author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. ROBERT WATSON
    (AC 16892)
    Schaller, Spear and Kulawiz, Js.

      Argued June 8
    officially released September 29, 1998

      Lisa J. Steele, special public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Herbert E. Carlson, Jr., supervisory senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Robert Watson, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-8, assault of a victim sixty or older in the second degree in violation of General Statutes §§ 53a-60b (a) and 53a-8, robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-8, conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a-136 and 53a-48 (a), burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (2) and 53a-8, and conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-103 and 53a-48 (a). On appeal, the defendant claims that the trial court improperly denied his motions (1) to suppress photographs and eyewitness testimony identifying the defendant’s automobile, (2) to suppress eyewitness identification of the defendant and (3) for judgment of acquittal based on his claim that the evidence was insufficient to support the jury’s verdict of guilty as an accessory on the two counts of assault.

The jury reasonably could have found the following facts. On October 18,1994, Hoyt Pease, eighty-five years old, drove from his home in Southington to the Fleet Bank branch office in Berlin. He withdrew $100 from the automatic teller machine (teller machine). He was then approached by the defendant, who claimed to be lost and in need of directions to Waterbury. The defendant also claimed to be having car problems. Pease gave the defendant directions to Interstate 84, but the defendant stated that they were too confusing. Pease offered to show the defendant the way to the highway and added that it would take them past his home.

Pease drove away, followed by the defendant. The defendant was driving a red Yugo with distinctive wheel covers and a broad white stripe underlined in black. Several minutes later, the defendant honked his horn and pulled off to the side of the road. Pease stopped his car and the defendant told him that his car was overheating. Pease offered to take the defendant to his home to get water to fill the radiator. The defendant then followed Pease to his home.

The defendant followed Pease up a long inclined driveway to the two-car garage next to Pease’s house. Pease filled the defendant’s radiator and noted that although the water was low and the engine was hot, radiator fluid was not boiling over. Patricia Pease, his seventy-six year old wife, came outside and joined the two men. She greeted the defendant and observed that although the defendant was polite, he looked “awful,” appeared “visibly very, very nervous,” was “shaking” and his eyes “didn’t look right.”

After filling the defendant’s radiator, Pease then led the defendant to a road that led to Interstate 84. The defendant told Pease that his car needed gasoline. When Pease observed that the gasoline gauge indicated that the defendant’s tank was not low, the defendant claimed that the gauge was broken. Pease then led the defendant to a nearby gas station, Patriot Petroleum.

John Aliberti, the gas station’s owner, was repairing a car approximately twenty-five feet from the gasoline pumps and noticed the Yugo’s distinctive wheel covers, one of which was damaged or broken. He also noticed that the defendant had parked too far from the pumps. Randy Spaulding, an attendant, walked over to the defendant to assist him, but the defendant searched his pockets and instructed Spaulding not to pump any gasoline because he did not have any money. Spaulding noticed a large number of cassette tapes on the dashboard of the defendant’s car.

Pease waved goodbye to the defendant and drove away. The defendant told Spaulding, “To hell with the gas,” and drove away in the same direction as Pease. Pease followed the same route home and parked his car in the garage. Approximately ten minutes later, Patricia Pease returned home and parked her car in the garage, but did not close the garage door. During this time, Patricia Verderame, the Peases’ neighbor, and Paul Stocking, Verderame’s business partner, were in Verder-ame’s front yard loading firewood into Stocking’s truck. They both observed the Peases arrive home.

Shortly after Patricia Pease arrived home, Verderame and Stocking observed two cars drive up the Peases’ driveway at excessive speeds. The first car was a small red import with white stripes along the sides. The driver was a young, dark-skinned male approximately twenty-five to thirty years old. The second car was an older, tan-colored compact driven by a dark-skinned male neatly dressed in tan or khaki colored clothing.

Verderame and Stocking considered the arrival of the two men to be odd, but surmised that they were hired to do yard work and returned to loading firewood into Stocking’s truck. Several minutes later, at approximately 4:30 p.m., Verderame and Stocking left.

At approximately the same time, Patricia Pease heard someone in the garage. She called to her husband, and the two went to the garage. As Hoyt Pease entered the garage, he was struck by a man standing to his right near a pile of firewood logs. Patricia Pease turned and charged his attacker, but was struck by a second blow and knocked to the floor. She turned toward her husband and saw him being struck with a log of firewood by a neatly dressed, dark-skinned male in brown clothing. She charged her husband’s attacker, but was struck in the head with the log. The attacker then took Hoyt Pease’s wallet and fled. The couple assisted each other, returning to the house to call 911.

Before Hoyt Pease was transported by ambulance to a hospital, he related his interaction with the defendant that day and described the defendant’s car to Officer Louis Palmieri. On the basis of that information, police officers obtained the teller machine surveillance videotape and obtained two still photographs from the videotape that depicted Hoyt Pease, the defendant and the defendant’s vehicle. The following day, police officers interviewed Spaulding, Verderame and Stocking as to their observations the previous day. On the basis of those interviews, the Southington police issued an alert for a red Yugo with a white stripe on each side.

On October 20, 1994, Officer Robert Pekrul of the Meriden police department spotted a car matching the description issued by the Southington police department. After running a computer check of the license number, Pekrul learned that the car was registered to an address at 49 Goodwill Street in Meriden and relayed that information to the Southington police. Several hours later, Detective Michael Shanley of the South-ington police department and his partner arrived at 49 Goodwill Street. They observed a red Yugo with a white stripe parked at the end of the driveway. Upon further examination, Shanley noted that the car matched the descriptions given in eveiy respect, including the large number of cassette tapes on the dashboard, as observed by Spaulding. Shanley and his partner stayed at this location and photographed the car.

Detective Craig Fournier went to Patriot Petroleum, in an effort to locate Spaulding so that he could view the car. Spaulding was not at work, but Fournier learned that Aliberti had also observed the defendant and his car. Fournier then drove Aliberti to 49 Goodwill Street.

While Shanley was taking photographs, the defendant came out of the house to speak to the detective. Two detectives from the Southington police department arrived with the teller machine surveillance photographs. Several Meriden police officers also arrived to assist in the investigation. The defendant agreed to be photographed and consented to a search of his house.

Fournier and Aliberti arrived at the house and, in part, on the basis of the broken distinctive wheel cover, Aliberti positively identified the vehicle as the car that he had seen on October 18, 1994. He further identified the defendant as the driver of the car. Shanley returned to Patriot Petroleum and showed photographs of the defendant’s car to Spaulding. Spaulding identified the car as the same make, model and color as the car he had seen on October 18, 1994. Shanley also showed Spaulding an array of six photographs of possible suspects. Spaulding selected the defendant’s photograph as being that of the driver of the car.

That same day, Shanley showed photographs of the car to Verderame and Stocking. Both told Shanley that the car in the photographs was very similar to the car they had seen driving up the victim’s driveway.

On October 21, 1994, Fournier brought Hoyt Pease to the Southington police garage to view the defendant’s Yugo. Pease told Fournier that the car looked “exactly” like the one he had filled with water prior to the attack. Pease also selected the defendant’s photograph from the six photograph array. Patricia Pease, while in the hospital, was subsequently shown the array of photographs. She did not select the photograph of the defendant.

I

The defendant first claims that the trial court improperly denied his motion to suppress the eyewitnesses’ identifications of his car and the photographs of his car. The defendant claims that the various identifications were unreliable and resulted from an unnecessarily suggestive identification procedure. In support of this claim, the defendant relies on Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), and Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). We reject the assertion made by the defendant that the same rule that applies to the identification of a defendant as a perpetrator applies to the admissibility of an inanimate object.

Certain additional facts are necessary to an understanding of our resolution of this issue. The defendant filed a motion to suppress the photographs of the Yugo and the identification of the Yugo by Hoyt Pease, Spaulding, Stocking and Verderame. The defendant argued that the identifications should be suppressed because they were made following an impermissibly suggestive police procedure, namely, that the witnesses were shown either the car or a photograph of the car and asked if it was the same car they had observed earlier.

The trial court held a hearing on the defendant’s motion to suppress. The defendant argued that the constitutional standards governing eyewitness identification of persons should apply to eyewitness identification of inanimate objects. The trial court agreed and applied the more stringent analysis. After concluding that the identifications were not tainted by an impermissibly suggestive identification procedure, the trial court denied the defendant’s motion.

This claim is controlled by our decision in State v. Taylor, 37 Conn. App. 464, 657 A.2d 659, cert. denied, 234 Conn. 907, 660 A.2d 859 (1995). In Taylor, the defendant sought to exclude the victim’s identification of the gun used during a kidnapping. Id., 478. The victim stated that one of the kidnappers, his brother-in-law, had shown him the gun on several occasions prior to the kidnapping. Id. The victim had handled the gun and was familiar with its size, shape, color, markings and handle. Id. The victim later spoke with an assistant state’s attorney and attempted to draw a picture of the gun. Id., 479. Several days later, the assistant state’s attorney showed the victim a photograph of the gun, which the victim identified as being the one owned by his brother-in-law. Id. The names of the brother-in-law and the victim were written on the photograph. Id. The defendant moved to suppress the photograph of the gun. Id.

This court held that “ [t]he genesis of the rule requiring that the identification of persons accused of crime be free of the taint of a suggestive procedure comes from an acknowledgment that identification by an eyewitness of a person as the one who perpetrated the crime is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). It further stems from an understanding that [i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial. Id., 229. Moreover, the issue of identification of the defendant as the perpetrator of the crime is an element of all offenses and thus impacts directly on a defendant’s right to due process of law since an impermissibly suggestive identification procedure may be conducive to an irreparable mistaken identification. State v. Gordon, [185 Conn. 402, 412, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982)]. We decline to elevate the identification of an inanimate object to one of constitutional magnitude because in our view, the ordinary rules governing the admissibility of objects afford the defendant adequate protection.” (Internal quotation marks omitted.) State v. Taylor, supra, 37 Conn. App. 480.

Our Supreme Court “has consistently held that photographic evidence is admissible where the photograph has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry.” (Internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 574, 710 A.2d 1348 (1998). As a general rule, a lay witness may not give opinion testimony and may testify only as to observed facts. Acampora v. Asselin, 179 Conn. 425, 427, 426 A.2d 797 (1980); Robinson v. Faulkner, 163 Conn. 365, 372, 306 A.2d 857 (1972); Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971). Lay opinion, however, may properly be admitted regarding identity or similarity. Johnson v. Newell, supra, 276; Harris v. Fitzgerald, 75 Conn. 72, 75, 52 A. 315 (1902).

It is clear that the testimony regarding the identifications of the Yugo by Hoyt Pease, Spaulding, Stocking and Verderame was based on their own personal observations. It is equally clear that the Yugo, as the car driven by the defendant, was relevant and probative to an issue of material fact. “ ‘The trial court exercises a broad discretion in admitting such evidence, and its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown. State v. Piskorski, 177 Conn. 677, 700-701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Smith, [174 Conn. 118, 123, 384 A.2d 347 (1977)].’ ” State v. Jones, 39 Conn. App. 563, 573-74, 665 A.2d 910, cert. denied, 235 Conn. 931, 667 A.2d 800 (1995), quoting State v. Bember, 183 Conn. 394, 408, 439 A.2d 387 (1981).

Although the trial court improperly applied the more stringent analysis in deciding the defendant’s motion, the defendant was not prejudiced. Accordingly, we conclude that the trial court did not abuse its discretion.

II

The defendant next claims that the trial court improperly denied his motion to suppress Aliberti’s identification of the defendant. He claims that it was obtained by means of an impermissibly suggestive show-up identification procedure. We are unpersuaded.

After the police had located the red Yugo at 49 Goodwill Street, Fournier went to Patriot Petroleum to get Spaulding so that he could view the car. Spaulding was not at work, but Fournier learned that Aliberti had also observed the defendant and his car. Fournier then drove Aliberti to 49 Goodwill Street.

While Shanley was taking photographs, the defendant came out of his house to speak to the detective. Two detectives from the Southington police department arrived with the teller machine surveillance photographs. Several Meriden police officers also arrived to assist in the investigation. The defendant agreed to be photographed and consented to a search of his house.

Fournier and Aliberti arrived at the house, and Alib-erti positively identified the vehicle as the car he had seen on October 18, 1994. He further identified the defendant as the driver of the car. The defendant claims that Aliberti’s identification was impermissibly suggestive because Aliberti was shown the red Yugo at approximately the same time that he saw the defendant.

It is important to note that the unnecessarily suggestive identification procedure complained of was not actually a “police procedure” at all. A police computer check of the registration of the red Yugo revealed that it was registered to Lynn Camp, the defendant’s cousin. At the time Fournier went to Patriot Petroleum in search of Spaulding, he had no reason to know that the defendant had any connection to the red Yugo or that he was even present at 49 Goodwill Street. Aliberti was not brought to the scene to identify the defendant, but rather to identify the automobile. That the defendant happened to be present and happened to walk outside of the house in plain view of the officers and Aliberti cannot be said to be a police show-up procedure. Alib-erti’s identification of the defendant was inadvertent. Nevertheless, even assuming arguendo that the identification of the defendant was the result of a show-up procedure, the confrontation was not unnecessarily suggestive.

“It is well settled that [i]n determining whether a pretrial identification procedure violated a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991), quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); see also State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). To prevail in his claim the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances. . . . State v. Hinton, [196 Conn. 289, 293, 493 A.2d 837 (1985)]. State v. Mayette, 204 Conn. 571, 581, 529 A.2d 673 (1987). State v. Pollitt, 205 Conn. 132, 162, 531 A.2d 125 (1987). Generally, [t]he exclusion of evidence from the jury is ... a drastic sanction, one that is limited to identification testimony which is manifestly suspect.” (Internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 685-86, 631 A.2d 271 (1993).

The out-of-court identification that the defendant claims was inadmissible is the one-to-one show-up between Aliberti and himself, which was obviously suggestive. Aliberti, after identifying the red Yugo, viewed the defendant. It would be natural for him to suspect that the defendant, a resident of the house at which the red Yugo was parked, had something to do with the crime. The confrontation, although suggestive, was not unnecessarily so because, as in Wooten, “ ‘the exigencies of the situation justified the procedure . . . .’ State v. Amarillo, 198 Conn. 285, 293, 503 A.2d 146 (1986). The confrontation was not unnecessary because it was prudent for the police to provide the victim with the opportunity to identify her assailant while her memory was still fresh; see State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976) (‘prompt on-the-scene confrontations tend under some circumstances to ensure accuracy’); and because it was necessary to allow the police to ‘eliminate quickly any innocent parties so as to continue the investigation with a minimum of delay,’ if the victim excluded the defendant as a suspect or was unable to identify him. State v. Amarillo, supra, 293. As we have remarked, ‘[a]n immediate viewing of the suspect may be justified where “it [is] important for the police to separate the prime suspect gold from the suspicious glitter, so as to enable them ... to continue their investigation with a minimum of delay.” ’ ” State v. Wooten, supra, 227 Conn. 686-87.

In this case, it was prudent for the police to provide Aliberti with the opportunity to identify the driver of the red Yugo while his memory was still fresh. We conclude, therefore, that Aliberti’s identification of the defendant was not unnecessarily suggestive. Accordingly, we need not address whether the identification was reliable under the totality of the circumstances.

Ill

The defendant next claims that the trial court improperly denied his motion for judgment of acquittal because the evidence was insufficient to support the jury’s verdict of guilty as an accessory to assault in the first degree in violation of §§ 53a-59 (a) (1) and 53a-8 and assault of a victim sixty or older in the second degree in violation of § § 53a-60b (a) and 53a-8. We disagree.

The defendant claims that the evidence was insufficient to prove that (1) he was present at the victims’ house at the time of the attack and (2) he shared the attacker’s intent to cause physical harm. Both claims are equally without merit.

“When reviewing sufficiency of the evidence claims, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993); State v. Salz, supra, 31. In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. [Id.]. The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. State v. Ruscoe, 212 Conn. 223, 245, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).” (Internal quotation marks omitted.) State v. Walton, 34 Conn. App. 223, 229, 641 A.2d 391, cert. denied, 230 Conn. 902, 644 A.2d 916 (1994).

“It is well established that ‘[t]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [Wjhether such an inference should be drawn is properly a question for the jury to decide.’ . . . State v. Downey, 45 Conn. App. 148, 154 694 A.2d 1367 [cert. denied, 242 Conn. 909, 697 A.2d 367] (1997); see also State v. Torwich, 38 Conn. App. 306, 314, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 (1995).” State v. Smith, 46 Conn. App. 321, 326, 699 A.2d 262 (1997).

“ ‘While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. State v. Cas-tonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. State v. Grant, 219 Conn. 596, 604-605, 594 A.2d 459 (1991).’ State v. Pinnock, 220 Conn. 765, 770-71, 601 A.2d 521 (1992).” State v. Romero, 42 Conn. App. 555, 558, 681 A.2d 354, cert. denied, 239 Conn. 935, 684 A.2d 710 (1996).

First, the jury reasonably could have found that the defendant was present during the assault. The two assaults occurred between the time the house was burglarized and the time that Hoyt Pease was robbed. The jury found that the state had proven beyond a reasonable doubt that the defendant and his partner burglarized the Peases’ residence. Similarly, the jury found that the state had proven beyond a reasonable doubt that the defendant and his partner robbed Hoyt Pease. The defendant does not challenge the sufficiency of the evidence as to either the burglary or robbery convictions. It was reasonable and logical for the jury to conclude that because the defendant was present for both the burglary and the robbery, he was present for the two assaults as well.

Second, the jury reasonably could have found that the defendant shared his partner’s intent to cause serious physical injury. The evidence supports the inference that the defendant targeted Hoyt Pease while he was withdrawing money from the teller machine. The events following, including the allegation that his car was overheating and needed gasoline, were all part of this ruse. After stopping at Patriot Petroleum because his car needed gas, the defendant left the station without buying any gas and proceeded back toward the Peases’ home in an opposite direction from Interstate 84. The defendant then contacted the man who drove the tan-colored car, and the two returned to the Peases’ home with the intent to commit robbery.

Two witnesses saw the defendant’s car and the tan car race up the Peases’ driveway. While the defendant’s exact physical location at the time of the burglary, assaults and robbery is not known, the juiy was entitled to infer that the defendant was present and that the two men acted together. The defendant conspired with the second man to burglarize the Pease residence and to commit robbery. The defendant was an accessory to the burglary and robbery.

At some point between the commission of the burglary and the robbery, the Peases both were struck with logs as they entered the garage. While neither saw the defendant inside the garage, the jury was entitled to infer that the defendant was present and out of sight of the two victims. On the basis of those facts, the jury was entitled to infer that the defendant orchestrated, encouraged, directed or authorized the actions of his partner and that the two were intent on committing the robbery by whatever means necessary.

From the evidence presented and all the reasonable inferences that it yields, the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt. The trial court properly denied the defendant’s motion for judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.....”
      General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-60b (a) provides: “A person is guilty of assault of a victim sixty or older in the second degree when he commits assault in the second degree under section 53a-60 or larceny in the second degree under section 53a-123 (a) (3) and the victim of such assault or larceny has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf.”
      General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . .


source: Caselaw Access Project

author: SPEAR, J. LAVERY, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. ERIC AMADO
    (AC 15176)
    Lavery, Spear and Dupont, Js.

      Argued February 16
    officially released October 6, 1998

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

This appeal returns to us on remand from our Supreme Court. State v. Amado, 242 Conn. 906, 697 A.2d 368 (1997). In State v. Amado, 42 Conn. App. 348, 363, 680 A.2d 974 (1996), we concluded that the defendant’s two felony murder convictions were proper and that they provided a sufficient predicate for his capital felony conviction.

In State v. Johnson, 241 Conn. 702, 721, 699 A.2d 57 (1997), our Supreme Court reversed a capital felony conviction where felony murder was the predicate. The Johnson court relied on State v. Harrell, 238 Conn. 828, 839, 681 A.2d 944 (1996), for the proposition that “the term ‘murder’ in the capital felony statute [General Statutes § 53a-54b] may be applied only to intentional murder.” State v. Amado, supra, 42 Conn. App. 348, was remanded to us for reconsideration in light of State v. Johnson, supra, 702. We now reverse the judgment of the trial court on the capital felony count as well as on the intentional murder counts.

The defendant, Eric Amado, appealed from a judgment of conviction, rendered after a jury trial, of capital felony in violation of § 53a-54b (8), two counts of intentional murder in violation of General Statutes § 53a-54a (a), and two counts of felony murder in violation of General Statutes § 53a-54c. The trial court merged the defendant’s felony murder and intentional murder convictions into the capital felony conviction pursuant to State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991) (defendant’s double jeopardy rights violated by conviction of and sentencing for two homicide offenses where legislature intended only one punishment).

The defendant asserts that (1) his convictions on the two felony murder counts are not sufficient to support a capital felony conviction, (2) the trial court improperly charged the jury that self-defense was inapplicable to felony murder and (3) the jury was improperly charged on the elements of self-defense, thereby rendering invalid his convictions on the two counts of intentional murder.

I

On reconsideration of the first issue, in light of the Johnson court’s determination that a felony murder conviction cannot constitute the predicate for a capital felony conviction, we conclude that only the intentional murder convictions in this case could support the defendant’s capital felony conviction. Consequently, we vacate our earlier determination affirming the capital felony conviction.

II

In State v. Amado, supra, 42 Conn. App. 348, we concluded that self-defense is not available as a defense to a charge of felony murder and, therefore, we did not address the claims of improper self-defense instructions. Although we decline the defendant’s invitation to revisit this issue with respect to the felony murder convictions, our vacating the capital felony conviction requires us now to address whether the jury was improperly charged on the issue of self-defense with respect to the intentional murder counts. The two felony murder convictions stand, as set forth in our original opinion. Those charges were not affected by the Supreme Court’s opinion, which limited its finding and certified issue to the capital murder and felony murder counts.

Specifically, the defendant claims that the trial court’s instructions on self-defense misled the jury because the court (1) improperly instructed the jury on the duty to retreat, (2) improperly focused on the victims’ rights to use reasonable force in defense of their premises, (3) improperly instructed the jury on the definition of reasonable force as that term applied to the defendant and (4) improperly defined how the jury should determine who was the initial aggressor. We agree with the defendant that the instructions on both the duty to retreat and the victims’ rights to use reasonable force were improper and may have misled the jury in its consideration of the intentional murder counts.

A Ml exposition of the facts that the jury reasonably could have found is recited in State v. Amado, supra, 42 Conn. App. 348. A summary of those facts will suffice here.

The defendant, accompanied by several other people, went to the home of Anthony Young in Bridgeport after the defendant received information that Young had taken a quantity of cocaine from the defendant’s West Haven apartment. As the defendant stood on the porch of Young’s home, Young opened the door. After accusing Young of having his cocaine, the defendant pulled out his gun and fired five shots, wounding both Young and Peter Hall, who was standing behind Young. Both men were alive when emergency medical personnel arrived at the house. Young was clutching a fully loaded magazine for an automatic weapon, and Hall was holding a small automatic pistol. Both men later died.

The defendant testified that as Young was denying complicity in the theft of the defendant’s cocaine, Hall reached for the waistband of his trousers and started to draw a gun. The defendant claimed that he pulled his gun and fired into the house in self-defense only after Young had taken a step toward him and Hall had started to draw a gun from his waistband.

We agree with the state that except for his claim regarding the definition of “initial aggressor,” the defendant did not properly preserve the claims of improper instruction that he now raises on appeal. We agree with the defendant, however, that we should review his claims pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record is adequate for review and “[bjecause jury instructions that misstate the statutory defense of self-defense violate a defendant’s fourteenth amendment right to establish a defense . . . the defendant’s claim is reviewable under the precepts of [Golding].” (Citation omitted; internal quotation marks omitted.) State v. Pearsall, 44 Conn. App. 62, 67, 687 A.2d 1301, cert. denied, 240 Conn. 910, 689 A.2d 473 (1997); see State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

It is well settled that “a defendant charged with a crime must be afforded the opportunity to establish a defense. . . . This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. . . . [T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) State v. Rodriguez, 47 Conn. App. 91, 95, 702 A.2d 906 (1997), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998), quoting State v. Silva, 43 Conn. App. 488, 491-92, 684 A.2d 725 (1996), cert. denied, 239 Conn. 956, 688 A.2d 329 (1997).

Moreover, our Supreme Court has stated that “a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.” (Internal quotation marks omitted.) State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). We must now determine whether the trial court’s instructions on self-defense, considered as a whole, were such that it is reasonably possible that the jury was misled and the defendant was deprived of his constitutional right to present a defense.

A

Because the court’s instructions and the defendant’s claims regarding both the duty to retreat and the victims’ rights to use reasonable force in defense of their premises are so intertwined, we will discuss them together. In State v. Ash, 231 Conn. 484, 499, 651 A.2d 247 (1994), our Supreme Court held that a trial court’s instructions regarding the self-defense statute incorrectly suggested to the jury that the statute permits the jury to measure a defendant’s knowledge of his ability to retreat according to an objective standard of reasonableness rather than the subjective standard of his actual knowledge. Even though the trial court initially gave a correct instruction on the duty to retreat, the Ash court concluded that the trial court’s subsequent misstatements of the law on the duty to retreat made it reasonably possible that the jury was misled and was not, therefore, harmless error beyond a reasonable doubt. Id. According to General Statutes § 53a-19 (b), “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 . . . .” This section of the self-defense statute refers specifically to the duty to retreat as it applies to a person’s right to engage in self-defense. Moreover, “[t]he statute requires both that a retreat in complete safety be available and that the defendant know of it.” (Emphasis in original; internal quotation marks omitted.) State v. Ash, supra, 492.

Here, the trial court did, in fact, refer to the necessity for the defendant to have actual knowledge that he could have retreated in complete safety. On the other hand, the trial court instructed the jury that “the defendant would not have been justified in standing his ground against the threatened attack to fend it off if he could with complete safety avoid the confrontation by retreating. However, in considering whether the defendant could have retreated in safety the element of practicality must be considered.” There was no mention of the actual knowledge requirement. In response to a note from the jury with questions regarding the elements of self-defense, the court reinstructed that as to the duty to retreat, “[t]he first obligation is to consider, ‘Is it possible to retreat?’ ...” This instruction refers only to the objective possibility of retreat and not to the defendant’s knowledge of an available means of safe retreat. At a later point in the reinstruction on the elements of self-defense, the court again referenced whether the defendant “knows that he can avoid the necessity of using such force with complete safety by, one, retreating . . . .” In the court’s original charge, it gave the jury one instruction regarding retreat that incorporated the actual knowledge requirement, and several pages later a retreat instruction was given that did not mention actual knowledge. During its reinstruction on retreat, the court again gave an instruction that failed to mention the defendant’s actual knowledge and instead referred only to the possibility of retreat. That instruction was followed shortly thereafter by an instruction that did, in fact, incorporate the actual knowledge requirement. Pursuant to the reasoning in Ash, we conclude that it was reasonably possible that this mixture of correct and incorrect instructions misled the jury.

The defendant also asserts that the trial court’s instructions to the jury regarding the duty to retreat improperly addressed the victims’ rights not to retreat from their dwelling within the context of defining the defendant’s right to engage in self-defense. While we previously stated that we must consider the court’s charge as a whole and that such instructions need not be perfect or technically accurate, the charge nonetheless must be sufficiently clear to guide the jury in properly viewing the circumstances solely from the defendant’s perspective because the defendant is the person who is asserting self-defense. State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984); State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982).

In the course of its original charge, the court instructed the jury: “Now, we all understand that we are here for the trial of [the defendant]. But the trial involves two people who are dead as well, so we have to take a look at both positions. . . . [The victims had] a right to be in that home and as such the law protects them from intruders, invaders, trespassers or anybody coming into the home that they do not want into that home even to the extent of using force to repel the persons attempting to come there. . . . The statute reads as follows: ‘A person in possession or control of premises or a person who is licensed to be on those premises is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission ... of a criminal trespass by [another] person.’ ” The court did add, however, that its foregoing discussion constituted only the perspective of the victims and did not relate to the defense of self-defense, which applied only to the defendant. Notwithstanding, we are persuaded that the jury was sufficiently misled into believing that it needed to consider the victims’ rights to engage in defense of their premises within the context of evaluating the defendant’s self-defense claim. Significantly, one of the several issues that the jury asked the trial court to clarify after its initial instructions involved the rights that would be available to lawful residents of the house. Because the right to engage in self-defense should properly center on only the defendant and his state of mind, and should not be confused with the rights of the victims, this request for clarification from the jury further illustrates what we conclude was a misguided focus regarding the jury’s evaluation of the self-defense claim.

The dwelling exception to the duty to retreat would have been relevant to the jury’s consideration only if the dwelling had belonged to the defendant. Notwithstanding, the trial court improperly discussed the victims’ self-defense rights with respect to their dwelling while it continued to charge the jury on the defendant’s right to engage in self-defense. The defendant correctly asserts that “the jury never once heard an explanation of self-defense which did not contain [a] long elaboration on the rights of the victims, intertwined with the possibility of the defendant’s rights.” Because the court improperly interjected instructions as to the victims’ rights to defend their premises, we conclude that it is reasonably possible that the jury was misled as to the proper method by which it should have evaluated the defendant’s self-defense claim; that is, by considering solely the defendant’s perspective concerning the circumstances. See State v. DeJesus, supra, 194 Conn. 376.

B

The defendant claims that the trial court improperly instructed the juiy on the definition of reasonable force as that term applied to the defendant. Specifically, the defendant maintains that the court’s charge impermissi-bly required the jury to evaluate whether the defendant engaged in reasonable force by a solely objective standard when the requisite standard in Connecticut is a subjective-objective standard. First, the jury must determine whether the defendant did, in fact, reasonably believe that deadly force was necessary. State v. Prio-leau, supra, 235 Conn. 284. If the jury so finds, it must then determine whether that subjective belief was objectively reasonable. Id. We disagree with the defendant’s claim.

It is well established that “the correct standard regarding the test for the degree of force in self-defense is the subjective-objective one set forth in State v. Corchado, supra [188 Conn. 663]. In Corchado [our Supreme Court] noted that § 53a-19 focuses on the person, here the defendant . . . claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact .... This statutory emphasis upon the defendant further demonstrates the function of the jury in their evaluation of the self-defense claim.” (Internal quotation marks omitted.) State v. Anderson, 227 Conn. 518, 533, 631 A.2d 1149 (1993). Further, our Supreme Court has concluded that “ [t]he jury must view the situation from the perspective of the defendant. . . . [T]he defendant’s belief ultimately must be found to be reasonable.” State v. DeJesus, supra, 194 Conn. 389 n.13.

Here, the defendant argues that the court impermissi-bly substituted an objective standard for the subjective-objective standard by instructing the jury that the amount of force that is permissible in self-defense is “that which reasonably appears necessary.” In the court’s original instruction on the issue of reasonable force, it included the following language: “A person is justified in using reasonable physical force upon another person, that is [the defendant] against the others, to defend himself from what he reasonably believes to be the use or imminent use of . . . force . . . and he may use such degree of force which he reasonably believes to be necessary for that purpose except [that] deadly physical force may not be used unless the actor, [the defendant], reasonably believes that such other person is one, using or about to use deadly physical force or, two, inflicting or about to inflict great bodily harm . . . .” One page later in the instructions, the court charged the jury that “the law is clear that the issue is what the defendant reasonably believed under the circumstances as he saw them . . . .” (Emphasis added.) Immediately after that statement, the court emphasized the necessity for the jury to consider “what the defendant reasonably believes at the time of the incident . . . what he reasonably believed under the circumstances as he saw them [and] . . . not the actual danger, but what reasonably appeared to . . . the defendant.”

On reinstruction, the court charged: “The force that one may use in seli-defense is that which reasonably appears necessary in view of all the circumstances of the case to prevent the impending injury and the heat of conflict .... The permissible degree of force used in self-defense depends upon that which is necessary under all the circumstances to prevent an impending injury. ” The defendant claims that this instruction possibly misled the jury into applying a solely objective test in considering reasonable force. We disagree.

The challenged instruction concluded the court’s charge in response to the jury’s request for clarification of the elements of self-defense. It was preceded by instruction that self-defense does not apply until “[self-defense] comes into the mind of an actor . . . because of conduct that he perceives.” The court went on to charge, as to self-defense, that “[y]ou have to believe that from his point of view” and that self-defense “has to do with the perspective of the defendant on the porch.” The court again stated that the jury should assess “what [the defendant] reasonably believes.”

Although the challenged instruction, in isolation, could be construed as dictating a solely objective standard, our review of the charge, as a whole, persuades us that the trial court sufficiently instructed the jury with respect to reasonable force to consider what the defendant believed under the circumstances.

C

The defendant finally claims that the trial court improperly instructed the jury on the definition of “initial aggressor” by limiting the jury to determining who was the first to use physical force. The defendant challenges the following portion of the trial court’s instructions to the jury on the issue of “initial aggressor”: “The law further provides that the accused was not justified in using deadly physical force if ... he was the initial aggressor. Black’s Law Dictionary [defines] aggressor [as] one who first employs hostile force. The party who first offers violence or offense. He who begins a quarrel or dispute either by threatening or striking another. The law provides that the accused was not justified in using deadly physical force if . . . he was the initial aggressor unless he withdrew from the dispute and communicated that to the victims and [the victims] continued to press his use of physical force. These are factual questions for you to decide.”

In State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994), our Supreme Court determined that the trial court improperly instructed the jury on the initial aggressor exception to the law of self-defense when it defined the initial aggressor as the first actor to use physical force. Specifically, the Jimenez court observed that “[r]ead according to its plain language, and as a whole, doubtlessly § 53a-19 contemplates that a person may respond with physical force to a reasonably perceived threat of physical force without becoming the initial aggressor and forfeiting the defense of self-defense. Otherwise, in order to avoid being labeled the aggressor, a person would have to stand by meekly and wait until an assailant struck the first blow before responding. . . . Such a bizarre result could not have been intended by the legislature. The law favors a rational statutory construction and we presume that the legislature intended a sensible result.” (Internal quotation marks omitted.) Id.

In State v. Cartagena, 47 Conn. App. 317, 321, 708 A.2d 964 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998), we concluded that the trial court’s isolated reference to the defendant as the “initial attacker or aggressor” did not make it reasonably possible that the jury was misled because the court properly instructed the jury, in the course of its charge on self-defense, that “ ‘[t]he use of self-defense does not imply the right of attack in the first instance or in mere retaliation. By definition, self-defense means the use of defensive force. Therefore, a person claiming this right must act honestly and conscientiously and not from anger, malice or revenge. He must not provoke or intentionally bring the attack upon himself in order to provide an excuse to use force against another person.’ ”

Immediately before reading the dictionary definition of “aggressor,” the trial court here instructed the juiy that “[i]t is not necessary for the assailant to have actually struck a blow if it appears an attack is imminent to trigger the doctrine of self-defense.” The court had earlier stated that “the claim of self-defense is not necessarily defeated if ... in connection with such a demonstration of force as will induce a well-founded belief in the mind of a reasonable person that his adversary is on the eve of executing a threat and that his only means of escape from death or great bodily injury [is] to immediately defend himself against the impending danger [by] the use of whatever force is necessary to avert the threatened peril. If the accused believed the victims were . . . about to use physical force against him ... or that [the victims] were about to inflict great bodily harm upon him, [the defendant] was justified in using deadly force.” (Emphasis added.)

Unlike in Jimenez, where the trial court instructed that the initial aggressor was defined as the first person to use physical force, we are persuaded from our review of the charge, as a whole, that the court’s instruction on the initial aggressor issue here was not so limited. The court explained that one could react to both impending peril and the threat of harm without becoming an initial aggressor, and the instructions that were given did not preclude the jury from finding that the defendant was not the initial aggressor.

In summary, we conclude that there is a reasonable possibility that the jury was misled by the court’s instructions that referenced both the victims’ rights to defend their dwelling and the defendant’s right to engage in self-defense. The improper instructions were harmful because the entire case turned on self-defense, and the state has not demonstrated that the error was harmless beyond a reasonable doubt. Consequently, the defendant’s convictions of the intentional murders cannot stand. Accordingly, the capital murder conviction must also be reversed because the intentional murders are the only possible predicate for the capital felony conviction.

The judgment is affirmed as to the felony murder counts; the judgment is reversed as to the conviction on the intentional murder counts and the capital felony count and the case is remanded for a new trial on those counts.

In this opinion DUPONT, J., concurred.

LAVERY, J.,

dissenting. I agree with the majority that the defendant’s conviction on two counts of felony murder stand as set forth in the original opinion. State v. Amado, 42 Conn. App. 348, 680 A.2d 974 (1996). The felony murder convictions were not a subject of the Supreme Court’s remand, which was limited to a reconsideration of the defendant’s felony murder convictions serving as the predicate murder for a capital felony conviction in light of its decision in State v. Johnson, 241 Conn. 702, 699 A.2d 57 (1997). I respectfully dissent, however, from the majority opinion’s reversal of the judgment of conviction on the intentional murder counts and, accordingly, the capital felony count.

I

I disagree with the majority’s conclusion that it was reasonably possible that the jury was misled by the trial court’s instructions that referenced both the victims’ rights to defend their dwelling and the defendant’s right to engage in self-defense.

I agree with the majority that the defendant’s claims on appeal are unpreserved. As to the defendant’s claim that the trial court’s interjection of the victims’ rights to defense of premises in the instruction on self-defense misled the jury, I disagree with the majority that the issue is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). While the record is adequate for review, the claim is not truly of constitutional magnitude.

The majority, quoting State v. Pearsall, 44 Conn. App. 62, 67, 687 A.2d 1301, cert. denied, 240 Conn. 910, 689 A.2d 473 (1997), concludes that “ ‘[bjecause jury instructions that misstate the statutory defense of self-defense violate a defendant’s fourteenth amendment right to establish a defense . . . the defendant’s claim is reviewable under the precepts of [Golding].’ ” I agree with that statement of the law, but I disagree that that is the situation in this case. The claim raised by the defendant is that the trial court in its instruction on self-defense interjected an instruction on the victims’ right to defend their property. The claim is not that the trial court misstated the statutory defense of self-defense, but that the court added to it and, in so doing, somehow misled the jury. The victims’ right to defend their property is not an element of self-defense. Because the trial court instructed the jury on the elements of self-defense, I would conclude that this claim is not of constitutional magnitude alleging the violation of a fundamental right and, therefore, not reviewable under Golding.

Even if I were to assume that the claim satisfies the first two prongs of Golding and is reviewable, I would conclude that the claim fails under the third and fourth prongs of Golding.

“In examining a challenge to a trial court’s instructions to a jury, we will look at the charge as a whole rather than consider particular language in isolation. See State v. Palmer, 206 Conn. 40, 46, 536 A.2d 936 (1988). ‘It is well established that individual jury instructions are not to be judged in artificial isolation, but must be viewed in the context of the overall charge. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); State v. Silano, 204 Conn. 769, 773, 529 A.2d 1283 (1987); State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985).’ State v. Palmer, supra, 46. Thus, we consider the defendant’s assertions that the trial court’s instructions were improper in light of the entire charge.

“A jury charge must be considered from the standpoint of its effect on the jury in guiding it to a proper verdict. State v. Delgado, 13 Conn. App. 139, 145, 535 A.2d 371 (1987). The court’s instruction should give the jury a clear understanding of the issues presented, under the offenses charged and on the evidence presented. Id.; see also State v. Villafane, 45 Conn. App. 110, 115, 694 A.2d 802 [cert. denied, 241 Conn. 926, 697 A.2d 362] (1997).” State v. Cummings, 46 Conn. App. 661, 679, 701 A. 2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997).

The defendant argues that “[t]he court’s instructions repeatedly misled the jury by removing its focus from the defendant and instead causing it to contrast the victims’ certain rights with rights the defendant may have had.”

In its instruction on self-defense, the trial court began by instructing the jury that self-defense is a valid legal defense. The trial court then instructed the jury that while this trial involves the defendant, it also involves the two victims. The trial court stated that the evidence showed that the victims had a right to be in the home and then instructed the jury on the use of physical force in defense of premises tracking General Statutes § 53a-20. At the conclusion of that instruction, the trial court was careful to clarify to the jury that the § 53a-20 instruction applied to the victims and not to the defendant and that it was not self-defense. The trial court then specifically stated that in this case, self-defense is the claim of the defendant and then proceeded to instruct the jury on self-defense tracking General Statutes § 53a-19.

The jury sent the trial court a note seeking clarification on parts of the charge on self-defense. In rein-structing the jury, the trial court again instructed on the victims’ right to defend the premises in response to the jury’s question. It should be noted that the defendant submitted his own request to charge on the substance of § 53a-20 in response to the jury’s question and, therefore, contributed to the charge that he now claims improper. The trial court continued in its reinstruction and charged the jury on self-defense according to § 53a-19.

The trial court’s charge correctly set forth the law regarding the use of force in defense of premises. The trial court was careful to tell the jury, both in its initial charge and in its reinstruction, that the principles involved in § 53a-20 apply to the victims, while self-defense concerned the defendant. I agree with the state that the trial court’s charge did not “enlarge or diminish the jury’s understanding of the defendant’s prerogative to use force,” nor, as the defendant claims, did it leave the jury with the impression that a trespasser has no right of self-defense.

I do not believe that the jury’s knowledge of the victims’ right to defend the premises in any way diminished their understanding of the defendant’s right to self-defense. As I have noted, the trial court was careful to specify that the instruction on the right to defend property applied to the victims and that the instruction on self-defense applied to the defendant and, more importantly, that the jury in this case was concerned with the defendant. Furthermore, the trial court delivered the instructions separate and apart from each other, not intermingled. The trial court’s instruction and reinstruction did not confuse the jury or have an adverse impact on the jury’s deliberations.

II

The defendant also claims that the trial court improperly instructed the jury on the defendant’s duty to retreat. Specifically, the defendant claims that the correct statutory language was “sandwiched between incorrect instructions,” and that the charge “failed to place what the defendant did perceive before the jury, and rather allowed it to reject the claim of self-defense based upon a finding that he could have perceived an ability to retreat, or even to avoid the incident entirely, with complete safety.”

In its initial charge to the jury, the trial court instructed the jury on self-defense according to § 53a-19, including a proper instruction on the duty to retreat, indicating that the defendant would not be justified in using deadly force if he knew he could avoid the necessity of using such force with complete safety. Later in the initial charge, the trial court repeated the duty to retreat instruction and failed to include the actual knowledge requirement. In its reinstruction, however, the trial court delivered a proper instruction on the duty to retreat.

The majority states that the trial court’s reinstruction on retreat failed to include the defendant’s actual knowledge, but then the court delivered a proper instruction on retreat. The majority claims that the following was an instruction on retreat: “The first obligation is to consider, ‘Is it possible to retreat?’ . . .” I disagree that the trial court was delivering an instruction on retreat because the remainder of the trial court’s sentence was, “and I will go through that for you again here this morning.” The trial court was merely telling the jury that it would deliver an instruction on the duty to retreat later in the course of its reinstruction. The trial court then did so, properly instructing the jury as required by § 53a~19 (b).

The majority relies on State v. Ash, 231 Conn. 484, 651 A.2d 247 (1994), in concluding that it was reasonably possible that the juiy in this case was misled by the trial court’s instructions on the duty to retreat. Ash is distinguishable from this case. In Ash, the trial court first stated the statutory language on the duty to retreat correctly. The trial court then made improper references to an objective standard and “by further instructing the jury to consider what avenues of retreat the defendant ‘could perceive’ . . . rather than directing them to consider what the defendant did perceive, the trial court, at best, further muddied the jury’s understanding of the proper subjective standard and, at worst, suggested to the jury that it could reject the defendant’s claim of self-defense if it found he could have perceived, but did not actually know, that he could have avoided using deadly physical force in complete safety by retreating.” (Emphasis in original.) Id., 496. There was no reinstruction given in Ash.

In this case, the trial court delivered a reinstruction to the jury that included a proper charge on the duty to retreat and did not include, although the majority claims otherwise, an improper charge. Thus, any confusion that may have existed after the initial charge was clarified by the trial court’s proper charge in its reins-truction.

Considering the jury charge from the standpoint of its effect on the jury in guiding it to a proper verdict, I cannot conclude that it was reasonably possible that the jury was misled or that an injustice resulted due to the charge. The trial court’s instruction gave the jury a proper understanding of the defendant’s self-defense claim under the circumstances of this case on the evidence presented.

I would affirm the judgment of the trial court.

       Our Supreme Court transferred this case to us in accordance with General Statutes § 51-199 (c), which provides: “The Supreme Court may transfer to itself a cause in the Appellate Court. Except for any matter brought pursuant to its original jurisdiction under section 2 of article sixteen of the amendments to the Constitution, the Supreme Court, may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1,1983, to the Appellate Court. The court to which a cause is transferred has jurisdiction.”

       General Statutes § 53a-54b provides in relevant part: “Capital felony. A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction . . . .”

       General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. . . .”

       General Statutes § 53a-54c provides in relevant part: “Felony Murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of flight therefrom, he . . . causes the death of a person other than one of the participants . . . .”

       General Statutes § 53a-19 provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, 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, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       General Statutes § 53a-20 provides: “Use of physical force in defense of premises. A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises; but he may use deadly physical force under such circumstances only (1) in defense of a person as prescribed in section 53a-19, or (2) when he reasonably believes such to be necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes such to be necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in section 53a-100, or place of work, and for the sole purpose of such prevention or termination."

       Although we reverse the intentional murder convictions for improper instructions on the duty to retreat and the victims’ rights, we discuss the third and fourth claims because the issues of reasonable force and initial aggressor will undoubtedly arise in the new trial. Even if those issues arise in a different fashion, our discussion should provide useful guidance to the trial court.

       The defendant neither took exception nor filed a request to charge as to the other issues that he now raises on appeal. In fact, his request to charge includes a reference to General Statutes § 53a-20, relating to defense of premises.

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

       See footnote 5.

       In its original instructions, the trial court stated: “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. That’s [the defendant’s] position. You may not be [justified] in using deadly force if [the defendant] knew that he could avoid the necessity of using such by— with complete safety by, one, retreating, except that an actor who used force [would] not be required to retreat if he is in his dwelling or [if] he is at his place of work and was not the original or initial aggressor.” On reinstruction, the court stated: “A person, the defendant, on the porch 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 by, one, retreating, except that an actor, a person utilizing the defense of self-defense shall not be required to retreat when he is in his dwelling or [at] his place of work and was not the initial aggressor.”

       The trial court recited the note as follows: “Judge, we would like further clarification regarding the elements of self-defense. Specifically, we are looking for clarification of, one, rights available to lawful residents of the house and, two, when would the right to self-defense apply to uninvited individuals who came on to the Williams Street property and, three, what would cause the residents of the house to believe that the defendant is an aggressor? Must they have weapons or is mere presence sufficient?”

       In the course of its response to the jury’s request for clarification on the elements of self-defense, the court charged: “Now, the other matter that you must understand is that the occupant of the home has no obligation to retreat. When you are in your home and if you reasonably feel there’s an attempt by someone to commit a trespass and you are concerned about the use of deadly physical force, you need not retreat. That is distinguished from the requirement when utilizing the defense of self-defense outside the presence of a home or workplace.”

       See footnote II regarding “initial aggressor.”

       In Cartagena, correct jury instructions that were given on “initial a ggressor” were contrasted with those that were previously given in State v. Jimenes, supra, 228 Conn. 338, which improperly instructed the jury on the initial aggressor exception to the law of sell-defense as follows: “Thus, if you find proven beyond a reasonable doubt that the defendant was, in fact, the aggressor, meaning that he was the first to use physical force, then the state has succeeded in disproving the defense of self-defense.”

       I agree with the majority that the trial court properly instructed the jury on 1he definitions of reasonable force and initial aggressor.

       The trial court instructed: “Now, that applies to them (the victims). All right? That’s not self-defense. Self-defense in this case is the self-defense claim that applies to the defendant.”

       The note read as follows: “Judge, we would like further clarification regarding the elements of self-defense. Specifically, we are looking for clarification of, one, rights available to lawful residents of the house and, two, when would the right to self-defense apply to uninvited individuals who came on to the Williams Street property and, three, what would cause the residents of the house to believe that the defendant is an aggressor? Must they have weapons or is mere presence sufficient?”

       The defendant submitted the following request to charge in response to the jury’s question concerning the defense of premises: “Yesterday, I provided you with various instructions regarding the use of force in defense of premises and self-defense. At this point I would like to instruct you further.

        “A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes it is necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises; but he may use deadly physical force under such circumstances only (1) in defense of a person as prescribed in § 53a-19, or (2) when he reasonably believes it is necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes it necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in [General Statutes] § 53a-100 . . . and for the sole purpose of such prevention or termination.
      “You will note that the entire statute regarding the use of force in defense of premises is not applicable unless the person in possession or control or a person who is licensed or privileged to be on the premises reasonably believes it is necessary to prevent or terminate the commission of a criminal trespass by such other person in or upon such premises.
      “It is important that I define for you the term criminal trespass. A person is guilty of criminal trespass when knowing that he is not licensed or privileged to do so enters or remains in a building.
      “There is evidence in this case that the building identified as 505 Williams Street contains more than one apartment and the front door to at least one other apartment is located on the front porch. The porch area of 505 Williams Street is what can be referred to as a common area.
      “Mere presence in or on the porch, a common area at 505 Williams Street, is not a criminal trespass. You will therefore have to consider whether the defendant’s presence on the porch represented an attempt to unlawfully enter or remain in the [victim’s] apartment.
      “You have requested the court to respond to a question regarding whether mere presence at [the victim’s] apartment made the defendant an aggressor.
      “Mere presence at 505 Williams Street would not mean that [the defendant] was the initial aggressor.
      “It is not necessary that the defendant be without fault or blame in this incident for him to rely upon the defense of self-defense. The fact that a person initiated the discussion does not by itself make him the aggressor. Acts that merely create the opportunity for conflict do not make a party an aggressor. Before one can be said to have invoked an attack or conflict within the rule that precludes the provoked act or conflict as self-defense, he must willingly and knowingly do some act after meeting his antagonist reasonably calculated to lead to a fracas or deadly conflict. State v. Timmons, 7 Conn. App. 457, 469-70, 509 A.2d 64 (1986) [appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987)].
      “Your other questions are directed to the court’s instructions on the defense of self-defense. I will now reread my charge on self-defense.”
      “Defendant requests the court to reread charge.”

       The trial court instructed: “Now, the other matter that you must understand is that the occupant of the home has no obligation to retreat. When you are in your home and if you reasonably feel there's an attempt by someone to commit a trespass and you are concerned about the use of deadly physical force, you need not retreat. That is distinguished from the requirement when utilizing the defense of self-defense outside the presence of a home or workplace. The first obligation is to consider, ‘Is it possible to retreat?’ and I will go through that for you again here this morning. I believe that should answer your first question.”


author: LANDAU, J.

text:
    HUMBERTO ROSARIO v. JAMES M. HASAK
    (AC 17114)
    Landau, Hennessy and Dupont, Js.

      Argued February 18
    officially released October 6, 1998

      Greg C. Mogel, with whom, on the brief, was A. Manuel Nieves, for the appellant (plaintiff).

      William P. O’Brien, for the appellee (defendant).
   Opinion

LANDAU, J.

This is an appeal from the judgment of the trial court rendered following the granting of the defendant’s motion for summary judgment. The plaintiff claims that the trial court improperly granted the defendant’s motion for summary judgment after refusing to afford him protection pursuant to General Statutes § 52-592, the accidental failure of suit statute. We affirm the judgment of the trial court.

The foundation on which the plaintiffs argument stands is that the original action was defeated for a “matter of form” and necessitates the application of § 52-592. The defendant asserts that the plaintiffs lack of diligence has been blatant and egregious, and well beyond the reach of § 52-592 and, further, that the public policy inherent in the statute of limitations supports the decision of the trial court. The defendant maintains that he is entitled to summary judgment as a matter of law because there remains no genuine issue of material fact that the plaintiffs action is barred by the applicable statute of limitations.

The procedural quagmire on which the appeal rests must be set forth. The parties were involved in a motor vehicle collision on July 3, 1990. On July 3, 1992, the plaintiff served a complaint, bearing a return date of August 4, 1992, on the defendant. The writ, summons and complaint were returned untimely to court on November 4, 1992, without the appropriate fee and were returned to the plaintiff.

The plaintiff commenced a second action, identical in substance to the first, in January, 1993. The plaintiff returned the writ, summons and complaint on the day of the return date. As a result, the trial court dismissed the action pursuant to the defendant’s motion because the return was, once again, untimely.

By complaint dated July 22, 1993, the plaintiff commenced a third action, identical in substance to the first and second actions, in which he alleged, inter alia, that his action was saved by § 52-592, the accidental failure of suit statute. On November 30, 1994, the trial court granted the defendant’s motion for summary judgment, ruling that the action was not saved by § 52-592 and was barred by the applicable statute of limitations. The trial court stated that the plaintiff voluntarily chose to institute a new and untimely action, rather than to refile the original complaint. As a result, the new action could not be justified under § 52-592, because the original action was never “determined” within the meaning of § 52-592.

In January, 1995, the plaintiff refiled the original complaint with the court. In March, 1995, the defendant moved to dismiss the original complaint for insufficiency of process in that the complaint was not timely returned to the court. The motion was granted on April 3, 1995. The trial court concluded that the plaintiff had failed to comply with the provisions of General Statutes § 52-46a.

In July, 1995, the plaintiff commenced a fourth action, identical in substance to the first three actions, alleging, again as argued in the third action, the theory of accidental failure of suit. The defendant filed a motion for summary judgment, which the trial court granted on April 3, 1997. The court stated that “[although § 52-592 is a remedial statute and must be construed liberally, it should not be construed so liberally as to render the statute of limitations meaningless. . . . Section 52-592 has as its purpose to aid the diligent suitor. . . . The additional grace period beyond the statute of limitations afforded by § 52-592 in which to commence an action begins to run on the date that a reasonably diligent suitor should have determined that the original action has failed. . . . [Returning the original complaint to court two and one-half years after it was served can hardly be termed diligent.” (Citations omitted.) This appeal followed.

The plaintiff in his brief argues that § 52-592 applies if: “(1) an action is commenced within the applicable statute of limitations; (2) such action is dismissed for any of the listed reasons, including lack of jurisdiction or any matter of form; and (3) the plaintiff commences [a] new action on the same cause of action within one year.” (Emphasis in original.) He asserts that the present action complied with those requirements because he commenced the original action on July 3,1992, within the applicable statute of limitations, the trial court dismissed the original action on April 3,1995, for untimely return of process, which is a “matter of form” pursuant to § 52-592, and he commenced a new action on July 23, 1995, which is within one year from the court’s dismissal of the original action.

“The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn. App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984).” (Internal quotation marks omitted.) Cortes v. Cotton, 31 Conn. App. 569, 572-73, 626 A.2d 1306 (1993).

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. . . . Fleet Bank, N.A. v. Galluzzo, 33 Conn. App. 662, 666, 637 A.2d 803, cert. denied, 229 Conn. 910, 642 A.2d 1206 (1994).” (Internal quotation marks omitted.) Field v. Kearns, 43 Conn. App. 265, 270, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).

The accidental failure of suit statute, § 52-592, “ ‘is remedial in its character. It was passed to avoid hardships arising from an unbending enforcement of limitation statutes. ’ Isaac v. Mount Sinai Hospital, [210 Conn. 721, 728, 557 A.2d 116 (1989)].” Capers v. Lee, 239 Conn. 265, 271, 684 A.2d 696 (1996). Its purpose is to aid the diligent suitor. Isaac v. Mount Sinai Hospital, supra, 733. However, “[i]n cases where [the Supreme Court has] either stated or intimated that the ‘any matter of form’ portion of § 52-592 would not be applicable to a subsequent action brought by a plaintiff, [the Supreme Court has] concluded that the failure of the case to be tried on its merits had not resulted from accident or even simple negligence. See Hughes v. Bemer, [206 Conn. 491, 495, 538 A.2d 703 (1988)] (failure to file a required memorandum of law operates as a consent to judgment on the merits resulting from granting a motion to strike); Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984) (dismissal pursuant to Practice Book § 231 [now § 13-14] for deliberate refusal to answer questions at a deposition); Parrott v. Meacham, 161 Conn. 573, 575, 290 A.2d 335 (1971) (voluntary withdrawal of prior suit); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948) (voluntary withdrawal of prior suit).” Lacasse v. Burns, 214 Conn. 464, 473, 572 A.2d 357 (1990); see Skibeck v. Avon, 24 Conn. App. 239, 242-43, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991).

Although the plaintiffs argument has a “superficial textual appeal”; United Illuminating Co. v. New Haven, 240 Conn. 422, 455, 692 A.2d 742 (1997); it is unpersuasive in application because it leads to a difficult and bizarre result. The lack of merit to the plaintiffs claim that the original action against the defendant would continue to exist in perpetuity until disposed by the court is apparent from the argument itself. Under the plaintiffs interpretation, one could serve a writ, summons and complaint, fail to return the papers to court for thirty-five years and, if not otherwise disposed of by the court, proceed with the case at that time. The unreasonableness of such a result is a reason for rejecting that application. See, e.g., Butler v. Hartford Technical Institute, Inc., 243 Conn. 454, 461-62, 704 A.2d 222 (1997).

The result of following the plaintiffs logic would be a virtual nulhfication of the statute of limitations because a plaintiff would have the ability unilaterally to extend the statute of limitations indefinitely simply by failing to return a timely served complaint to the court. “To allow [such an] action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process. Marangio v. Shop Rite Supermarkets, Inc., 11 Conn. App. 156, 160, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987). ‘Although § 52-592 is a remedial statute and must be construed liberally ... it should not be construed so liberally as to render statutes of limitation virtually meaningless.’ . . . Pintavalle v. Valkanos, [216 Cohn. 412, 417, 581 A.2d 1050 (1990)].” Skibeck v. Avon, supra, 24 Conn. App. 243.

We agree with the trial court’s conclusion that the plaintiff’s failure to return the original complaint to court until two and one-half years after it was served could hardly be considered diligent. The genesis of this cause of action is an automobile accident that occurred some eight years ago. Instead of taking any action with regard to the original complaint, the plaintiff filed two further actions, identical in substance to the first. Two and one-half years later, the plaintiff returned the original complaint, which was dismissed. The plaintiff commenced the fourth and final action five years after the automobile accident occurred and three years after he commenced the original action. Such egregious and blatant conduct was never intended to be condoned and sanctioned by the “matter of form” provision of § 52-592 and we will not invoke that provision under the circumstances of this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-592 (a) provides in relevant part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated ... for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause at any time within one year after the determination of the original action . . . .”

       As a result, this action was commenced in a timely manner pursuant to General Statutes § 52-584.

       General Statutes § 52-46a provides in relevant part: “Process in civil actions . . . shall be returned ... if returnable to the Superior Court . . . to the clerk of such court at least six days before the return day.”

       The following notation was made upon the sheriffs return: “Return Date: 8/4/92 and Wrong Fee: 11/4/92.”

       In May, 1995, the plaintiff filed an appeal to this court that was fifteen days late. We granted the defendant’s motion to dismiss the appeal as untimely pursuant to Practice Book § 63-1, formerly § 4009.

       See footnote 3.

       On April 24, 1997, the plaintiff filed an appeal with this court. The defendant filed a motion to dismiss the appeal as untimely. We denied the defendant’s motion to dismiss the appeal on June 18, 1997.

       We further note that the plaintiff argues that the trial court improperly based its decision to grant the defendant’s motion for summary judgment, in part, on grounds relating to subject matter jurisdiction. The trial court’s conclusion that “the defendant did not waive his right to object to the untimely return of the original complaint” involved the issue of personal jurisdiction, not subject matter jurisdiction. The trial court, in discussing “jurisdiction,” referred to the memorandum of decision issued by the trial court, Sheldon, J., on November 30, 1994, on the defendant’s motion for summary judgment in the third action. Judge Sheldon noted that a violation of § 52-46a renders a proceeding “voidable” and implicates the court’s personal jurisdiction over the defendant. Judge Sheldon reasoned that unless the defendant timely asserts a violation of § 52-46a pursuant to Practice Book § 142, now § 10-30, he is deemed to have waived his right to object to such a defect.
      Practice Book § 10-32 provides in relevant part that “[a]ny claim of lack of jurisdiction over the person ... or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss . . . within the time provided by Section 10-30.” Practice Book § 10-30 provides in relevant part that “[a]ny defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance . . . .”
      The trial court, in the present action, determined that the defendant did not waive his right to object to the plaintiff’s untimely return of the original complaint because the defendant filed his appearance on March 6, 1995, and filed his motion to dismiss for untimely return of process two days later, clearly within the time provided by § 10-30. Therefore, the plaintiffs argument is misplaced because subject matter jurisdiction was not a ground upon which the trial court granted the defendant’s motion for summary judgment.