text:
    RICHARD DOMOGALA v. ESTHER MOLIN
    (AC 17940)
    Foil, Hennessy and Mihalakos, Js.
    Argued March 2
    officially released May 2, 2000

      Edward V. Walsh, with whom, on the brief, was Michael O. Connelly, for the appellant (defendant-third party plaintiff).

      John A. Pinheiro, for the appellee (third party defendant).
   Opinion

FOTI, J.

The defendant, Esther Molin, appeals from the judgment of the trial court granting the motion for a directed verdict filed by the third party defendant, Albert Testo. Although the defendant raises two issues on appeal, the dispositive issue is whether the court properly granted Testo’s motion for a directed verdict. We reverse in part the judgment of the trial court.

The plaintiff, Richard Domogala, who no longer is a party to this appeal, commenced an action for personal injuries allegedly sustained in a slip and fall in a parking lot of a commercial building owned by the defendant. The defendant filed a third party complaint, claiming that Testo, as a tenant of the property, was responsible for maintenance of the building. The defendant alleged a breach of contract and sought indemnification. The trial court granted Testo’s motion for a directed verdict on the third party complaint.

On January 26,1993, in the early afternoon, the plaintiff, accompanied by his wife, drove to the parking lot at the rear of 3606-3610 Main Street in Bridgeport for the purpose of visiting Testo, who owned the Connecticut Jewelry Exchange, one of the businesses on the premises. As the plaintiff stepped out of his motor vehicle, his foot slipped on ice, causing him to fail and slide forward on his back. His left foot slid into a wooden pallet, which had been frozen immovable in ice, causing his leg to fracture in two places. According to Testo’s testimony, the water that froze forming the ice on which the plaintiff slipped had been deposited on the surface of the parking lot from a hose that extended through the basement doors to remove water from the basement.

Evidence presented revealed that the defendant had instituted a summary process action against Testo and served him with a notice to quit on January 11, 1993, that directed him to vacate the premises on or before January 25, 1993. The defendant also had indicated in a written communication that Testo had been in Florida since December 24, 1992, and responded in a recorded statement dated December 9,1993, that Testo was “out of the premises by January 26.” On the basis of that evidence, the court granted Testo’s motion for a directed verdict.

“Directed verdicts are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion. Glucksman v. Walters, 38 Conn. App. 140, 143, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995). In reviewing a trial court order directing a verdict, we consider all of the evidence and the reasonable inferences drawn therefrom in the light most favorable to the [nonmoving party]. Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979).” Hunter v. Healey Car & Truck Leasing, Inc., 41 Conn. App. 347, 348, 675 A.2d 919, cert. granted on other grounds, 238 Conn. 901, 677 A.2d 1375 (1996) (appeal dismissed December 18, 1996, certification improvidently granted).

Considering the evidence in this case in the light most favorable to the defendant, we conclude that there existed conflicting evidence that warranted full consideration by a jury. See id., 350. There was evidence that Testo was on the premises on January 26, 1993, and that he retained keys to his business and did not return them until February 1, 1993. Further, there was some evidence that Testo was responsible in January, 1993, for snow and ice removal on the premises, and that Testo had installed a sump pump in the basement of the premises. The plaintiff and Testo had a business relationship, and the plaintiff had come to say goodbye to Testo. There also was evidence that while the written lease between the defendant and Testo had been terminated, a month-to-month tenancy was in effect in January, 1993, between the parties, and Testo physically occupied the premises until January 28, 1993.

In light of the evidence presented, the issue of control of the premises, a question of fact; see Smith v. Housing Authority, 144 Conn. 13, 16, 127 A.2d 45 (1956); was in conflict. The court therefore should not have concluded that a jury could not, without speculation, have returned a verdict for the defendant against Testo.

The judgment is reversed only as to the granting of the third party defendant’s motion for a directed verdict and the case is remanded for a new trial on the third party complaint.

In this opinion the other judges concurred.

       The third party defendant failed to file a brief; the appeal was considered on the defendant’s brief only. The term defendant in this opinion refers only to Esther Molin.

       The jury returned a verdict for the plaintiff against the defendant for $630,669.69. The defendant moved to set aside the verdict and for aremittitur. Her motions were denied and she filed this appeal. As part of the appeal, the defendant claims that the court improperly (1) directed a verdict for the third party defendant and (2) excluded evidence purporting to show the third party defendant’s criminal convictions. Because we agree with the defendant on her first claim, we do not reach the issue concerning the excluded evidence.

       The defendant sought to withdraw the third party complaint against Testo, and Testo and the plaintiff objected to the defendant’s oral motion. The trial court denied the defendant permission to withdraw the complaint against Testo and thereafter granted Testo’s motion for a direct verdict.

       The responsibility for snow and ice removal rested on Testo in the original lease; whether Testo continued to assume this obligation through his actions and continued possession of the premises would be a question of fact for the trier of fact to determine.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    CAROL TAYLOR v. JOSEPH TAYLOR
    (AC 17677)
    Foti, Zarella and Dupont, Js.

      Argued January 13
    officially released May 2, 2000

      RaymondL. Baribeault, Jr., with whom, on the brief, was Jeffrey W. Hill, for the appellant (defendant).

      Stephen E. Reck, for the appellee (plaintiff).
   Opinion

DUPONT, J.

This is an appeal by the defendant, Joseph Taylor, from the judgment of the trial court granting the motion of the plaintiff, Carol Taylor, to compel the defendant specifically to perform the terms of the parties’ separation agreement pertaining to certain stock options. The agreement was executed in connection with an action for the dissolution of the marriage of the parties. The primary issue is whether the stock options to be divided, as provided in the agreement, include both exercisable and nonexercisable options. The defendant also appeals from the denial of his motion to reargue and for reconsideration. We affirm the judgment of the trial court.

The basic claim of the defendant is that by granting the motion to compel, the court impermissibly modified the property provisions of the parties’ separation agreement. The agreement became “a part of the file,” and the judgment of dissolution of marriage recited its terms. At issue is the construction of paragraph six of the property settlement section of the agreement, which is part of the judgment and an order of the court. The court ordered the defendant to divide all stock options granted to him at the time of the dissolution on July 25, 1997. The court, in its memorandum of decision, emphasized the words of the agreement, which provided that the parties will divide “the remaining options vested as of the date of dissolution.” The court held that the agreement dealt with stock options, both exercisable and nonexercisable, and that if the defendant owned the options on the date of dissolution, they were subject to and covered by the parties’ agreement. The defendant argued to the trial court, as he does to this court, that options that had been granted as of the time of the dissolution but were not yet exercisable were not included in the division. The defendant claims that the court impermissibly modified a postjudgment property distribution to which the parties had agreed.

An agreement of the parties executed at the time of dissolution and incorporated in the judgment is a contract of the parties. Issler v. Issler, 250 Conn. 226, 234-35, 737 A.2d 383 (1999). The construction of a contract to ascertain the intent of the parties is a question of law when the contract is unambiguous within the four comers of the instmment. See Grass v. Grass, 47 Conn. App. 657, 662, 706 A.2d 1369 (1998). Our review in such cases is plenary. See Branch v. Occhionero, 239 Conn. 199, 205, 681 A.2d 306 (1996). We conclude that in this case the language of the parties’ agreement is unambiguous.

The plaintiff relies on the case of Bornemann v. Bornemann, 245 Conn. 508, 752 A.2d 978 (1998), which had not yet been decided at the time the motion to compel was heard or this appeal was taken, but which had been decided at the time the trial court articulated its decision and at the time the briefs and oral argument were presented to this court. We may apply it retroactively to the extent that it is relevant because the judgment in Bomemann is not limited by its terms to prospective application in other cases and the present case was pending in this court at the time Bomemann was decided. Marone v. Waterbury, 244 Conn 1, 10-11, 707 A.2d 725 (1998); Perkins v. Fasig, 57 Conn. App. 71, 75, 747 A.2d 54 (2000).

Bomemann held that stock options not yet vested are marital property and are available for distribution pursuant to General Statutes § 46b-81. Bornemann v. Bornemann, supra, 245 Conn. 514-15. The court in Bomemann was not involved in the interpretation of an agreement of the parties as is true here. In the present case, unlike in Bomemann, we must determine if the intent of the parties was to include both exercisable and not yet exercisable stock options in the language of the agreement.

The defendant argues that although Bomemann would not prevent the parties from entering into an agreement that provided that the plaintiff would receive exercisable and nonexercisable stock options, they did not so agree. The defendant, therefore, views the order of the trial court as a modification of the agreement. The defendant asserts that the agreement is clear and unambiguous and does not include a division of “all stock options which were granted to [the defendant] as of July 25, 1997,” as the court ordered, but only those that had vested. The defendant views “vested” as meaning exercisable as of the date of the dissolution. The question is whether, when read in the context of the entirety of paragraph six, the parties intended unambiguously to include all options, whether exercisable or not yet exercisable, in the word “vested.”

The Superior Court has jurisdiction to assign property in connection with a dissolution of marriage action, in accordance with § 46b-81, but unlike periodic alimony or child support, which usually are modifiable, the assignment of property is nonmodifiable. Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980); Berg v. Berg, 24 Conn. App. 509, 513, 589 A.2d 885, cert. denied, 219 Conn. 908, 593 A.2d 134 (1991). The defendant claims that the court improperly construed the word “vested” in the agreement to include options that are both exercisable as of the date of the dissolution and not yet exercisable as of the date of dissolution.

The agreement provides that “[ojptions shall be divided evenly as to each group which becomes exercisable.” (Emphasis added.) The word “becomes” implies a future event. The word “becomes,” as used, indicates that some options that are the subject of the agreement are presently exercisable and that some will become exercisable in the future.

Section 46b-81 does not define “vested,” and we may, therefore, look to common usage and dictionaries for its definition. Lopiano v. Lopiano, 247 Conn. 356, 364, 752 A.2d 1000 (1998). “Vested” is a term of art meaning a fixed right in the present to enjoy a right that can exist in the future. Ballentine’s Law Dictionary (3d Ed. 1969). The fact that a right is contingent on a future event does not mean that the right is only an expectancy. A vested right can be contingent on a future event, such as continued employment or death. Krafick v. Krafick, 234 Conn. 783, 788 n.12, 797, 663 A.2d 365 (1995). Although it is instructive to refer to common usage and dictionaries for the meaning of the word “vested,” this case does not turn on any classic definition of the word or on its definition in cases that do not involve a written agreement of the parties; see Bornemann v. Bornemann, supra, 245 Conn. 517-18; but concerns the meaning of it as used by the parties in their particular agreement.

In the parties’ agreement, the intent manifested by the words used is that the stock options described as “vested” are those presently existing, which encompass two types, those exercisable and those not yet exercisable. Extrinsic evidence that a third party, such as the defendant’s employer, would define “vested” differently is irrelevant when the words of the agreement plainly indicate otherwise.

The contract here is not ambiguous, and the vested options, whether matured or not yet matured, were included in the parties’ agreement as a matter of law. The court did not open the judgment or modify it, but compelled the defendant to comply with the judgment.

The defendant also claims that the court improperly denied his motion to reargue and for reconsideration. Our standard of review regarding challenges to a trial court’s ruling on such a motion is abuse of discretion. Federal Deposit Ins. Corp. v. Thompson, 56 Conn. App. 82, 89, 741 A.2d 972 (1999). In his motion, the defendant made the same claims to the court as he did at trial, and failed to present to the court any new claims or authority that would warrant the court’s changing its decision. The court, therefore, had no reason to exercise its discretion in favor of the defendant on the basis of the claims presented in his motion. Furthermore, the defendant failed to address this issue adequately in his brief. The defendant has provided this court with no analysis, nor has he cited to any authority, as to why the trial court abused its discretion in denying his motion. We therefore deem this issue abandoned. See In re Antonio M., 56 Conn. App. 534, 545, 744 A.2d 915 (2000); Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351, 735 A.2d 357, cert. denied, 251 Conn. 916, 740 A.2d 864 (1999).

We hold that the trial court correctly granted the motion to compel and did not abuse its discretion in denying the motion to reargue and for reconsideration.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed both a motion to compel, dated August 28, 1997, and a motion to open the judgment, dated August 18, 1997, because of “mutual misunderstanding between the parties or, in the alternative,” because the defendant is “attempting to misconstrue the agreement of the parties to his advantage.” At oral argument in the trial court, the plaintiff elected to proceed on the motion to compel only. We do not consider the motion to open the judgment as an admission of the plaintiff that the agreement is ambiguous.

       The agreement provides in relevant part: “As it relates to the division of the remaining stock options, [the defendant] shall receive one-half plus $20,000.00 of the remaining options vested as of the date of dissolution. The additional value represents his share of the equity from the marital residence. Therefore, [the plaintiff] shall receive one-half of the options less $20,000.00, valued as of the same date. In order to effect this division and to compensate [the defendant] for his share of the [marital residence] equity remaining with [the plaintiff], the parties shall consult with the same certified public accountant to determine the amount of shares and the options that should be assigned to [the defendant]. After that is accomplished, the remaining shares shall simply be divided equally between the parties. Options shall be divided evenly as to each group which becomes exercisable. Parties may exercise immediately when options available or may chose to hold for higher return. Because [the defendant] is the only person permitted to exercise these options, he shall then exercise and sell [the plaintiffs] remaining shares at times specified by [the plaintiff] such that she is awarded the net amount of these shares. The net amount shall be defined as the same formula heretofore defined in the College Educational paragraph. All assignments from the Pfizer savings investment plan and Irish 401k Plan shall be assigned to [the plaintiff] by way of Qualified Domestic Relations Order. The court shall retain jurisdiction over the Qualified Domestic Relations Order and the actual division of these assets in order to effect the intent of this agreement.”

       To the extent that the defendant seeks to use Bornemann v. Bornemann, supra, 245 Conn. 517-18, for the proposition that the definition of vested is restricted to only options that have matured, we disagree. We do not interpret Bornemann’s statement that the stock options in that case were marital property despite the fact that the stock options had not matured or vested at the time of the dissolution to mean that matured and vested are synonymous. We note that “matured” and “vested” are in quotes and separated by the disjunctive “or” in that sentence of Bornemann. Id., 517.


author: MIHALAKOS, J.

text:
    ROBERT RABOIN v. NORTH AMERICAN INDUSTRIES, INC., ET AL.
    (AC 19021)
    Spear, Hennessy and Mihalakos, Js.
    Argued January 21
    officially released May 2, 2000

      Ron Murphy, with whom was Michael G. Rigg, for the appellant (plaintiff).

      Peter W. Hull, with whom were Heather Rhoades and, on the brief, William H. Narwold, for the appellee (defendant General-Signal Coiporation).
   Opinion

MIHALAKOS, J.

The plaintiff, Robert Raboin, appeals from the summary judgment rendered in favor of the defendant General Signal Coiporation (General Signal). On appeal, the plaintiff claims that the trial court improperly granted General Signal’s motion for summary judgment because there are genuine issues of material fact in dispute. We agree and reverse the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. The plaintiff alleges, in his complaint, that General Signal owned a foundry building in the Terryville section of Plymouth. In the summer of 1993, General Signal hired several independent contractors to perform various renovations on the foundry building. The plaintiffs business, Handling Resources, Inc., also was hired to work on the renovations to the foundry.

On August 24, 1993, the plaintiff suffered injuries as a result of an electric shock while working in General Signal’s building. While attempting to leave the premises, the plaintiff walked around a portable lift that was owned by General Signal and was being used by employees of the named defendant, North American Industries, Inc. (North American). The plaintiff was shocked when he came in contact with the lift and a metal stair railing beside the lift. Prior to these events, Juan Mata, an employee of North American, received an electric shock when he came in contact with the lift and metal stair railing. As a result of Mata’s minor shock, North American summoned employees of General Signal to investigate the cause of the shock. General Signal employees investigated and were not able to determine the source of the shock.

A subsequent investigation of the accident by General Signal revealed that a badly frayed extension cord, which was being used by a North American employee, had caused the lift and stair railing to become electrified. In 1995, the plaintiff filed a complaint against both North American and General Signal, alleging that his injuries were caused by the negligence of General Signal, its agents and employees. On July 13, 1998, after more than three years of discovery, General Signal moved for summary judgment. General Signal argued that it owed no duty to the plaintiff to protect him from the alleged negligence of the codefendant, North American. The trial court granted General Signal’s motion for summary judgment on November 2, 1998. The plaintiff claims that the court improperly granted General Signal’s motion for summary judgment.

The dispositive issue for this court to decide in this appeal is whether there exists a genuine issue of material fact regarding General Signal’s duty to the plaintiff and if a breach of this duty caused the plaintiffs injuries. We conclude that there is a genuine issue of material fact.

Our review of a trial court’s rendering of summary judgment takes place within certain defined parameters. This court has held that “[o]n appeal . . . the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous. 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).” (Internal quotation marks omitted.) Crystal Lake Clean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 147, 728 A.2d 1145, cert. denied, 250 Conn. 920, 738 A.2d 654 (1999). It is appropriate to render summary judgment only where there is no genuine issue of material fact. “Summary judgment should 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 passing on the defendant’s motion for summary judgment the trial court was limited to deciding whether an issue of fact existed, but it could not try that issue if it did exist.” (Citation omitted; internal quotation marks omitted.) Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971).

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Citicorp Mortgage, Inc. v. Porto, 41 Conn. App. 598, 601, 677 A.2d 10 (1996). Simply, the granting of summary judgment is appropriate only “if a fair and reasonable person could conclude only one way.” Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). Summary judgment was improperly rendered in the present case because the question of duty involves elements of both fact and law.

The plaintiff claims that the trial court improperly granted summary judgment on the basis of the defendant’s assertion that it did not owe the plaintiff a duty of care. We agree. General Signal incorrectly relies on Douglass v. Peck & Lines Co., 89 Conn. 622, 95 A. 22 (1915). In Douglass, our Supreme Court held that a contractee or proprietor is not liable for injuries caused by an independent contractor to another person. Id., 627. Douglass does not, however, act as a general grant of immunity to employers. An employer owes a duty of care to business invitees such as independent contractors. “Ordinarily, an employer of an independent contractor, absent an act of negligence on his own part, is not liable to others for the negligent acts of the contractor. [Id.] There are, however, several exceptions to the nonliability rule. For example, where the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation, the employer may be vicariously liable to others for the negligent acts of the independent contractor.” Ray v. Schneider, 16 Conn. App. 660, 663-64, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988). The first exception to the nonliability rule applies to the current situation because in inspecting the foundiy, General Signal retained control of the premises. The trial court improperly assumed that the inspection by General Signal was reasonable on the basis of the erroneous conclusion that General Signal did not owe the plaintiff a duty to provide a safe working environment. A genuine issue of material fact exists as to whether the inspection was reasonable given General Signal’s assumption of control over the foundry area where the independent contractors were working.

General Signal was informed of the shock and accepted the obligation of inspecting the foundry. General Signal therefore assumed the duty to inspect with reasonable care to prevent an injury by electric shock. “[Wjhether the owner remain[s] in partial use of the premises or not, he is [still responsible] for injury caused to the contractor or his servants by his own negligence.” (Internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 41, 718 A.2d 425 (1998), rev’d on other grounds, 250 Conn. 14, 734 A.2d 85 (1999).

“The defendant relies on a dictum in Douglass v. Peck & Lines Co., [supra, 89 Conn. 629], reading as follows: The owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. But if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this he is hable for resultant injury. The same rule applies to the servants of the contractor and to the subcontractor and his servants. This statement was not applicable to the facts of the case cited because the injury there complained of was not due to the condition of the property. It applies to a situation where the contractor has control of that portion of the premises where the accident occurs. It does not apply where the owner has retained or assumed control thereof. The complaint of the defendant is based on the refusal of the trial court to limit the duty of the defendant to one of warning of a hidden danger. In the case at bar, the owner was in possession and control, and the statement in the Douglass case does not apply.” (Internal quotation marks omitted.) Reboni v. Case Bros., Inc., 137 Conn. 501, 506-507, 78 A.2d 887 (1951).

General Signal could not absolve itself of its duty to its business invitees, including the various contractors that General Signal hired. As a matter of law, General Signal owed a duty to the plaintiff to keep the premises in a reasonably safe condition. Whether that duty was breached and whether there is a causal connection between the breach and the plaintiffs alleged injuries are questions of fact for a jury to resolve. General Signal was not entitled to summary judgment.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiffs case against North American was still pending at the time of oral argument.

       The trial court acknowledged that General Signal maintained control of the foundry, but incorrectly assumed that the inspection was reasonable and that títere was no duty owed by General Signal to the plaintiff.

       The Supreme Court originally affirmed the judgment for the plaintiff holding that “[t]he jury in this case determined that the plaintiffs injuries were caused by the defendant’s negligence in ‘[flailing to supervise its employees, servants, and agents and failing to instruct them to avoid activating the burner or boiler while [the plaintiff] was cleaning the boiler.’ Therefore, regardless of whether the defendant was in control of the boiler room and its related mechanisms, its negligence caused the injury to the plaintiff.” Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 41-42. On reconsideration, the Supreme Court decided that the evidence was not sufficient to support the jury’s determination.

       See Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 149, 727 A.2d 219, cert. granted on other grounds, 248 Conn. 920, 734 A.2d 569 (1999).


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. THOMAS A. DAVIDSON
    (AC 18085)
    Schaller, Spear and Dupont, Js.
    Argued November 1, 1999
    officially released May 2, 2000

      Christopher J. Shea, with whom, on the brief, was Dennis M. McManus, for the appellant (defendant).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Anthony Bochicchio, deputy assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Thomas A. Davidson, appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere, of operating a motor vehicle while his driver’s license was under suspension in violation of General Statutes (Rev. to 1995) § 14-215 (c). The defendant claims that (1) his special operator’s permit, which allowed him to drive for employment purposes between the hours of 6 a.m. and 6 p.m., precluded a prosecution pursuant to § 14-215 (c) for operating a vehicle at some other time, (2) the enactment of General Statutes § 14-37a, 3which authorizes the commissioner of motor vehicles (commissioner) to issue special operator’s permits for employment purposes to persons whose driver’s licenses have been suspended, renders § 14-215 (c) both unconstitutionally vague on its face and as applied to him, and (3) prosecuting him for operating a motor vehicle while his license was under suspension violated his constitutional right to procedural due process because he was not afforded a license suspension hearing. We affirm the judgment of the trial court.

The following are the undisputed facts and procedural history of this case. On November 30, 1996, at approximately 11:30 p.m., the defendant was stopped by police at a sobriety checkpoint on Route 195 in the town of Mansfield. After determining that the defendant’s license was under suspension for a prior conviction of operating a motor vehicle while under the influence of alcohol in violation of General Statutes § 14-227a, the police officer at the checkpoint issued a motor vehicle summons charging the defendant with operating a motor vehicle while his license was under suspension in violation of § 14-215 (c).

The defendant thereafter moved to dismiss the charge, claiming that his special operator’s permit immunized him from criminal prosecution pursuant to § 14-215 (c). The court ultimately denied the motion because the commissioner could not, in effect, immunize holders of work permits from criminal prosecution by granting work permits.* ** The court concluded that “the actions of the commissioner cannot define the limits of the criminal law.” The court also rejected the defendant’s constitutional claims that he was not provided with fair warning of the penalties for the prohibited act and that his right to due process was violated. The court concluded that the work permit “specifically warns the defendant that ‘[t]his permit has been issued by the Commissioner of Motor Vehicles . . . and entitles the within named operator, who is under license suspension, to operate a motor vehicle only to and from the operator’s place of employment or, if the operator is not employed at a fixed location, only in connection with, and to the extent necessary, to properly perform the operator’s business or profession.’ ” (Emphasis in original.) The court concluded that the statute and the warnings contained on the permit were sufficiently clear to warn of the forbidden acts and the penalties associated with those acts “to meet constitutional requirements.”

After the court denied the motion to dismiss, the defendant entered a conditional plea of nolo contendere to the charge of violating § 14-215 (c). The court thereafter imposed sentence and this appeal followed.

I

The defendant claims that his special permit to drive between the hours of 6 a.m. and 6 p.m. precluded prosecution for operating a motor vehicle while his license was under suspension in violation of § 14-215 (c) because § 14-37a (d) contains a separately stated penalty for violating the terms of the special permit. That penalty, the defendant argues, is the only one available to the state when the holder of such a special permit operates outside of the times allowed by the permit. The defendant claims that this is so because by including such specific penalties in § 14-37a (d), the legislature necessarily intended to exclude other penalties, such as those set forth in § 14-215 (c).

The defendant conceded at oral argument that this issue was resolved adversely to him in State v. Valinski, 53 Conn. App. 23, 28-29, 731 A.2d 311, cert. granted on other grounds, 249 Conn. 924, 733 A.2d 847 (1999). In that case, we held that as a matter of statutory construction “[t]he plain meaning of § 14-215 conveys a clear intention to provide the state with the legal authority to prosecute any person who operates a motor vehicle outside the scope of the work permit while his or her license is under suspension.” (Emphasis in original.) Id., 30-31. Valinski controls the defendant’s claim and compels us to reject it.

II

We now turn to the defendant’s claim that § 14-215 (c) is unconstitutionally vague.

A

We first address the defendant’s claim that § 14-215 (c) is unconstitutionally vague as applied to him. “Our Supreme Court has recognized that vague statutes fail to give fair warning to persons who may be affected by the statute as to what conduct is prohibited. A statute should be reasonably specific and direct enough so that a person of ordinary intelligence has a reasonable opportunity to govern his or her behavior by reference to the words of the statute together with available judicial gloss. State v. Ryan, 48 Conn. App. 148, 153, 709 A.2d 21, cert. denied, 244 Conn. 930, 711 A.2d 729, cert. denied, 525 U.S. 876, 119 S. Ct. 179, 142 L. Ed. 2d 146 (1998). Moreover, although [t]he constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties; State v. Erzen, 29 Conn. App. 591, 594, 617 A.2d 177 (1992); [a] penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning.” (Internal quotation marks omitted.) State v. Tucker, 50 Conn. App. 506, 510, 718 A.2d 979 (1998), appeal dismissed, 248 Conn. 668, 728 A.2d 1097 (1999).

The crux of the defendant’s claim is that the inclusion of penalties in § 14-37a (d) puts a person of ordinary intelligence who obtains a special work permit on notice only of the penalties for violating the permit’s conditions and that such a person would not be fairly warned that the penalties in § 14-215 (c) would apply. We disagree.

“Where a statute is attacked as void for vagueness, and no first amendment rights are implicated, the constitutionality of the statute is determined by its applicability to the particular facts at issue.” State v. Ryan, supra, 48 Conn. App. 153. The facts here, which do not involve first amendment issues, defeat the defendant’s claim. First, as the trial court noted, the terms of the special permit, printed on the permit itself, notify the defendant that his license is still under suspension. That information alone is sufficient to give the defendant fair warning that driving outside the parameters of the work permit could expose him to the penalties for operating while his operator’s permit was under suspension.

“Our Supreme Court has described the principle of fair warning as a principle which mandates that as a matter of due process a penal statute must be sufficiently definite to enable a person to know what conduct he must avoid. ... [A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. . . . A determination of fair warning is ascertained in several ways. We review prior case law to determine whether the defendant had fair warning that his acts violated [§ 14-215 (c)] [and we] . . . also look to see whether a person of ordinaiy intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinaiy understanding.” (Citations omitted; internal quotation marks omitted.) State v. Tucker, supra, 50 Conn. App. 510-11.

Under the circumstances here, a person of reasonable intelligence applying common sense would be on fair notice that operating outside the parameters of the special operator’s permit would subject him to prosecution for operating a motor vehicle while his license was under suspension. It defies common sense and reason to assume that the state’s allowance of special operator’s permits was meant to preclude prosecution pursuant to § 14-215 (c). As the state points out in its brief, this could lead to the absurd result of a party who does not obtain a special operator’s permit being subject to mandatory incarceration if convicted of operating a motor vehicle while under suspension whereas the holder of the special permit would be subject only to a $500 civil penalty pursuant to § 14-37a. Further, § 14-37a limits its application to persons “whose operator’s license[s] [have] been suspended.” By applying for such a permit, the defendant demonstrated that he clearly understood that his license was under suspension. Finally, the defendant is not accused of making an improper use of the special operator’s permit, such as altering it or lending it to another person. The penalties for such improper use are, therefore, irrelevant under the circumstances here.

We conclude that § 14-215 (c) is not impermissibly vague as applied to the defendant. The legislature carefully crafted § 14-37a to allow special permits to alleviate the hardship on persons who lose their licenses because of certain motor vehicle convictions. The special permit allows such persons to maintain their employment and nothing in § 14-37a renders § 14-215 (c) impermissibly vague as applied.

B

The defendant’s facial vagueness challenge warrants little discussion. “To prevail on a facial vagueness chailenge, the defendant must show that the statute has no core meaning. If at least one application is not vague, the challenge cannot succeed. Additionally, the defendant’s burden is made more difficult by the strong presumption favoring the constitutionality of statutes.” State v. Ryan, supra, 48 Conn. App. 152-53. Having failed in his attempt to convince us that the statute is vague as applied to him, the defendant, a fortiori, cannot prevail on his facial vagueness claim.

Ill

Finally, the defendant claims for the first time that his constitutional right to procedural due process was violated because he was not afforded a license suspension hearing. We cannot conceive of any reason why the defendant should have been entitled to a hearing on the question of whether his already suspended license should be suspended or why the lack of such a hearing should affect his conviction. Accordingly, the defendant has not been denied any right to procedural due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 14-215 (c) provides in relevant part: “Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension ... on account of a violation of subsection (a) of section 14-227a . . . shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty consecutive days of which may not be suspended or reduced in any manner.”

       General Statutes § 14-37a (a) provides in relevant part: “Any person whose operator’s license has been suspended . . . may make application to the Commissioner of Motor Vehicles for a special permit to operate a motor vehicle to and from such person’s place of employment or ... in connection with, and to the extent necessary, to properly perform such person’s business or profession.”

       The defendant claims that the court violated one or both of his rights to due process and equal protection of the laws pursuant to the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constituí ion. We review only his federal constitutional claims because he did not separately brief his state constitutional claim. See Fishbein v. Kozlowski, 252 Conn. 38, 53 n.10, 743 A.2d 1110 (1999).

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drag or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district, organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       The court earlier had denied the defendant’s motion to dismiss without prejudice because the defendant had not presented any evidence that he in fact had a “work only” permit at the time of his arrest. The defendant thereafter renewed the motion and provided the court with evidence of his work only permit, and the court denied the motion on the merits.

       General Statutes § 14-37a (d) provides: “Any person issued a special operator’s permit pursuant to this section who operates a motor vehicle during 1he period of the permit for apurpose not authorized by the conditions of the permit shall, upon receipt of written report of a police officer, in such form as the commissioner may prescribe, of such unauthorized operation, be subject to a civil penalty of not more than five hundred dollars. Any person who makes improper use of a special operator’s permit issued pursuant to this section or in any manner alters any such permit or who loans or sells such permit for use by another person shall be subject to the penalties provided by section 14-147.”
      General Statutes § 14-147 is titled, “Improper use of marker, registration or license.” Section 14-147 provides penalties ranging from $100 to $300 or thirty days incarceration or both for any person who counterfeits, alters, gives, loans or sells such counterfeited or altered license, or loans or sells any operator’s license, or uses any operator’s license other than the one issued to him by the commissioner.

       The defendant concedes that Valinski controls this issue, but not his constitutional claims.

       The defendant claims that the conviction here impermissibly burdens his constitutional right to travel and, therefore, he should be allowed to posit hypothetical situations in which the statute would not give fair warning. We reject this claim because (1) it is inadequately briefed and (2) we fail to comprehend how, in any circumstances, prosecuting a person for operating while his or her license is suspended impermissibly burdens the right to travel. To so hold would mean that the state is powerless to prevent a person from operating a motor vehicle on its highways after a conviction of operating while under the influence and a resulting license suspension.


author: LAVERY, J.

text:
    JOAQUIN RODRIGUEZ v. COMMISSIONER OF CORRECTION
    (AC 18816)
    Lavery, Schaller and Healey, Js.

    Argued March 2
    officially released May 2, 2000

      Vicki H. Hutchinson, for the appellant (petitioner).

      Toni M. Smith-Rosario, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVERY, J.

The petitioner, Joaquin Rodriguez, appeals from the habeas court’s denial of his petition for a writ of habeas corpus. He claims that the habeas court improperly determined that his trial counsel provided effective assistance. We affirm the judgment of the habeas court.

The following facts are relevant to the resolution of this appeal. In 1987, the petitioner was convicted, following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70. The petitioner fled the state prior to the rendering of the jury’s verdict and was sentenced in absentia to a term of eighteen years incarceration. In 1993, he was extradited to Connecticut and was sentenced to an additional term of two years for failure to appear in the first degree in violation of General Statutes § 53a-172. The petitioner then was committed to the custody of the respondent, the commissioner of correction.

In 1997, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel. Following a hearing, the habeas court denied the petition, finding that the petitioner had not demonstrated that counsel was not reasonably competent or that any lack of competency by counsel contributed to the petitioner’s conviction. The petitioner then filed a petition for certification to appeal, which was granted by the habeas court, and this appeal followed.

The petitioner’s sole claim on appeal is that the habeas court improperly concluded that although counsel failed to provide the petitioner with an interpreter throughout his trial, counsel nevertheless provided effective representation. 6 The petitioner claims that he needed the assistance of an interpreter to communicate with his counsel during the testimony of English speaking witnesses so as to assist his counsel effectively to cross-examine those witnesses. Therefore, because trial counsel failed to provide an interpreter for the entire trial, the petitioner claims that he did not receive effective assistance of counsel as guaranteed by the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. We agree with the habeas court.

A habeas court’s findings of fact will not be disturbed unless they are clearly erroneous. Morrison v. Commissioner of Correction, 57 Conn. App. 145, 147, 747 A.2d 1058 (2000). Questions of law, however, including whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel, are subject to plenary review. Id.

To prevail on a claim of ineffective assistance of counsel, the petitioner must establish both that his trial counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s mistakes, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992); Birch v. Commissioner of Correction, 57 Conn. App. 383, 384, 749 A.2d 648 (2000). To satisfy the first prong of the Strickland test, the petitioner must show that the representation fell below an objective standard of reasonableness, considering all of the circumstances. Strickland v. Washington, supra, 687-88. Our Supreme Court has interpreted this to mean that trial counsel made errors so serious that he or she was not functioning as counsel guaranteed by the constitution. Bunkley v. Commissioner of Correction, supra, 455. To satisfy the second prong of the test set forth in Strickland, the petitioner must prove actual prejudice, namely, that trial counsel’s mistakes deprived him of a fair hearing and that but for counsel’s mistakes, the result of the hearing would have been different. Strickland v. Washington, supra, 694. Accordingly, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id., 691.

Our Supreme Court has held that continuous translations are required at trial “when a non-English speaking defendant cannot understand or appreciate the proceedings.” (Internal quotation marks omitted.) State v. Munoz, 233 Conn. 106, 132, 659 A.2d 683 (1995). Elaborating on this principle, the court has stated that “under appropriate circumstances, a [non-English speaking] defendant’s [constitutional rights] . . . may be violated if he is not provided with [an] . . . interpreter . . . [for] the testimony of English speaking witnesses and interpreting between him and his English speaking counsel during the testimony of all witnesses . . . .” Id., 133. The court has cautioned, however, that “[a] critical factual underpinning of these constitutional requirements ... is that the defendant has so limited an understanding or ability to speak English that his ability to comprehend the proceedings and to communicate with his counsel is significantly impaired,” adding that “the basic constitutional inquiry is whether [the failure to provide an interpreter throughout the entire trial] made the trial fundamentally unfair . . . and the failure to provide continuous, word-for-word translation will require a new trial only upon such a showing of fundamental unfairness.” (Citations omitted; internal quotation marks omitted.) Id., 133-34.

Applying this standard to the facts as found by the habeas court, we are persuaded that the failure to provide the petitioner with an interpreter during the entirety of the trial did not deprive him of any constitutional rights. The record indicates that the petitioner adequately understood and could communicate adequately in English. Although English was his second language, he indicated that he understood the nature of the witnesses’ testimony.

The petitioner points to isolated portions of the trial court transcript in support of his claim that he was unable to understand English and that as a result, he was unable to comprehend what transpired during the trial, including the testimony of the state’s witnesses, and was unable, therefore, to assist his counsel with his defense. The habeas court, however, found that the trial court transcript, taken as a whole, reflects that the petitioner had a command of English sufficient to enable him to understand the testimony rendered against him and to assist his counsel in preparing to cross-examine those witnesses.

Prior to presenting the petitioner’s defense, trial counsel brought to the attention of the trial court that an interpreter might be necessary to assist the petitioner with his testimony. After the trial court was so informed, it questioned the petitioner directly to confirm that he had understood the testimony of the state’s witnesses and that he was able to assist his counsel with his defense. The following colloquy occurred:

“The Court: Are you telling us you don’t understand these proceedings?
“[The Petitioner]: No.
“The Court: You do not understand the testimony of the officers?
“[The Petitioner]: Some of the things, but I don’t know the big words that people use. . . .
“[Sheriff]: He’s saying he doesn’t understand the big words.
“The Court: The scientific words. Well, did you understand [the victim’s] testimony?
“[The Petitioner]: Yeah, I understand. . . .
“The Court: Did you understand [the victim’s sister’s] testimony?
“[The Petitioner]: Yeah.
“The Court: Did you understand [the victim’s brother-in-law’s] testimony?
“[The Petitioner]: Yeah.
“The Court: Did you understand Officer Tardif s testimony? . . .
“[The Petitioner]: Yeah. . . .
“[Defense Counsel]: I think [he has] understood all of the testimony.”

Following a recess, the trial court continued its inquiry into whether the petitioner understood the testimony of the witnesses and was able to assist his counsel with his defense:

“The Court: [I]t’s my understanding there was some conversation . . . [by the petitioner’s trial counsel with the petitioner] as to whether or not he understood the proceedings and comprehended what they were up until this point in time, and the indication I received was that he did understand them and was fully aware and cognizant of all that transpired here in the courtroom. Is that correct . . . ?

“[The Petitioner]: Yes, yes.

“The Court: And that one of the problems that he did have is, when we were talking about the deposition of Sergeant Fuller, he didn’t fully understand what a deposition was? . . .

“The Court: Is that correct . . . ?

“[The Petitioner]: Yes. . . .

“The Court: [Y]ou indicated to me that although you understand very well, you’re not able to express yourself as well . . . and that’s one of the reasons you’re using the interpreter during the defense portion of this trial .... Is that correct?

“[The Petitioner]: Yes.

“The Court: [B]ut you’ve had no problem up to this point with the testimony that has been presented, maybe a couple of the technical terms of the doctors, such as acid phosphatase. You might have had a problem with that type of word, but that’s a . . . scientific term and probably all of us would have a little problem, is that correct?

“[The Petitioner]: Correct.

“The Court: All right, but, you understood what the doctors were testifying to?

“[The Petitioner]: Well, yeah, I understand, sir.

“The Court: And you understood what the police officers and [the victim] testified to?

“[The Petitioner]: Yeah.

“The Court: And her sister and brother-in-law? “[The Petitioner]: Yes. . . .

“The Court: You haven’t had any problem understanding what I’ve said to you this morning, have you?

“[The Petitioner]: No, sir.”

Following this questioning, which took place over the course of two days of trial, the trial court was satisfied that the petitioner adequately could understand English and that the petitioner’s lack of comprehension was confined to “big” or highly technical terms, which, the trial court concluded, would not be understood by the majority of English speaking laypersons. The habeas court reached a similar conclusion on the basis of its review of the relevant portions of the transcript quoted previously.

At the habeas hearing, there was further evidence regarding the petitioner’s bilingual ability. The petitioner’s trial counsel testified that during the course of his representation, he was able to communicate with the petitioner in English and that the petitioner was able to respond in English. Counsel also testified that during the trial, he and the petitioner were able to discuss the witnesses’ testimony to prepare for cross-examination and that he did not have to tell the petitioner what the witnesses said to discuss with him their testimony.

On the basis of this evidence, the habeas court concluded that “the absence of an interpreter at trial did not render the trial fundamentally unfair because, as indicated by the [relevant] portions of the trial transcript . . . the petitioner was able to adequately understand English and could adequately communicate in English. . . . [I]t is apparent that he understood the substance of the testimony and was able to comprehend the proceedings of the trial. . . . [H]is ability to comprehend the proceedings and to communicate with his counsel was [not] significantly impaired. Therefore, even if the petitioner possessed some inadequacy in the comprehension and interpretation of the more complicated words of the testimony and proceedings, this inadequacy did not render the trial fundamentally unfair . . . .”

On the basis of our review of the record, we cannot say that the habeas court’s findings of fact were clearly erroneous. That court’s denial of the amended petition for a writ of habeas corpus was based properly on a review of the petitioner’s claim and the finding that he did not demonstrate that he needed an interpreter throughout the trial or that the absence of an interpreter affected its outcome. Because we conclude that the habeas court’s findings of fact were not clearly erroneous and that its decision resulted from a correct application of the law to the facts, we hold that the habeas court correctly found that the petitioner had failed to carry the burden of proof required to establish that his trial counsel provided ineffective assistance.

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 (1) compels another person to engage in sexual intercourse by the use of force ... or by the threat of use of force against [another] person . . . which reasonably causes such person to fear physical injury . . .

       The petitioner’s trial counsel filed an appeal challenging the imposition of the sentence in absentia, and this court dismissed that appeal.

       General Statutes § 53a-172 (a) provides in relevant part: “A person is guilty of failure to appear in the first degree when (1) while charged with the commission of a felony and while out on bail ... he wilfully fails to appear when legally called . . . .”

       The petitioner raised other issues at the habeas hearing regarding trial counsel’s alleged failure to render adequate assistance, but he does not appeal from the dismissal of those claims.

       The petitioner, a native of Puerto Rico, is primarily Spanish speaking.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall epjoy the right ... to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense.”

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

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel ... to be confronted by the witnesses against him . . . .”

       The petitioner’s trial counsel requested the interpreter only to assist the petitioner in better expressing himself to the jury, not because the petitioner could not comprehend English.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. ARTHUR COLE
    (AC 17740)
    O’Connell, C. X, and Schaller and Daly, Js.

    Argued October 22, 1999
    officially released May 2, 2000

      Avery S. Chapman, for the appellant (defendant).

      Toni M. Smith-Rosario, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio N. Vitale, senior assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DALY, J.

The defendant, Arthur Cole, appeals from the judgment of conviction, rendered after a jury trial, of two counts of accessory to robbery in the first degree with a firearm in violation of General Statutes §§ 53a-8 and 53a-134 (a) (4), two counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4), and two counts of larceny in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-123 (a) (3). The sole issue on appeal is the defendant’s claim that the evidence presented by the state was. insufficient to sustain the conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Sunday, April 28, 1996, the defendant went to the New Haven apartment where his girlfriend’s sixteen year old nephew, Joseph Jackson, resided. Ajaye Alston, who was fifteen years old, was living in the apartment with Jackson. Alston overheard the defendant and Jackson speaking for approximately forty-five minutes concerning their plan to rob the Centerbank branch on Whalley Avenue the following day. The plan included Jackson robbing the bank and the defendant driving the getaway vehicle.

The defendant asked Alston if he would like to join them but Alston refused. The defendant berated him for his refusal, calling him derogatory names. Alston tried unsuccessfully to dissuade Jackson from proceeding with the plan. The next morning, Monday, April 29, 1996, at 10 a.m., the defendant arrived at Jackson’s apartment and awoke Jackson and Alston. Again he tried to persuade Alston to join them. Being unsuccessful, he again vilified Alston.

Shortly before noon, Jackson and the defendant drove toward Hillhouse High School in the defendant’s blue pickup truck. En route, Jackson spotted his friend, Douglas Bethea, who was fifteen years old, a truant from Transitional High School. The defendant and Jackson enlisted Bethea in the venture. Thereafter, the defendant parked his truck in a Walgreens’ store parking lot near the bank. He supplied Bethea with a pair of black nylon stockings to cover his face during the robbery. Jackson and Bethea walked to the bank and entered it at approximately 12:55 p.m. Bethea was wearing the stocking over his head, but Jackson entered barefaced. Both approached teller Patricia Byrd, who recognized Jackson because he had participated in robbing the bank approximately one month earlier. Byrd indicated her fear and moved to the teller station to her left. Jackson followed Byrd, brandished a gun, demanded money and fired a shot into the wall behind the teller station. Byrd ducked under the counter while Cynthia Daniels, another teller, agreed to give them money and passed over approximately $1200 to $1300. Jackson and Bethea, who was carrying the money in a bag, then exited the bank through the back door and ran to the truck. Along the way, while Bethea was jumping over a fence, his right sneaker became stuck on top of the fence and a dye pack exploded in the bag, covering the money. Bethea then left the bag behind.

Thereafter, Jackson and Bethea entered the truck, which was parked in front of Walgreens, and Jackson drove it along the street to where they picked up the defendant and proceeded to Jackson’s apartment. At the apartment, the defendant was livid upon discovering that Jackson and Bethea only netted $20 from the robbery. After listening to his police scanner reporting police activity at Centerbank, the defendant decided that they should rob the Bank of Boston branch on Whalley Avenue and attempted to get Bethea to go with them, but Bethea resisted.

The defendant then drove Jackson and Bethea to a Blimpie’s restaurant near the Bank of Boston branch and instructed Jackson to buy something to obtain a bag. Jackson complied and emerged with a bag with a Blimpie’s logo on it. Thereafter, the defendant drove up a hill and around the comer from the bank and remained in the tmck while Jackson and Bethea walked down the hill toward the bank.

At approximately 2:30 p.m., Jackson, wearing a black mask, entered the bank and approached teller Jodie Patel. He fired his gun into a wall and demanded money. She complied and placed approximately $8000 on the counter, which Jackson placed in the Blimpie’s bag. Jackson left the bank and returned home. The entire episode took about one hour. Upon arriving home, Jackson told Alston, “I did it.” Later, Jackson called the defendant to arrange for the purchase of a dirt bike motorcycle. Despite Alston’s warning about buying the dirt bike on the same day as the robbery, Jackson purchased a dirt bike with the proceeds of the robbery, and the defendant later purchased a used Cadillac. Later that same afternoon, Bethea and his mother came to Jackson’s apartment for Bethea’s share of the proceeds. Jackson gave Bethea some money and informed him that he would have to obtain the balance from the defendant.

Approximately two weeks after the robbery, the New Haven police department obtained statements from Alston and Bethea. Alston implicated the defendant, Jackson and Bethea. Bethea initially denied any involvement, but later stated that he had been forced to commit the Centerbank robbery, and identified the defendant and Jackson as those involved.

The defendant claims that the trial court improperly denied his motion to dismiss the information because there was insufficient evidence to support his conviction. We do not agree.

“In reviewing a sufficiency of the evidence claim, we must 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). . . . State v. Potts, 55 Conn. App. 469, 471, 739 A.2d 1280, cert. denied, 252 Conn. 905, 743 A.2d 616 (1999).

“It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. State v. Brunori, 22 Conn. App. 431, 434-35, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . State v. Hart, 198 Conn. 424, 427, 503 A.2d 588 (1986). [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983). . . . State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995).” (Emphasis in original; internal quotation marks omitted.) State v. Young, 56 Conn. App. 831, 835-36, 746 A.2d 795, cert. denied, 253 Conn. 904, 753 A.2d 939 (2000).

On the basis of the testimony of the two bank tellers, Byrd and Daniels, who stated that only one actor in each robbery could be identified, the defendant argues that there was a substantial issue of fact as to who committed the robberies and whether there was any agreement between the defendant and Jackson. The defendant also asserts that the testimony of Alston and Bethea, the witnesses produced by the state to describe his participation in the conspiracy, was tainted or incredible because Alston and Bethea were hoping to receive lenient treatment in criminal cases that were pending against them in exchange for their testimony. This claim is without merit.

We note that it is “the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... If evidence . . . should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” (Citations omitted; internal quotation marks omitted.) State v. White, 55 Conn. App. 412, 417, 740 A.2d 399, cert. denied, 252 Conn. 908, 743 A.2d 621 (1999). “The jury is free to weigh the credibility of a witness whose self-interest may motivate him to be less credible. See State v. Cooke, 42 Conn. App. 790, 796, 682 A.2d 513 (1996).” State v. Preston, 46 Conn. App. 778, 787, 700 A.2d 1190 (1997), rev’d on other grounds, 248 Conn. 472, 728 A.2d 1087 (1999). The juiy, therefore, was entitled to credit the testimony of Alston and Bethea regarding the defendant’s participation in the robberies.

After reviewing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have concluded from the facts and the inferences reasonably drawn therefrom that the evidence established beyond a reasonable doubt that the defendant had committed the crimes as charged.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”

       On the day of the robbery, the defendant was armed with a nine millimeter pistol.

       Bethea had refused to enter the second bank and walked to a nearby bus stop, where he remained until Jackson left the bank. Upon seeing Jackson exit the bank, Bethea proceeded to take a bus downtown.

       Likewise, the jury was entitled to believe or not believe the testimony of Byrd and Daniels. Because the defendant was charged and convicted under a theory of accessorial liability and not as a principal, however, the defendant’s argument that the evidence was insufficient to demonstrate that he had entered either bank or was carrying a pistol is without merit.


text:
    STATE OF CONNECTICUT v. MICHAEL A. YOUNG
    (AC 16090)
    O’Connell, C. J., and Spear and Hennessy, Js.

    Argued March 16, 1999
    officially released May 9, 2000

      Susan M. Hankins, assistant public defender, with whom were Stephanie Sweeny and Janice Wolf, certified legal interns, and, on the brief, Michael Tortora and Michael O’Donnell, certified legal interns, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Nina Rosen, supervisory assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SPEAR, J.

The defendant, Michael A. Young, appeals from the judgments of conviction, rendered after a jury trial, of three counts of criminal violation of a protective order in violation of General Statutes § 53a-110b and one count each of breach of the peace in violation of General Statutes § 53a-181 (a) (2), disorderly conduct in violation of General Statutes § 53a-182 (a) (1), reckless endangerment in the second degree in violation of General Statutes § 53a-64 and criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A). The defendant claims that the trial court improperly (1) instructed the jury that the defendant’s failure to produce a certain witness permitted the jury to infer that the witness’ testimony would have been adverse to the defendant, (2) precluded evidence of the victim’s prior misconduct, (3) admitted evidence of a telephone conversation without a proper evidentiary foundation, (4) precluded the defendant from impeaching the victim regarding an alleged act of fraud and (5) allowed the state to impeach the defendant’s character with misconduct evidence. We reverse one of the judgments because the now improper missing witness information harmed the defendant.

The jury reasonably could have found the following facts. On August 18, 1994, the court issued a protective order prohibiting the defendant from having any contact with the victim, Brandis Breedlove. The order remained in effect until January 11, 1996. The defendant was involved in three separate incidents that resulted in three judgments of conviction.

The first incident occurred on August 4, 1995. The defendant knocked on Breedlove’s door at approximately 1 a.m. Breedlove refused to let him into her home. The defendant then went to Breedlove’s car and started pulling out wires from the engine. Breedlove told the defendant that she was going to call the police and the defendant left. Breedlove then called the police and reported the incident. Shortly thereafter, the defendant called Breedlove and inquired about the whereabouts of the police. Breedlove told him that the police had been called and were on their way.

State Trooper Jack Richard Sauve arrived at the scene and began taking Breedlove’s statement. The telephone rang and Breedlove answered. She told Sauve that the defendant was on the telephone and handed the telephone to him. Sauve said, “Michael, this is Trooper Sauve. Where are you?” The defendant replied, “I’m around. Why do you want to know?” At no point did the caller deny being the defendant. Initially, Breedlove did not sign the statement prepared by Sauve. Three weeks later she contacted Sauve and signed the statement, alleging that the defendant had continued to harass her.

The second incident occurred on November 25,1995. Breedlove and Robert Cormier were at a bar in Stafford. As they were leaving, the defendant and a friend, Lanny Martin, arrived at the parking lot in the defendant’s car. The defendant got out of the car, walked to Breedlove, spit on her, pushed her to the ground and then started fighting with Cormier. The fight was broken up by patrons of the bar. Breedlove and Cormier got into Breedlove’s car and drove away.

As they were driving home, Breedlove noticed that the defendant was following her. The defendant rammed his car into her car from behind five or six times at a speed of approximately forty-five miles per hour. Breedlove stopped her car and got out. The defendant and Martin got out of the defendant’s car, and the defendant started toward Cormier. Breedlove intervened and the defendant hit her with a closed fist. He then picked up Breedlove by her hair and dragged her down the road. While this was taking place, Martin held Cormier back by brandishing a broken beer bottle. Breedlove managed to get back into her car, at which point the defendant kicked in the driver’s side window. Breedlove received cuts on her forehead, nose and lower lip. She also had bruises on her cheek and mouth from being hit, and was left with a bald spot where her hair was pulled out.

The third incident occurred on November 30, 1995. The defendant telephoned Breedlove at home approximately fifteen times and drove by her home later that night. The defendant was charged in a separate information stemming from each incident. We affirm the judgments of conviction that were based on the first and third incidents (Docket Nos. CR 95-58530 and CR 95-59206) and reverse the judgment of conviction that was based on the second incident (Docket No. CR 95-59207).

I

The defendant first claims that the court improperly instructed the jury, and allowed the state to argue, pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), that the jury could infer from the defendant’s failure to call Martin as a witness to the November 25 incident that Martin’s testimony would have been unfavorable to the defendant. We agree.

The defendant and Martin were charged as codefendants as a result of the events that occurred on November 25,1995. They were tried separately and, at the time of the defendant’s trial, Martin’s case was pending. At the defendant’s trial, State Trooper Colleen Anuszewski testified that she had seen Martin the day before and that he could be located in Hartford. On cross-examination, the defendant testified that Martin was a friend and the defendant knew where he could be located.

At the close of all of the evidence but prior to summation, the state filed a request for a Secondino missing witness instruction to be given to the jury. The defendant objected and made an offer of proof outside the presence of the jury. Defense counsel offered the testimony of Phillip N. Armentano, an attorney for Martin in his pending criminal trial. Armentano testified that if Martin were to take the witness stand, he would advise him to invoke his fifth amendment privilege against self-incrimination. The court concluded that the privilege was personal to Martin and overruled the objection. The court found that Martin was available and that he was a witness whom the defendant naturally would be expected to call to testify. The court refused to speculate as to whether Martin would invoke his fifth amendment privilege and granted the state’s request for the Secondino instruction.

After this appeal was argued, our Supreme Court decided State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), in which the court abandoned the missing witness doctrine of Secondino v. New Haven Gas Co., supra, 147 Conn. 672. The defendant’s conviction in Malave was affirmed because the Supreme Court concluded that the Secondino instruction constituted harmless error under the circumstances of that case. State v. Malave, supra, 743.

We ordered the parties to file supplemental briefs addressing two questions: (1) “Does State v. Malave, [supra, 250 Conn. 722], apply to this case and require us to conclude that the Secondino instruction was improper?” and (2) “If the Secondino instruction was improper, has the defendant met his burden of showing harm under either or both of the standards set out in State v. Malave [supra]?” Thereafter, this court addressed the first question. In State v. Bailey, 56 Conn. App. 760, 762, 746 A.2d 194 (2000), and State v. Quinones, 56 Conn. App. 529, 533, 745 A.2d 191 (2000), we held that Malave applies retroactively. Although Bailey and Quinones involved claims that the court improperly refused to give Secondino instructions, the rationale of Quinones applies with equal force here, where the court gave a Secondino instruction.

“In Malave, our Supreme Court abandoned the Secondino rule in criminal cases. The Malave decision applies retroactively to this case because so doing will not produce substantial inequitable results and because our Supreme Court did not stipulate that the Malave decision should apply prospectively only. See Marone v. Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998) (‘judgments that are not by their terms limited to prospective application are presumed to apply retroactively’); Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985) (where retroactive application of decision could produce substantially inequitable results, injustice or hardship may be avoided by holding of nonretroactivity). When our Supreme Court has intended a decision to apply prospectively only, it knows how to say so clearly. State v. Delvalle, 250 Conn. 466, 475-76, 736 A.2d 125 (1999) (‘we . . . direct our trial courts to refrain from using the [jury instruction at issue in that case] in the future’ . . . ); State v. Troupe, 237 Conn. 284, 305, 677 A.2d 917 (1996) (en banc) (‘rule that we announce today will apply only to . . . [testimony admitted after] the date of the publication of this opinion’); State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (‘we now hold that henceforth a trial court must [follow the announced rule]’ . . . ).” State v. Quinones, supra, 56 Conn. App. 533.

Applying Malave here “will not produce substantially inequitable results” because the only person who relied on the Secondino instruction was the prosecuting attorney. The principle that retroactivity should be denied unless it causes unfairness or undue hardship applies “to a party's conduct, not to an attorney’s strategy.” (Emphasis in original; internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 326, 736 A.2d 889 (1999). We now turn to the question of whether the Secondino instruction harmed the defendant.

In State v. Malave, supra, 250 Conn. 741, our Supreme Court acknowledged that the standard for establishing harm had not been articulated consistently in the court’s prior decisions. “One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result. . . . Another line of cases states that the defendant must establish that the trial court error caused him substantial prejudice.” (Citations omitted; internal quotation marks omitted.) Id. The Supreme Court did not view Malave as an appropriate vehicle for clarifying the harm question because neither formulation of harm was satisfied in Malave. We are not hampered by this lack of resolution because we conclude here that both formulations, if they are indeed functionally different, are satisfied.

Breedlove’s credibility was critical to the state’s case as to the charges stemming from the November 25, 1995 incident. Three of the four potential witnesses, Breedlove, Cormier and the defendant, testified. The prosecuting attorney could have been almost certain that Martin would not testify because he was a codefendant whose case was still pending at the time of the defendant’s trial. At the same time, the prosecutor was able to obtain a missing witness instruction that allowed the jury to infer that Martin’s testimony would have been unfavorable to the defendant even if, as the defendant contends, Martin had in fact given a statement that was favorable to the defendant. As defense counsel aptly puts it, “This improper Secondino instruction filled in evidentiary gaps and made two shaky witnesses . . . into three against one.” The state took full advantage of the instruction in closing argument by repeatedly referring to Martin’s absence.

We are aware that the Malave court did not “prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness’ absence may reflect on the weakness of the opposing party’s case.” Id., 739. The Malave court went on to state that such comment is permissible “[s]o long as counsel does not directly exhort the jury to draw an adverse inference by virtue of the witness’ absence . . . .’’Id. While the prosecuting attorney did not directly ask the jury to draw such an adverse inference here, the argument, coupled with the court’s instruction that such an inference was permissible, constitutes the harm.

Because it is highly unlikely that the defendant could have obtained Martin’s testimony because of his fifth amendment privilege, the defendant was powerless to contest the potential inference. This is unlike the situation in Malave, where the jury was aware of the defense investigator’s unsuccessful attempt to find and subpoena the missing witness. In addition, the jury in this case acquitted the defendant of the charges of assault in the third degree and threatening, which also arose out of the events of November 25, 1995. This indicates that Breedlove’s testimony was not accepted totally. The jury also heard Cormier testify that he was intoxicated at the time of the events that he testified about. This state of the evidence, coupled with the state’s heavy reliance on the missing witness inference in its arguments to the jury, leads us to conclude that it is more probable than not that the now erroneous instruction affected the result and caused the defendant substantial prejudice.

This conclusion requires reversal of the judgment of conviction arising out of the events of November 25, 1995. We will address the defendant’s second claim, that by precluding evidence of Breedlove’s misconduct, the court infringed on the defendant’s constitutional right to present a defense. We also will review those claims that relate to the two judgments of conviction that we affirm. We do not address whether the court improperly allowed the state to impeach the defendant with evidence of his prior arrests and misconduct. The defendant testified as to the November 25,1995 incident only and invoked his privilege against self-incrimination as to the other two charged offenses. He was not impeached as to the offenses stemming from the August 4 and November 30, 1995 incidents, and this issue is unlikely to arise in the new trial concerning the November 25, 1995 incident.

II

The defendant claims that the court improperly excluded evidence of Breedlove’s previous assaultive conduct toward the defendant because the rulings infringed on his constitutional right to present a defense. We disagree.

The defendant sought to introduce evidence that Breedlove (1) contacted him after obtaining the protective order, (2) attacked him on several occasions when she was jealous and (3) told his mother that she was going to make sure that he went to jail. The defendant claims that this evidence was relevant to refute the state’s evidence that Breedlove suffered from battered woman’s syndrome,* *** to establish her bias against the defendant and to bolster his claim of self-defense.

We note that “[r]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Moreover, our Supreme Court has clearly stated that the right to present a defense does not include the right to offer evidence that is incompetent, irrelevant or otherwise inadmissible. . . . Every evidentiary ruling that denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. [Here] the defendant has put a constitutional tag on a nonconstitutional claim. . . . Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 46 Conn. App. 640, 646, 700 A.2d 710, cert. denied, 243 Conn. 941, 704 A.2d 797 (1997).

The court’s rulings were based on its application of the mies of evidence and did not violate the defendant’s rights. To hold otherwise would mean that the court would have to admit all evidence proffered by a defendant in a criminal case, even if improper under the mies of evidence, lest the court violate the defendant’s constitutional right to present a defense. State v. Jones, supra, 46 Conn. App. 646, prohibits such transformation of evidentiary claims into constitutional ones.

Moreover, the juiy heard evidence of the defense because the defendant testified that Breedlove was the aggressor and had assaulted him in the past, and another defense witness was allowed to testify about Breedlove’s fighting another person. We note also that the court charged the jury on self-defense and that the jury acquitted the defendant of the assault charge. We conclude that the court did not infringe on the defendant’s constitutional right to present a defense.

With respect to the evidentiary claims that are relevant to the two judgments of conviction for violating the protective order that we do not reverse, we first set forth our standard of review. “The 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. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990).” (Internal quotation marks omitted.) State v. Weber, 31 Conn. App. 58, 65, 623 A.2d 506, cert. denied, 226 Conn. 908, 625 A.2d 1379 (1993).

The defendant claims that Breedlove’s action in contacting him after the protective order was issued should have been allowed into evidence. We fail to see the relevance of such evidence where it was not related to the two dates on which the defendant committed violations of the protective order. With respect to the defendant’s claim that the proffered evidence refuted the state’s claim that Breedlove suffered from battered woman’s syndrome, evidence of such seemingly contradictory conduct by Breedlove would bolster, rather than refute, the existence of the syndrome. Thus, the defendant was not harmed by the court’s proper exercise of its discretion to preclude such evidence.

Finally, Mary Dolloff, the defendant’s mother, proffered testimony outside the presence of the jury that Breedlove had told her that Breedlove was going to make sure that the defendant went to jail. The court precluded this evidence because there was no indication that Breedlove was going to lie to accomplish that purpose. Although the defendant asserts that this evidence was relevant to bias and motive to testify, we cannot conclude that the court abused its discretion in precluding the evidence. In and of itself, Breedlove’s desire to see the defendant punished for violating the protective order was not indicative of bias or an improper motive.

Ill

The defendant next claims that, with respect to the August 4, 1995 incident, the court improperly admitted hearsay testimony about Trooper Sauve’s telephone conversation with the defendant because the state did not lay a proper foundation. We disagree.

The defendant objected to the admission of evidence about this conversation on the grounds of hearsay, prejudice and lack of foundation. The court overruled the objection, finding a sufficient foundation on the basis of the following facts. Breedlove testified that the defendant had been at her residence and had left when she told him that she had called the police. Several minutes later, she received a telephone call. Sauve addressed the caller as “Michael” and, after identifying himself, asked, “Where are you?” The caller did not deny that he was Michael and responded, “I’m around. Why do you want to know?”

“Communications offered over the telephone may be authenticated by circumstantial evidence, if the party calling, in addition to stating his identity, relates facts and circumstances that, taken with other established facts, tend to reveal his identity.” State v. Berger, 249 Conn. 218, 233-34, 733 A.2d 156 (1999). On the basis of the foregoing facts and inferences therefrom relied on by the court, we conclude that the court did not abuse its discretion in finding sufficient authentication to admit the challenged conversation.

Once the proper authentication had been established, the court properly admitted the evidence as nonhearsay. First, “[hjearsay has long been defined as an out-of-court statement that is offered to establish the truth of the facts contained in the statement. See State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718, 52 A. 722 (1902).” State v. Jurgensen, 42 Conn. App. 751, 755, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996). “If the substance of the conversation was sought to be admitted not for the truth of its content, but to establish that the conversation itself had taken place, it is not hearsay. State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967).” State v. Watley, 195 Conn. 485, 490, 488 A.2d 1245 (1985).

The challenged statement was not offered for the truth of the matter asserted, namely, that the defendant “was around,” but to prove that the call was made. As such, it was not hearsay and was properly admitted.

IV

The defendant next claims that the court improperly precluded him from impeaching Breedlove with alleged acts of fraud. We are unpersuaded.

Prior to trial, the state filed a motion in limine to prevent the defendant from making reference to Breedlove’s occupation as an exotic dancer on the grounds that it was irrelevant and prejudicial. The defendant wanted to impeach Breedlove’s veracity through cross-examination about her alleged receipt of state public assistance benefits while she was employed. Defense counsel learned of this alleged impropriety from the defendant, Breedlove’s former boyfriend. The court granted the motion in limine.

The defendant attempts to transform this claim into one of constitutional magnitude, but it does not even rise to the level of evidentiary error. Defense counsel relied solely on his claim that “a couple of parties,” including the defendant, had informed him that Breedlove had collected welfare benefits while she was working as an exotic dancer. He offered no evidentiary foundation for the questions and failed to conduct a voir dire of Breedlove outside the presence of the jury to establish a proper foundation. The court properly refused to allow the defendant to pursue this line of questioning.

The judgment in Docket No. CR 95-59207 is reversed and the case is remanded for a new trial on that information. The judgments in Docket Nos. CR 95-58530 and CR 95-59206 are affirmed.

In this opinion the other judges concurred.

       This claim is based on the “missing witness rule” of Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), wherein, under certain circumstances, the trier of fact is allowed to draw an adverse inference from a party’s failure to produce a witness or witnesses. The rationale and requirements for a missing witness instruction are well known. “The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. . . . [T]he two requirements for a Secondino adverse inference instruction against a party are that the witness: (1) is available; and (2) could reasonably be expected, by his relationship to the party or the issues, to have peculiar or superior information material to the case that, if favorable, the party would produce. . . . The party seeking the adverse inference instruction bears the burden of proving both prongs of the test, and the trial court must make a preliminary determination that there is evidence in the record to support these elements. . . . Whether a party has established the requirements for a Secondino instruction is a factual determination that is committed to the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 813-14, 717 A.2d 1140 (1998).
      The defendant also claims that the court improperly allowed the state to argue the missing witness inference to the jury. This claim is subsumed in our discussion of the propriety of the instruction itself.

       The prosecutor argued: “And I ask you ladies and gentlemen, where is Lanny Martin? Lanny Martin was the other person that was at that scene, and he is a friend of this [defendant]. Why isn’t he here to testify? Why didn’t the defendant call him and put him on the stand? Why do you think, ladies and gentlemen, that didn’t happen? . . .
      “That is also a lame excuse. And where is Lanny Martin to confirm all this, I would like to know. Where is he? He is [the defendant’s] friend.” The prosecutor continued in this vein in her rebuttal argument:
      “And, once again, I ask you, where is Lanny Martin? [The defendant’s] friend, Lanny Martin, who was there and saw everything. He was holding the bottle to, broken bottle to [Cormier]. . . . Why isn’t he here to testily to tell us what happened? He is [the defendant’s] friend. And the state is not only relying on Brandis Breedlove’s testimony. The state has Rob Cormier’s testimony.”

       Under cross-examination by the state, the defendant volunteered that the police "arrest me for things I don’t do.” Over the defendant’s objection, the state was allowed to pursue the number and nature of the arrests. We do not know whether the defendant will testify in the new trial, but if he does, it seems unlikely that he would again open the door to this line of questioning by volunteering information about his past arrest.

       The state offered evidence of battered woman’s syndrome to explain why Breedlove recanted certain statements and said that the defendant had done nothing. The state’s expert explained that battered women often withdraw complaints out of fear or to minirnize the situation.

       Although the defendant argues in his brief that evidence of such contacts contradicted Breedlove’s testimony that she did not contact the defendant while the protective order was in effect, the record does not indicate that this claim was made to the trial court. We are not required to review claims that were not distinctly raised in the trial court. See Practice Book § 60-5.

       In Docket No. CR 95-59207, the defendant was convicted of criminal violation of a protective order in violation of § 53a-110b, breach of the peace in violation of § 53a-181 (a) (2), disorderly conduct in violation of § 53a-182 (a) (1), reckless endangerment in the second degree in violation of § 53a-64 and criminal mischief in the third degree in violation of § 53a-117 (a) (1) (A).