author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. MARK DOWNEY
    (AC 16446)
    Foü, Landau and Spear, Js.

      Argued February 27
    officially released May 13, 1997

      Richard Emanuel, assistant public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom were JoanE. Alexander, assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. He claims that (1) there was insufficient evidence of the element of an intent to kill to sustain the guilty verdict, (2) the trial court improperly denied his motion to suppress statements, and (3) the trial court improperly admitted evidence that the defendant had acted in a threatening manner toward the victim in the weeks preceding the murder. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On March 29, 1992, at approximately 10:22 p.m., the defendant dialed 911 to report a shooting and to request medical assistance. He stated that he had “disarmed” a rifle accidentally and shot his girlfriend. He gave the dispatcher directions to the apartment that he shared with the victim. The dispatcher instructed him to wait outside with his hands in the air.

When the police officers arrived, the defendant was waiting for them outside with his hands raised. The police officers approached the defendant and patted him down for weapons. An officer read the Miranda rights to him and he was then handcuffed and placed in the backseat of a patrol car. The officers noticed an odor of alcohol on the defendant, but he was not incoherent or stumbling and appeared to understand and follow their instructions.

The police officers then entered the victim’s apartment and found a Weatherby 30.06 rifle on the floor approximately eight to ten feet from the door. One of the officers, Corporal John Driscoll, picked up the rifle, removed a spent shell from the chamber, and placed it against a wall. He also observed a box of cartridges, from which one cartridge was missing.

Earlier that evening, Mary Anthony and her boyfriend, Philip Weidelman, had visited the defendant and the victim. The defendant showed the Weatherby rifle to Weidelman and told him that the safety mechanism was on. Weidelman saw a box of cartridges in the gun case, and noticed that none of the cartridges was missing.

The victim was found lying face down near the bedroom door. She was unconscious and had no detectable pulse or respiration. She had a bluish complexion and a gunshot wound in her upper right shoulder. The blood near the wound was in the early stages of clotting. Attempts to resuscitate the victim were futile. A Life Star helicopter took the victim to Hartford Hospital, where she was pronounced dead.

While the other officers were attempting resuscitation, Driscoll periodically checked on the defendant, whom he knew from previous encounters. The defendant, who was nervous and talkative, made several unsolicited statements. He said that he had accidentally shot the victim while he was holding the rifle. He also said that while holding the rifle, he began to slide the bolt down. He then changed his mind, and as he put the handle of the bolt down, the rifle discharged.

After the victim was removed, the defendant agreed to go to the police station for an interview, stating that he wanted to cooperate “110 percent.” At the station, an officer advised the defendant of his rights and the defendant signed a waiver form. The officers then conducted a tape-recorded interview.

During the interview, the defendant made the following statements. After his guests left, the defendant sat on the living room floor near the television and the victim sat in a nearby chair, reading a book. After a while, he decided to clean his Weatherby rifle, which he normally kept unloaded. As he pulled the rifle out of its case, the gun slipped and, as he reached for it, it discharged. The defendant claimed that the trigger action on the rifle was sensitive. The victim had risen from her chair, and he saw her fall to the ground. The defendant was evasive when asked about his exact position and that of the victim when the gun was fired. During the course of the interview, the defendant was angry and stated that he was “pissed” about what had happened. He was not sad, remorseful or confused at any point. After the interview, one of the officers typed a statement of the defendant’s recitation of events. The defendant read the statement, initialed two corrections, and signed it.

Later that same evening, police officers drove the defendant to the house of his friend Bill Cleary. Over the next few days, the defendant told Cleary different versions of what had occurred. He stated first that he picked up the rifle and was startled by a loud noise, the gun slipped, and, as he grabbed for it, the safety was dislodged and the rifle discharged. In the second version, he stated that he dropped the rifle and, as it fell, the butt hit the floor, causing it to discharge. Cleary did not believe the defendant’s story and demanded that he tell him the truth. The defendant replied that after Anthony and Weidelman left, he and the victim had a “slight spat,” he shot her and she got what she deserved.

In the weeks preceding the shooting, the defendant, on two occasions, made disparaging remarks and threatening motions to the victim. On both occasions the defendant was intoxicated. Approximately one to two months before the shooting, he was seen making a motion with his hand as if it were a gun and pointing at the victim’s shoulder. While making the motion, he said, “If you know what’s good for you, you’ll do as I’ve told you to do or else you know what I’ll—but you know what’s at home waiting.” Approximately three to four weeks prior to the shooting, the defendant again made disparaging remarks to and about the victim and again made a gun-like motion with his hand pointed at the victim.

I

The defendant first claims that there was insufficient evidence of intent to kill to sustain the guilty verdict. We disagree.

When reviewing an insufficiency claim, our courts apply a two-prong test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution.” (Citations omitted; internal quotation marks omitted.) State v. Marsala, 44 Conn. App. 84, 93-94, 688 A.2d 336 (1997).

A

The defendant first asserts that the jury’s conclusion that the defendant intended to kill the victim was based on speculation and conjecture. We disagree.

Intent to kill is an essential element of murder. See General Statutes § 53a-54a. The state must prove beyond a reasonable doubt that the defendant “had the conscious objective to cause the death of the victim.” State v. Montanez, 219 Conn. 16, 20, 592 A.2d 149 (1991). “[T]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct .... [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Citations omitted; internal quotation marks omitted.) State v. Torwich, 38 Conn. App. 306, 314, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 (1995). “An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed 2d 207 (1981).

The following evidence, which the jury reasonably could have credited, refutes the defendant’s claim. The state introduced evidence that the cause of death was a gunshot wound to the neck and chest. The bullet entered the upper right shoulder in a downward trajectory, fractured her right clavicle and first two ribs, injured her right lung, transected her esophagus and trachea, lacerated her aorta and heart, and finally lodged in her spleen. The extensive injury under the skin surrounding the entry wound indicated that a high powered weapon was used. In addition, punctate marks caused by gunpowder stippling were found near her right ear. Metal fragments and gunpowder were found on her clothing. Blood spatter was also found inside the barrel of the rifle, indicating that the victim was shot from a distance of one to two feet. Atomic absorption tests that were performed on the defendant’s hands indicated that the rifle was held in a normal shooting position.

The defendant argues that the evidence was insufficient because the record is devoid of evidence that the defendant harbored animosity toward the victim to the degree that he would intentionally cause her death and because he summoned medical assistance. We conclude, however, that under the circumstances, the evidence supported the jury’s conclusion that the defendant possessed the intent to kill the victim. The evidence shows that the defendant shot the victim at close range with a high powered rifle. Although he claimed to have shot her while he was seated on the floor and she was standing, the evidence revealed that the cause of death was a gunshot that traveled in a downward trajectory to the shoulder. Earlier on the evening of the shooting, the defendant stated that the rifle was unloaded and that the box of cartridges was full. When the police officers arrived at the scene, however, one of the cartridges was missing from the box, supporting the inference that the defendant loaded the rifle shortly before the shooting. Moreover, the defendant told Cleary that he and the victim had argued that evening. The evidence also revealed that shortly before the incident in question, the defendant had acted in a hostile and threatening manner toward the victim. Furthermore, the jury reasonably could have inferred consciousness of guilt from the defendant’s conflicting statements. See State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991).

B

The defendant also contends that, in light of his intoxication, a reasonable jury could not have found beyond a reasonable doubt that he intended to kill the victim. The basis for the defendant’s claim is expert testimony that his blood alcohol level would have been 0.28 percent at the time of the shooting, assuming that (1) he had not consumed any alcohol between the time of the shooting and the time his blood was drawn, (2) his blood alcohol level was decreasing at the time of the shooting, and (3) the defendant had ceased drinking prior to the shooting. We are unpersuaded.

While intoxication is not a defense, “[a] criminal defendant’s intoxication is relevant to the determination of his capacity to form a specific intent to commit a crime. . . . Intoxication, however, does not automatically negate intent. . . . It is for the jury to decide, after weighing all the evidence adduced at trial, whether a criminal defendant’s intoxication rendered him incapable of forming the intent required to commit the crime with which he is charged.” (Citations omitted; internal quotation marks omitted.) State v. Traficonda, 223 Conn. 273, 279, 612 A.2d 45 (1992).

Evidence at trial established that the defendant was a heavy drinker and that he often showed up for his job as an automobile mechanic while intoxicated. Yet, he was still capable of performing his duties. Police officers’ testimony also established that, while it was evident that the defendant had been drinking, he was coherent, had no difficulty describing the events that transpired that evening and appeared to understand and follow the dispatcher’s and police officers’ directions. His speech was not slurred, he did not have difficulty walking, and he remained alert throughout the interview at the police station. In light of this evidence, the jury reasonably concluded that his intoxication did not prevent him from forming the requisite intent to kill.

II

The defendant next claims that the trial court improperly denied his motion to suppress the statements he made to the police on the night of the shooting. We disagree.

A

The defendant first asserts that the statements should have been suppressed because they were the fruits of an unlawful seizure in violation of the federal and state constitutions. This claim was first alleged in his pretrial motion to suppress. At the time of the hearing on the motion, however, he did not pursue this claim. Instead, he argued only that the statements were involuntary and that the defendant had not validly waived his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The trial court never considered his Dunaway claim.

The state argues, and we agree, that this claim was unpreserved. Nevertheless, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989). In State v. Ostroski, 184 Conn. 455, 459, 440 A.2d 166 (1981), our Supreme Court recognized that our courts may consider an unpreserved Dunaway claim. See also State v. Marino, 190 Conn. 639, 655, 462 A.2d 1021 (1983).

In order to obtain review, the defendant must first show that “the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

The burden is on the defendant to provide an adequate record for review. Id. In this case, however, the defendant has failed to do so. The only evidence before the trial court was presented in the context of the defendant’s claims of involuntariness and waiver. The issue of whether an unlawful seizure occurred was never presented to the trial court and consequently, the trial court never made the necessary factual determinations regarding seizure. See State v. Medina, 228 Conn 281, 301, 636 A.2d 351 (1994). Because the record is inadequate, we decline to review his claim.

B

The defendant also asserts that the statements should have been suppressed because the defendant did not make a valid waiver of his Miranda, rights. We are unpersuaded.

“[P]olice officers are not required to administer Miranda warnings to everyone whom they question.” State v. Januszewski, 182 Conn. 142, 159, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). The warnings are required only when the defendant is (1) in custody, and (2) subject to police interrogation. State v. Brown, 199 Conn. 47, 51, 505 A.2d 1225 (1986). “Custodial interrogation is ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Id.

“The defendant bears the burden of proving custodial interrogation. . . . The trial court’s determination of the historical circumstances surrounding the defendant’s interrogation are questions of fact. . . which will not be overturned unless they are clearly erroneous. ... In order to determine the ultimate issue of custody ... we will conduct a scrupulous examination of the record ... in order to ascertain whether, in light of the totality of [the] circumstances, the trial court’s finding is supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Lapointe, 237 Conn. 694, 725, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996). “A person is in custody only if, in view of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. . . . The ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (Citations omitted; internal quotation marks omitted.) State v. Northrop, 213 Conn. 405, 413-14, 568 A.2d 439 (1990).

At the suppression hearing, the trial court found that the defendant was not in police custody at the time the statements were given. Our review of the record, however, leads us to the conclusion that trial court’s determination was clearly erroneous. Although a police officer testified that he asked the defendant to come voluntarily to the police station, the totality of the circumstances reveals that the defendant was in custody at the time he made the statements. As soon as the police arrived at the scene, an officer handcuffed him and placed him in the back of a police cruiser. Although the handcuffs were removed an hour later, he remained in the company of at least one officer for the remainder of the evening and was even escorted to the men’s room. See State v. Hoeplinger, 206 Conn. 278, 288, 537 A.2d 1010 (1988). He was at the station for approximately eight hours, during which time he was never informed that he was free to leave. See State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982); cf. State v. Derrico, 181 Conn. 151, 154-55, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). Furthermore, he had no independent means of transportation to return home. State v. Hoeplinger, supra, 288. We conclude that for purposes of Miranda the defendant was in custody when the statement was made.

Our inquiry does not end here, however. We must next determine whether the trial court properly determined that the defendant validly waived his Miranda rights. The defendant claims that any waiver was invalid because the tape recording does not indicate that the defendant read or heard the waiver of rights paragraph on the waiver form, and because he was nervous, upset and intoxicated.

“To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights .... Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case.” (Citations omitted.) State v. Northrop, supra, 213 Conn. 417. Relevant circumstances may include “the defendant’s experience with the police and familiarity with the Miranda warnings; his level of intelligence, age, level of education, vocabulary and ability to read and write in the language in which the warnings were given; his emotional state; and the existence of any mental disease. . . . Evidence that the defendant appeared distraught does not alone prevent a knowing waiver of Miranda rights.” (Citations omitted.) State v. Rasmussen, 225 Conn. 55, 79, 621 A.2d 728 (1993).

We conclude that there was substantial evidence before the trial court to sustain its determination that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. The defendant knew one of the police officers from previous encounters and had at least three prior arrests and convictions for driving while under the influence of alcohol. He was a thirty-five year old high school graduate with a technical education. The tape-recorded statement revealed that the defendant’s speech was clear, lucid, articulate and intelligent. Furthermore, the defendant signed the waiver form, which is “ ‘strong proof that the waiver is valid.” State v. Northrop, 213 Conn. 418.

B

The defendant also claims that his statements should have been suppressed because they were involuntary. We disagree.

The state must prove, by a preponderance of the evidence, that a statement was voluntarily made. State v. Barrett, 205 Conn 437, 451-52, 534 A.2d 219 (1987). “Unless that burden is met, a [statement] compelled by pressure from a police officer is inadmissible for any purpose. . . . The United States Supreme Court recently declared that coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment.’ Colorado v. Connelly, [479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986)]. Provided that predicate exists, [t]he ultimate test remains ... Is the [statement] the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to [make a statement], it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.” (Citations omitted; internal quotation marks omitted.) State v. Barrett, supra, 452.

The state cannot use an involuntary confession at trial without violating the defendant’s right to due process of law. Id. Whether a statement is voluntary is a question of fact for the trial court to determine in the exercise of its discretion. State v. Derrico, 181 Conn. 151, 162-63, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). The trial court found in this case that the state proved that the statements were voluntarily made.

We find no persuasive evidence of involuntariness on the record before us. The record is devoid of evidence that the police used threats or overt psychological pressure to overcome his will. In addition, the evidence shows that the police were respectful of the defendant’s rights. See State v. Medina, supra, 228 Conn. 294. He claims, however, that the element of coercion exists because he was interrogated while intoxicated and “confused.” The police officers who interrogated the defendant testified at trial that, although the defendant had been drinking the evening of the shooting, he spoke clearly and without confusion. A defendant’s emotional state alone does not render a statement involuntary. See State v. Byrd, 34 Conn. App. 368, 641 A.2d 818 (1994), aff'd in part, 233 Conn. 517, 659 A.2d 1201 (1995), aff'd, 239 Conn. 405, 685 A.2d 669 (1996). Moreover, the defendant did not confess to murdering the victim; his explanation of events was entirely exculpatory. Furthermore, the record does not show that the defendant suffered from a disabling educational, intellectual or psychological deficit so severe as to overcome his will. See State v. Northrop, supra, 213 Conn. 420.

Ill

The defendant finally claims that the trial court improperly admitted evidence that the defendant had acted in a threatening manner toward the victim in the weeks before the shooting. We disagree.

“ ‘[E]vidence of prior acts of misconduct is inadmissible merely to show a defendant’s bad character or tendency to commit criminal acts.’ ” State v. Thomas, 205 Conn. 279, 286, 533 A.2d 553 (1987). “[S]uch evidence ‘may be allowed for the purpose of proving . . . intent [or] motive ....’” (Emphasis in original.) Id. “The trial judge, however, must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency.” State v. Wild, 43 Conn. App. 458, 463, 684 A.2d 720 (1996). A trial court’s decision will be reversed only where there is a manifest abuse of discretion or if it appears that injustice will result. Id.

The defendant objected to the evidence that the defendant had made disparaging remarks to the victim and had pointed at her with a gun-like motion. The trial court overruled the defendant’s objection and gave limiting instructions to the jury immediately after the evidence was introduced and again in its final charge that the evidence was to be considered only to prove motive and intent. On appeal, the defendant claims that the trial court abused its discretion because the evidence was not relevant and was exceedingly prejudicial.

The defendant admitted shooting the victim, but claimed that the incident was an accident. He also claimed that his relationship with the victim was a good one with no problems. The evidence that the defendant’s relationship with the victim had deteriorated and that he acted in a threatening manner are relevant to his motive and intent. See State v. Thomas, supra, 205 Conn. 286. Furthermore, any potential prejudice was cured by the limiting instructions. See State v. Wild, 43 Conn. App. 458, 464, 684 A.2d 720, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996). We conclude that the trial court did not abuse its discretion in admitting the evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . . ”

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

       The tape recording was played for the jury.

       The defendant urges this court to adopt the proposed standard of review set forth in J. Newman, “Beyond Reasonable Doubt,” 68 N.Y.U.L. Rev. 979, 987-92 (1993). Judge Newman proposes that an appellate court deciding an insufficiency claim should ask “only whether a reasonable jury could find guilt beyond a reasonable doubt.” We decline to do so because the “any rational trier” test has been established by our Supreme Court and we cannot reexamine, change or discard such precedents. See State v. Panella, 43 Conn. App. 76, 82-83, 682 A.2d 532, cert. denied, 239 Conn. 937, 684 A.2d 710 (1996).

       The defendant’s claim is based on the holding in Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979). In Dunaway, the United States Supreme Court held that a confession following an arrest made without probable cause, followed by the transportation of the defendant to the police station for interrogation, was inadmissible.

       Although we conclude in part II that the defendant was in custody for Miranda purposes, the record is inadequate as to whether custody was lawful, i.e., whether the defendant was seized for fourth amendment purposes and whether there was probable cause to seize him. See State v. Ostroski, 186 Conn. 287, 290, 440 A.2d 984 (1982), cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982).

       In his brief, the defendant claims a violation of both federal and state constitutions. He fails, however, to analyze his claim under the state constitution and relies only on case law interpreting the federal constitution. Accordingly, we will review his claim only under a federal constitutional analysis. State v. Northrop, supra, 213 Conn. 420.

       Intent to kill is an essential element of the crime charged, and while motive is not an element, it does strengthen the state’s case. State v. Harris, 182 Conn. 220, 224, 438 A.2d 38 (1990).


source: Caselaw Access Project

author: HEIMAN, J.

license: Public Domain

text:
    ALICIA K. EISENBACH ET AL. v. AARON A. DOWNEY ET AL.
    (AC 13517)
    Dupont, C. J., and O’Connell and Heiman, Js.

      Argued December 12, 1996
    officially released May 13, 1997

      Peter J. Dauk, with whom, on the brief, was Michael C. Deakin, for the appellants (defendants).

      Lawrence J. Merly, with whom, on the brief, was Joseph J. Merly, for the appellees (plaintiffs).
   Opinion

HEIMAN, J.

In this action, sounding in negligence, the defendants appeal from the judgment of the trial court rendered on a jury verdict in favor of the plaintiffs. On appeal, the defendants claim that the trial court improperly (1) failed to excuse a venireperson for cause, thereby violating the defendants’ right to a fair and impartial jury, (2) permitted the plaintiffs to introduce into evidence medical bills and reports of medical doctors and chiropractors without laying the proper foundation to establish the requisite causal connection, (3) admitted into evidence the expert opinion of Eisenbach’s and McClure’s chiropractors in violation of the standard of reasonable medical probability, (4) admitted hearsay evidence as to Eisenbach’s and McClure’s medical diagnoses, prognoses, and the possibility of future surgeries and allowed the plaintiff Eisenbach to express a medical opinion as a lay witness, (5) permitted the plaintiffs to amend their complaint concerning allegations of recklessness, driving while intoxicated, driving without proper headlights, future surgery as to Eisenbach, and fear of future surgery as to McClure, and charged the jury on these claims without supporting evidence, (6) instructed the jury to award damages for Eisenbach’s and McClure’s increased susceptibility to future physical harm or injury, including anxiety regarding their future physical health, without supporting evidence, (7) instructed the jury to award damages for future lost wages and loss of earnings where there was no evidence to support such an instruction, (8) denied the defendants’ motion for remittitur when the verdict was excessive as a matter of law, and (9) overruled the defendants’ objection to the award of interest pursuant to General Statutes § 52-192a when the plaintiffs amended their complaint and substantially changed the substantive allegations against the defendants. We are unpersuaded and affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On December 23, 1988, at about 4 p.m., the plaintiff Alicia Eisenbach was operating a 1984 Dodge four door automobile on Fairfield Avenue in Bridgeport. The plaintiff Jennifer McClure was a passenger in the Eisenbach vehicle and was sitting in the front passenger seat.

The defendant Aaron A. Downey was operating a 1986 Chevrolet van owned by the defendant Michael Jackson on Martin Terrace near its intersection with Fairfield Avenue. At that intersection, the traffic on Martin Terrace must stop at a stop sign, while traffic on Fairfield Avenue does not stop. Fairfield Avenue is divided by a center esplanade with two lanes of traffic in each direction. Martin Terrace has a single lane of traffic in each direction.

Intending to cross Fairfield Avenue, Downey cut in front of the Eisenbach vehicle and the two vehicles collided. The Eisenbach vehicle had the right-of-way at the intersection. Downey was obligated to stop at the stop sign and to yield the right-of-way to vehicles that were in the intersection or approaching so closely as to constitute an immediate hazard. This he failed to do. Further, although it was dusk and drizzling, Downey failed to display proper headlights, in violation of General Statutes § 14-96 (a).

As a result of this collision, Eisenbach suffered multiple injuries including a disc herniation at L5-S1 with encroachment on both lateral recesses. She also suffered an injury to her neck and other parts of her body and incurred a permanent partial disability of 8 percent to her low back and 5 percent to her neck. She incurred substantial medical and other expenses and lost considerable time from her employment with a resultant loss of income. She will incur medical and other expenses in the future.

As a result of the collision, McClure suffered injuries to her neck, low back and left knee. She incurred a permanent disability of 5 percent to the lumbar spine and 5 percent to the neck. While she was in the acute stage following her injury, she lost use of her whole spine to the extent of 36 percent and in the chronic stage she lost use of 14 percent of her spine as a whole. She incurred substantial medical and other expenses and lost some time from her employment. She will also incur medical and other expenses in the future.

The case was submitted to the jury with interrogatories as to each plaintiff. The jury returned a verdict of $219,747.29 in favor of Eisenbach and a verdict of $67,231.80 in favor of McClure. The defendants filed postverdict motions to set aside the verdicts and for remittitur. The trial court denied both motions. Eisenbach filed a motion for interest pursuant to Practice Book § 350, which was granted by the trial court. This appeal follows.

I

The defendants first assert that the trial court improperly refused to excuse James R. Platko, a venireperson, for cause, thereby violating the defendants’ constitutional right to trial before an impartial jury. They also claim that the trial court’s failure to excuse the venireperson for cause constituted an abuse of discretion.

Certain additional facts are necessary to an understanding of our resolution of this claim. Platko was called for voir dire examination and was questioned first by the defendants, then by the plaintiffs. In the course of the plaintiffs’ voir dire, statements were elicited that indicated that the venireperson was familiar with Robert Russo, Jr., a radiologist, who was to be a witness on behalf of one of the plaintiffs. Examination by the plaintiffs revealed that Platko’s wife had seen Russo for a mammogram five or six years prior to the trial, and that Platko had cleaned house for Russo when Platko had been operating a house cleaning service. Platko explained that when he worked for Russo he seldom saw him. Platko stated that the fact that he knew Russo would not cause him to believe or disbelieve Russo more than any one else and that it would not cause aproblem for him to judge Russo’s credibility.

After the venireperson left the courtroom, the defendants addressed the trial court concerning Platko. The defendants moved that Platko be excused for cause. The trial court denied this motion and, as the defendants had exhausted their peremptory challenges, Platko was accepted by the plaintiffs and became a member of the jury.

The defendants first argue that in declining to excuse Platko for cause, the trial court violated the defendants’ constitutional right to a trial before an impartial jury.

The Connecticut constitution provides that “ ‘[i]n civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily . . . .’ Conn. Const., art. I § 19, as amended by art. IV . . . .This constitutional enactment reflects the abiding belief of our citizenry that an impartial and fairly chosen jury is the cornerstone of our criminal justice system.” State v. Hancich, 200 Conn. 615, 625, 513 A.2d 638 (1986).

A trial court’s refusal to remove a juror for cause is reversible error only if the party has exhausted all of his or her peremptory challenges and “an additional challenge is sought and denied.” State v. Esposito, 223 Conn. 299, 310-11, 613 A.2d 242 (1992). Here, the defendants had exhausted all of their peremptory challenges at the time that they moved to excuse Platko for cause, but they failed to request an additional peremptory challenge with which to remove Platko. On the basis of the holding in Esposito, we conclude that the trial court’s refusal to remove Platko for cause did not constitute reversible error.

The defendants did not request the trial court’s permission to reinquire of Platko. They started by saying that they had intended to do so, but, in response to a direct inquiry from the trial court, failed to make such a request. In fact, the defendants responded that they simply wanted to make “a statement for cause.” The trial court, therefore, did not address the claim now before us because the defendants failed to request that they be permitted to conduct a further inquiry of Platko. We will not usurp the prerogative of the trial court by reviewing this claim. See Baker v. Cordisco, 37 Conn. App. 515, 526, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

The defendants further assert that “[i]t is reversible error to deny a motion to excuse ‘for cause’ when the appellant shows that a purportedly biased or unsuitable juror actually sat on the final jury which rendered the unfavorable result.” Although not raised as clearly before the trial court, as is preferred, this claim appears to have been at least colorably raised and ruled on.

The trial court’s determination as to the competency of a juror to serve in the trial of a case is within its broad discretion. See State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987). In challenging the competency of a juror to sit on the panel, the defendants bear the burden of raising a claim of actual bias from speculation to fact. To satisfy that burden of proving actual bias, the party challenging for cause must show that the juror’s state of mind and opinion were fixed. See Johnson v. New Britain General Hospital, 203 Conn. 570, 582, 525 A.2d 1319 (1987).

A review of Platko’s answers to questions addressed to him on the voir dire fails to establish any bias or prejudice on his part. Platko explained that he had cleaned Russo’s house years previous but had little personal contact with him, and that his wife had consulted Russo for a mammogram but had not seen him for a number of years. Further, Platko stated that his past association with Russo would not cause him to believe or disbelieve him, and that these facts would cause him no difficulty in weighing Russo’s credibility.

On the basis of our review of the record, we conclude that the trial court did not abuse its discretion in denying the defendants’ motion that Platko be excused for cause because the defendants failed to meet their burden of establishing the existence of an actual bias or prejudice on the part of Platko toward the witness Russo. The defendants’ claim is without merit.

II

The defendants next assert that the trial court improperly admitted into evidence medical reports and bills from medical doctors and chiropractors without the proper foundation to establish the requisite causal connection. We are not persuaded.

The defendants assert that there was evidence that Eisenbach and McClure had received injuries on prior occasions, and that the reports and bills “did not consider, and therefore could not eliminate as a cause, the prior injuries.” Thus, they posit that the reports and bills were not admissible in evidence.

General Statutes § 52-174 (b) “permits a signed [physician’s or chiropractor’s] report [and bill] to be admitted as a business entry. The business records statute, General Statutes § 52-180, allows the admission of any writing as evidence of the act or event it describes provided the record was made in the regular course of business and that it was the regular course of business to make such a writing within a reasonable time alter the occurrence of the event in question. Section 52-174 (b) creates a presumption that the doctor’s signature is genuine and that the report [and bill were] made in the ordinary course of business. . . . Thus, once the statutoiy requirement that the report [and bill] be signed by a treating physician is met, the evidence in that report [and bill] is admissible .... Information that is relevant to the treatment of the patient... is admissible.” (Citations omitted.) Aspiazu v. Orgera, 205 Conn. 623, 626-28, 535 A.2d 338 (1987).

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible. ...” (Citations omitted; internal quotation marks omitted.) State v. Evans, 44 Conn. App. 307, 314, 689 A.2d 494 (1997). “The trial court has broad discretion in determining the relevancy of evidence. ... Its ruling will only be overturned if there is an abuse of discretion.” Aspiazu v. Orgera, supra, 205 Conn. 634.

Here, the medical reports and bills were signed by the treating physicians, and thus fell under § 52-174 (b). Moreover, regarding the medical reports and bills at issue, either the treating physician specifically stated that the injuries resulted from the 1988 car accident, or it is evident that the physician believed the injuries to be the result of that car accident. “The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician . . . .” Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953). In addition, we have previously held that a treating physician’s belief that the injuries are the result of a specific accident also establishes a sufficient causal connection to render his medical reports and bills relevant. See Wilson v. R.F.K. Corp., 19 Conn. App. 548, 551, 563 A.2d 738 (1989). Concerns regarding the reporting physicians’ knowledge of prior injuries goes to the weight given the reports, not their admissibility.

We conclude, therefore, that the trial court did not abuse its discretion in determining that the medical reports and corresponding bills were relevant and admissible.

Ill

The defendants next assert that the trial court improperly admitted into evidence Eisenbach’s and McClure’s treating chiropractors’ expert opinions in violation of the Connecticut standard of “reasonable medical certainty.” Specifically, the defendants argue that the reports and expert testimony of the treating chiropraetors, Donald Lawlor, Nicholas Bogannam and Michael Showah, should have been excluded because chiropractors are not medical doctors and thus cannot testily as to medical opinions or “meet the time-honored standard of reasonable medical probability.” We disagree.

“The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Citations omitted; internal quotation marks omitted.) State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986).

Our legislature and Supreme Court have determined that chiropractors are competent to testily as expert medical witnesses within their area of expertise. See General Statutes § 52-149a; see also General Statutes § 52-174 (c); Struckman v. Burns, 205 Conn. 542, 553-55, 534 A.2d 888 (1987); Miller v. Drouin, 183 Conn. 189, 193 n.3, 438 A.2d 863 (1981). Thus, a chiropractor’s expert opinion, as long as it is based on reasonable probabilities rather than mere speculation or conjecture, will satisfy the requisite standard of reasonable medical probability. See Struckman v. Burns, supra, 553-56. We conclude, therefore, that the trial court did not abuse its discretion by admitting the reports and expert testimony of the treating chiropractors.

IV

The defendants next assert that “the trial court improperly admitted hearsay evidence concerning [Eisenbach’s] medical diagnosis, prognosis and possibility of future surgery and improperly allowed Eisenbach to express medical opinions as a lay-witness.” We disagree.

Certain additional facts are necessary to an understanding of our resolution of this claim. Eisenbach’s chiropractor, Lawlor, testified at trial that Ahmed Cur-rim, a physician, called Lawlor and asked that he see Eisenbach, explaining to Lawlor that Eisenbach had a herniated disc. Later, Lawlor testified that in making his diagnosis, he relied on Eisenbach’s statement that Daniel Nijensohn, a neurosurgeon, had told her that she needed surgery. Defense counsel objected to both of the statements repeated by Lawlor on the ground that they constituted inadmissible hearsay. The trial court overruled both of the hearsay objections. Immediately following the overruling of each objection, the trial court gave the jurors a cautionary instruction that they were to consider the statements repeated by Lawlor only as something that Lawlor relied on in making his medical diagnosis, not for the truth of the matters contained in the statements.

Eisenbach testified that she had considered future back surgery, but felt it would be too great a risk and might not alleviate all of her pain. Eisenbach further testified that she was concerned about her future health. She was concerned that she might need surgery, that she might need continual medical treatment, and that her low back problems might hinder future pregnancies. Defense counsel objected to each part of this testimony, and argued that the lay witness was testifying to medical opinions. The trial court overruled the objections and gave the jury a curative instruction explaining that they were to consider this testimony only to illustrate Eisenbach’s present state of mind, not as expert medical evidence.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Annecharico v. Patterson, 44 Conn. App. 271, 275, 688 A.2d 1341 (1997).

The defendants’ assert that the trial court improperly admitted Lawlor’s testimony that he relied on Currim’s report that Eisenbach had a herniated disk. “[T]he ruling by the trial court in issue is consistent with the accepted principle that an expert’s testimony may be based on reports of others if the reports are those customarily relied on by such an expert in formulating an opinion.” State v. Cosgrove, 181 Conn. 562, 584, 436 A.2d 33 (1980). We conclude, therefore, that the trial court did not abuse its discretion by admitting Lawlor’s testimony, especially when the evidentiary ruling was immediately followed by a clear and concise cautionary instruction to the juiy. See State v. Jones, 44 Conn. App. 338, 349-50, 689 A.2d 517 (1997).

We next conclude that the trial court did not abuse its discretion in ruling that Eisenbach’s statement about Nijensohn’s surgical recommendation was offered solely to show its effect on Lawlor’s subsequent diagnosis and treatment, and thus was not hearsay. “It is an elementary premise of evidentiary law that a statement made out-of-court that is offered to establish the truth of the facts contained in the statement is hearsay.” (Internal quotation marks omitted.) Annecharico v. Patterson, supra, 44 Conn. App. 275. However, “[a] statement offered solely to show its effect upon the hearer is not hearsay.”(Intemal quotation marks omitted.) State v. Cruz, 212 Conn. 351, 356, 562 A.2d 1071 (1989). Moreover, any potential prejudice to the defendants resulting from the introduction of the testimony was completely dissipated by the trial court’s prompt delivery of a curative instruction to the jury, which clearly explained that the jury was to consider the testimony only for its effect on Lawlor, not for its truth. See State v. Jones, supra, 44 Conn. App. 349-50; State v. Lasky, 43 Conn. App. 619, 636, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997). “In the absence of a clear indication to the contrary, [jurors] are presumed to follow the instructions that they are given.” State v. Guess, 39 Conn. App. 224, 235, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995).

Finally, we conclude that the trial court did not abuse its discretion when it determined that Eisenbach’s testimony regarding her fears of future surgery, continual treatment, and potential problems with future pregnancies was admissible nonhearsay offered to prove Eisenbach’s state of mind, not a lay person’s medical opinion. It is well established that “[a]n out-of-court statement is not hearsay . . . if it is offered to illustrate circumstantially the declarant’s then present state of mind, rather than to prove the truth of the matter asserted.” Annecharico v. Patterson, supra, 44 Conn. App. 275. Moreover, the court’s evidentiary ruling was immediately followed by a clear and concise cautionary instruction to the jury and jurors are presumed to follow the instructions that they are given. See State v. Jones, supra, 44 Conn. App. 349-50; State v. Guess, supra, 39 Conn. App. 235.

V

The defendants further claim that the trial court improperly permitted the untimely amendment of the plaintiffs’ complaint to include allegations of recklessness, driving while intoxicated, violation of the headlight statute, future surgery as to Eisenbach, and fear of future surgery as to McClure. The defendants argue that this untimely amendment prejudiced them because they had prepared their case in reliance on the original complaint.

“The grant or denial of a motion to amend the pleadings is a matter within the discretion of the trial court. ... In the interest of justice courts are liberal in permitting amendments; unless there is ... an abuse of discretion. . . . The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.” (Citations omitted; internal quotation marks omitted.) Wassell v. Hamblin, 196 Conn. 463, 466-67, 493 A.2d 870 (1985).

At trial, the plaintiffs offered evidence of Downey’s intoxication, recklessness and operation of a motor vehicle without proper headlights. The plaintiffs also offered evidence as to Eisenbach’s need for future surgery and McClure’s fear of future surgery. The defendants did not object to the introduction of any of this evidence on the ground that the evidence was beyond the scope of the pleadings. Near the end of the trial, the plaintiffs moved to amend their complaint to conform the pleadings to the proof. The trial court allowed the amendments.

We conclude that the trial court did not abuse its discretion in allowing these amendments. “A party is permitted to amend the pleadings to conform with the proof offered. Practice Book § 178 . . . .” All American Pools, Inc. v. Lato, 20 Conn. App. 625, 630, 569 A.2d 562 (1990). Moreover, any claim of prejudice was mitigated by the defendants’ failure to object to the evidence when it was introduced at trial. See Tedesco v. Stamford, 215 Conn. 450, 462-63, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d on other grounds, 222 Conn. 233, 610 A.2d 574 (1992). Furthermore, at the time the trial court permitted the plaintiffs to amend their complaint, the defendants did not argue untimeliness, they did not request a continuance, nor did they make any claim of prejudice. See Wassell v. Hamblin, supra, 196 Conn. 466-67.

VI

The defendants next claim that the trial court improperly charged the jury on the issues of recklessness, operating a motor vehicle while under the influence of intoxicating liquor, the headlight statute, increased susceptibility to future physical harm or injury, anxiety regarding future physical health, and future lost wages, when there was insufficient evidence at trial to support such instructions. We disagree.

It is well established that a trial court should instruct a jury on an issue “for which there is any foundation in the evidence, even if weak or incredible. ... In determining whether any such foundation exists, [w]e must consider the evidence presented at trial in the light most favorable to supporting the [trial court’s jury instruction.]” (Citations omitted; internal quotation marks omitted.) State v. Richardson, 40 Conn. App. 526, 530, 671 A.2d 840, cert. denied, 237 Conn. 905, 674 A.2d 1333, cert. denied, 237 Conn. 910, 675 A.2d 457, cert. denied, 519 U.S. 902, 117 S. Ct. 257, 136 L. Ed. 2d 183 (1996).

Eisenbach testified that the defendant drove at a high rate of speed through a stop sign in a reckless manner. Both Eisenbach’s mother, who arrived at the scene of the accident shortly after the collision, and McClure testified that Downey seemed to be intoxicated as they observed him at the scene of the accident. Downey testified that his headlights were not on at the time of the accident, while the plaintiffs testified, in accordance with the police accident report, that the accident occurred at dusk on a rainy evening.

Lawlor and Showah opined at trial that Eisenbach and McClure would most likely experience recurring muscle spasms, pain and disability for at least the next ten years. Lawlor and Showah testified that Eisenbach’s and McClure’s neck and back injuries would render them susceptible to future injuries and arthritis. Further, both Eisenbach and McClure testified as to their anxiety regarding their future physical health, including fears of arthritis and of low back injuries hindering pregnancy and childbirth.

In its charge to the juiy, the court defined lost wages as “time away from one’s work due to sickness or doctor or therapy appointments and the like that may cause one to lose some earnings . . . .” Lawlor and Showah testified that both Eisenbach and McClure have permanent injuries from the accident that will most likely result in future pain, discomfort and disability, as well as require future treatment and therapy.

“We do not evaluate the credibility of these witnesses, but instead examine whether there was any evidence to support [these instructions] .... We leave the function of gauging credibility and weighing evidence to the jury.” (Emphasis in original.) State v. Richardson, supra, 40 Conn. App. 531. We conclude that there was sufficient evidence presented at trial to support the trial court’s jury instructions.

VII

The defendants further claim that the trial court improperly denied their motion for remittitur when the verdict was excessive as a matter of law. We are unpersuaded.

“In ruling on the motion for remittitur, the trial court was obliged to view the evidence in the light most favorable to the plaintiff in determining whether the verdict returned was reasonably supported thereby. . . . The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. . . . Every reasonable presumption in favor of the correctness of the court’s refusal to set aside the verdict as excessive should be indulged and its ruling will not be disturbed unless there is a clear abuse of discretion. ...” (Internal quotation marks omitted.) Goral v. Kenney, 26 Conn. App. 231, 240-41, 600 A.2d 1031 (1991).

The jury could have reasonably found that Eisenbach suffered permanent injuries to her back and neck. At the time of trial, she had incurred $15,012.54 in medical expenses and a loss of earnings of $19,747.29. She had a life expectancy of 51.2 years, and could expect to incur future medical expenses of approximately $1500 a year and to sustain future pain and suffering. She has trouble sleeping and can no longer play volleyball or softball, vacuum, mop, clean, dance, jog or carry heavy bags.

Further, the jury could have reasonably found that McClure suffered permanent injuries to her back and neck. At the time of trial she had incurred medical expenses of approximately $9058.20 and lost earnings of about $173.60. She had a life expectancy of 49.3 years, and could expect to incur future medical expenses of approximately $1500 and to sustain much future pain and discomfort. She has difficulty carrying a purse or a briefcase. Traveling has become painful and difficult. She can no longer water ski, snow ski, roller skate, jog, bicycle, dance, ride horses, engage in aerobics or play racquetball.

Our review of the record convinces us that the amount of damages awarded by the jury falls within the necessarily uncertain limits of fair and just damages. While the award may have been generous, it does not shock the conscience. See Goral v. Kenney, supra, 26 Conn. App. 241. We conclude, therefore, that the trial court did not abuse its discretion in denying the motion for remittitur.

VIII

Finally, the defendants claim that the trial court improperly awarded offer of judgment interest under General Statutes § 52-192a. Specifically, the defendants argue that the plaintiffs amended their complaint to include new allegations of recklessness, operating a motor vehicle while under the influence of intoxicating liquor and violation of the headlight statute, thereby altering “the conduct underlying the complaint” and rendering the original offer of judgment moot. We disagree.

This issue is governed by Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 749-51, 687 A.2d 506 (1997). In Blakeslee, after the offer of judgment was filed, the plaintiff amended its complaint to include a new allegation that altered the conduct underlying the complaint. In the original complaint, the plaintiff sought to recover ongoing costs under a subcontract for the rental of steel. The amended complaint alleged anew breach of the subcontract and thus sought to recover the steel’s liquidation value. Our Supreme Court emphasized that the amendment was “not based on the method of compensation sought for the steel, but, rather, on the breach of the subcontract.” Id., 751. In determining that the plaintiffs amendment seeking liquidation costs for the new breach of subcontract did not invalidate the offer of judgment, our Supreme Court explained that, “[a]n offer of judgment is an offer to settle the entire case, including claims both known and unknown, and both certain and uncertain.” (Internal quotations marks omitted.) Id., 750.

On the basis of Blakeslee, we conclude that the trial court properly awarded offer of judgment interest under General Statutes § 52-192a, and the defendants’ claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       As used in this opinion, the name Eisenbach applies only to the plaintiff Alicia Eisenbach. Earl Eisenbach, her father, was named as an additional plaintiff in the original complaint, claiming property damage to his vehicle and rental charges for the lease of a vehicle. By agreement of the parties, no separate verdict form was used for Earl Eisenbach. The jury was instructed, by agreement, that Earl Eisenbach made no claim for property damage but sought only to recover the cost of four days of car rental at an amount set forth in an exhibit and that any award to him should be included in the amount awarded to Alicia Eisenbach and not as a separate item or in a separate verdict. The third plaintiff is Jennifer McClure, who was a passenger in the vehicle operated by Alicia Eisenbach.

       General Statutes (Rev. to 1987) § 14-96 (a), as amended by Public Acts 1987, No. 87-230, provides: “Every vehicle upon a highway within this state at any time from a half-hour after sunset to a half-hour before sunrise and at any other time when, due to insufficient light or unfavorable atmospheric conditions, including, but not limited to, periods of snow, rain or fog, persons and vehicles on the highway are not clearly discemable at a distance of five hundred feet ahead shall display such lighted lamps and illuminating devices as may be required under the provisions of sections 14-96a to 14-96aa inclusive.”

       The pertinent interrogatories and answers addressed to the Eisenbach case were: “1. Did the Plaintiff Alicia Eisenbach prove that the Defendant Aaron Downey was negligent in one or more ways as specified in the complaint? (X) Yes ( ) No”
      “2. Did the Plaintiff Alicia Eisenbach prove that one or more of the proven specifications of negligence was a proximate cause of the injuries she has claimed? (X) Yes ( ) No”
      “3. Did the Defendants Aaron Downey and Michael Jackson prove that the Plaintiff Alicia Eisenbach was contributorily negligent in one or more of the ways specified in the special defense? ( ) Yes (X) No”
      The pertinent interrogatories and answers addressed to the McClure case were: “1. Did the Plaintiff Jennifer McClure prove that the Defendant Aaron Downey was negligent in one or more of the ways specified in the complaint? (X) Yes ( ) No”

        “2. Did the Plaintiff Jennifer McClure prove that one or more of the proven specifications of negligence was a proximate cause of the injuries that she has claimed? (X) Yes ( ) No”

       In the Eisenbach case the verdict is as follows:
      “In this case, the jury finds the issues for the Plaintiff, Alicia Eisenbach and therefore awards her the following:
      a. Past economic damages: $19,747.29
      b. Future economic damages: $50,000.00
      c. Total economic damages: $69,747.29
      a. Past noneconomic damages: $20,000.00
      b. Future noneconomic damages: $130,000.00
      c. Total noneconomic damages: $150,000.00
      Total $219,747.29”

       The verdict in the McClure case is as follows:
      “In this case the jury finds the issues for the Plaintiff, Jennifer McClure and therefore awards her the following:
      a. Past economic damages: $9,231.80
      b. Future economic damages: $23,000.00
      c. Total economic damages: $32,231.80
      a. Past noneconomic damages: $10,000.00
      b. Future noneconomic damages: $25,000.00
      c. Total noneconomic damages: $35,000.00
      Total: $67,231.80”

       The discussion between the defendants and the court was as follows:
      “[Defendants’ Counsel]: Your Honor, I was going to ask for permission to reinquire. [Plaintiffs’ Counsel] touched on the subject at the end, because I realized I had written a note about it, and I never got into it. I was going to ask about Dr. Russo. I don’t know if his personal—you know the answers came out, and he may have rehabilitated himself, but I don’t know if his personal relationship with Dr. Russo would have a bearing on his decision as a juror. I never asked for a chance to reinquire. I thought the questions were adequately and properly presented by [Plaintiffs’ Counsel], but I was going to ask for permission to reinquire. That concerns me a little bit. I might be an idealist, but I always like to have a jury with an absolute clean slate, so I would feel a little—
      “The Court: I just thought—I mean, I’m not denying it yet, but I thought he was pretty clear that he hadn’t any contact with him for the last seven or eight years, that his wife once went to him, and for whatever reason, didn’t anymore, and that he hadn’t cleaned—
      “[Defendants’ Counsel]: I know, and I have the same feeling, but again, like I say, I just would like to have an absolute clean slate on every juror, if possible, so I’m just going to malte my statement before the court, that I think I would like to be on record to have him excused on that basis.
      “The Court: Well, do you—
      “[Defendants’ Counsel]: Even in view of his responses.
      “The Court,: Okay. Well, do you want to reinquire? What are you asking the court to do?
      “[Defendants’ Counsel]: Well, just on the basis of the fact that he’s worked for him personally. I think his wife worked for—I’ve forgotten what he said.

        “The Court: No. His wife went—evidently, Dr. Russo is a radiologist. His wife—this venireperson’s wife went some years ago, evidently for a mammogram, and that was that, so he doesn’t seem to know anything about him one way or the other that way, and he once cleaned the house of Dr. Russo, and Dr. Russo’s ex-wife, so I don’t know which way that cuts, but he evidently does not do that, and has not for many years, since he is no longer employed in the cleaning business.
      “[Defendants’ Counsel]: Well, I would, just for the record, like to make my statement for cause.
      “The Court: All right. And he thought it wouldn’t—he didn’t seem to have any particular notion one way or the other about Dr. Russo as a witness, as a, you know, professional person, so I don’t think that—
      “[Defendants’ Counsel]: All right. May an exception be noted, Your Honor?
      “The Court: It may. You may have an exception.
      “[Plaintiffs’ Counsel]: Accepted, Your Honor.
      “The Court: Okay. Ask him to come back.”

       The record reflects that with the exception of Daniel Njjensohn, a neurosurgeon whose trial participation was limited to the introduction of his reports and bills, all other health care professionals whose reports and bills are attacked by the defendants testified in person and testified as to their opinion of the causal relationship between the accident and the plaintiffs’ injuries.

       General Statutes § 52-174 (b) provides in relevant part: “In all actions for the recovery of damages for personal injuries or death . . . any parly offering in evidence a signed report and bill for treatment of any treating physician, dentist, chiropractor, osteopath, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist may have the report and bill admitted into evidence as a business entry and it shall be presumed that 1he signature on the report is that of the treating physician, dentist, chiropractor, osteopath, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist and that the report and bill were made in the ordinary course of business. . . .”

       General Statutes § 52-149a provides in relevant part: “(a) The deposition of any physician, psychologist, chiropractor, natureopathic physician, osteopathic physician or dentist licensed under the provisions of tire general statutes, may be taken on behalf of either party to any civil action ... in which the physician, psychologist, chiropractor, natureopathic physician, osteopathic physician or dentist may be called as an expert witness . . . . ”

       General Statutes § 52-174 (c) provides: “This section shall not be construed as prohibiting either party or the court from calling the treating physician, dentist, chiropractor, osteopath, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist as a witness.”

       See footnotes 4 and 5.

       General Statutes (Rev. to 1989) § 52-192a provides in pertinent part: “(a) After commencement of any civil action based upon contract or for the recovery of money only, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. . . .
      “(b) After trial the courl, shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount . . . .”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. FERMIN ADORNO, JR.
    (AC 15747)
    Landau, Sehaller and Spear, Js.
    Argued December 2, 1996
    officially released May 13, 1997

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, Timothy Liston, senior assistant state’s attorney, and Zachary Osborne, law student intern, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of burglary in the first degree in violation of General Statues § 53a-101 (a) (1), and one count of felony murder in violation of General Statutes § 53a-54c. On appeal, the defendant claims that the trial court improperly (1) admitted his statement to the police, (2) admitted evidence of uncharged misconduct, and (3) applied the felony murder statute. He also claims, for the first time on appeal, that there was insufficient evidence for a jury to conclude that an entry had occurred or that he had the intent to commit the predicate crimes of assault and threatening and that the trial court improperly charged the jury on the elements of burglary. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 13, 1992, at approximately 3 a.m., the defendant and several others drove to the apartment of Delmar Johnson, kicked in his door and fired shots into his apartment, killing him. On August 21, 1992, the police arrested the defendant and took him into police custody. While in custody, the defendant gave an oral statement indicating that on August 13, 1992, he had gone to Portland with a group of five men in two cars, had kicked in Johnson’s door and had started shooting.

I

The defendant first claims that the trial court improperly failed to suppress an inculpatory oral statement made by him to the police. He asserts that there was neither a valid waiver of his Miranda rights nor a showing that the statement was given voluntarily. We disagree.

The defendant first claims that there was not a valid waiver of his Miranda rights. “To be valid, a waiver must be voluntary, knowing and intelligent. . . . The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. . . . Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. . . . Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992).

After a careful review of the record, we conclude that the state has met its burden of proof. The defendant was read his Miranda rights, read those rights himself, initialed each of them, told the detective that he understood those rights, signed the waiver form, had no difficulty reading or writing, and was not under the influence of alcohol or drugs. Moreover, the record indicates that the defendant was aware of his Miranda rights due to prior arrests and convictions. We conclude, therefore, that there was substantial evidence from which the trial court could have found that the defendant was capable of and did in fact voluntarily, knowingly and intelligently waive his Miranda rights. See id.

We next address whether the statement was voluntary. “[T]he use of an involuntary confession in a criminal trial is a violation of due process. . . . The state has the burden of proving the voluntariness of the confession by a fair preponderance of the evidence. . . . [Our Supreme Court has] stated that the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined. . . . The ultimate test remains ... [i]s the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. . . . The determination, by the trial court, whether a confession is voluntary must be grounded upon a consideration of the circumstances surrounding it. . . .

“This determination of voluntariness and admissibility, in the first instance, is a question of fact for the trial court to resolve in the exercise of a legal discretion in accordance with constitutional standards of due process. . . . This, of course, includes decisions on questions of credibility presented to the trial court. . . . Though the question is ultimately factual, our usual deference to fact-finding by the trial court is qualified on the question of voluntariness by the necessity for an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence. . . .

“[I]n State v. Gonzalez, 206 Conn. 213, 221-22, 537 A.2d 460 (1988), [our Supreme Court] noted, quoting from Stale v. Perry, 195 Conn. 505, 516, 488 A.2d 1256 (1985), that: The [traditional] test of voluntariness is whether an examination of all the circumstances shows that the conduct of police was such as to overbear the defendant’s will to resist and bring about a confession, not freely self-determined. . . . The ultimate question of whether a defendant’s will has been overborne, thus resulting in an involuntary statement in a particular case, involves, as noted, an assessment of the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation. . . . Some of those also taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep. ...” (Citations omitted; internal quotation marks omitted.) State v. Madera, 210 Conn. 22, 39-41, 554 A.2d 263 (1989).

After a review of details of the interrogation and the relative competence of the accused, we can find no evidence of improper police influence or persuasion, or any evidence that the statement was given involuntarily. We conclude, therefore, that the trial court properly refused to suppress the defendant’s confession.

II

The defendant next claims that the trial court improperly admitted evidence of prior misconduct. We disagree.

“ ‘As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. State v. Crumpton, 202 Conn. 224, 228, 520 A.2d 226 (1987); State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984). We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982).’ ” (Emphasis added.) State v. Harris, 43 Conn. App. 830, 835-36, 687 A.2d 544 (1996). “The trial judge, however, must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency.” State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982). “Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. ...” (Citations omitted; internal quotation marks omitted.) State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987).

At trial, the state offered the testimony of Wilson Ortiz, an acquaintance of the defendant. The defendant objected claiming that Ortiz’ testimony was irrelevant and more prejudicial than probative. Specifically, he asserted that the testimony constituted evidence of the defendant’s prior misconduct. The trial court overruled the defendant’s objection and admitted the evidence as relevant to show “that there was an ongoing battle from which the jury can infer and make logical and reasonable inferences as to the motive, as to the intent [and] as to any other matters.” Ortiz then testified that he had been assaulted on three separate occasions, that he told the defendant and other members of the defendant’s gang about these assaults two weeks before the shooting and that the defendant had been present while a car belonging to another acquaintance had been damaged while in the vicinity of the victim’s apartment.

We conclude that Ortiz’ testimony did not constitute evidence of the defendant’s prior misconduct because it did not show any bad act or criminal conduct on the part of the defendant. See State v. Brown, 41 Conn. App. 317, 324, 675 A.2d 1369, cert. granted on other grounds, 238 Conn. 901, 677 A.2d 1376 (1996). Moreover, in so far as Ortiz’ testimony associated the defendant with the gang, such association with a gang, by itself, does not demonstrate any bad act or criminal conduct on part of the defendant and, even if we were to characterize it as prior misconduct, it would be properly admissible to establish the defendant’s motive or intent. See State v. Taylor, 239 Conn. 481, 502, 687 A.2d 489 (1996). Accordingly, we conclude that the trial court did not abuse its discretion in admitting Ortiz’ testimony.

Ill

The defendant next claims that the trial court improperly applied the felony murder statute to a homicide occurring during the course of a burglary where the underlying crimes alleged in proof of the burglary were assault and threatening. He claims that the felony murder statute does not contemplate any variation of homicide or assault as the predicate offense for felony murder. We disagree.

General Statutes § 53a-54c provides in relevant part that “[a] person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit . . . burglary . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .” “To convict an accused as a principal in the crime of felony murder the state must prove beyond a reasonable doubt that he was a participant in the underlying felony and that he, or another participant in the felony, caused the death of the victim in the course of and in furtherance of the felony.” State v. MacFarlane, 188 Con. 542, 550, 450 A.2d 374 (1982). “[Section] 53a-54c contains no mens rea requirement beyond that of an intention to commit the underlying felony upon which the felony murder charge is predicated.” State v. Valeriano, 191 Conn. 659, 662, 468 A.2d 936, (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984); see State v. Young, 191 Conn. 636, 469 A.2d 1189 (1983). Here, the defendant was a participant in the burglary, he knowingly entered Johnson’s premises unlawfully with the intent, at the very least, to threaten, or to place Johnson in fear of imminent serious physical injury, and he caused Johnson’s death in the course of and in furtherance of the burglary. The trial court, therefore, properly applied the felony murder statute in this case.

IV

The defendant next claims that there was insufficient evidence to support his burglary conviction. He argues that the evidence was insufficient for the jury to find that an entry occurred or that he intended to commit the predicate crimes of assault and threatening. We disagree.

The defendant did not preserve this claim at trial. He seeks review under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Our Supreme Court has stated that sufficiency of the evidence claims “necessarily meet the four prongs of Golding.” State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993); see also State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995). Therefore, we will review this claim.

“ We employ a two part test in reviewing claims relating to the sufficiency of the evidence. . . . We first construe the evidence presented at trial in a light most favorable to sustaining the verdict. . . . We then determine whether, from the evidence and all the reasonable inferences which it yields, [the jury] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . .’ The probative force of the evidence is not diminished if it consists in whole or in part of circumstantial evidence rather than direct evidence. . . . It is not one of fact, but the cumulative impact of a multitude of facts that establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted.) State v. Coleman, 35 Conn. App. 279, 293-94, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994).

“In determining whether the defendant is guilty, it is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist. . . . It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Furthermore, in considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citations omitted; internal quotation marks omitted.) State v. Roy, 38 Conn. App. 481, 488-89, 662 A.2d 799 (1995), cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996).

In this case, it was reasonable for the jury to conclude that at least some part of the defendant’s body, his hand or foot for example, intruded into the victim’s apartment. Common sense dictates that it would be reasonable to conclude that, in using the force necessary to kick open a locked door, the momentum would carry the defendant or one of his companions into the victim’s apartment. The testimony of the officers at trial as to the condition of the door and the photographs of the door strongly support the inference that the defendant forced the door open and was carried at least minimally into the victim’s apartment. From the facts established and the reasonable inferences to be drawn therefrom, it was reasonable for the jury to have found that an entry occurred. Moreover, the defendant’s use of force in kicking in the door, and his use of a firearm in firing gunshots into the victim’s apartment provided the jury with sufficient evidence for it to conclude that the defendant intended to assault and threaten the victim. “[T]he jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); State v. Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955).” State v. Dumalo, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1984). “ ‘Generally, intent can be proved only by circumstantial evidence. . . . Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.’ ” (Citations omitted.) State v. Grant, 219 Conn. 596, 603, 594 A.2d 459 (1991). From the evidence presented and the reasonable inferences to be drawn therefrom, it was reasonable for the jury to have found that the defendant entered the victim’s apartment and intended to commit assault and to threaten.

V

The defendant claims finally that the trial court improperly instructed the jury on the crime of burglary. We disagree.

“The defendant raises this claim for the first time on appeal. To preserve a challenge to the jury charge, the defendant must make a written request to charge, or take exception to the jury instructions when they are given by the trial court. . . . This court is not bound to review claims of instructional error if the party raising the claim neither submitted a written request to charge, nor excepted to the charge given by the trial court. Practice Book § 852. ‘The purpose of [§ 852] is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.’ ” State v. Pearsall, 44 Conn. App. 62, 66-67, 687 A.2d 1301 (1997).

“The defendant did not object to this instruction at trial and raises this claim for the first time on appeal. He contends that his claim meets the criteria of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, [supra, 213 Conn. 233]. We agree with the defendant that the record is adequate for review and that his claim that the trial court failed to instruct the jury adequately on the elements of a crime is of constitutional magnitude alleging the violation of a fundamental right. State v. Golding, supra. Therefore, we will proceed to examine his claim to determine whether the alleged violation clearly exists and clearly deprived the defendant of a fair trial.” State v. Owens, 25 Conn. App. 181, 186 n.2, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 332 (1991).

“At the outset, we note that under . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. ... In determining whether the jury was misled, it is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering probable inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . Furthermore, [a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Citations omitted; internal quotation marks omitted.) State v. Pearsall, supra, 44 Conn. App. 67-68.

Our review of the trial court’s instruction reveals that it provided the jury with a clear understanding of the elements of the crime of burglary and was, therefore, constitutionally adequate.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statues § 53a-101 (a) provides in pertinent part,: “A person is guilty of burglary in the first degree when enters or remains unlawfully in a building with intent to commit a crime therein . “

       Practice Book § 852 provides: “An appellate court shall not be bound to consider error as to the giving of, or failure to give, an instruction unless the matter is covered by a written request to charge or exception has been laken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and 1 he ground of exception. The exception shall be taken out of 1 he hearing of the jury.”

       “Under Golding a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 631-32 n.5, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997).

       The court instructed the jury that “[o]rdinarily, a building implies a structure which may be entered and used by human beings whether or not they actually so entered and used a building for a business or for other purposes involving occupancy by people. Furthermore, as in this case, where a building consists of separate unions such as separate apartments, each apartment may be considered as a separate building. In other words, any one of the separate units, separately secured or occupied when intruded upon, may be considered a building plus the whole building is considered a building for purposes of any unlawful intrusion into any part of it. If you determine that the premises is a building as that term has been defined, you must then decide whether the defendant unlawfully entered such building. In other words, 1he state must prove beyond a reasonable doubt that the defendant entered unlawfully. A person enters unlawfully in or upon premises when the premises at the time of such entry are not open to the public and when the defendant is not otherwise licensed or privileged to do so.”