at the North Side firehouse located near the scene of the collision. Meier testified that he was awakened by the sound of the collision. Meier viewed both damaged vehicles from the window of a second floor bedroom in the firehouse. He then proceeded to the accident site. Meier testified that he observed the defendant climb out of the vehicle through the windshield.

Lucinda Lopes, a crime lab supervisor for the Waterbury police department, testified for the state that the front driver’s door of the defendant’s vehicle would not open. Lopes testified that the defendant would have been forced to climb through the broken front windshield because the driver’s door would not open.

The state also called as a witness Christina Ampier, the defendant’s live-in girlfriend. Ampier was the owner of the vehicle involved in the collision. Ampier testified that the defendant had his own set of keys to the vehicle and had permission to drive it on the night in question.

DNA analysis also was conducted by the department of public safety. Nicholas Young, from that department, testified that the DNA tests eliminated Tirado and Quinones as the source of the blood on the driver’s door. He testified that the blood samples on the armrest and driver’s door handle were that of the defendant. Last, Thomas F. Gilchrist, an associate medical examiner from the office of the chief medical examiner, testified for the state. Gilchrist testified that the defendant’s injuries were consistent with the type of injuries sustained by a driver in a head-on collision.

The defense called Evelyn Maldonado and Zulema Arroya as witnesses. Both witnesses were social acquaintances of the defendant. Both testified that they were in the defendant’s vehicle earlier on the night of the collision. Maldonado and Arroya testified that the defendant was not the driver of the vehicle during the time that they were passengers. Furthermore, Tirado, the only surviving victim of the collision other than the defendant, was called by the state as a witness. Tirado testified that the defendant was not the driver of the vehicle at the time he fell asleep in the backseat of the car shortly before the collision.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000).

“As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [trier of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Barnett, 53 Conn. App. 581, 586-87, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999).

The jury is the arbiter of fact, and “[c]redibilty is within the sole province of the fact finder.” State v. Rogelstad, 73 Conn. App. 17, 25-26, 806 A.2d 1089 (2002). It is axiomatic that the jury, in its role as fact finder, may choose to believe all, some or none of a witness’ testimony. State v. Fullard, 5 Conn. App. 338, 342, 497 A.2d 1041 (1985). “In assessing the credibility of a witness, jurors are permitted to rely on their everyday experience. Common sense does not take flight at the courthouse door.” State v. Rivera, 74 Conn. App. 129, 138, 810 A.2d 824 (2002).

The jury reasonably could have determined that the defendant was the driver of the vehicle because it was owned by his live-in girlfriend, DNA evidence linked his blood to that on the driver’s door, he sustained injuries consistent with that of a driver in a head-on collision and he exited through the windshield, consistent with damage to the driver’s door. Regarding the testimony about when the defendant was or was not driving the vehicle, the jury could have concluded that he had decided to drive later, as the night went on, or the jury could have decided not to credit the testimony of the defense witnesses.

Accordingly, construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded that the cumulative force of the evidence established that the defendant was the driver of the vehicle when it collided with the Tracker at the red traffic signal. We therefore conclude that the state presented sufficient evidence to support the defendant’s conviction.

II

The defendant’s second claim is that the prosecutor engaged in misconduct that violated the defendant’s right to a fair trial. The defendant contends that prosecutorial misconduct occurred during closing argument. Specifically, the defendant argues that the prosecutor improperly expressed his opinions regarding the credibility of witnesses and the ultimate issue of guilt. We agree.

The defendant failed to preserve his claim and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), the plain error doctrine and this court’s supervisory powers.

We review the defendant’s unpreserved claim under Golding because the record is adequate for review, and his claim of prosecutorial misconduct in violation of his right to a fair trial is of constitutional magnitude. See State v. Reynolds, 264 Conn. 1, 160 n.142, 836 A.2d 224 (2003). We conclude that the alleged constitutional violation clearly existed and deprived the defendant of his right to a fair trial, and that the state has failed to demonstrate the harmlessness of the alleged constitutional violation beyond a reasonable doubt.

The following additional facts are necessary for our resolution of the defendant’s claim. During the prosecutor’s closing arguments, he stated his opinion that a defense witness, Demaris Garcia, had perjured herself. Specifically, the prosecutor stated: “I’m sure it’s hard to accept, but people do come in here, they raise their right hand and swear to tell the truth and they lie. And that’s what the evidence in this case shows about Demaris Garcia. That’s what I told her, as [defense counsel] brought out, when I heard her story in my office. I said to her, ‘If you get up there and you tell something that is not true and we can prove it, you are going to be arrested for perjury.’ ”

The prosecutor made the following additional remarks concerning the credibility of witnesses. One of the witnesses about whom the prosecutor commented was the state’s first witness, who had observed the accident. The prosecutor stated: “Skyers is a neutral witness. He doesn’t know the defendant for ten years. . . . Why would he make that up? How would he forget that? How could that be anything but the truth? I mean, examine the credibility of witnesses. What would possess somebody to make that up?” The prosecutor went on to argue: “I know one thing for sure. ... If Garcia is telling the truth, then Skyers made up the fact [that] he pulled somebody out of the car. ... I know one thing. Her testimony does not jibe with anybody else[’s] in this case. And that, to me, and I can submit to you, indicates she is not telling the truth.”

In discussing the recklessness of the driver, the prosecutor stated that the defendant was responsible and that he had killed three people. Defense counsel, in closing argument, suggested that the prosecutor had a hidden agenda in preferring to prosecute the defendant because he survived the collision. Defense counsel stated: “You want to prosecute a live person instead of pinning it on a dead person.” The prosecutor responded in rebuttal argument that he had no hidden agenda and that “[t]he driver in that accident deserved to die. That would have been justice. If I had my way, that’s how this case would have played out, not the innocent people dying.” He went on to argue that the evidence for conviction was as strong or stronger than that in many of the cases he successfully prosecuted in the past.

Before the attorneys made their closing remarks and in the court’s final charge to the jury, the court advised the jury as to how to consider the evidence and the arguments of counsel. The court instructed the jury in relevant part: “You keep in mind. These arguments by the attorneys. They’re not witnesses in the case. They are not sworn, and they each have a point of view which they are going to try and explain to you. ... If your recollection of the evidence is different than theirs, your recollection controls.” At the close of the arguments, the court instructed the jurors that they were the sole arbiters of the facts: “It is your duty to find the facts. You are to recollect and weigh the evidence, and form your own conclusions as to what the ultimate facts are.” The court stated that “[c]ertain things are not evidence. And you may not consider them in deciding what the facts are. And these include, and I have a list for you, things that are not evidence. The arguments and the statements by the attorneys.”

Our case law states that “[w]e will not afford Golding review to [an unpreserved claim] of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial. . . . [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of the argument.” (Internal quotation marks omitted.) State v. Bonsu, 54 Conn. App. 229, 238, 734 A.2d 596, cert. denied, 251 Conn. 909, 739 A.2d 1249 (1999).

Prosecutorial misconduct may occur during closing argument. State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996). “[T]o determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. ... In conducting our analysis, we focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” (Citation omitted; internal quotation marks omitted.) State v. Garrett, 42 Conn. App. 507, 515-16, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996).

The defendant’s claim of prosecutorial misconduct centers on whether the prosecutor dining closing argument improperly expressed his personal opinion as to the defendant’s conduct, the credibility of various witnesses and on the ultimate issue of guilt. “[I]t is well established that the evaluation of [witnesses’] testimony and credibility are wholly within the province of the trier of fact.” (Internal quotation marks omitted.) State v. Stevenson, 70 Conn. App. 29, 39, 797 A.2d 1, cert. granted on other grounds, 261 Conn. 918, 806 A.2d 1057 (2002).

“The prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony. . . . These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor. . . . The jury is aware that he has prepared and presented the case and consequently, may have access to matters not in evidence . . . which the jury may infer to have precipitated the personal opinions. . . . While the prosecutor is permitted to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom, he is not permitted to vouch personally for the truth or veracity of the state’s witnesses.” (Citation omitted; internal quotation marks omitted.) State v. Payne, 260 Conn. 446, 454, 797 A.2d 1088 (2002).

In this case, the prosecutorial misconduct was not invited by defense conduct or argument. It is imperative that we “must review the challenged comments in the context of the entire trial, with due regard to the extent to which the objectionable marks were invited by defense conduct or argument.” (Internal quotation marks omitted.) State v. Briley, 55 Conn. App. 258, 262, 739 A.2d 293, cert. denied, 251 Conn. 927, 742 A.2d 363 (1999). Defense counsel's remarks concerning possible hidden agendas of the prosecutor and witnesses, and other attacks on the witnesses’ credibility did not warrant the prosecutor’s expressing his opinion on any witness or on the merits of the case. The state is entitled to rebut an attack on the credibility of a witness and present a countervailing argument to the jury, but that does not permit the prosecutor to express his personal beliefs.

The prosecutor’s misconduct was of a severe nature and centra] to the critical issues in the case. His remarks during closing argument suggesting that a defense witness might be charged with perjury clearly were improper. Garcia was a key defense witness who had observed the defendant stepping out of the rear passenger side of the automobile. That contradicted the state’s version of the facts, which was that the defendant was trapped in the driver’s seat and was forced to come out through the windshield. The jury easily could have inferred from the prosecutor’s remarks that he had information outside of the evidence that the witness was indeed lying. Those statements constituted an inappropriate attack on the witness’ credibility because they implied that the prosecutor had knowledge outside the record about the witness’ credibility. See State v. Payne, supra, 260 Conn. 454. The prosecutor during his closing remarks repeatedly expressed his personal opinion concerning the credibility and neutrality of the state’s first two witnesses.

The prosecutorial misconduct went to the heart of the case. The critical issue was the identity of the driver. The state’s first two witnesses were at the accident scene immediately after the collision. The prosecutor-vouched for their testimony as being more reliable than defense witnesses’ testimony. Such remarks are an improper way to highlight the evidence presented or to suggest a reasonable conclusion that could be drawn by the jury. See State v. Butler, 55 Conn. App. 502, 515-16, 739 A.2d 732 (1999), aff'd, 255 Conn. 828, 769 A.2d 697 (2001).

The prosecutor also improperly gave his personal opinion on the ultimate issue of the defendant’s guilt during closing argument. A prosecutor should not express his opinion, directly or indirectly, as to the guilt of the defendant. State v. Hampton, 66 Conn. App. 357, 371, 784 A.2d 444, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001). The prosecutor buttressed his opinion of guilt by comparing this case to other cases that he had successfully prosecuted in the past. Furthermore, he went on to state that justice would have been served by the death of the defendant in the collision as opposed to the deaths of the victims. That clearly was an improper appeal to the jury’s emotions and another example of the prosecutor’s improperly expressing his personal opinion.

The cumulative effect of the prosecutor’s improper remarks during closing argument so infected the proceedings as to deprive the defendant of his right to a fair trial. We reach that conclusion because the misconduct did not consist of a single, isolated remark, but recurred throughout the entire closing argument and involved the critical issue in the case.

The state argues that it has demonstrated the harmlessness of the alleged constitutional violations to satisfy the fourth prong of Golding. It argues that even if the prosecutor’s conduct were improper, the court remedied any impropriety by giving the jury a curative instruction to disregard the comments. The court’s instructions to the jury were insufficient to cure the accumulated harm created by the course of prosecutorial misconduct. See State v. Stevenson, supra, 70 Conn. App. 45. Because of the severity and the centrality of the misconduct, this is not a situation in which we can rely on the presumption that the jury will follow the court’s instruction and disregard the prosecutor’s statements. Furthermore, we must consider whether the court’s appearance of partiality may have lessened the impact that any such charge would have on the jury.

This is not a case in which the state’s evidence was so strong that we can say that the misconduct constituted harmless error. The critical issue was the identity of the driver. Although much of the circumstantial evidence pointed toward the defendant, he did present numerous witnesses to contradict the state’s case. The credibility of the state’s witnesses and the defense witnesses was crucial because none of the witnesses actually observed the defendant as the driver at the time of the accident. The prosecutor’s pervasive misconduct was directed at the witnesses’ credibility and the ultimate issue of guilt, and we cannot dismiss as inconsequential its cumulative effect on the jury.

Accordingly, we conclude that the alleged constitutional violation clearly existed and that its cumulative effect deprived the defendant of his right to a fair trial. Because the state has failed to demonstrate the harmlessness of the alleged constitutional violation beyond a reasonable doubt, a new trial is required.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when ... (2) he recklessly causes serious physical injury to another person . . . .”

       We note that the defendant’s second claim is dispositive and, thus, we need not address his third and fourth claims, as we cannot say that they are likely to arise on retrial. The first claim regarding the sufficiency of the evidence nevertheless is addressed because a determination of evidentiary insufficiency would entitle the defendant to a judgment of acquittal.
      We also hold with respect to the defendant’s fifth claim that the trial court’s instructions to the jury on manslaughter in the first degree were proper. In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner that approaches an “atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942).
      The court read to the jury the charge of manslaughter in the first degree on six separate occasions, but only once referenced the lesser included offenses. The court also did not read or provide copies of a lesser included offense when requested to do so by the juiy. The appearance of partiality at such a crucial time in the proceeding in the presence of the jury is extremely prejudicial to the defendant’s case. Accordingly, the court violated the defendant’s right to a fair trial by overemphasizing the instructions on manslaughter in the first degree.

         General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       It should be noted that the witnesses who testified that the defendant was not driving the vehicle at earlier times during the night all had a connection or relation to the defendant.

       Pursuant to Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       We note that the defendant also argues that the prosecutor committed misconduct by failing to disclose in a timely manner six audiotapes of radio transmissions and 911 calls between the fire department, police department, dispatchers and ambulances. That argument has been preserved for review. Accordingly, the defendant’s claims must be bifurcated because only one of them was preserved properly by objection at trial. See State v. Lasky, 43 Conn. App. 619, 625-26, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997). We address the unpreserved argument, which is that the prosecutor improperly expressed his opinions during closing remarks, under Golding. Because we reverse the judgment on the first part of the claim, we need not reach the preserved claim of prosecutorial misconduct.

       In State v. Stevenson, supra, 70 Conn. App. 32-33, we concluded that when all four prongs of Golding are satisfied and a new trial is required, there is no need to conduct plain error review or to invoke our supervisory-powers to reverse the defendant’s conviction. Because we find that the defendant’s claim satisfies all four prongs of Golding, we do not engage in the other requested modes of review.


author: DRANGINIS, J.

text:
    JAMES R. LOMBARD ET AL. v. EDWARD J. PETERS, JR., P.C., ET AL.
    (AC 22109)
    Drangmis, Flynn and West, Js.
    Argued October 29, 2002
    officially released September 9, 2003

      Paul H. D. Stoughton, for the appellants (plaintiffs).

      Dana M. Horton, with whom, on the brief, was David S. Williams, for the appellee (defendant Meadows Condominium of Middletown Association, Inc.).
   Opinion

DRANGINIS, J.

The plaintiffs, James R. Lombard and Lombard Associates, Inc., appeal from the judgment of the trial court rendered after the court granted the motion for summary judgment filed by the defendant Meadows Condominium of Middletown Association, Inc. On appeal, the plaintiffs claim that the court improperly granted the defendant’s motion for summary judgment when it determined that the plaintiffs’ action was barred by the two year statute of limitations set forth in General Statutes § 52-S84. We affirm the judgment of the trial court.

Our Supreme Court set forth the facts and procedural history of this case in Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 749 A.2d 630 (2000). “The Superior Court appointed [the law firm of attorney Edward J. Peters, Jr.] as the committee to conduct a foreclosure sale of certain condominium units located in a common interest community in Middletown called Meadows Condominium. The Federal Deposit Insurance Corporation (FDIC) was the successful bidder at the foreclosure sale and purchased the foreclosed property. [Peters’ law firm] conveyed the foreclosed property to the FDIC by a committee deed, which accurately described the foreclosed property purchased by the FDIC. After the sale had beén approved by the court, the defendant orally incorrectly identified a garage unit owned by the plaintiffs, James R. Lombard and Lombard Associates, Inc., as being part of the property that had been foreclosed by the lienholder and purchased by the FDIC. In actuality, the plaintiffs’ garage unit had been neither foreclosed nor subject to any foreclosure or sale. The FDIC, having been so misled, thereafter entered the plaintiffs’ garage unit and took possession of [and, on or about May 13,1994] sold certain personal property of the plaintiffs that was stored therein. The stored personal property consisted of business equipment, books and records.” Id., 625.

Subsequently, in May, 1997, the plaintiffs filed a four count complaint in which they sought monetary relief for the wrongful seizure and sale of their personal property. Counts one and three of the plaintiffs’ complaint set forth a cause of action against Peters’ law firm for malpractice and conversion, respectively. The second and fourth counts of the complaint alleged negligent misidentification and conversion against the defendant. Thereafter, Peters’ law firm and the defendant filed motions to strike the first, third and fourth counts. On December 5, 1997, the court granted the motions. The plaintiffs appealed from the court’s judgment striking count one. Our Supreme Court reversed the judgment of the trial court, finding that the trial court incorrectly had determined that the doctrine of qualified immunity shielded Peters’ law firm from liability on that claim.

On August 9, 2000, the plaintiffs filed a two count amended complaint against the defendant Patricia Peters, executrix of the estate of Edward J. Peters, Jr., and the defendant. Count two was directed at the defendant and is the subject of this appeal. The second count of the amended complaint is the same as it was in the original complaint and alleges that as a result of the defendant’s negligent misidentification of the plaintiffs’ garage unit as having been subject to the foreclosure sale, the plaintiffs suffered a loss of personal and corporate property. In response to the amended complaint, the defendant filed an answer together with a special defense that asserted that the plaintiffs’ second count was barred by the applicable statute of limitations, § 52-584, because the plaintiffs’ cause of action was instituted more than two years after the alleged tortious act or omission. The defendant thereafter filed a motion for summary judgment on those grounds. The plaintiffs argued in response that the three year limitation period of General Statutes § 52-577 should control. The court determined that § 52-584 governed and granted the defendant’s motion for summary judgment, and that decision serves as the basis of this appeal.

The plaintiffs claim that the court improperly determined that as a matter of law, the defendant’s special defense of the statute of limitations contained in § 52-584 bars the plaintiffs’ recovery for negligent misidentification. We disagree.

Before addressing the merits of the plaintiffs’ claim, we first set forth the applicable standard of review of a court’s decision to grant a motion for summary judgment. “On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . .

“Practice Book [§ 17-49] 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. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . .

“A material fact is a fact that will make a difference in the outcome of the case. . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such 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 . . . .” (Internal quotation marks omitted.) Christian v. Gouldin, 72 Conn. App. 14, 18-19, 804 A.2d 865 (2002). Furthermore, as a general rule, summary judgment may be rendered where the claim is barred by the statute of limitations. Raynor v. Hickock Realty Corp., 61 Conn. App. 234, 237, 763 A.2d 54 (2000). “Because the matter of whether a party’s claim is barred by the statute of limitations is a question of law, we review the [plaintiffs’ claim] de novo.” Lenares v. Miano, 74 Conn. App. 324, 330, 811 A.2d 738 (2002).

Initially, we note that in determining which statute of limitations applies, we look to the nature of the right alleged rather than to the form of the action or to the relief demanded. D’Agostino v. D’Addio, 6 Conn. App. 187, 188, 504 A.2d 528, cert. denied, 199 Conn. 805, 508 A.2d 32 (1986). In its memorandum of decision, the court construed the action as one sounding in negligent misidentification and granted the defendant’s motion for summary judgment on the ground that the plaintiffs’ action was barred by the two year statute of limitations in § 52-584. The plaintiffs agree with the court that the nature of their claim sounds in negligent misrepresentation. They disagree, however, with the court’s determination that § 52-584 applies rather than § 52-577, the three year general tort statute of limitations. The plaintiffs claim that legislative history supports their contention that the legislature never intended § 52-584 to apply to negligent misrepresentation claims. The plaintiffs cannot prevail on their claim.

The plaintiffs assert that before we determine whether, as a matter of law, their claim was subject to the two year statute of limitations in § 52-584 or the three year statute of limitations in § 52-577, we must first distinguish whether they stated a claim sounding in “trespass” or “trespass on the case.” We recognize that “[a] common-law trespass provides a remedy for all forcible, direct and immediate injuries, whether to a person or to property — or in other words, for the kind of conduct likely to lead to a breach of the peace by provoking immediate retaliation. . . . Trespass on the case provides a remedy for obviously wrongful conduct resulting in injuries which were not forcible or not direct.” (Citation omitted; internal quotation marks omitted.) Falco v. Institute of Living, 50 Conn. App. 654, 664 n.12, 718 A.2d 1009 (1998), rev’d on other grounds, 254 Conn. 321, 757 A.2d 571 (2000); see also Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 52 n.2, 578 A.2d 1054 (1990). In their brief and at oral argument before this court, the plaintiffs essentially argue that as a matter of statutory construction, § 52-577, not § 52-584, applies because the defendant did not physically or directly damage their property and, therefore, because the damage to the property was consequential, they stated a claim that derives from the common-law doctrine of “trespass on the case.”

Resolution of the issue requires statutory construction, and our review is therefore plenary. Boynton v. New Haven, 63 Conn. App. 815, 819, 779 A.2d 186, cert. denied, 258 Conn. 905, 782 A.2d 136 (2001). “It is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Rosengarten v. Downes, 71 Conn. App. 372, 379, 802 A.2d 170, cert. granted on other grounds, 261 Conn. 936, 806 A.2d 1066 (2002) (appeal dismissed December 31, 2002). ”In applying [the] principles [of statutory construction], we keep in mind that the legislature is presumed to have intended a reasonable, just and constitutional result.” Gelinas v. West Hartford, 65 Conn. App. 265, 276, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001). Additionally, “[w]ords in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended.” (Internal quotation marks omitted.) Cimochowski v. Hartford Public Schools, 261 Conn. 287, 307, 802 A.2d 800 (2002).

Section 52-584 applies to actions “to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . .” (Emphasis added.) Section 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

After our review, we are persuaded that the plain language of the two statutes reveals that the legislature intended that actions to recover for damages for injury to personal property caused by negligence come within the ambit of § 52-584. “Our inquiry to determine legislative intent, however, does not end with the language of the statute.” Schiano v. Bliss Exterminating Co., 260 Conn. 21, 36, 792 A.2d 835 (2002). As previously mentioned, we look to other factors for guidance, such as legislative history and relevant case law.

Section 52-577 originally was enacted in 1821. Sanborn v. Greenwald, 39 Conn. App. 289, 300, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). That section provided: “No action of trespass on the case shall be brought but within six years next after the right of action shall accrue.” (Internal quotation marks omitted.) Id. The Supreme Court explained in Miner v. McNamara, 82 Conn. 578, 580, 74 A. 933 (1909), that the language of the statute had been changed in 1888. When the legislature revised the statute, the new language eliminated the distinction between trespass and trespass on the case. Id. Hence, the legislature substituted the statute’s reference to “action of trespass on the case” with “[n]o action founded upon a tort unaccompanied with force and where the injury is consequential . . . .” Id. That section still allowed such actions to “be brought but within six years next after the right of action shall accrue.” Id. In 1949, General Statutes (1949 Rev.) § 8316 eliminated the phrase, “unaccompanied with force and where the injury is consequential. ” In addition, the statutory time limitation was changed from six years to three years. General Statutes (1949 Rev.) § 8316. The legislature has not made any changes to § 52-577 since that time.

The genesis of § 52-584, on the other hand, can be found in 1853 legislation providing for recovery in negligence against railroad companies. See Radezky v. Sargent & Co., 77 Conn. 110, 112, 58 A. 709 (1904). The statute has been amended several times to broaden its application to actions for personal injuries caused by the negligence of municipal and other corporations. The statute later was amended in 1903. See id. As amended, removed from the statute were the words, “against a municipal or other corporation.” See id. The statute remained unchanged until 1949 when the legislature amended the statute so as to extend to liability “caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, chiropodist, chiropractor, hospital or sanatorium . . . .” General Statutes (1949 Rev.) § 8324. The present statute is in substantially the same form as the 1949 version, the only material change is to the limitations period, which changed the time that a cause of action could be brought from one year to two years.

The plaintiffs claim that the historical evolution of the two statutes demonstrates that § 52-577 is the direct descendant of the early common-law action of trespass on the case and that because their claim is in the nature of one in trespass on the case, as the injuries to their property were not “forcible and direct,” § 52-577 should have been deemed to apply to their claim. We disagree.

First, we observe that modem tort law “has almost completely abandoned the artificial classification of injuries as direct or indirect, and looks instead to the intent of the wrongdoer, or to negligence. ” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 6, p. 30. Second, and more importantly, our Supreme Court in Miner v. McNamara, supra, 82 Conn. 578, rejected the same argument that the plaintiffs now posit. In that case, the plaintiffs claimed that the trial court had applied the predecessor to § 52-584 wrongly when it should have applied the predecessor to § 52-577, where the defendants’ negligence was unaccompanied by force, and where the resulting injury to the plaintiffs’ property was consequential and not immediate. The Supreme Court disagreed and affirmed the judgment, concluding that the plaintiffs’ claim for damages for injuries to personal property caused by negligence was governed by the predecessor to § 52-584.

Although, the plaintiffs contend that the defendant’s tortious act was the negligent misidentification of the plaintiffs’ property to the FDIC, not the negligent handling of the property itself, we conclude that where the plaintiffs’ claim is predicated on injury to their personal property caused by negligence, it is clear that they have brought a claim within the purview of § 52-584. Finally, our Supreme Court has held that the three year statute of limitations of § 52-577 “is applicable to all tort actions other than those excepted therefrom by § 52-584 or other sections”; Lambert v. Stovell, 205 Conn. 1, 4, 529 A.2d 710 (1987); which buttresses our conclusion. Accordingly, we conclude that § 52-584 applies to claims of negligent injury to property and, therefore, that the two year statute of limitations governs this case.

Additionally, this case is controlled by Nardi v. AA Electronic Security Engineering, Inc., 32 Conn. App. 205, 210-11, 628 A.2d 991 (1993), in which we stated that claims of negligent injury to property are governed by § 52-584. In that case, the plaintiffs claimed, inter alia, that a telephone company had been negligent in installing a jack for a burglar alarm system. Thereafter, the plaintiffs’ home was burglarized. In their action against the telephone company, the plaintiffs maintained that the injury alleged occurred when the telephone company failed to test the jack and to inform them that the jack was connected to the wrong line. The court ruled that the plaintiffs’ failure to bring their case within the statute of limitations found in § 52-584 barred their action for damage to their property. We see no reason, therefore, to depart from our previous interpretation that this section applies to claims of negligent injury to property.

Here, the negligent actionable harm occurred on or about May 13,1994, when, with the aid of the defendant, the FDIC entered the garage and seized the plaintiffs’ property. The plaintiffs did not commence their action, however, until May 5, 1997, which is nearly one year beyond the time period permitted by § 52-584. The court’s determination to grant the defendant’s motion for summary judgment on the ground that the action was time barred by § 52-584 was proper and, accordingly, the court’s conclusion was correct that the defendant was entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs’ original complaint named Edward J. Peters, Jr., P.C., and Meadows Condominium of Middletown Association, Inc., as defendants. On July 18, 2000, Patricia Peters, executrix of the estate of Edward J. Peters, was substituted as a defendant. This appeal concerns only Meadows Condominium of Middletown Association, Inc., and unless otherwise indicated, all references hereinafter to the defendant in this opinion are to Meadows Condominium of Middletown Association, Inc.

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”


author: DiPENTIMA, J. DUPONT, J.,

text:
    HOUSING AUTHORITY OF THE CITY OF HARTFORD v. CELINES DELEON ET AL.
    (AC 23288)
    Lavery, C. J., and DiPentima and Dupont, Js.

      Argued June 2
    officially released September 9, 2003

      Rudolph Arnold, for the appellant (plaintiff).
   Opinion

DiPENTIMA, J.

In this summary process action, the plaintiff housing authority of the city of Hartford appeals from the judgment of the trial court awarding possession of certain premises to the defendant Celines DeLeon. On appeal, the plaintiff claims that the court improperly (1) interpreted General Statutes § 47a-ll as applying solely to the defendant’s actions and not to the actions of her guests, and (2) abused its discretion by excluding a police report from evidence. We agree with the plaintiff and, therefore, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. On August 14, 2000, the defendant entered into alease with the plaintiff for the premises at 24-H Dutch Point in Hartford. Thereafter, she took possession of the premises and presently remains in possession.

On November 11,2001, a team of seven police officers conducted surveillance of the defendant’s residence. The police observed a pattern: A person would knock on the defendant’s door; when someone opened the door there would be a brief conversation, and the parties would then exchange currency for a small item. After the transaction, the party receiving the item routinely was stopped by the police. That process resulted in several arrests, and the police gained intelligence concerning the activities occurring in the defendant’s residence.

On the basis of those observations, an officer approached the defendant’s residence and knocked on the door. When the door was opened, the officer smelled marijuana and observed other drug related activity. The officer immediately signaled the rest of the team of officers to enter the apartment. Upon entering, the officers observed a large number of people in the defendant’s residence who were detained downstairs while the other officers searched the remainder of the apartment. The officers located the defendant in one of the two upstairs bedrooms. In the other bedroom, they recovered a sandwich bag containing numerous small plastic bags, each containing marijuana. As a result of that incident, the defendant was arrested.

On December 14, 2001, the plaintiff served the defendant with a notice to quit possession and to vacate the premises on or before December 31, 2001. The plaintiff next brought this summary process action seeking possession of the premises at 24-H Dutch Point on the ground that the defendant had failed to conduct herself in a manner that would not constitute a serious nuisance in violation of § 47a-ll (g). After trial, the court concluded that the plaintiff had failed to carry its burden of proof of showing that the defendant had used the premises for the sale of illegal drugs. On the basis of that finding, the court rendered judgment for the defendant. The plaintiff thereafter appealed.

I

The plaintiff first claims that the court improperly limited its application of § 47a-ll (g) to the actions of the defendant. The plaintiff ar gues that the legislative history makes clear that the legislature intended that the actions of guests may constitute a serious nuisance, within the meaning of General Statutes §§ 47a-ll (g) and 47a-15. We agree.

We begin by setting forth the appropriate standard of review. The question of whether § 47a-ll imposes a duty on the court to consider the actions not only of the defendant, but also of her guests, presents a question of statutory construction over which our review is plenary. See Vibert v. Board of Education, 260 Conn. 167, 170, 793 A.2d 1076 (2002); HUD/Willow Street Apartments v. Gonzalez, 68 Conn. App. 638, 647, 792 A.2d 165 (2002).

Pursuant to State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003), “[t]he process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. . . .

“This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 577-78.

At trial, the plaintiff alleged that the defendant had committed a serious nuisance by allowing the premises to be used for the sale of drugs in violation of § 47a-ll (g). Section 47a-ll provides in relevant part: “A tenant shall . . . (g) conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors’ peaceful enjoyment of the premises or constitute . . . a serious nuisance, as defined in section 47a-15 . . . .” A “serious nuisance” as defined in § 47a-15 includes “using the premises or allowing the premises to be used for . . . the illegal sale of drugs . . . .” (Emphasis added.) General Statutes § 47a-15. The court found that the evidence submitted by the plaintiff was insufficient to prove that the defendant had used the premises to sell drugs, but did not consider whether she had allowed the premises to be used for the illegal sale of drugs.

In Housing Authority v. Harris, 28 Conn. App. 684, 691, 611 A.2d 934 (1992), aff'd, 225 Conn. 600, 625 A.2d 816 (1993), this court held that the failure to require others to conduct themselves in a manner that does not constitute a serious nuisance is not itself a serious nuisance. In response, the legislature passed Public Acts 1995, No. 95-247 (P.A. 95-247), § 6, which amended § 47a-15 and overruled Harris by expanding the definition of “serious nuisance” to include “allowing the premises to be used for drugs.” 38 H.R. Proc., Pt. 12, 1995 Sess., p. 4406, remarks of Representative Paul R. Doyle. That enabled a landlord to evict a tenant, without the issuance of a twenty-one day pretermination notice, for the actions of a guest who had used the premises for the illegal sale of drugs. Moreover, the office of legislative research, in analyzing that portion of P.A. 95-247 that concerns serious nuisance, observed that the bill makes it a serious nuisance for a tenant to allow rented premises to be used for prostitution or illegal drug sales. Having construed the legislative intent from that analysis and from the language and legislative history of the statutes, we conclude that the court’s interpretation of §§ 47a-ll (g) and 47a-15 should not have been restricted to the actions of the defendant and should have taken into account the actions of the defendant’s guests. We therefore reverse the judgment and remand the case for a new trial.

n

We address the plaintiffs second claim because it raises an issue that is likely to arise on retrial. See State v. Jones, 234 Conn. 324, 351, 662 A.2d 1199 (1995). The plaintiff claims that the court abused its discretion by excluding a police report from evidence. The plaintiff argues that the police report was admissible under the business record exception to the hearsay rule. We agree with the plaintiff.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) Baughman v. Collins, 56 Conn. App. 34, 35, 740 A.2d 491 (1999), cert. denied, 252 Conn. 923, 747 A.2d 517 (2000).

“An out-of-court statement that is offered to establish the truth of the matters contained therein is hearsay. . . . The business records exception to the hearsay rule is set forth in General Statutes § 52-180. [N]ot every statement contained in a document qualifying as a business record is necessarily admissible. To be admissible under § 52-180, the contents of a business record must be based on the entrant’s own observations or on information transmitted to him by an observer whose business duty it was to transmit it to him. Statements obtained from volunteers are not admissible, although included in a business record, because it is the duty to report in a business context that provides the reliability to justify this hearsay exception. Information in a business record obtained from a person with no duty to report is admissible only if it falls within another hearsay exception. ... A police report generally is admissible as a business record under General Statutes § 52-180. ... To qualify under this statute the report must be based entirely upon the police officer’s own observations or upon information provided by an observer with a business duty to transmit such information. . . . For example, a report prepared by an officer in charge of an accident investigation is admissible in its entirety, despite the fact that it contains information received from other officers assisting in the investigation. Such a report is not admissible, however, if it contains information furnished by a mere bystander.” (Citations omitted; internal quotation marks omitted.) Baughman v. Collins, supra, 56 Conn. App. 36-37.

At trial, a proper foundation was laid for the police report’s admission into evidence. The report had been prepared by an investigating officer, and was based on his personal knowledge of the events and on information that had been provided to him by officers with a business duty to report the information. It contained relevant information and satisfied the requirements of § 52-180. We conclude, therefore, that the court abused its discretion by disallowing the police report without explanation.

The judgment is reversed and the case is remanded for a new trial.

In this opinion LAVERY, C. J., concurred.

DUPONT, J.,

dissenting in part. Although I agree entirely with the analysis and reversal of the judgment as set forth in the majority opinion, I write separately because I respectfully disagree with the majority’s decision to remand the matter for a new trial rather than to render judgment of possession for the plaintiff.

The trial court found in its memorandum of decision, and the majority has repeated, all of the necessary and relevant facts to resolve the issue, by a fair preponderance of the evidence, of whether the defendant Celines DeLeon had allowed her premises to be used for the sale of drugs. Because the conclusion is inevitable, I would restore possession of the premises to the plaintiff. Restoration of possession to a landlord or tenant can ensue upon our reversal of the judgment in a summary process action where a lease has not yet expired by its term of occupancy. Evergreen Manor Associates v. Farrell, 9 Conn. App. 77, 78, 515 A.2d 1081 (1986); Yankee Sailing Co. v. Yankee Harbor Marina, Inc., 5 Conn. App. 153, 157, 497 A.2d 93 (1985).

I recognize that “[o]rdinarily it is not the function of this court ... to make factual findings .... Conclusions of fact may be drawn on appeal . . . where the subordinate facts found [by the trial court] make such a conclusion inevitable as a matter of law . . . .” (Citations omitted; internal quotation marks omitted.) State v. Reagan, 209 Conn. 1, 8-9, 546 A.2d 839 (1988); see also Papcun v. Papcun, 181 Conn. 618, 621, 436 A.2d 282 (1980); Bozzi v. Bozzi, 177 Conn. 232, 240, 413 A.2d 834 (1979); State v. Hanna, 150 Conn. 457, 471, 191 A.2d 124 (1963). I believe this is such a case “where the undisputed facts [and] uncontroverted evidence and testimony in the record make the factual conclusion so obvious as to be inherent in the trial court’s decision.” State v. Reagan, supra, 9.

It is indisputable that the defendant was allowing her premises to be used for the sale of drugs. Therefore, I respectfully dissent from the remand and instead would remand the case with direction to render judgment of possession for the plaintiff.

       Leonard White, originally named as a defendant in this action, failed to appear at the summary process trial on February 19, 2002, and a default judgment was rendered against him. He is not a party to this appeal. We therefore refer in this opinion to Celines DeLeon as the defendant.

       General Statutes § 47a-ll provides in relevant part: “A tenant shall . . . (g) conduct himself and require other persons on the premises with his consent to conduct themselves in a manner that will not disturb his neighbors’ peaceful enjoyment of the premises or constitute a nuisance ... or a serious nuisance . . . .”

       Although the complaint alleges that the defendant and Leonard White failed to conduct themselves in a manner that would not constitute a serious nuisance in that they had used the premises for the illegal sale of drugs, it is clear that at the time of trial, the parties were on notice that the plaintiff intended to proceed as to the actions of the defendant’s guests. See Tedesco v. Stamford, 215 Conn. 450, 463, 576 A.2d 1273 (1990) (where defendant had sufficient notice of claims not specifically alleged, no material variance between pleadings and proof), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev'd, 222 Conn. 233, 610 A.2d 574 (1992).

       General Statutes § 52-180 (a) provides: “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.”

       If the police report had been introduced into evidence, as the majority concludes it should have been, the ultimate fact, that the defendant had allowed her premises to be used for the illegal sale of drugs, is all the more inescapable. The report indicated that besides the arrest of the defendant, three other arrests for the possession and sale of narcotics were made. Searches of the arrested individuals revealed heroin packaged for street sale.