author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. ALLISON GREENE
    (AC 17329)
    O’Connell, C. J., and Lavery and Daly, Js.
    Argued December 11, 1998
    officially released April 6, 1999

      Cheryl E. Heffeman, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara Eschuk, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Allison Greene, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A) and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims (1) that the trial court improperly (a) determined that defense counsel had “opened the door” to evidence of the defendant’s uncharged misconduct and (b) permitted the prosecutor to question a defense witness about her knowledge of the defendant’s uncharged misconduct, (2) that evidence of the defendant’s uncharged misconduct tainted the verdict thereby denying the defendant a fair trial and (3) that the defense counsel’s negligence deprived the defendant of her constitutional right to the effective assistance of counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant, who was born in 1971, baby-sat for the victims, a boy, M, and a girl, S, between October 1, 1990, and July 30, 1992. At the time, M was between six and eight years of age and S was between seven and nine years of age. The defendant generally took care of the children on Friday evenings at their home, but on occasion the children stayed with the defendant at her parents’ home.

While she cared for them, the defendant subjected both M and S to sexual contact on numerous occasions. The contact included having one of the children insert his or her finger into the defendant’s vagina and moving it about at the defendant’s direction. Sometimes the defendant touched M’s penis. On occasion, the defendant removed her clothing, had the children do the same and attempt sex together, and then the defendant rubbed M’s penis against her vagina. The defendant instructed the children not to tell anyone what they had done. In 1992, S asked the defendant to stop subjecting her to sexual contact and the defendant complied. The defendant did, however, continue to have sexual contact with M, including one incidence of placing M’s penis in her mouth. In July, 1995, M told his mother about the sexual activity. When questioned by her mother, S confirmed the events. The defendant was arrested and charged shortly thereafter. Trial was held in March, 1997, at which time M and S were twelve and thirteen, respectively. Additional facts will be addressed as necessary.

I

The defendant first claims that the trial court improperly ruled that defense counsel had “opened the door” to evidence of the defendant’s uncharged misconduct and permitted the prosecutor to question a defense witness regarding her knowledge of that misconduct. We disagree.

“ ‘The standard for review is clear. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.’ . . . State v. Cooper, [227 Conn. 417, 426-27, 630 A.2d 1043 (1993)].” (Citations omitted; internal quotation marks omitted.) State v. Oliver, 48 Conn. App. 41, 51, 708 A.2d 594, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998).

“Evidence of a defendant’s prior misconduct is not ordinarily admissible to prove his bad character or criminal tendencies. State v. Williams, 203 Conn. 159, 185, 523 A.2d 1284 (1987); see State v. Ortiz, 40 Conn. App. 374, 378, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). Evidence of other misconduct, however, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity ... or an element of the crime. . . . State v. O’Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986); State v. Sierra, 213 Conn. 422, 428-29, 568 A.2d 448 (1990); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Busque, 31 Conn. App. 120, 128, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994). Such evidence, however, to be admissible must also be relevant and material. State v. Asherman, 193 Conn. 695, 728, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Ibraimov, supra, 352; State v. Wiedl, 35 Conn. App. 262, 265, 644 A.2d 1313, cert. denied, 231 Conn. 914, 648 A.2d 160 (1994).

“The trial court has broad discretion not only to rule on the relevancy of evidence; State v. Jones, 205 Conn. 638, 666-67, 534 A.2d 1199 (1987); but also to determine the scope of cross-examination. State v. Cooper, [supra, 227 Conn. 431]; State v. Hernandez, [224 Conn. 196, 208, 618 A.2d 494 (1992)]; State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985). Uncharged misconduct evidence must satisfy a two part test in order to be admitted as an exception. The evidence must be relevant and material to at least one of the claimed exceptions, and its probative value must outweigh its prejudicial effect. State v. Cooper, [supra, 427], State v. Wiedl, supra, 35 Conn. App. 265.” (Internal quotation marks omitted.) State v. Moore, 49 Conn. App. 13, 21-22, 713 A.2d 859 (1998).

“When relevant evidence of other crimes is offered, the trial court must still consider whether its prejudicial tendency outweighs its probative value before ruling upon its admissibility. . . . State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983). Because of the difficulties inherent in this balancing process, we will uphold the trial court’s ruling on the admission of uncharged misconduct evidence unless there is a manifest abuse of discretion or an injustice appears to have been done. Id.; State v. Harris, [43 Conn. App. 830, 837, 687 A.2d 544 (1996)].” (Internal quotation marks omitted.) State v. Vega, 48 Conn. App. 178, 191, 709 A.2d 28 (1998).

A

The following additional facts are relevant to our analysis of the defendant’s first evidentiary claim, i.e, that the trial court improperly determined that defense counsel opened the door to evidence of the defendant’s uncharged misconduct. Prior to trial, the state asked the trial court to determine whether it would permit the state to place in evidence facts of the defendant’s uncharged misconduct to show a course of conduct. Another incident of the defendant’s uncharged misconduct pertained to S and was barred by the statute of limitations. Other of the defendant’s uncharged misconduct concerned a minor, H, and is unrelated to this case. The trial court reserved judgment with respect to the uncharged misconduct pertaining to S, but ruled that the uncharged misconduct concerning H was more prejudicial than probative and precluded the state from putting it in evidence. In opposing the defendant’s claim on appeal, the state argues that during trial, defense counsel’s cross-examination of S and her mother opened the door so that the state was properly permitted to introduce evidence concerning the H matter. We agree with the state.

The following exchange took place during defense counsel’s cross-examination of S:

“Q. At any point [prior to your confirming the defendant’s acts], did your mother come to you and ask you if Allison Greene had done something to you?

“A. Yes.

“Q. When was that?

“A. I don’t remember, but it was after 1994. I know that. And I told her ‘No.’

“Q. So you told her ‘No’?

“A. Yes.

“Q. And today your answer would be ‘Yes’?

“A. Yes.

“Q. So that wasn’t true?

“A. What wasn’t true?

“Q. When you told your mother that nothing had happened?

“A. Right.

“Q. When your mother asked you that question, was she angry?

“A. No.

“Q. Do you know why she asked you that question?

“A. Yes.

“Q. Why did she ask you that question?

“A. Because of what someone else was accusing Allison for.”

At the conclusion of cross-examination, the prosecutor, outside the presence of the jury, argued that defense counsel had opened the door to the H matter. The state contended that defense counsel was attempting to argue bias on the part of the victims’ mother and that the mother was planting ideas in S’s mind. The trial court again ruled that evidence of the H matter was more prejudicial than probative and would not permit it to come into evidence. Following the ruling, the prosecutor informed the trial court that if defense counsel continued to pursue a line of questioning with S or any other witness so as to suggest that the victims’ mother attempted to indoctrinate the victims, the state would ask the court to reconsider its ruling concerning the H matter. The trial court responded that it had already put defense counsel on such notice.

The next day, during defense counsel’s cross-examination of the victims’ mother, the following exchange occurred.

“Q. Now ... is it not a fact that you questioned your daughter a full year and a half earlier about getting molested by my client?

“A. No.

“Q. Is it your testimony that you never asked S if she had been molested by Allison Greene? Now, think about that.

“A. Once.

“Q. Okay. When was that?

“A. That was back in December of 1994 and in January of 1995.

“Q. If you were shocked to even think that Allison Greene committed this act, why were you asking her six months earlier if she had molested your children?”

Before the victims’ mother could respond, the prosecutor asked the trial court to excuse the jury, which the trial court did. Thereafter, the prosecutor argued that the mother’s response would be related to the H matter and that she should be permitted to answer. After some discussion, defense counsel withdrew the question. The prosecutor pressed her argument that the victims’ mother be permitted to respond to the defense question because it was important to explain why the mother had questioned her daughter. Defense counsel argued that he was merely trying to impeach the witness. The trial court asked for a transcript of the pertinent testimony, which it reviewed during the noon recess. At the beginning of the afternoon session, the trial court reversed, in part, its decision to preclude the introduction of the defendant’s uncharged misconduct with respect to the H matter. In response to a question from defense counsel about further inquiry of the victims’ mother, the trial court again warned defense counsel of the peril of opening the door to the H matter.

On redirect examination, the prosecutor elicited the following testimony from the victims’ mother.

“Q. You were asked about asking S whether she had been molested by Allison Greene. You indicated that you had asked her. Is that correct?

“A. Yes, in 1994 [and] 1995.

* * *

“Q. Why did you ask S that?

“A. Allison had moved in with us in December from the other nanny position and there was a problem evidently where she had worked and she moved out. There was alleged certain incidents that had happened.”

On recross-examination, defense counsel inquired of the victim’s mother:

“Q. When you asked your daughter in 1994 if she had been molested, what did she say?

“A. ‘No,’ and ran away.”

The prosecutor again requested that the jury be excused and asked the trial court to permit the state to offer additional evidence concerning the H matter. After hearing the voir dire testimony of the victims’ mother, the trial court permitted the following testimony on re-redirect examination by the state:

“Q. You were asked whether S earlier denied that she had been molested by Allison Greene; is that correct?

“A. Yes.

“Q. Later on she told you that, in fact, she had been molested by Allison Greene; is that correct?

“A. Yes.

“Q. Did you ever ask her why she denied that earlier?

“A. Yes, I did.

“Q. What did she respond to you?

“A. She goes, Mom, I didn’t tell you because I really thought she was going to jail because of the other allegations that were brought up on her. The allegation part is not S’s words, though. It’s mine.

“Q. Had you known the true position would you have allowed Allison back in your house that year?

“A. No, I would not have allowed her in our home.

“Q. Would you have supported her that year?

“A. If they came forward, I would have proceeded as I am doing now.”

The jury was again excused and defense counsel moved for a mistrial because the trial court permitted evidence of the defendant’s uncharged misconduct in the H matter to be admitted. Defense counsel argued that nothing had occurred during the trial to warrant the trial court’s reversing its pretrial ruling. The trial court denied the motion.

“Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); see also State v. Roy, 173 Conn. 35, 50, 376 A.2d 391 (1977). The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. State v. Graham, supra, 13. The doctrine of opening the door cannot, of course, be subverted into a rule of injection of prejudice. United States v. Lum, [466 F. Sup. 328, 335 (D. Del. 1979)], quoting United States v. Winston, [447 F.2d 1236, 1240 (D.C. Cir. 1971)]. State v. Glenn, [194 Conn. 483, 499, 481 A.2d 741 (1984)]. The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir. 1956). United States v. Winston, supra [1240]. Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal. Id., 1241-42; People v. Arends, 155 Cal. App. 2d 496, 509, 318 P.2d 532 (1957).” (Internal quotation marks omitted.) State v. Moore, supra, 49 Conn. App. 20-21.

“The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence. . . . [T]his rule operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context. . . . State v. Paulino, 223 Conn. 461, 467, 613 A.2d 720 (1992).” (Internal quotation marks omitted.) State v. Pulley, 46 Conn. App. 414, 422, 699 A.2d 1042 (1997).

In the present case, the state preliminarily sought permission to introduce the H matter to establish the defendant’s course of conduct. After reviewing the proposed evidence, the trial court determined that the H matter was more prejudicial to the defendant than it was probative and denied the state’s motion. Thereafter, defense counsel on not just one, but three occasions, asked S and her mother questions that were related to the H matter. Following the first time that S was asked questions indirectly related to the H matter, the state asked the trial court to reconsider its ruling and to permit the prosecutor to ask S about the H matter. The trial court declined to change its initial ruling but again warned defense counsel about opening the door.

During his cross-examination of S’s mother, defense counsel asked questions indirectly relating to the H matter in an attempt to impeach the witness and, as the prosecutor argued, to create an inference in the minds of the jurors that the victims’ mother had actually planted the seeds of the defendant’s acts of sexual misconduct in the minds of her children. The trial court requested a transcript of the defense cross-examination of the victims’ mother and modified its earlier ruling to permit the prosecutor to inquire on redirect why the victims’ mother had asked S if the defendant had ever molested her. The victims’ mother merely responded that she was about to let the defendant live in her home and that she was aware of the defendant’s having had a problem with another family. No details of the H matter were admitted.

On recross-examination, defense counsel inquired further of the victims’ mother concerning her conversation with S and S’s reaction to the conversation. Again the prosecutor asked the court to permit her to ask the victims’ mother additional questions about her conversations with S. At that point in the trial, the jury had heard that the victims’ mother had asked S whether the defendant had molested her and that S responded in the negative and ran away. The jury also knew that the victims’ mother knew of another incident involving the defendant.

The prosecutor made an offer of proof to the court to demonstrate why the victims’ mother should be permitted to explain her testimony so that the jury would not be left with the impression that she had instigated her children’s accusations against the defendant. The offer of proof, and subsequent testimony, demonstrated that S was aware of the defendant’s prior uncharged acts of misconduct and was fearful that, if she told her mother that the defendant had molested her and M, the defendant would go to jail.

“The basic function of a redirect examination is to enable a witness to explain and clarify relevant matters in his testimony which have been weakened or obscured by . . . cross-examination. Grievance Committee v. Dacey, 154 Conn. 129, 151, 222 A.2d 339 [(1966), appeal dismissed, 386 U.S. 683, 875 Ct. 1325, 18 L. Ed. 2d 404 (1967)]. Where evidence is introduced showing an apparent admission of a party out of court, he is entitled to explain the circumstances so that the trier can properly evaluate it.” (Internal quotation marks omitted.) Kucza v. Stone, 155 Conn. 194, 198, 230 A.2d 559 (1967).

Here, defense counsel, in his attempt to impeach the victims’ mother, used information concerning the veiy evidence that he sought to keep from the jury to create in the minds of the jurors an unfair basis for the victims’ testimony. The reason the victims’ mother questioned S—the mother’s concern about the H matter—was relevant to the juiy’s understanding of her testimony considering the light in which the defendant’s cross-examination placed her. The defendant opened the door to the relevant explanation of the mother’s questioning her daughter. The record discloses that the trial court was mindful of the prejudicial effect that the H matter could have on the defendant. Only after defense counsel three times put the uncharged misconduct in question did the trial court, in fairness to the state, permit the evidence of the H incident to come into evidence. We note that the trial court fairly balanced the rights of the defendant and the state by refusing to permit any evidence of the nature of the H matter to come into evidence.

We, therefore, conclude that the trial court properly permitted evidence of the defendant’s uncharged misconduct to come into evidence.

B

The defendant’s second evidentiary claim is that the trial court improperly permitted the prosecutor to question a defense witness regarding her knowledge of the defendant’s uncharged misconduct. The defendant’s claim is that Geraldine Wortman was not a character witness. We disagree.

The following facts are relevant to this claim. The defendant called Wortman to testify on her behalf. The jury reasonably could have found that Wortman’s daughter had been a friend of the defendant’s for twelve to thirteen years prior to trial. Wortman worked with the victims’ father, who had never complained to her about the defendant’s conduct as a baby-sitter. The defendant had taken care of Wortman’s grandchildren and Wortman had never seen her behave in a sexually inappropriate manner. Wortman was also satisfied with the defendant’s performance as a baby-sitter. On cross-examination, the prosecutor, outside the presence of the jury, asked the trial court for permission to question Wortman, as a character witness, about her knowledge of the defendant’s uncharged misconduct. The defendant objected to the request claiming that Wortman’s testimony was not character evidence but evidence of her actual observations of the defendant’s baby-sitting capability. Following the prosecutor’s voir dire, the trial court granted the state’s request to cross-examine Wort-man about her knowledge of the defendant’s uncharged misconduct. The witness testified that she was aware of a number of incidents involving the defendant. Wort-man also testified that she never directly asked her grandchildren whether the defendant had ever behaved in a sexually inappropriate manner with them.

“Character may be proved by testimony concerning the accused’s general reputation in the community as to the trait. . . . The law in this state also allows proof of character by the testimony of those who have had an opportunity to form, and have formed, an opinion as to whether the accused possessed a particular character trait.” (Internal quotation marks omitted.) State v. Ostolaza, 20 Conn. App. 40, 45, 564 A.2d 324, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989). Here, Wortman was clearly called to offer her opinion as to the defendant’s capability to provide baby-sitting services.

“When a defendant calls a character witness to testify to a particular trait, the defendant opens the door for the state to cross-examine the witness by reference to prior acts of misconduct relevant to that trait.” State v. McGraw, 204 Conn. 441, 446-47, 528 A.2d 821 (1987); State v. Turcio, 178 Conn. 116, 126-27, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980). “The purpose of such cross-examination is not to contest the defendant’s own veracity but rather to test the basis of the opinion offered by the character witness”; State v. McGraw, supra, 447; and “ ‘to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy.’ ” State v. Ostolaza, supra, 20 Conn. App. 46.

“If a defendant offers evidence of a trait of character as circumstantial evidence to prove that he acted in conformance with that trait and that it is unlikely he committed the crime charged, then the state may offer evidence to disprove the existence of the trait. State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976). The state may not, however, use specific acts of misconduct to disprove the trait; id.; or to prove the guilt of the defendant as to the crime charged. State v. DeFreitas, 179 Conn. 431, 461, 426 A.2d 799 (1980). Nonetheless, the state is allowed to test the basis for the witness’ opinion.” State v. Pettersen, 17 Conn. App. 174, 182-83, 551 A.2d 763 (1988), on appeal after remand, 20 Conn. App. 288, 566 A.2d 714 (1989), cert. denied, 213 Conn. 814, 569 A.2d 550 (1990).

On the basis of our review of the record, we conclude that the trial court properly determined that Wortman was a character witness who offered testimony as to the defendant’s capability to provide appropriate child care. The state properly questioned Wortman as to her knowledge of the defendant’s uncharged misconduct to challenge the basis of the witness’ opinion. The state appropriately did not delve into the details of the uncharged misconduct. Therefore, the trial court properly admitted the testimony.

II

The defendant’s next claim is that evidence of the defendant’s uncharged misconduct tainted the verdict and denied the defendant a fair trial. More specifically, the defendant claims that given her denial of the allegations and testimony concerning her minimal contact with the victims during the time in question and because there were inconsistencies between M’s and S’s testimony concerning the number of times the defendant had sexual contact with M in S’s presence, the admission of her uncharged misconduct inappropriately swayed the jury. We are unpersuaded.

The defendant’s claim is similar to that of the defendant in State v. Reddick, 33 Conn. App. 311, 331, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994), where the defendant claimed that the evidence was insufficient to support his conviction because it was contradictory. “Robing garden variety claims [such as insufficiency of evidence] in the majestic garb of constitutional claims does not make such claims constitutional in nature.” (Internal quotation marks omitted.) Id., 331-32. “When we are called on to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993); State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. State v. Salz, supra; State v. Rivera, supra.

“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. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Rivera, supra, 201. It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992); State v. Rivera, supra.” State v. Reddick, supra, 33 Conn. App. 332-33. “The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) Id., 333.

On the basis of our review of the record, we conclude that the evidence was controverted and that although the testimony of the victims’ may have differed as to the number of times the defendant had sexual contact with M in S’s presence, their testimony concerning the nature of the defendant’s acts was consistent. Defense counsel conceded during oral argument that S’s testimony was internally consistent. One of M’s friends also testified that M had confided in him about one year before M told his mother that he had had sexual contact with the defendant. The jury, therefore, could have drawn the reasonable inference that the defendant was guilty beyond a reasonable doubt.

Furthermore, we note that the trial court instructed the jury that it could not use the evidence of the defendant’s uncharged misconduct as evidence of the defendant’s bad character or as evidence of her tendency to commit criminal acts. “A jury is presumed to follow the trial court’s instructions. State v. Richardson, 214 Conn. 752, 757, 574 A.2d 182 (1990).” Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 707, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). Our conclusion that the jury followed the trial corut’s instructions and carefully weighed the evidence is supported by the fact that the jury acquitted the defendant of sexual assault in the first degree.

We, therefore, conclude that the defendant received a fair trial.

Ill

The defendant’s final claim is that she was deprived of her right to the effective assistance of counsel as a result of defense counsel’s negligence. “Almost without exception, we have required that ‘a claim of ineffective assistance of counsel must be raised by way of habeas corpus, rather than by direct appeal, because of the need for a full evidentiary record for such [a] claim. State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).’ State v. Munoz, 233 Conn. 106, 131 n.16, 659 A.2d 683 (1995); State v. Roman, 224 Conn. 63, 65 n.2, 616 A.2d 266 (1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993) (‘defendant’s claim of ineffective assistance of counsel must await an appropriate factual record, which can only be developed pursuant to a petition for habeas corpus’); State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990). Moreover, we have stated as our preference ‘that all of the claims of ineffective assistance, those arguably supported by the record as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceeding.’ . . . State v. Leecan, supra, 541. On the rare occasions that we have addressed an ineffective assistance of counsel claim on direct appeal, we have limited our review to allegations that the defendant’s sixth amendment rights had been jeopardized by the actions of the trial court, rather than by those of his counsel. See State v. Webb, 238 Conn. 389, 414 n.24, 680 A.2d 147 (1996); State v. Martin, [201 Conn. 74, 83, 513 A.2d 116 (1986)]; State v. Rodriquez, 200 Conn. 685, 694-96, 513 A.2d 71 (1986).” (Emphasis in original.) State v. Crespo, 246 Conn. 665, 687-88, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). We therefore dismiss this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-73a provides in relevant part: “(a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . .

       General Statutes § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact wdth the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       The trial court ruled: “I’m prepared to rule on this issue of what’s been styled the H matter, the uncharged misconduct, and, on redirect, I will permit [the victims’ mother] to indicate that the predicate or the basis for the question to [S] was information she had received about the defendant’s conduct from a third party. I do that because I’m of the opinion that in fairness the motivation for the question should rightly come before the jury. I’m still of the opinion that if we get into details of the H matter, it will be prejudicial to the defendant even on this record as made by her counselor.”

       The following colloquy between the trial court and counsel followed the court’s ruling:
      “[Prosecutor]: Yes, Your Honor. I would like one clarification, however. Since some questions have been put to [the victim’s mother] concerning bias and possible falling out or dispute with the defendant, I would ask to be permitted to ask one follow-up question, which would be notwithstanding that information, did you continue to be on good terms with Ms. Greene until July 1?
      “The Court: I don’t see where that’s objectionable.

        “[Defense Counsel]: I would only request one follow-up question in that regal’d. I would request to be allowed to ask whether she took any further steps or investigation or took any action as a result of that knowledge.
      “The Court: Well, you do that at your peril because you don’t know what the witness is going to say.”

       In keeping with the court’s pretrial ruling, no details about the nature of the H matter were admitted in evidence.

       On direct, examination by defense counsel, the witness testified as follows:
      “Q. Now, when [the victims’ father] spoke about—of Allison, were the comments positive or negative?
      “A. They were always very positive.
      “Q. Did [the victim’s father] ever complain about Allison’s conduct?
      '‘A. No. He thought she did very good with the children, that she was very helpful with having them do their homework, and that their behavior was improved, you know, quite a lot.
      “Q. Now, was it your earlier testimony that Allison has done child care in your family as well?
      “A. Yes.
      “Q. As to your observations only, have you ever observed Allison Greene behaving in a sexually inappropriate manner?
      “A, Never.
      “Q. Are you satisfied with her performance as a child care worker?
      “A. Yes.”

       The trial court charged the jury in part: “Also, during the course of the trial there was testimony on direct and cross-examination about other misconduct of the defendant, other than what is charged in the sixth count of the amended substitute information. You must remember, as I have already instructed you, you are expressly prohibited from using this evidence as evidence of the bad character of the defendant or as evidence of a tendency to commit criminal acts. Please remember that Ms. Greene is on trial only for the six charges contained in the amended substitute information document. And you must only consider each of those charges and consider them separately during your deliberations . . . and no other charges, all in accordance with my instructions.”

       The defendant bases her claim on the sixth amendment to the United States constitution. Although noting that the constitution of Connecticut, article first, § 8, also protects her right to the effective assistance of counsel, the defendant, in her brief, concedes that her state right provides her with no greater protection than that afforded her by the United States constitution.


source: Caselaw Access Project

author: SPALLONE, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DAVID PALMER TUBBS
    (AC 17718)
    O’Connell, C. J., and Lavery and Spallone, Js.

      Argued January 22
    officially released April 13, 1999

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Kevin Kane, state’s attorney, and Theresa Ferryman, assistant state’s attorney, for the appellant (state).

      William S. Palmieri, with whom, on the brief, was John Williams, for the appellee (defendant).
   Opinion

SPALLONE, J.

The state appeals from the judgment of dismissal rendered by the trial court. The state claims that the trial court improperly refused to allow the state to offer the victim’s testimony for the sole purpose of perfecting the record on appeal and that the trial court abused its discretion in ordering the wholesale disclosure of the victim’s psychiatric records, some of which, as the court itself conceded, were remote in time.

A review of the record, transcripts and briefs discloses that the defendant, David Palmer Tubbs, was charged with two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a and two counts of risk of injury to a child in violation of General Statutes § 53-21. The state alleged that the defendant on two separate occasions improperly touched the victim, a twelve year old boy. Both incidents were alleged to have occurred in the shower room at the Mystic Community Center.

Prior to trial, the defendant moved for disclosure of the victim’s psychiatric records. The state agreed to subpoena the records to the trial court. Three agencies provided records to the court pursuant to the state’s subpoena, the Child and Family Agency, the Lawrence and Memorial Hospital and the Groton public school system. These records remained under seal and unopened until September 22, 1997, when the victim’s mother consented to the court’s in camera review of the records to determine which, if any, should be disclosed to the defendant.

On September 29, 1997, the state informed the trial court that the victim’s mother refused to consent to the proposed disclosure. The state indicated that the disclosure ordered by the court was overbroad and it requested a continuance to confer with the victim’s mother.

On October 1, 1997, the state filed a written motion asking the trial court to reconsider its wholesale disclosure of the minor victim’s psychiatric records. The trial court affirmed its prior ruling, stating: “The court will state for the record that the material that it ordered to be disclosed were materials that the court found to be especially probative of the complainant’s ability to comprehend, to know and correctly relate the truth.

“The court also believes that the materials, although some of them being remote in time, that all of the materials that the court ordered be disclosed to the defense counsel were materials that the court felt were relevant to the issues of the victim’s ability to relate the truth—to know the truth, to understand the truth and to relate it.

“The court continues to feel that the materials it ordered to be made available to defendant’s counsel do indeed reflect or have the potential to reflect on the credibility of the complainant’s accusations against the defendant in this case. So the court has reconsidered your request and the court’s original position is maintained.”

The state also asked permission to call the victim to the witness stand so that it could “create a record of what [his] testimony would actually be in order for the Appellate Court to evaluate the necessity for the [proposed] disclosure . . . against what the victim actually testifies to, so [that] it could evaluate what was necessary for cross-examination purposes and exculpatory purposes.”

After the trial court denied this request, the state moved for dismissal and for the resealing of the victim’s psychiatric records. Thereupon, the court dismissed the case, ordered the records resealed and granted the state permission to appeal.

I

The state first claims that the trial court improperly refused to allow the state to offer the victim’s testimony for the sole purpose of perfecting the record for appeal. We do not agree.

Any testimony by the victim must be stricken where the victim testifies and then refuses to waive any statutory privilege. In this case, the victim’s mother, although granting permission for an in camera review of her son’s psychiatric records, refused to waive the privilege and allow testimony on the victim’s psychiatric condition. Where there is such refusal, the victim’s testimony must be stricken. See State v. Pierson, 201 Conn. 211, 223, 514 A.2d 724 (1986), on appeal after remand, 208 Conn. 683, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989); State v. Bruno, 197 Conn. 326, 331-33, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986); State v. Esposito, 192 Conn. 166, 180, 471 A.2d 949 (1984); State v. Saraceno, 15 Conn. App. 222, 242, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988).

There is no question of credibility to be determined by offering the victim’s testimony merely to make a record for appellate review. Where there is no waiver, the victim’s testimony must be stricken. Having the victim testify solely to make a record would serve no useful purpose. The law does not require a useless act. Barrett-Nonpareil, Inc. v. Stoll, 168 Conn. 79, 83, 357 A.2d 481 (1975). The record, including the medical and psychiatric records, are available for this court for review. Even if the victim’s testimony were available to this court, the state is, in effect, asking us to determine questions of fact as to the necessity of the proposed disclosure in light of the victim’s testimony. The degree of disclosure is a fact to be determined by the trial court on the basis of relevancy.

The trial court has broad discretion to determine both the relevancy and remoteness of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987); Tur-geon v. Turgeon, 190 Conn. 269, 273, 460 A.2d 1260 (1983). It follows that the trial court’s determination of the degree to which such disclosure is relevant and appropriate in furtherance of the defendant’s right to confrontation and cross-examination is also subject to the same discretion.

Only upon a clear abuse of discretion will this court set aside rulings on evidentiary matters. State v. Fritz, supra, 204 Conn. 167-68. In the present case, the degree of disclosure ordered by the trial court constituted an exercise of the court’s discretionary powers. Because there is no precise universal test of relevancy, the question must ultimately be addressed on a case-by-case basis in accordance with “the teachings of reason and judicial experience.” (Internal quotation marks omitted.) State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). Although the trial court stated that some of the materials it ordered disclosed may have been remote in time, the court also stated that those materials “were relevant to the issues of the victim’s ability to relate the truth.”

The test for disclosure of such records has been defined as evidence “especially probative of the ability to ‘comprehend, know and correctly relate the truth’ ”; (Internal quotation marks omitted.) State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983); “evidence of a mental condition of a vital witness for the prosecution that might reasonably affect the credibility of the witness”; State v. Pierson, supra, 201 Conn. 227; “psychiatric records or information pertaining to the complainant’s mental condition bearing on her testimonial capacity and reliability as a witness”; State v. Huf-ford, 205 Conn. 386, 404, 533 A.2d 866 (1987); and “relevant to the witness’ testimonial capacity.” State v. Saraceno, supra, 15 Conn. App. 244. There is no reason to believe that the trial court failed to act within the parameters outlined in the cases cited.

II

The state’s second claim that the trial court abused its discretion in ordering the disclosure of material that was remote in time is without merit. As we have discussed previously, the trial court has broad discretion in its rulings on relevancy. The court expressly stated that, although some of the material may have been remote in time, that material was relevant to the issue of credibility. We will not substitute our judgment of relevancy for that of the trial court unless there was an abuse of discretion. “There is no hard and fast rule by which an abuse of discretion may be determined but, in general, for an exercise of discretion not to amount to an abuse, it must be legally sound and there must be an honest attempt by the court to do what is right and equitable under the circumstances of the law, without the dictates of whim or caprice. See 5 Am. Jur. 2d, Appellate Review § 695 (1995).” State v. Medley, 48 Conn. App. 662, 666, 711 A.2d 1191, cert. denied, 245 Conn. 915, 718 A.2d 19 (1998). We find no such abuse.

We hold that in its rulings on disclosure, the trial court acted lawfully, reasonably and in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-73a (a) provides: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, or (B) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual contact, or (C) physically helpless, or (D) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (E) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or (2) such person subjects another person to sexual contact without such other person’s consent; or (3) such person engages in sexual contact with an animal or dead body; or (4) such person is a psychotherapist and subjects another person to sexual contact who is (A) a patient of the actor and the sexual contact occurs during the psychotherapy session, or (B) a patient or former patient of the actor and such patient or former patient is emotionally dependent upon the actor, or (C) a patient or former patient of the actor and the sexual contact occurs by means of therapeutic deception; or (5) such person subjects another person to sexual contact and accomplishes the sexual contact by means of false representation that the sexual contact is for abona fide medical purpose by a health care professional; or (6) such person is a school employee and subjects another person to sexual contact who is a student enrolled in a school in which the actor works or a school under the jurisdiction of the local or regional board of education which employs the actor.”


author: DALY, J.

text:
    STATE OF CONNECTICUT v. JOHN C. ADAMS, JR.
    (AC 16738)
    Spear, Hennessy and Daly, Js.
    Argued January 19
    officially released April 13, 1999

      Suzanne L. McAlpine, with whom, on the brief, was Nicole M. Fournier, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, John C. Adams, Jr., appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant claims that the trial court improperly (1) instructed the jury on his claim of self-defense, (2) denied his motion for a mistrial based on prosecutorial misconduct, (3) excluded as hearsay his statements to the police following his arrest and (4) concluded that the evidence was sufficient to support his conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of October 12, 1993, the defendant, a sixteen year old high school student, was suspended from school for excessive absences. That afternoon, the defendant went to his parents’ house at 41 Maher Avenue in Hamden with his girlfriend, Teresa Schulz, where they fell asleep on the defendant’s bed.

Sometime thereafter, the victim, John C. Adams, Sr., burst through the defendant’s bedroom door, yelling at the defendant for being suspended. The victim left the defendant’s bedroom without touching him. The defendant followed the victim to tell him not to enter his room without knocking. In response, the victim yelled obscenities at the defendant, grabbed him by the neck and threw him against the bathroom door.

The defendant returned to his bedroom where Schulz noticed red marks on his neck and blood coming from his mouth. The defendant picked up a knife from his dresser and put it in his back pocket. The defendant then left his bedroom and became involved in an altercation with the victim in which the defendant stabbed the victim sixteen times. Five of the stab wounds penetrated the victim’s chest, causing his death.

After stabbing the victim, the defendant ran outside to a nearby baseball field. Schulz then went outside to find him. After Schulz found the defendant, they went to a nearby convenience store to call the police. On the way to the store, the defendant threw his knife into a wooded area. The defendant and Schulz returned to the defendant’s house and then took the police to where the defendant had thrown the knife. The defendant was subsequently arrested and convicted. This appeal followed.

I

The defendant first claims that the trial court improperly instructed the jury on his claim of self-defense. Specifically, the defendant claims that the trial court misled the jury by (1) marshaling the evidence in favor of the state, (2) improperly instructing the jury on the definition of the dwelling exception to his duty to retreat before using deadly force and (3) improperly instructing the jury on the “subjective-objective test” of self-defense.

Additional facts are necessary to our resolution of these claims. The trial court instructed the jury on the defendant’s duty to retreat before using deadly force in self-defense. The trial court then instructed the jury that “there is an exception to the duty to retreat. Our law says that a person is not required to retreat if he is in his dwelling and he was not the initial aggressor. However, if both antagonists have the same dwelling, the defendant does have a duty to retreat .... Dwelling is defined as a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present. A resident is one who resides in a place, one who dwells in a place for a period of some duration. The definition of dwelling requires usual customary or routine occupancy. In short, in the words of our Supreme Court, occupation for some period of duration.”

“In determining whether 41 Maher Avenue was the victim’s dwelling, you should look at whether he occupied this house for some period of duration at or about the time in question. . . . There was testimony in this case that the victim was married to Jane Adams, that he owned the house, that he had the key to the house, that because of difficulties they agreed that he would not stay there over the long weekends of Friday, Saturday, Sunday and Monday, but that he would stay there Tuesday, Wednesday, Thursday or would be able to if he wished. Mrs. Adams testified that she did not always know, however, when he was coming or not coming. There is evidence that the incident in question occurred on October 12,1993, which was, I am informed, a Tuesday, which was one of the victim’s agreed days at the house.”

“Our standard of review in cases when the defendant claims that the instructions violate constitutional due process protection[s] is whether the jury instructions were so deficient that it was reasonably possible that the jury was misled.” State v. Patterson, 35 Conn. App. 405, 416, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). “To pass constitutional muster, jury instructions must be correct in law, adapted to the issues in the case and sufficient to guide the jury in arriving at a verdict.” Id., 417.

A

The defendant claims that the trial court misled the jury by marshaling “the evidence solely in favor of the state and essentially taking away from the jury the factual question of whether 41 Maher Avenue was, in fact, [the victim’s] dwelling.”

Additional facts are necessary to our resolution of this claim. After the trial court instructed the jury on the dwelling exception to the duty to retreat, the defendant objected to the instruction, claiming that the trial court marshaled the evidence in favor of the state. The next day, the jury, after beginning its deliberations, requested a further “detailed explanation of self-defense.” The trial court granted the jury’s request and provided essentially the same charge, but did not marshal the evidence on the issue of whether 41 Maher Avenue was the victim’s dwelling. The trial court then instructed the jury to disregard any facts that it had provided in its initial charge and instructed the jury that only the jury’s recollection of the facts mattered when deliberating.

General Statutes § 53a-19 (a) provides that a person is justified in using deadly physical force upon another person to defend himself when the actor reasonably believes that another person is “(1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” Nonetheless, “a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling . . . .” General Statutes § 53a-19 (b). The dwelling exception does not apply, however, if the actor is “threatened by another person who also dwells in the same place.” State v. Shaw, 185 Conn. 372, 379, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982).

“A trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991). “The purpose of marshalling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. ... To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” (Citations omitted; internal quotation marks omitted.) Id., 462.

We conclude that the trial court properly marshaled the evidence and did not, contrary to the defendant’s claim, “create a one-sided rendition of the case that was prejudicially unfair to the defendant.” For example, even though the trial court said that the state presented evidence that the victim dwelled at 41 Maher Avenue, it then said that the defendant provided evidence that the victim’s wife did not always know when the victim would be staying at the house. Moreover, the trial court instructed the jury that it was to disregard the trial court’s recitation of the facts and was to rely solely on its own recollection of the facts. “The jury is presumed, in the absence of a fair indication to the contrary, to have followed the court’s instructions.” State v. Parris, 219 Conn. 283, 294, 592 A.2d 943 (1991).

B

The defendant claims that the trial court, in its charge, improperly defined dwelling and, therefore, misled the juiy. We are not persuaded.

General Statutes § 53a-100 (a) (2) defines “dwelling” as “a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present . . . .” “[Section] 53a-100 contemplates a duration element by requiring usual inhabitation at night. Usual in this context obviously means customary or routine occupancy; Webster, New Collegiate Dictionary (1974); in short, occupation for some period of duration.” (Internal quotation marks omitted.) State v.Bailey, 209 Conn. 322, 343, 551 A.2d 1206 (1988).

The defendant claims that the trial court, by instructing the juiy that when determining whether 41 Maher Avenue was the victim’s dwelling it must determine whether the victim occupied the house “at or about the time in question,” materially altered the definition and also “shortened the period of time contemplated by the court in Bailey.” We conclude that the trial court’s additional remarks neither materially altered the statutory definition of dwelling nor reduced the period of duration required by Bailey. Instead, the trial court merely instructed the jury to focus on whether the victim dwelled at 41 Maher Avenue at the time of the incident. Indeed, the defendant’s claim that the additional comments “shortened the period of time” contemplated by the Bailey court is unpersuasive because that court never suggested a period of time. Accordingly, we conclude that the trial court did not mislead the jury.

C

The defendant claims that the trial court misled the jury by improperly instructing it on the subjective-objective test of self-defense. We disagree.

The jury, when analyzing whether the defendant reasonably believed that deadly force was necessary to repel the victim’s alleged attack, must apply a subjective-objective test. State v. Prioleau, 235 Conn. 274, 286, 664 A.2d 743 (1995). “The subjective-objective inquiry into the defendant’s belief regarding the necessary degree of force requires that the jury make two separate affirmative determinations in order for the defendant’s claim of self-defense to succeed. First, the jury must determine whether, on the basis of all of the evidence presented, the defendant in fact had believed that he had needed to use deadly physical force, as opposed to some lesser degree of force, in order to repel the victim’s alleged attack. . . . The jury’s initial determination, therefore, requires the jury to assess the veracity of witnesses, often including the defendant, and to determine whether the defendant’s account of his belief in the necessity to use deadly force at the time of the confrontation is in fact credible. This probe into the defendant’s actual state of mind clearly demonstrates the function of the jury in [its] evaluation of the self-defense claim. . . .

“If the jury determines that the defendant had not believed that he had needed to employ deadly physical force to repel the victim’s attack, the jury’s inquiry ends, and the defendant’s self-defense claim must fail. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable person in the defendant’s circumstances. . . . Thus, if a jury determines that the defendant’s honest belief that he had needed to use deadly force, instead of some lesser degree of force, was not a reasonable belief, the defendant is not entitled to the protection of § 53a-19.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Scarpiello, 40 Conn. App. 189, 206-207, 670 A.2d 856, cert. denied, 236 Conn. 921, 674 A.2d 1327 (1996).

The defendant claims that the trial court’s instruction “failed to adequately inform [the jurors] that their initial duty was to determine what the defendant actually believed was the amount of force necessary to repel the victim.” We conclude, after examining the trial court’s charge as a whole, that the defendant’s claim must fail.

The defendant relies on State v. Walton, 41 Conn. App. 831, 678 A.2d 986 (1996), to support his claim that the trial court’s instruction was improper. In Walton, this court held as improper a trial court’s instruction that did not set forth a subjective-objective test of self-defense, but rather set forth a purely objective test. Conversely, the trial court here, in each of its self-defense instructions, clearly instructed the jury first to determine whether the defendant believed that he was faced with the imminent use of physical force upon him before he used physical force and then to determine whether his belief was reasonable. The trial court then informed the jury that the inquiry is a subjective-objective test and that it must “view the situation first from the subjective perspective of the defendant, but the defendant’s belief then must be found to be objectively reasonable, not unreasonable or irrational.” Finally, the trial court, in its second jury charge, clearly instructed the jury to apply a subjective-objective test when determining whether the defendant acted in self-defense.

The defendant further claims that the trial court diminished the importance of the subjective portion of the test by using the word “reasonable” eleven times in its charge. The defendant, however, fails to provide, nor can we find, any authority supporting his claim. Accordingly, we conclude that the trial court properly instructed the jury on the subjective-objective test.

II

The defendant next claims that the trial court improperly denied his motion for a mistrial based on the prosecutor’s misconduct. Specifically, the defendant claims that the prosecutor engaged in misconduct that “systematically eroded” the defendant’s credibility by asking the defendant on cross-examination, in the presence of the jury, (1) whether he was ever arrested and (2) whether he told his mother on the morning of the incident that he was “going to be taking the knife to school.” We disagree.

A

Additional facts are necessary to our resolution of this claim. The prosecutor, during his cross-examination of the defendant, asked him whether “the police treatfed] [him] nice” after he was arrested. The defendant responded that he had “never been in a position like that to tell you differently,” to which the prosecutor responded, “well now, you’ve been arrested before, by the police . . . .” The defendant immediately objected, asked that the jury be excused and moved for a mistrial on the ground that the prosecutor had “tainted [the defendant] in front of the jury.” The prosecutor, in response, argued that the defendant was questioned by the police before this incident, even though the questioning never led to the defendant’s arrest. The trial court, after the prosecutor conducted a voir dire of the defendant, overruled the defendant’s motion for mistrial. Nonetheless, the trial court, when the jury reconvened, instructed the jury to disregard the prosecutor’s question.

The defendant claims that the prosecutor’s question “permanently tainted the defendant in front of the jury.” We disagree.

As a general rule, the decision whether to declare a mistrial is committed to the sound discretion of the trial court. States. Woolen, 227 Conn. 677, 693, 631 A.2d 271 (1993). “[A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. ... On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice.” (Citations omitted; internal quotation marks omitted.) State v. Day, 233 Conn. 813, 836-37, 661 A.2d 539 (1995).

“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We must, therefore, determine whether the [actions] of the prosecutor, in light of all the circumstances . . . were so egregious and so damaging to the defendant that they deprived him of a fair trial.” (Citations omitted; internal quotation marks omitted.) State v. Sivri, 46 Conn. App. 578, 590-91, 700 A.2d 96, cert. denied, 243 Conn 938, 702 A.2d 644 (1997). In doing so, we have focused on several factors, including “the extent to which the misconduct was invited by defense conduct or argument; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, [196 Conn. 157, 164, 491 A.2d 1075 (1985)]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra, 1181; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, supra, 654; and the strength of the state’s case. See United States v. Modica, supra, 1181; State v. Couture, supra, 564; see also State v. Glenn, 194 Conn. 483, 492, 481 A.2d 741 (1984).” State v. Chasse, 51 Conn. App. 345, 355-56, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999).

We conclude that the defendant has failed to meet his burden of demonstrating “that the [prosecutor’s] remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993). The prosecutor’s question dealt with a collateral issue to the case. Indeed, although the trial court noted its disapproval of the question, it also stated that the question was a “major transgression” from the critical issues of the case. Moreover, the trial court remedied any prejudice that the defendant may have suffered by issuing a curative instruction to the jury. The defendant did not claim at trial, nor has he claimed on appeal, that the trial court’s curative instruction given to the jury was defective. “We have often held that a prompt cautionary instruction to the jury regarding improper prosecutorial remarks obviates any possible harm to the defendant.” State v. Sherman, 38 Conn. App. 371, 386, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995).

B

The defendant also claims that the prosecutor engaged in misconduct by asking the defendant whether he told his mother that he was going to take the knife to school that day. After the prosecutor resumed his cross-examination of the defendant, he asked the defendant if he told his mother that he was “going to be taking the knife to school with [him] that day.” The defendant immediately objected and the trial court excused the jury. The defendant argued that the question lacked a foundation in the evidence. The prosecutor argued, however, that the defendant had told the defendant’s expert witness, C. Scott Grove, a psychiatrist who had interviewed and prepared a report on the defendant, that he took the knife to school with him that day and that Grove transcribed the defendant’s statement in a report.

The defendant then testified that he never told Grove that he took a knife to school that day. Defense counsel then requested that the prosecutor find in Grove’s report the defendant’s statement that he took a knife to school that day. The prosecutor, however, was unable to find the defendant’s statement, so he withdrew the question. The trial court, after the jury returned to the courtroom, instructed the jury that it must disregard the question.

The defendant claims that the prosecutor engaged in misconduct by implying, through the improper question, that the stabbings were premeditated, thus prejudicing the defendant by weakening his self-defense claim that hinged solely on his credibility. The defendant further claims that the prosecutor “systematically eroded [the defendant’s] credibility in front of the jury” by asking the two inappropriate questions.

“A question is within the scope of the direct examination if it is designed to rebut, impeach, modify, or explain any of the defendant’s direct testimony.” State v. Marsala, 44 Conn. App. 84, 91, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). “ ‘A good faith basis on the part of examining counsel as to the truth of the matter contained in questions propounded to a witness on cross-examination is required.’ ” State v. Beliveau, 237 Conn. 576, 586, 678 A.2d 924 (1996).

There was evidence that the defendant frequently carried a knife, and Schulz testified that the defendant usually carried a knife when they went to the woods together. After examining the prosecutor’s question in light of the entire trial, we conclude that the question did not systematically erode the defendant’s credibility in front of the jury.

Ill

The defendant next claims that the trial court abused its discretion by excluding as hearsay statements that the defendant made to the police while he was in custody. Specifically, the defendant claims that the trial court improperly excluded his statements that should have been admitted under either the state of mind or the residual hearsay exception.

Additional facts are necessary to our resolution of this claim. After the Hamden police arrested the defendant, they interviewed him twice. During each interview, the defendant confessed that he stabbed the victim in self-defense. The trial court granted the state’s motion in limine precluding the defendant from offering these statements into evidence. When the defendant attempted to offer his statements into evidence, the trial court ruled that they were inadmissible hearsay.

“ ‘On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. . . . Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion.’ ” (Citations omitted.) State v. Jurgensen, 42 Conn. App. 751, 754, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996). Hearsay is an out-of-court statement that is offered to establish the truth of the matters contained therein. State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985).

The defendant claims that the trial court abused its discretion by excluding his statements because the statements should have been admitted under the state of mind exception to the hearsay rule in order to demonstrate that he stabbed the victim in self-defense. “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.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 180, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). However, “[statements by an accused ‘after the act, stating the past intent or motive at the time of the act’ are inadmissible under the state of mind exception to the hearsay rule.” (Emphasis in original.) State v. Freeney, 228 Conn. 582, 595, 637 A.2d 1088 (1994). We conclude that in the present case the trial court did not abuse its discretion by excluding the defendant’s postarrest statements as inadmissible hearsay not falling within the state of mind exception.

The defendant also claims that the trial court abused its discretion by not admitting the defendant’s hearsay statements under the residual, or catch-all, exception to the hearsay rule. A court may admit hearsay under the residual exception if (1) there was a reasonable necessity for the admission of the statement, and (2) the statement was supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions. State v. Sharpe, supra 195 Conn. 664.

We conclude that the trial court did not abuse its discretion by excluding the defendant’s postarrest statements under the residual hearsay exception, as there was not a reasonable necessity for the admission of the statements. “[T]he necessity requirement is met when, unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources.” Id., 665. Here, the defendant was available to testily. We conclude, therefore, that the necessity requirement of Sharpe was not met in this case. Accordingly, the trial court properly excluded the defendant’s statements under the residual hearsay exception.

Even if we were to conclude that the defendant’s statements were reasonably necessary, the statements were not sufficiently reliable or trustworthy, as Sharpe requires. The record reveals that the defendant, after stabbing the victim, understood the nature of his actions and had enough time to formulate a self-defense claim. This is not a situation where “the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed.” (Internal quotation marks omitted.) Id., 665. If the trial court had admitted the defendant’s unreliable and untrustworthy statements, the state would have been unable to cross-examine the defendant as to those statements if the defendant chose not to testify. Accordingly, we conclude that the defendant’s hearsay statement was not sufficiently reliable and trustworthy to be admitted under the residual hearsay exception.

IV

The defendant’s final claim is that the evidence was insufficient to support his conviction. Specifically, the defendant claims that the state failed to present evidence from which a jury could conclude beyond a reasonable doubt that the defendant was guilty of manslaughter in the first degree. We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Teti, 50 Conn. App. 34, 38, 716 A.2d 931, cert. denied, 247 Conn. 921, 722 A.2d 812 (1998).

The defendant was charged with manslaughter in the first degree. The state, to establish a violation of manslaughter in the first degree, must prove that the accused, “under circumstances evincing an extreme indifference to human life . . . recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” General Statutes § 53a-55 (a) (3).

The defendant claims that the state’s evidence failed (1) to prove that “the defendant acted with intent to cause serious physical injury to another person or that he acted with reckless disregard for human life,” (2) to disprove the defendant’s assertion of self-defense and (3) to “prove that the defendant had a duty to retreat or that he knew he could retreat with complete safety.” The defendant’s contentions are without merit.

First, the evidence was sufficient to prove that the defendant was guilty of manslaughter in the first degree. The defendant does not dispute that he stabbed the victim sixteen times in causing the victim’s death. Further, the state presented evidence that the defendant was angry and started an altercation with the victim. Accordingly, we conclude that the evidence was sufficient for the jury to find that the defendant recklessly engaged in conduct that created a grave risk of death under circumstances evincing an extreme indifference to human life.

Second, the jury reasonably could have rejected the defendant’s claim of self-defense. The evidence presented was such that the jury was free to disbelieve the defendant’s claim of self-defense and to conclude beyond a reasonable doubt that he could not reasonably have believed that he was faced with the imminent use of physical force by the victim or that the degree of physical force that he used against the victim was necessary to defend himself. See State v. Ash, 33 Conn. App. 782, 789, 638 A.2d 633, rev’d on other grounds, 231 Conn. 484, 651 A.2d 247 (1994). The jury, from the evidence presented, reasonably could have concluded that the defendant was the initial aggressor of the attack and, therefore, did not act in self-defense. Further, the jury had evidence before it indicating that the defendant did not believe that the victim was using or about to use deadly physical force or inflict great bodily harm. Indeed, the evidence indicated that the victim never attempted to use deadly physical force on the defendant in the past and did not indicate that the defendant intended to use deadly force on the day of the incident. The jury’s role as trier of fact is to draw reasonable and logical inferences from the facts as it finds them to exist. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992).

Third, the evidence supports the jury’s conclusion that the defendant had a duty to retreat or that he knew that he could retreat with complete safety. The jury reasonably could have concluded that the defendant could have escaped from the victim’s grasp and retreated. The defendant then easily could have run out the front door to complete safety. Indeed, the defendant, after stabbing the victim, ran out the front door to a nearby baseball field.

Accordingly, we conclude that the defendant’s claims of insufficient evidence are without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The state claims that the defendant did not properly preserve his claims at trial. The defendant, however, filed a supplemental request to charge on the dwelling exception to the duty to retreat rule. Accordingly, we conclude that the defendant properly preserved his claims pursuant to Practice Book § 60-5. See State v. Ryan, 18 Conn. App. 602, 605, 559 A.2d 1156 (1989).


author: LANDAU, J.

text:
    WALTER TWACHTMAN, JR. v. FRANK HASTINGS ET AL.
    (AC 17924)
    Foti, Landau and Hennessy, Js.
    Argued December 14, 1998
    officially released April 13, 1999

      Neil F. Murphy, Jr., with whom was P. Jo Anne Burgh, for the appellant (named defendant).

      Richard M. Quinlan, with whom, on the brief, was Walter Twachtman, Jr., for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, Frank Hastings, appeals from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, Walter Twacht-man, Jr., on a mortgage Hastings gave to Twachtman. The mortgage secured a note for payment for professional services by Twachtman to Hastings in various legal matters from 1986 to 1990. On appeal, Hastings claims that (1) the trial court improperly failed to apply the standards set out in Konover Development Corp. v. Zeller, 228 Com. 206, 635 A.2d 798 (1994), in ascertaining whether Twachtman violated his fiduciary duty to Hastings and (2) the trial court’s findings as to several issues were clearly erroneous. We affirm the judgment of the trial court.

The facts are substantially undisputed and may be summarized as follows. From February 5, 1986, mtil May, 1989, Twachtman represented Hastings in various legal proceedings. The parties’ initial retainer agreement, signed on February 5, 1986, provided, inter aha, that Hastings would be billed for services at an hourly rate of $95. The parties understood that the bill would be paid in fuh at the successful conclusion of the legal proceedings, specifically at the conclusion of a lawsuit undertaken to enforce a judgment in favor of Hastings against Arthur Normand in a prior lawsuit (Normand I), which involved an option agreement to purchase certain property. Because the postjudgment proceedings to enforce the judgment in Normand I were unsuccessful, Twachtman commenced a second lawsuit on Hastings’ behalf (Normand II), which was tried to the trial court and resulted in a judgment in favor of Hastings for specific performance on an option agreement. Normand appealed Normand II, which Twachtman successfully defended on Hastings’ behalf.

On October 6,1988, prior to the Normand II decision, the parties entered into a letter agreement, recognizing that the total unpaid legal fees rendered and billed through July, 1988, were $32,644.52, which included $24,644 for Twachtman’s services in Normand II, and that Twachtman “was entitled to an attorney’s lien [for the total amount due] against the funds in [Twacht-man’s] possession and collected on [Hastings’] behalf.” The parties agreed to a compromise whereby $15,000 would be paid to Twachtman from proceeds acquired as a result of separate legal proceedings, which Twacht-man was holding on Hastings’ behalf, and the remainder of the proceeds would be paid to Hastings. The balance of unpaid legal fees, $17,644.52, was to be secured by a mortgage and note at 8 percent interest. Twachtman agreed not to demand payment on the note until the Normand II appeal was resolved. Hastings signed the agreement, which included a statement that Hastings had read the terms of the agreement and understood and accepted those terms.

At the conclusion of Normand II, Hastings experienced difficulty obtaining financing for the purchase of the Normand property and, thereafter, Twachtman and Hastings entered into another letter agreement in September, 1989. As a result, Hastings paid $10,000 toward Twachtman’s billings of $34,895.25. The balance was secured by a mortgage and note at 15 percent interest, which was to be paid on or before December 31, 1989. The language in the earlier agreement was restated, specifying that Hastings was free to terminate the attorney-client relationship at any time but that, if Hastings discharged Twachtman without cause, Twachtman could demand payment. The agreement also provided that it superseded all prior agreements. Again, Hastings signed the document, acknowledging that he understood and accepted its terms.

Not until December 6,1989, in a letter to Twachtman, did Hastings express any dissatisfaction with the quality of Twachtman’s services and the amount of his legal fees. Thereafter, Twachtman, believing that Hastings’ dissatisfaction was a ruse to avoid payment of the bill and that Hastings did not intend to pay the balance due, gave Hastings notice that he would file the mortgage on the land records within ten days in accordance with the agreement between the parties. Twachtman also advised Hastings that because they were now in an adversarial position, he could not represent Hastings in the only remaining active file. In a letter dated February 6, 1990, however, Hastings proposed that Twacht-man manage the appeal in that case, a class action suit in which Hastings was one of the plaintiffs, and proposed a separate retainer agreement for a fee of not more than $6000 to be secured by a mortgage on two of the lots purchased at the Normand closing. After some modifications, the agreement was signed by the parties and Twachtman defended the appeal to its conclusion when the trial court’s judgment against the plaintiffs was affirmed in Cyr v. Coventry, 216 Conn. 436, 582 A.2d 452 (1990).

Twachtman commenced this action to foreclose the mortgage in January, 1995, and a judgment of foreclosure by sale was rendered by the trial court. This appeal followed.

I

Initially, Hastings argues that the trial court ignored the standards set out in Konover Development Corp. v. Zeller, supra, 228 Conn. 206, as it applied to the fiduciary relationship between the parties. Hastings maintains that under Konover, the court was required to evaluate “(a) whether the plaintiff had made full and frank disclosure of the relevant information, (b) whether the consideration received by the defendant pursuant to the letter [agreements, notes and mortgages] was adequate, (c) whether the defendant had access to competent, independent advice with regard to the letter [agreements], and (d) the relative degrees of sophistication and bargaining power between the parties with respect to the letter [agreements].” Id., 217-18. In addition, Hastings asserts that the trial court, rather than holding Twachtman to the burden, as set forth in Konover, of proving by clear and convincing evidence that he dealt fairly with Hastings, improperly placed on Hastings the burden of proving Twachtman’s breach of his fiduciary duty.

Twachtman maintains that Konover is distinguishable on its facts and, therefore, does not apply. Specifically, Twachtman suggests that the fact that Konover involved a dispute between a general partner and a limited partner, where the general partner sought damages for the breach of an agreement to reimburse the general partner for out-of-pocket expenses incurred in developing plans for a proposed shopping mall, makes it factually distinct from the case before us. Twachtman characterizes this case as “a fee dispute between an attorney and his client that arose subsequent to the acquisition of the res [the acquisition of the Normand property by Hastings], which gave rise to the relationship between the attorney and the client in the first place.”

We agree with Twachtman that Konover is inapplicable to the case before us. In Konover, the parties entered into a letter agreement whereby the partnership agreed, inter alia, that the plaintiff, in its sole discretion, could terminate the partnership if it determined that the project involving a proposed shopping mall was no longer feasible. Id., 211. In addition, the defendant would own all of the partnership assets and would be obligated to reimburse the plaintiff for all of its partnership expenditures. Id., 211-12. Thereafter, the plaintiff decided that the project was no longer feasible, informed the defendant of its decision and formally requested reimbursement for its out-of-pocket expenses, which the defendant did not acknowledge. Id., 213. The plaintiff brought a breach a contract claim against the defendant. Id. In response, the defendant denied any debt owed to the plaintiff and filed a counterclaim for breach of fiduciary duty. Id.

The court in Konover held that the plaintiffs decisions regarding the project’s feasibility and withdrawal from the partnership, pursuant to their letter agreement, were impressed with a fiduciary duty. Id., 217. The court noted that it was not convinced that “the terms of a partnership agreement, even given due deference to the provisions of freedom of contract, necessarily negate the fiduciary relationship that inheres in the partnership.” Id., 225-26. The better choice, the court noted, was to “maintain the fiduciary relationship, but to make clear that, in determining whether the general partner has dealt fairly with the limited partner, the factfinder should take into account all of the circumstances surrounding their business relationship.” Id., 226.

In the present case, it is undisputed that Twachtman owed a fiduciary duty to Hastings. The issue, however, is whether that fiduciary relationship existed subsequent to the acquisition of the res that gave rise to the attorney-client relationship between the parties and, thus, dictated the application of Konover. Specifically, it was not the acquisition of the Normand property that gave rise to the dispute; it was the legal fees owed to Twachtman who performed legal services to accomplish Hastings’ objective, which was to acquire the property. In the present case, unlike the fiduciary relationship that existed between the partners in Konover who were engaged in a joint business venture, Hastings specifically agreed that he would pay Twacht-man for his legal services upon the successful completion of Normand II on or before December 31, 1989. The attorney-client relationship between the parties ceased to exist at the conclusion of the last active file, Cyr v. Coventry, supra, 216 Conn. 436. The action to foreclose on the mortgage attached to the Normand property occurred in 1995, well after the attorney-client relationship involving any active case files had concluded and after Hastings indicated that he was not going to pay the legal fees that were due. This case, therefore, unlike Konover, does not involve a breach of fiduciary duty but, instead, involves a breach of contract.

The trial court found that the “letter agreement of October 6,1988, and the mortgage documents executed pursuant to its terms . . . [indicate that] the plaintiffs intention was merely to acquire security for the payment of his fees after the Normand litigation had been concluded, and the mortgage, which was not to be enforced until that time, was a permissible security interest . . . for the purpose of securing the payment by the client of fees due the attorney.” The trial court also determined that the agreement of September 7, 1989, was “the result of free assent of the parties making it . . . based on the common law definition of duress under Connecticut law, because it was not the product of any wrongful conduct on the part of the plaintiff and he honestly and reasonably believed himself to be entitled to the contractual conditions contained therein.”

“[0]ur function [on appeal] is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 14, 664 A.2d 719 (1995). Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 58, 717 A.2d 724 (1998).

Hastings seeks to engraft the standards applicable to attorney-client relationships onto a fee dispute outside the res that formed the basis for that attorney-client relationship. Essentially, Hastings seeks to impose a breach of fiduciary duty in Twachtman’s assertion of his legal right. Under the circumstances of this case, we decline that invitation.

II

Hastings finally claims that regardless of the applicability of the Konover standards, the trial court’s findings were clearly erroneous. Specifically, Hastings claims that the trial court improperly found that (1) the interest rate charged by Twachtman on the September, 1989 note was reasonable and (2) Twachtman had not misapplied any of the sum paid by Hastings against the note and mortgage and in awarding damages calculated on the basis of such misapplication. Hastings claims that the trial court improperly found Twachtman more credible than Hastings. While this claim is couched as a challenge to the trial court’s factual determinations, actually, Hastings asks this court to review the credibility of the parties. This we will not do.

It is axiomatic that “[t]he trial court, as trier of fact, determined who and what to believe and the weight to be accorded the evidence. The sifting and weighing of evidence is peculiarly the function of the trier. [N] othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony.” (Internal quotation marks omitted.) Shearn v. Shearn, 50 Conn. App. 225, 231, 717 A.2d 793 (1998). As such, the trial court is free to accept or reject, in whole or in part, the testimony offered by any witness, having the unique opportunity to observe the witnesses firsthand and assess their credibility. See Baretta v. T & T Structural, Inc., 42 Conn. App. 522, 527, 681 A.2d 359 (1996). “We have constantly held to the rule that we will not judge the credibility of witnesses or substitute our judgment for that of the trial court. We fail to see a reason why we should do so here.” Shearn v. Shearn, supra, 231.

The weight of the evidence and the credibility of the witnesses were for the trial court to determine. We therefore will not disturb its judgment.

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

In this opinion the other judges concurred.

       See Natural Harmony, Inc. v. Normand, 211 Conn. 145, 558 A.2d 231 (1989).

       At trial, Twachtman testified that the fees charged for representation in the Cyr v. Coventry, supra, 216 Conn. 436, appeal were paid and, therefore, were not the subject of the present lawsuit.

       We note that, on August 12, 1996, Hastings filed a grievance against Twachtman that was considered by the statewide grievance committee. The committee found no misconduct on the part of Twachtman that warranted disciplinary action. The committee dismissed the complaint on January 17, 1997, without prejudice to Hastings’ right to refile it “should the findings of the trial court in which the dispute between [Hastings] and Twachtman] is currently pending evidence misconduct on the part of [Twachtman].”
      Moreover, we note that none of the trial court’s findings with regard to Twachtman’s compliance with the Rules of Professional Conduct was challenged in this appeal.

       Twachtman posits that “[t]his case might have been similar to the Konover case if the dispute in Konover was [about] the fee that was due the general partner for services performed to the partnership.” To be fair, Twachtman’s brief was filed prior to our Supreme Court’s decision in Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 717 A.2d 724 (1998). In Beverly Hills Concepts, Inc., the court clearly applied Konover in its analysis, holding that the trial court improperly found a junior associate in the law firm liable for breach of a fiduciary duty.

      In his brief, Hastings states that “[t]he record clearly reflects that the court found the plaintiff to be extremely credible and the defendant to be less so."