author: HEALEY, J.

text:
    STATE OF CONNECTICUT v. BENNIE PHARR
    (15501)
    Dupont, C. J., and Foti and Healey, Js.
    Argued December 13, 1996
    officially released April 1, 1997

      Auden Grogins, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   HEALEY, J.

The defendant, Bennie Pharr, appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and one count of a commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. The conviction arose out of a robbery of a BP gas station in Bridgeport on May 13, 1995.

On appeal, the defendant claims that the trial court (1) denied him his right to a fair trial under the United States and Connecticut constitutions by “gratuitously” instructing the jury to believe a police officer whose testimony was critical to his conviction and (2) abused its discretion by refusing to exclude extraneous evidence of his prior arrests.

Among the facts the jury could have reasonably found are the following. On May 13, 1995, at about 5 a.m., Bridgeport police received a complaint of robbery at a the BP station at 927 Park Avenue, Bridgeport. Kadar Bobiso, the BP station cashier who was working the midnight to 6 a.m. shift, told police he had been robbed at gunpoint and gave police the following account of the robbery. A customer had tendered a $100 bill to pay $13 dollars for gas, a cigarette lighter and a pack of cigarettes. He was in the process of returning his $87 in change when suddenly the robber, a black male, appeared. Pointing a gun at Bobiso with one hand, the robber put his other hand on the money. Bobiso took his hand off the money and let the robber take the cash. Bobiso asked the customer who was present during the robbery to help him, but the customer said he could not take such a risk. After taking the money, the robber ran to a car and drove off. Bobiso recorded the plate number of the vehicle, which he described as a blue Audi or Hyundai, and called the police. The robbery took about one minute. The customer, after asking for and receiving his change, left before the police arrived.

In his statement to Bridgeport police Detective Raymond Masek, Bobiso estimated the robber’s height as five feet, eight inches and his weight as 130 pounds and characterized the robber as a black male in his mid-thirties with a medium Afro hairstyle and clean shaven except for, possibly, a light mustache. During the identification process at the police station, at which Masek was present, Bobiso reviewed two books with arrays of photographs of black males. From one of these books, Bobiso identified one photograph of the defendant as the man who robbed him. The photograph showed the defendant, a black male, with dreadlocks, glasses, a goatee and a mustache. The defendant, according to other police testimony during the trial, was five feet, eleven inches tall and weighed 180 pounds.* *

Bobiso had seen the defendant at the BP station prior to the robbery, as well as once having seen him downtown in front of a store. After the date of the robbery, he had also observed the defendant as he drove by the BP station; at that time he called the police and gave them the license plate number he had observed on that car. The police, however, could not apprehend the defendant because the license plate number was not registered. Bobiso conceded that he did not know who the defendant was.

Thereafter, on the night of June 3,1995, Officer Ricky DeWitt-Smith was on routine patrol in his police car and he stopped at the BP station, as he usually did, to check on the safety of the employee there. When he did so, a black male walked away from the window. Bobiso ran out and said to DeWitt-Smith, “He’s the guy. He’s the guy that robbed me. He’s wanted for robbery.” The officer approached this black male and told him that Bobiso was claiming that “you are the guy that robbed him” and that he was going to detain him for a while. After patting him down and placing him in the backseat of his police car, DeWitt-Smith asked him his name and for identification. The officer, on direct examination, said, “He gave me a name of Mark—I’m saying Freeman, but I’m not really sure exactly.”

Having secured the black male in his patrol car, Dewitt-Smith then called the police station on his radio to determine if there was an active warrant out for the suspect. He also called for back-up assistance. That assistance arrived, at which time another officer informed DeWitt-Smith that his detainee was not Freeman and that his name was Pharr. At that time, DeWittSmith had been given a warrant for the suspect in the robbery of the BP station with a photograph of Pharr on it. He confronted the suspect with the name of Pharr as well as the warrant with the photograph of Pharr, but the defendant did not respond, nor did he ever offer DeWitt-Smith any identification. Once DeWitt-Smith had confirmed that a warrant had been activated, he asked the defendant to step out of his patrol car, handcuffed him and placed him in the back of the assisting unit’s patrol car. At the trial, DeWitt-Smith identified the defendant as the black male he had arrested as Pharr on June 3, 1995, at the BP station.

After the defendant’s arrest, Masek conducted the investigation of the robbery, including taking Bobiso’s statement and overseeing the identification process. Information obtained by him from the National Crime Information Computer (NCIC) indicated that Pharr had a prior arrest record. Masek referred to this both on direct and cross-examination. The defendant did not testily at the trial, although he did offer evidence, including an alibi.

I

The defendant first claims that the trial court denied him his right to a fair trial under the United States and Connecticut constitutions by “gratuitously instructing the jury to believe a police officer whose testimony was critical to his conviction.” This claim arises out of circumstances that occurred in the presence of the jury during the direct examination of the state’s witness, DeWitt-Smith. After DeWitt-Smith testified that the victim had told him that the defendant was the “guy that robbed him,” the officer said that he approached the defendant and “I explained to him, you know, I touched him, I said, ‘Listen, I’m going to detain you for a while. This guy [Bobiso] is claiming that you are the guy that robbed him.’ ” The state then asked: “Okay. And did you in fact detain him at that point?” DeWitt-Smith answered: “I patted him down for officer safety like we usually do and I placed him in the backseat of my patrol vehicle.” The state asked: “All right. And at that point did you ask him his name?” The officer answered: “I—I asked him his name and asked him for some identification, yes.” The state then asked: “Okay. And did he give you a name at that point?” The officer answered: “He gave me a name of Mark—I’m saying Freeman, but I’m really not sure exactly.”

At that time, the following exchange occurred: “[Defense Counsel]: I’m going to object, Your Honor. First of all, there’s no indication in any report that there was another name given and—

“The Court: Well, that’s the problem with reports. They don’t contain everything. That doesn’t prohibit the testimony. You’ll find out in fact of life as life goes on the police reports do not contain chapter and verse. They’re not meant to. Now somehow we’ve escalated them into a biblical story and if it’s not there then it’s not part of the Bible. That’s not the case. Now, this officer comes here and testifies in good faith what happened, I’ll take it anytime over what a report says. I don’t even know what report you have or who the author is.

“ [Defense Counsel]: It’s a report that the state’s attorney gave me written by this gentleman.

“The Court: I don’t care who gave it to you. I don’t know who did. I don’t care. Question. He gave the name you think at this time it could have been Freeman.”

Immediately thereafter, the state continued with its direct examination of DeWitt-Smith. Defense counsel did not object to the court’s remarks and did not request a curative instruction.* *

Because this claim of the denial of a fair trial was not preserved at the trial, the defendant now seeks review of it in this court under the Golding doctrine. See State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). He argues that the trial court’s remarks relating to a police officer’s testimony violated his constitutional rights guaranteeing him the right to due process and a fair trial before an impartial judge and jury. In seeking Golding review, the defendant concedes that he failed to object to these remarks of the trial court and that he did not object “to the general jury charge regarding the ‘credibility of a police officer.’ ”

In Golding, the Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant to the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40; State v. Romero, 42 Conn. App. 555, 561, 681 A.2d 354 (1996).

In opposing Golding review, in addition to pointing out the failure of the defense to object and seek curative action at the trial court level, the state maintains that at a minimum the defendant has failed to demonstrate that the claim is of constitutional magnitude and that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. Here, the record is adequate for review and the defendant has alleged a claim of constitutional magnitude, thus satisfying the first two prongs of Golding. Therefore, “ ‘[w]e will examine the defendant’s claim to determine whether the alleged constitutional violation clearly exists and whether it deprived the defendant of a fair trial. State v. Torrence, 196 Conn. 430, 435, 493 A. 2d 865 (1985).’ State v. Boyd, 36 Conn. App. 516, 524, 651 A.2d 1313, cert. denied, 232 Conn. 912, 654 A.2d 356, cert. denied, 516 U.S. 828, 116 S. Ct. 98, 133 L. Ed. 2d 53 (1995).” State v. Daniels, 42 Conn. App. 445, 459, 681 A.2d 337 (1996).

“ ‘Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. U.S. Const., amend. XIV; Conn. Const., art. I, § 8; Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 [1941]; Wojculewicz v. Cummings, 145 Conn. 11, 19, 138 A.2d 512, cert. denied, 356 U.S. 969, 78 S. Ct. 1010, 2 L. Ed. 2d 1075 [1958], In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an “atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 [1942]; Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 77 L. Ed. 1321 [1933].’ State v. Echols, 170 Conn. 11, 13, 364 A. 2d 225 (1975).” State v. Gordon, 197 Conn. 413, 424D-25, 504 A.2d 1020 (1985); see Fair v. Warden, 211 Conn. 398, 413, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989): State v. Johnson, 28 Conn. App. 708, 720, 613 A.2d 1344 (1992), aff'd, 227 Conn. 534, 630 A.2d 1059 (1993). “ ‘The function of the court in a criminal trial is to conduct a fair and impartial proceeding. Glasser v. United States, [supra, 82].’ State v. Bember, 183 Conn. 394, 401, 439 A.2d 387 (1981). ‘The role of the [t]rial [j]udge is neither that of automaton nor advocate’; People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 422 N.E.2d 556, 439 N.Y.S.2d 896 (1981); nor is a judge merely an ‘umpire in a forensic encounter’ but ‘[h]e is a minister of justice’ and in ‘whatever he does . . . the trial judge should be cautious and circumspect in his language and conduct.’ . . . Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982); see Quercia v. United States, [supra, 466]; State v. Gordon, [supra, 425].” State v. Fernandez, 198 Conn. 1, 10-11, 501 A.2d 1195 (1985); see State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986); State v. Delarosa, 16 Conn. App. 18, 26-27, 547 A.2d 47 (1988).

Furthermore, “[d]ue process requires that there should be no [statement during the trial] that appears to reject a defendant’s credibility and implies judicial support of a prosecution witness’ testimony. . . . The influence of the trial judge on the jury is necessarily and properly of great weight; Starr v. United States, 153 U.S. 614, 626, [14 S. Ct. 919, 38 L. Ed. 841 (1894)]; and jurors are ever watchful of the words that fall from him. See Bollenbach v. United States, 326 U.S. 607, 612, 66 S. Ct. 402, 90 L. Ed. 350 (1946). These admonitions and cautions are prompted by the truism that a jury has a natural tendency to look to the trial judge for guidance, and may find it even where it is not intended. State v. Fernandez, 198 Conn. 1, 12, 501 A.2d 1195 (1985).” (Internal quotation marks omitted.) State v. Camerone, 8 Conn. App. 317, 325, 513 A.2d 718 (1986). “The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s.” State v. Smith, supra, 200 Conn. 549. “A fine line separates proper and improper judicial conduct and the judge must strive to appear impartial and detached. See State v. Fernandez, supra, 198 Conn. 11; see also State v. Camerone, [supra, 325].” State v. Floyd, 10 Conn. App. 361, 369, 523 A.2d 1323, cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 L. Ct. 172, 98 L. Ed. 2d 126 (1987). Quoting Commonwealth v. Myma, 278 Pa. 505, 508, 123 A. 486 (1924), our Supreme Court stated: “The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box and at the counsel table.” (Internal quotation marks omitted.) LaChase v. Sanders, 142 Conn. 122, 125, 111 A.2d 690 (1955); see Fair v. Warden, supra, 211 Conn. 413-14; State v. Echols, supra, 170 Conn. 13-14. This court has said that “Lj]udges in this state . . . are given wide latitude to comment fairly and reasonably upon evidence received at trial, but the court must refrain from making improper remarks which are indicative of favor or condemnation .... Even though a judge may take all reasonable steps necessary for the orderly progress of the trial, he must always be cautious and circumspect in his language and conduct. . . .” (Citations omitted.) State v. Hardwick, 1 Conn. App. 609, 611, 475 A.2d 315, cert. denied, 193 Conn. 804, 476 A.2d 145 (1984).

In this case, we are not confronted with the propriety of the questioning of a witness by the trial court. See, e.g., State v. Smith, supra, 200 Conn. 546-47. Rather, we are confronted by a potently declarative statement by the trial court, delivered after an objection was placed by defense counsel to the answer of police officer Dewitt-Smith to a question posed by the prosecutor. It is that statement, as expressly articulated together with its fair implications, that the defendant argues, under the circumstances of this case, denied him his constitutional right to a fair trial. After a careful review of the record, including the trial transcript, we agree with the defendant. The “fine line” separating permissible and impermissible judicial conduct has been crossed. See State v. Fernandez, supra, 198 Conn. 17; see generally 1 C. McCormick, Evidence (4th Ed. 1992) § 8, pp. 23-28.

The state claims that while “it can be said that the court’s comment was injudicious or improper, that does not mean that it transcended constitutional bounds.” The state also posits that review should center on the context of the statement without the milieu of the entire case and we agree. The state argues that the defendant is incorrect when he “maintains that the trial court had instructed the jury to believe a police officer’s testimony over the contents of a police report, because the testimony, in the judge’s opinion, is given in good faith.” (Emphasis in original.) The state, referring to this, argues that the trial judge “was simply expressing his own preference. [His] statement was a parenthetical comment, not an instruction.” We disagree. Whether DeWitt-Smith was testifying in good faith was a factual determination to be made by the jury, not the court. The court’s remarks trespassed on the jury’s function. That the court, as the state says, was simply expressing its own preference compounds the intrusion on the function of the jury by imposing on it the court’s preference for live testimony over police reports. This language addressed to “good faith” and “preference” is declaratory, positive and delivered from the vantage point of authority.

Moreover, as the defendant also claims, the court’s comments impermissibly bolstered the credibility of DeWitt-Smith in the eyes of the jury. See, e.g., State v. Smith, supra, 200 Conn. 550. One of the components of a right to a fair trial is the right to have issues of fact and credibility decided by the jury. State v. Hines, 187 Conn. 199, 210, 445 A.2d 314 (1982); State v. Camerone, supra, 8 Conn. App. 327. The tenor and plain content of the challenged comments, uninvited as they were, worked prejudicially on the defendant because they fairly conveyed to the jury the court’s “own notion[s]” on matters solely within their province. See State v. Fernandez, supra, 198 Conn. 16. Furthermore, this took place in a trial where the evidence, while sufficient for a finding of guilt, cannot fairly be termed “overwhelming.” Cf. State v. Mack, 197 Conn. 629, 642, 500 A.2d 1303 (1985).

The trial court’s comments, elevating the credibility of DeWitt-Smith, were not only unacceptably intrusive on the function of the jury, but also skewed an unfettered appraisal of that witness’ testimony in a case where the evidence was hardly overwhelming. We do not agree with the state that the evidence against the defendant was “sufficiently strong that any inappropriate statement by the trial court constituted harmless error.” The defendant at all times denied that he was the perpetrator. No gun was ever recovered. None of the money was ever recovered. The state is silent concerning Bobiso’s inconsistent pretrial descriptions of the defendant as they were related at the trial. It should be underscored that it was DeWitt-Smith’s testimony that prompted the trial court to include the consciousness of guilt charge. The defendant did not testify at the trial. The court instructed the jury that the law is that there can be a consciousness of guilt on the part of a person, who, when asked, gives a different name. The court told the jury to examine the evidence concerning the night DeWitt-Smith came upon the situation at the BP station “and his relationship, conversations back and forth with this accused.” The court, saying that it is proper to show the conduct of an accused subsequent to a crime, charged, “The assumption of a false name [tends] to prove a consciousness of guilt; therefore, if you believe that the defendant gave a false name, that is a circumstance, which when considered together with all the facts in the case may justify an inference of the accused’s guilt.” Our Supreme Court has recently spoken to the necessity of considering the prejudice of such evidence together with the inference asked to be drawn. In this case, DeWitt-Smith’s testimony, the credibility of which had been bolstered by the trial court’s comments, was the basis for the instruction on consciousness of guilt.

The state argues that State v. Mack, supra, 197 Conn. 629, is similar to this case. During the cross-examination of the arresting officer in that first degree robbery case, he was questioned about certain headgear worn by the defendant. The trial court injected that defense counsel was “leaving the impression that this officer was a pretty dumb officer, and that isn’t fair.” Id., 640-41 n.9. Thereafter, it also stated, “I have got a job to protect an officer who is trying to do the best he can when he is out of his element.” Id. The Supreme Court also found that the trial court “did not assume the role of an advocate or otherwise abuse its discretion.” Id., 641. In Mack, the Supreme Court said that while the comments were erroneous, they were not “sufficiently prejudicial to affect seriously the fairness of the trial so as to warrant a new trial.” Id., 642. Mack is clearly distinguishable from this case not only because of the court’s positive declaration of good faith as to DeWitt-Smith’s testimony and the court’s preference of the primacy of oral testimony over that of a written police report, but also because of the overwhelming evidence of guilt in Mack. In that case, the evidence of guilt was “so overwhelming that any possible prejudice the defendant [might] have suffered from the court’s remarks had no significant bearing on the verdict.” Id. In Mack, the Supreme Court noted that the defendant was recognized by two of the victims’ children as well as by the two victims themselves, all of whom had known the defendant long before the robbery. Id., 642-43. That is not so here.

Finally, the defendant claims that the court’s unacceptable remarks and their prejudicial impact on the jury constituted a denial of the defendant’s right to a fair trial. In doing do, he disagrees with the state’s claim that the court’s final instructions were curative and ameliorated any harm caused by the court’s remarks. These instructions included the standard instruction on the credibility of a police officer and an instruction not to draw any inferences from any questions that the court may have asked any witnesses during the trial. On the basis of our examination of the whole record, including the trial transcript, we cannot accept the state’s claim that either or both instructions were curative of the court’s remarks.

“[T]he jury is presumed, in the absence of an indication to the contrary, to have followed the instructions of the trial court. State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986).” (Internal quotation marks omitted.) State v. Chance, 236 Conn. 31, 51, 671 A.2d 323 (1996); see State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). There are, nevertheless, occasions where the prejudice is so severe that curative instructions are unlikely to be effective. While it is impossible to determine precisely what effect the court’s challenged comments had on the jury, the potential for harm is evident. Given the potency of the challenged comments, their determinative significance on the real issue in the trial, i.e., credibility, and their lack of real significance for any other purpose, the claimed “curative” instructions were quite unlikely to have prevented the jury from accepting and applying the court’s earlier improper remarks. Moreover, that which is “curative” has been said to be that which is “intended to cure (that is, to obviate the ordinary legal effects or consequences of) defects, errors, omissions or irregularities.” Black’s Law Dictionary (6th Ed. 1990). The claimed curative instruction proscribing the jury from drawing any inferences from “any questions [the trial court] may have asked any witness,” which it admittedly did, was directed to questions asked of any witness by the court. It was not directed to the challenged remarks, which were not questions to a witness, and was not intended to cure the judge’s improper comments.

That leaves the standard instruction on the credibility of a police officer; it was correctly stated. The record before us does not show, however, any final instruction regarding any “curative” instruction to the challenged comments of the court. The comments were never withdrawn.

Our appellate courts have always given great weight to curative instructions in assessing claimed errors; see State v. Fernandez, supra, 198 Conn. 17; State v. Drouin, 12 Conn. App. 101, 105, 529 A.2d 740 (1987); especially in assessing a defendant’s claim of prejudice. State v. Smith, supra, 200 Conn. 552; see State v. Drouin, supra, 101. Yet, our courts have also recognized that “ ‘a curative instruction is not inevitably sufficient to overcome . . . the impact of prejudice.’ ” State v. Fernandez, supra, 17; State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980); see State v. Drouin, supra, 105. A trial judge should be “cautious and circumspect” in his comments at the trial. Fair v. Warden, supra, 211 Conn. 414. Where that does not occur, however, a defendant is not entitled to a new trial unless he can show that prejudice resulted from the trial court’s actions. Id.; see State v. Echols, supra, 170 Conn. 16. “In a jury case, such prejudice may be presumed absent mitigating circumstances.” Fair v. Warden, supra, 414.

There were no mitigating circumstances in this case. Where “we are persuaded, as we are here, that the prejudicial impact of’ improper trial court comments “has probably overborne reasonable juror conscientiousness,” we must decline to accept the claimed efficacy of the claimed curative instructions. See State v. Fernandez, supra, 198 Conn. 17-18. This is one of those rare cases in which we are so persuaded. In speaking to the issue of “fair trial” the United States Court of Appeals for the Second Circuit has said, “The constitutional standard is fairness, not perfection. It is nonetheless, and rightfully, a high standard, for the court in a criminal case deals with the life and liberty of an individual. . . .” United States v. Mendel, 746 F.2d 155, 159 (2d Cir. 1984), cert. denied, 469 U.S. 1213, 105 S. Ct. 1184, 84 L. Ed. 2d 331 (1985).

II

The defendant also claims that he was deprived of his constitutional right to a fair trial because the trial court abused its discretion by refusing to preclude extraneous, irrelevant and highly prejudicial evidence from the jury regarding his prior arrests. He also claims that the prejudicial tendency of such evidence outweighed its probative value and its harmfulness so significantly prejudiced the jury against him that it had a material and deleterious effect on the outcome of the trial and requires a new trial.

Although the defendant’s claim is fairly based on an evidentiary ruling, making it incumbent on him to demonstrate the harmfulness of the error, he argues that the prejudicial impact of the trial court’s ruling deprived him of his constitutional right to a fair trial. In making these claims, he maintains they arise somehow from the summary denial without a hearing of his motion in limine seeking that the “police officers [be prohibited] from referring to [his] prior arrests and convictions.” The defendant claims that Masek referred to the prior arrests twice, once on the state’s direct examination and once on his cross-examination. The trial court’s actions concerning this matter, he contends, did not cure this error.

The state’s position is that the defendant did not preserve this claim. We do not agree. The trial court had, early in the trial, denied the defendant’s motion in limine. Moreover, the defendant did object to the reference on direct examination and, when it arose on cross-examination, he moved that it be stricken. Alternatively, the state maintains that the trial court ruled properly on this issue. The state further maintains that, even assuming without conceding that the court acted improperly, its ruling was “sanitized” by the trial court’s curative instructions both during the trial itself and in its final instructions to the jury. We agree with the state.

“The general rule is that evidence of the commission of other crimes or specific acts of misconduct is inadmissible to prove that a defendant is guilty of the crime charged against him. . . (Citations omitted.) State v. Talton, 197 Conn. 280, 289, 497 A.2d 35 (1985); see 1 F. Wharton, Criminal Evidence (14th Ed. Torcia 1985) § 178. “The rule of admission of evidence of other crimes is a rule of evidence and not a rule of constitutional law. . . . Generally, however, the admissibility of evidence is a matter of state law and unless there is a resulting denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved. United States ex rel. Bibbs v. Twomey [506 F.2d 1220, 1222 (7th Cir. 1974)]; Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir. 1960).” (Citations omitted.) State v. Periere, 186 Conn. 599, 610-11, 442 A.2d 1345 (1982); see State v. Walker, 215 Conn. 1, 5, 574 A.2d 188 (1990); State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). Where the denial of a constitutional right is claimed, “[t]he test for determining whether a defendant’s constitutional right to a fundamentally fair trial has been violated by the admission of evidence of other crimes is the same as would be applied by a reviewing court on direct appeal in determining whether the admission of such evidence was within the permissible exercise of discretion of the trial court.” United States ex rel. Bibbs v. Twomey, supra, 1223; United States ex rel. Harris v. Illinois, [457 F.2d 191, 198 (7th Cir. 1972)].” State v. Periere, supra, 611. “ ‘When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).’ State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988).” (Internal quotation marks omitted.) State v. Vilalastra, supra, 47.

We first take up the defendant’s claim that the trial court summarily denied his motion in limine without a hearing. After granting the defendant’s motion for sequestration, the defendant presented his motion in limine asking that the trial court prohibit police officers called by the state from mentioning that the defendant was known to them through prior arrests or convictions. During the colloquy on that motion, the trial court said: “I don’t know how that would come up. I don’t need a motion in limine for that. You just interpose an objection. The state won’t ask a question like that. How am I going to monitor that?” After defense counsel answered, “By instructing the police officer,” the trial court said, “Sorry, motion denied. File your objection. Make it when it comes up.”

We do not agree that this motion was “summarily denied” without a hearing. The motion itself is self-explanatory and is not novel. A trial court may “entertain a motion in limine made by either party regarding the admission or exclusion of anticipated evidence. . . . The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding.” Practice Book § 850B. This court has said that “[t]he motion in limine . . . has generally been used in Connecticut courts to invoke a trial judge’s inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial.” Richmond v. Longo, 27 Conn. App. 30, 36, 604 A.2d 374, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992). Richmond also instructs that “[w]hen the determination of the admissibility of evidence hinges on other necessary facts that can properly be determined only during the trial after the necessary prerequisite testimony has been presented, such determination is more appropriately made after such prerequisite testimony has been presented.” Id. Here, the trial court heard and acted appropriately by telling counsel to object if the matter came up. Practically speaking, it also recognized that the state would not ask a question “like that.” To be sure, the hearing was brief, but we do not agree that it was “summarily denied.”

Thereafter, during the trial, the state asked Masek the following question concerning his interview of the victim Bobiso at the Bridgeport detective bureau: “Now, as part of your procedure of taking a statement to find out what happened, did you also employ any measures to try to identify the person that he claimed had robbed the gas station?” Masek responded, in the presence of the jury: “Yes. Based on the victim’s description of the suspect being a black male we have a photo array books consisting of several pages of black males that have been arrested prior by our department and we showed him these books—

“[Assistant State’s Attorney]: All right. Hang on for just one second. Your Honor—

“[Defense Counsel]: I’m going to object, Your Honor.

“[Assistant State’s Attorney]:—getting into the subject of a motion, Your Honor, by counsel. I don’t want to—

“The Court: Do you want to take that up now?

“[Defense Counsel]: Yes, I do, sir.”

The trial court, without any comment about Masek’s prior arrest testimony, then excused the jury for the day. The defendant’s counsel addressed the court and the following took place:

“[Defense Counsel]: Well, there’s several motions regarding this. The first would be the motion that I—

“The Court: Just address whatever one you want.

“[Defense Counsel]: The motion in limine regarding any police reference, since this gentleman is known by the police, any police reference to prior arrests, prior convictions, etc., and that’s why I asked Your Honor to consider it before because I knew that it would come out regarding the information so I would ask the court that this is highly prejudicial to my client, any reference. He hasn’t taken the stand, he’s not to be—

“The Court: I think I denied that.

“[Defense Counsel]: Pardon me?

“The Court: I denied that motion earlier on. You addressed the motion in limine to me today.

“[Defense Counsel]: That’s correct and you indicated to me that you would consider. You denied it for the time being.

“The Court: I denied it, period. I said you make your objections when you hear it. Now, you made no objection when the police officer arriving in the gas station told the arresting officer who was detaining him on the accusation by the victim that he said, that’s not Freedman. He says that’s Pharr. We know who he is. How did they know? I don’t worry about those things. The jury will not convict him based on his prior history. They’ll only do it on this case. I’ll take care of that during the charge. Now, I didn’t delay that whatsoever. I denied it. The record will stand on that.”

The next portion of Masek’s testimony on the prior arrest claim came up on the following day during the defendant’s recross-examination. After defense counsel had asked Masek about the description of the robber that the victim had given him at the Bridgeport detective bureau, the following took place:

“[Defense Counsel]: And other than this, did you ever come across any other information containing reference to Bennie Pharr’s height and weight?

“[Masek]: Yes, I did.

“Q. And off the top of your head, can you tell us where it came from and what it was?

“A. Yes, it came from the National Crime Information Computer which is information that’s compiled at the time of a previous arrest, and—

“[Defense Counsel]: I’m going to object to that, Your Honor, and have it stricken. I just asked him to—

“The Court: You asked him where he got it.

“[Defense Counsel]: And I would ask that it would be stricken—the previous arrest.

“The Court: Well, in the interest of fairness, probably, I’m going to do it, but the question is certainly responsive—the answer is responsive to the question.

“[Defense Counsel]: Under State v. Talton, I would ask the court to—

“The Court: State v. what?

“[Defense Counsel]: Talton. I would ask that it be—the defendant is not on the stand here.

“[Assistant State’s Attorney]: Your Honor, I think that my request will be that the jury be cautioned as opposed to stricken. It’s the evidence that we—”

At that point the trial court then addressed the jury: “I think the answer’s responsive, but I also will tell you during my instructions on the case that this case is this case. This case and the facts of this case. And that you will not, under any circumstances, consider any other suspicion that you may have from the fact that he may or may not have been arrested in the past, either by way of this answer which counsel has asked, or by way of the fact that the reference to any photographs may be sometimes used and characterized as mug shots. Now, whether that means a person’s been arrested or not has not judicially been determined. I don’t know that answer, because there are many sources for photographs in a police identification book, many. And I can’t jump to the conclusion because your picture’s there that you have been arrested or charged or convicted of a crime. Okay, so I want you to put those two things aside. The mug shot, the characterization—it’s a TV word that’s become popular and, secondly, the fact that he was listed in the National Crime Index—we don’t know what it’s about; we’re not going to retry that case and we’re not going to give him a negative impact because of that statement, but it’s a fact in the case because it was asked, where did you get this information? Fair enough. Just be careful of that. Try this case on the facts of this case, and I’ll talk to you about it later.”

During the course of its final instructions, the trial court underscored its earlier curative charge with a stronger curative instruction when it charged: “Counsel asked [Detective Masek] his source of the information as to his height and his weight and he answered that question. That’s a fair question; that’s a fair answer he gave. When he said he obtained it from a national something—index—computer index, which may give you reason to think that they said that information in a national computer system which is commonly maintained by all departments which would reflect that this [person] on trial had come to the attention of the authorities on a prior occasion. I say to you in regard to that, caution, and a mandatory one. Put that out of your mind. The officer answered the question that was asked him. Would it have been better if he didn’t or you didn’t become aware of that? Certainly. So, I’m telling you to affirmatively, positively, remove that from the consideration in this case. Decide this case based on what happened at 5:05 a.m. on May 13, 1995, at the comer of State and Park. You decide this case.”

Applying the relevant principles to the circumstances set out previously, we conclude that the defendant “has put a constitutional tag on a nonconstitutional evidentiary ruling.” (Internal quotation marks omitted.) State v. Walker, supra, 215 Conn. 5; State v. Douglas, 205 Conn. 445, 455, 525 A.2d 101 (1987). While we believe that the trial court should have acted immediately to caution the jury after Masek’s direct testimony as to the defendant’s prior arrests, that omission was not one of constitutional magnitude nor any denial of fundamental fairness. See State v. Walker, supra, 5. We further determine that the defendant has not sustained his burden of demonstrating the harmfulness of the court’s action, specifically that it was more probable than not that that action affected the result.

The defendant relies on State v. Ferrone, 97 Conn. 258, 265, 116 A. 336 (1922), in which our Supreme Court held that the defendant was denied a fair trial because a police officer testified that the defendant, during a custodial interrogation, said that he had never been arrested when, in fact, he had just spent “seven years in Sing Sing.” In Ferrone, the court reasoned that this evidence “was obviously intended for the purpose of picturing the accused as a notorious criminal”; id., 267; thereby prejudicing the jury against him.

The case at bar is not Ferrone. Here, the jury was exposed only to a reference that the victim picked out the defendant’s photograph from some “photo array books consisting of several pages of black males that have been arrested prior by our department.” There was no indication of whether there had been more than one prior arrest, no indication of any conviction, no indication of the charge or charges involved or any of the underlying facts. Moreover, the second time the prior arrest matter arose was during the defendant’s recross-examination of Masek when the defendant, not the state, attempting to find out where Masek got information about the defendant’s height and weight other than from the victim, asked Masek: “And off the top of your head, can you tell us where it came from and what it was?” Masek answered: “Yes, it came from the National Crime Information Computer which is information that’s compiled at the time of a previous arrest . . . .’’At that time, the trial court appropriately cautioned the jury. Later, during its final instructions, the trial court, at length, carefully admonished the jury on this fact of the trial. The defendant has no complaint on this issue.

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

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides in relevant part: “Robbery in the first degree: Class B felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       General Statutes § 53-202k provides: “Commission of a class A, B or C felony with a firearm: Five-year nonsuspendable sentence. Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       Bobiso described the gun as a “silver revolver” and as being a “small .38 millimeter ”

       This information concerning the defendant was obtained by Masek from the National Crime Information Computer database, which has information compiled at the time of a previous arrest.

       In denying that he was the perpetrator of the crime involved, the defendant presented two witnesses. One was Bobiso, who was questioned about his identification of the defendant as the robber. The other was Rose McKinney, his girlfriend, who testified that the defendant was with her in her home at the time of the robbery.

       We decline to review this claim under the Connecticut constitution because the defendant has failed to provide an independent analysis of the claim under our state constitution. State v. Webb, 238 Conn. 389, 423 n.32, 680 A.2d 147 (1996); State v. Daniels, 42 Conn. App. 445, 454 n.8, 681 A.2d 337, cert. denied, 239 Conn. 928, 683 A.2d 397 (1996).

      The stale also claims that defense counsel did not file a request to charge on the subject and failed to object to the court’s jury instructions on police credibility.

       The trial court’s final instructions to the jury included the following: “You had testimony here by two police officers and I tell you as a matter of law that a police officer’s testimony is entitled to no special or exclusive sanctity merely because it comes from a police officer. A police officer who takes the witness stand subjects their testimony to the same examination and test that any other witness does. In the case of a police officer, you should not believe or disbelieve them merely because they are police officers. You should recall their demeanor on the stand, consider their training, if any, in the field in which they give evidence, their manner of testifying, the substance of their testimony, their capacity for observing facts and relating them to you accurately and truthfully. You should weigh and balance that testimony just as carefully as you would the testimony of any other witness.”

       The state claims that defense counsel’s cross-examination of DeWittSmith uncovered the fact that the officer’s report contained no mention of the defendant’s use of an alias and, thus, there was no issue concerning this officer’s credibility with respect to his written report. This is hardly persuasive as the officer also said on cross-examination that, in such circumstances, he “usually” put in his report if an arrestee used another name (and also that he usually then arrests them for criminal impersonation). In addition, where he has, as here, access to the warrant that contains an alias, he puts that alias in. Here, the warrant did have the name “BIM” on it as an a/k/a (also known as) for Pharr. This evidence of the “other name” led to the trial court charging the jury, after a request to charge from the state, on the consideration by the jury of the consciousness of guilt on the part of the defendant if they found that he in fact gave DeWitt-Smith a false name at the time of his arrest.

       In the challenged comments, the trial court spoke of “police reports” in the plural.

       In State v. Jones, 234 Conn. 324, 356-57, 662 A.2d 1199 (1996), the Supreme Court stated: “From the state of mind that we call ‘guilty consciousness’ comes the inference that the actor committed the guilty deed. It is not this inference that has caused controversy. Rather it is the first step ‘in the process of inferring the existence of that inner consciousness from the outward conduct, [in which] there is ample room for erroneous inference; and it is in this respect chiefly that caution becomes desirable and that judicial rulings upon specific kinds of conduct become necessary.’ 2 J. Wigmore, Evidence (Chadbourn Rev. 1979) § 273, pp. 115-16.
      “Conduct from which the state asks the jury to infer a guilty conscience ‘is a species of evidence that should be viewed with caution; it should not be admitted mechanically.’ United States v. Hernandez-Bermudez, 857 F.2d 50,54 (1st Cir. 1988). Whether particular conduct is an index of guilt depends on the particular circumstances. The probative value of the evidence of the defendant’s conduct depends on the degree of confidence with which the inference can be drawn. United States v. Dillon, 870 F.2d 1125, 1127 (6th Cir. 1989). ‘Before evidence is allowed to be given, the court must also consider whether its prejudicial tendency outweighs its probative value.’ . . . State v. Reid, [193 Conn. 646, 655-56, 480 A.2d 463 (1984)].” (Emphasis added.)

       The trial court charged as follows on the drawing of inferences from questions that it may have asked of witnesses: “Similarly, you should not draw any inferences whatever from any questions I may have asked any witnesses in this case. If I did, and I did, I gave no consideration to the answer given to any question which I may have asked. You have to examine the testimony of the witnesses who have been presented here before you. My inquiry of any witness is simply for clarification if I thought there was room for the witness to explain or clarify testimony that they gave for your benefit.”
      We note that the state appears to concede that “[wjhile this instruction was not tailored precisely to the court’s remarks, it served to ameliorate any harm caused by the court’s remarks.” Actually, what is challenged by the defendant is not any question asked of any witness, but the definite and concrete assertion concerning the testimony of a police witness and the trial court’s opinion concerning credibility.

       This motion in limine recited the following:
      “Motion in Limine - Defendant Known to Police
      “The defendant respectfully moves this court to enter an order prohibiting police officers who testify for the state in this matter from mentioning that the defendant was known to them through prior arrests and/or convictions. In support of said motion, defendant urges this court to adopt the rationale of the Connecticut Supreme Court as recently articulated in State v. Talton, 197 Conn. 280, 289 (1985), wherein the court, noting that in the case of a nontestifying defendant, the issue of the defendant’s credibility not being properly before the jury, ‘it was error to admit the [police officer’s testimonial] evidence of the defendant’s false statement with respect to his prior arrest record.’ The defendant in the instant case submits that testimony from police officers to the effect that he was known to them through his prior acts is clearly analogous to the situation our Supreme Court found in Taitón, in that such testimony unnecessarily prejudices the defendant and impugns his due process rights to a fair trial in contravention of his constitutional rights. U.S. Constitution, Amendments V, XIV; Connecticut Constitution, Article I, Section Eight. This Motion does not duplicate any previously filed or ruled on in this case.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VINCENT R. CAPPELLO ET AL. v. ANTHONY CIRESI ET AL.
    (15889)
    Foti, Lavery and Daly, Js.
    Argued February 19
    officially released April 1, 1997

      Patricia E. Curtin, with whom, on the brief, was Walter A. Flynn, Jr., for the appellants (plaintiffs).

      John F. Fallon, for the appellees (defendants).
   PER CURIAM.

The plaintiffs, Vincent Cappello and Irene Cappello, appeal from the trial court’s judgment rendered in favor of the defendants. The plaintiffs are the owners of a parcel of land located in a subdivision known as Lakeview Acres in Fairfield. The entire subdivision consists of seventy-four lots subject to certain restrictions recorded in the land records in 1943 that prohibit the use of any lot for anything other than a single-family dwelling. The plaintiffs instituted this action seeking (1) a judgment settling title to their land, and (2) a declaratory judgment determining whether the restrictions on the subdivision apply to their land. The defendants are property owners in the subdivision.

The plaintiffs claim that the trial court improperly upheld the validity of the restrictions, in that, as a matter of law, it incorrectly interpreted the effect of the restrictive covenant with regard to the plaintiffs’ property.

We are persuaded by our examination of the record, briefs and arguments of the parties that the judgment of the trial court should be affirmed. In a thoughtful, detailed and comprehensive memorandum of decision, the trial court, Thim, J., analyzed the law in a manner consistent with our statutes and case precedents. Cappello v. Ciresi, 44 Conn. Sup. 451, 691 A.2d 42 (1996). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on the issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Daw’s Critical Care Registry, Inc. v. Dept. of Labor, 225 Conn. 99, 101-102, 622 A.2d 518 (1993); Bank of Boston Connecticut v. Brewster, 32 Conn. App. 215, 217, 628 A.2d 990 (1993); Fromer v. Boyer-Napert Partnership, 26 Conn. App. 185, 186-87, 599 A.2d 398 (1991).

The judgment is affirmed.


author: DUPONT, C. J.

text:
    NEW MILFORD SAVINGS BANK v. MAURICE J. JAJER ET AL.
    (14888)
    Dupont, C. J., and O’Connell and Heiman, Js.

      Argued December 11, 1996
    officially released April 1, 1997

      George M. Purtill, with whom, on the brief, were Seth Jacoby and R. Richard Groce, for the appellants (named defendant et al.).

      Thomas J. Allingham, for the appellee (plaintiff).
   DUPONT, C. J.

This appeal arises out of a mortgage foreclosure on the defendants’ land in New Milford. Their basic claim is that the trial court improperly granted the plaintiffs motion to open when it lacked jurisdiction to do so because title had already vested in the plaintiff.

The trial court rendered a judgment of strict foreclosure on August 22, 1994, with a law day of September 19, 1994, for the defendants to redeem or to be foreclosed. The defendants failed to redeem on their law day, and title vested in the plaintiff on September 23, 1994.

On September 26,1994, the defendants filed a Chapter 11 bankruptcy petition, and the underlying proceedings in the trial court were automatically stayed. Subsequently, the plaintiff determined that the property described in the foreclosure complaint did not contain the entire property description contained in the mortgage deed because one of three mortgaged parcels of land was omitted. The two parcels described in the complaint were undeveloped land, whereas the defendants’ residence was on the omitted parcel.

On October 5,1994, the plaintiff filed a motion in the United States Bankruptcy Court, pursuant to § 362 of the Bankruptcy Code; 11 U.S.C. § 362; seeking relief from the bankruptcy stay so that it could foreclose the defendants’ interest in the third parcel, which the plaintiff had mistakenly omitted from its foreclosure action. After a contested hearing on December 22,1994, the United States Bankruptcy Court, Krechevsky, J., issued an opinion and order on February 23,1995, ordering that the stay be modified “to permit the movant to proceed in state court to prosecute a supplemental action.” The bankruptcy court noted the defendants’ concession that the plaintiffs mortgage remained on the third parcel after the mortgage foreclosure proceeding, and that, if that were the case, no equity remained in the parcel for the defendants’ estate. The bankruptcy court held that the plaintiff “has a colorable claim to the parcel and is entitled to relief from stay to take whatever action is appropriate.”

On March 10, 1995, after title to the two parcels of land described in the foreclosure action had vested in the plaintiff, the plaintiff filed in the trial court a motion to open the judgment of strict foreclosure so that it could file an amended complaint containing a description of the third parcel of land, as well as the two original parcels. The plaintiff requested that the trial court assign new law days for the third parcel only. The plaintiffs motion to open the judgment of strict foreclosure was granted on March 27, 1995, and the plaintiff filed an amended complaint on April 11, 1995. On May 11, 1995, the defendants filed an objection to the plaintiffs motion for judgment of foreclosure. The plaintiffs motion for judgment of strict foreclosure was granted on May 15,1995, with a law day of June 13,1995. The defendants filed a motion to open the judgment of strict foreclosure on June 1, which was denied on June 5, 1995.

The defendants filed this appeal on June 9, 1995, claiming that the granting of the plaintiffs March 27, 1995 motion to open the original judgment of strict foreclosure was improper, that the judgment of strict foreclosure dated May 15, 1995, should not have been rendered, and that the trial court should not have denied the defendants’ June 1, 1995 motion to open. We agree with the defendants that the trial court improperly granted the plaintiffs March 27, 1995 motion to open the foreclosure judgment of August 22,1994, and, therefore, do not reach the defendants’ other claims.

I

As a preliminary matter, we must determine whether the defendants have standing to bring this appeal. The following additional facts are necessary to resolve this question. On June 6, 1995, the bankruptcy court converted the defendants’ Chapter 11 proceeding into an involuntary Chapter 7 proceeding. On July 26,1995, this court notified the parties that it would not take any action on this case until proof was received that relief from stay had been obtained in the Chapter 7 proceeding or that all bankruptcy proceedings had been terminated. On August 31, 1995, the Chapter 7 bankruptcy trustee filed a notice of proposed abandonment of the estate’s interest in the third parcel of property, which was effective on October 18, 1995. On October 4, 1995, the defendants were discharged of their debts in the Chapter 7 bankruptcy proceedings.

On June 26, 1996, the plaintiff filed a motion to dismiss this appeal, alleging that the defendants lacked standing. The plaintiff argued that after the defendants’ Chapter 11 bankruptcy proceeding was converted into a Chapter 7 proceeding, only the bankruptcy trustee had standing to file an appeal.

Pursuant to Practice Book § 4000, “[a]n aggrieved party may appeal from a final judgment except as otherwise provided by law.” The defendants argue that they are aggrieved parties. We agree.

“The test for determining aggrievément encompasses a well settled twofold determination: first, the party claiming aggrievement must demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest shared by the community as a whole; second, the party claiming aggrievement must establish that this specific personal and legal interest has been specially and injuriously affected by the decision. . . . Mere status as a party or a participant in the proceedings below does not in and of itself constitute aggrievement for the purposes of appellate review. ...” (Citations omitted; internal quotation marks omitted.) Windham Taxpayers Assn. v. Board of Selectmen, 234 Conn. 513, 523, 662 A.2d 1281 (1995); see Practice Book § 4000.

The defendants claim that their personal and legal interests have been specially and injuriously affected by the decision of the trial court, regardless of the fact that a bankruptcy trustee manages the bankruptcy estate, because they still own the equity of redemption. “In Connecticut, a mortgagee has legal title to the mortgaged property and the mortgagor has equitable title, also called the equity of redemption. Conference Center Ltd. v. TRC, 189 Conn. 212, 218, 455 A.2d 857 (1983). The equity of redemption gives the mortgagor the right to redeem the legal title previously conveyed by performing whatever conditions are specified in the mortgage, the most important of which is usually the payment of money. General Statutes § 47-36h .... Under our law, an action for strict foreclosure is brought by a mortgagee who, holding legal title, seeks not to enforce a forfeiture but rather to foreclose an equity of redemption unless the mortgagor satisfies the debt on or before his law day.” (Citations omitted.) Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989).

After the original judgment of strict foreclosure on August 22, 1994, the defendants retained their equity of redemption in the third parcel of land because that parcel was not foreclosed by the foreclosure action. When the defendants went into bankruptcy, the property became a part of the bankruptcy estate. When the bankruptcy trustee abandoned his interest in this property, the property reverted to the defendants. Prior to the trustee’s abandonment, the trustee would also have been a proper party to maintain a cause of action on behalf of the defendants. Here, the defendants were aggrieved by the decisions of the trial court of March 27 and May 15, 1995, and they have standing to pursue this appeal.

II

The defendants claim that the trial court lacked jurisdiction to open the judgment of foreclosure because, under General Statutes § 49-15, a judgment of strict foreclosure cannot be opened after title has become absolute in an encumbrancer, and General Statutes § 49-1 bars any further action upon the mortgage debt after a mortgage has been foreclosed. We agree.

Section 49-15 provides: “Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.” (Emphasis added.) Both this court and the Supreme Court have held that, under this statute, after title has become absolute in any encumbrancer, a judgment of foreclosure cannot be opened. Varanelli v. Luddy, 130 Conn. 74, 77, 32 A.2d 61 (1943); Crane v. Loomis, 128 Conn. 697, 700, 25 A.2d 650 (1942); Burritt Interfinancial Bancorporation v. Wood, 33 Conn. App. 401, 408, 635 A.2d 879 (1994); Citicorp Mortgage, Inc. v. D'Avanzo, 31 Conn. App. 621, 625, 626 A.2d 800, cert. denied, 227 Conn. 909, 632 A.2d 690 (1993), cert. denied, 510 U.S. 1195, 114 S. Ct. 1303, 127 L. Ed. 2d 655 (1994); Merry-Go-Round Enterprises, Inc. v. Molnar, 10 Conn. App. 160, 162, 521 A.2d 1065 (1987).

Although no Connecticut appellate decision has resolved the issue posed by this case, other jurisdictions have held that where a holder of a mortgage covering several properties has omitted one or more subject parcels from the foreclosure, the mortgagee is deemed to have waived its lien on the omitted parcels. Matter of Silverman, 10 B.R. 734, 736 (S.D.N.Y. 1981); Bankers Trust Co. v. G. H. Equities, Inc., 57 App. Div. 2d 601, 602, 394 N.Y.S.2d 30 (1977); Bodner v. Brickner, 29 App. Div. 2d 441, 446, 288 N.Y.S.2d 342 (1968); Dooly v. Eastman, 28 Wash. 564, 574-75, 68 P. 1039 (1902). The rationale of these cases is that because a mortgage is merged in a judgment of foreclosure, a new action cannot be maintained to foreclose a mortgage as to an omitted lot. A mortgage cannot be foreclosed piecemeal, and the legal effect of omitting from the decree a portion of the mortgaged premises is a waiver of the mortgage lien as to that portion. Dooly v. Eastman, supra, 574-75.

In this case, the law days began on September 19, 1994, and concluded on September 22, 1994. None of the encumbrancers redeemed, and title to the two parcels of land described in the plaintiffs original complaint became absolute in the plaintiff on September 23,1994. “Where a foreclosure decree has become absolute by the passing of the law days, the outstanding rights of redemption have been cut off and the title has become unconditional in the [redeeming encumbrancer] . . . .” City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 25, 179 A. 339 (1935). Thus, the plaintiff had absolute title in the two parcels of land included in the foreclosure complaint.

Under § 49-1, a judgment of strict foreclosure extinguishes all rights of the foreclosing mortgagee on the underlying note, with the exception of rights enforceable through the use of the deficiency judgment procedure under General Statutes § 49-14. Having foreclosed on only two of the three mortgaged properties, the plaintiff was precluded from foreclosing on the third. Even though the plaintiff holds a mortgage on the third parcel, evidenced by a mortgage deed that remains unreleased on the land records, after the judgment of foreclosure and the running of the law days, the plaintiff is no longer able to foreclose that mortgage because the underlying note has been extinguished.

The plaintiff claims that the doctrine of collateral estoppel prevents the defendants from relitigating the issue of whether a mortgage remained on the parcel of land that was omitted from the original action for foreclosure. “For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991). The plaintiff asserts that the United States Bankruptcy Court “specifically found that the note and mortgage remained valid, unextinguished, and enforceable.” A reading of the bankruptcy court decision does not substantiate that the court “specifically found” any such thing. The court stated, “In light of the debtors’ concession that the [plaintiffs] mortgage remains on the third parcel after the apparently defective state court mortgage foreclosure proceeding, there clearly is no equity in the parcel for the debtors’ estate. The [plaintiff] has a colorable claim to the parcel and is entitled to relief from stay to take whatever action is appropriate in state court under the circumstances.” Thus, the bankruptcy court was merely noting the defendants’ concession that the mortgage remained on the parcel. The court did not decide that the mortgage was enforceable. The issue was not previously decided by the bankruptcy court, but, rather, the bankruptcy court recognized that a problem existed concerning the title to the third parcel and that the plaintiffs colorable claim to an interest in the parcel entitled the plaintiff to relief from the bankruptcy stay.

The August 22, 1994 judgment of strict foreclosure was properly rendered, the plaintiffs motion to open that judgment was improperly granted, the judgment of strict foreclosure of May 15, 1995, was improperly rendered, and the defendants’ motion to open the judgment of May 15, 1995, should have been granted.

The judgment of strict foreclosure rendered on May 15, 1995, is reversed and the case is remanded with direction to reinstate the judgment of strict foreclosure rendered on August 22, 1994.

In this opinion the other judges concurred.

       The defendants Maurice J. J<ijer and Maria Jajer are the mortgagors. Additional defendants in the trial court who are not parties to this appeal were Sears, Roebuck and Company, the department of revenue services, and Waterbury Telephone Employees Credit Union, each of which held one or more recorded liens on the property. We refer to the Jajers as the defendants in this opinion.

       The junior encumbrancers did not redeem on their law days.

       Supplemental briefs were filed to address this issue.

       Pursuant to 11 U.S.C. § 541 (a) (1), the commencement of an involuntary bankruptcy case under Chapter 7 creates an estate that is comprised of “all legal or equitable interests of the debtor in property as of the commencement of the case.” Under 11 U.S.C. § 303 (g), the court may order the appointment of an interim trustee at any time after the commencement of a Chapter 7 case but before relief is ordered. Once a Chapter 7 petition is filed, the trustee becomes the proper party to maintain a cause of action on behalf of the debtor.

       General Statues § 49-1 provides: “The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure; but the foreclosure is not a bar to any further action upon the mortgage debt, note or obligation as to any person liable for the payment thereof upon whom service of process to constitute an action in personam could not have been made within this state at the commencement of the foreclosure. The judgment in each such case shall state the names of all persons upon whom service of process has been made as herein provided.”


author: SCHALLER, J.

text:
    THOMAS DIDOMIZIO, COADMINISTRATOR (ESTATE OF THOMAS DIDOMIZIO), ET AL. v. EMIL FRANKEL, COMMISSIONER OF TRANSPORTATION
    (14889)
    Heiman, Schaller and Hennessy, Js.

      Argued September 24, 1996
    officially released April 1, 1997

      Herbert Gruendel, with whom, on the brief, was Trisha Morris, for the appellants (plaintiffs).

      Raymond J. Plouffe, Jr., with whom, on the brief, was Kevin S. Coyne, for the appellee (defendant).
   SCHALLER, J.

The plaintiffs appeal from the judgment of the trial court directing a verdict in favor of the defendant in an action brought pursuant to General Statutes § lSa-144.

The principal issues presented in this appeal are whether the trial court improperly (1) directed a verdict for the defendant because the plaintiffs failed to produce sufficient evidence to support a prima facie case of liability under § 13a-144, and (2) excluded evidence of a prior accident offered to show the existence of a defect to prove notice. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. On July 15, 1992, the plaintiffs’ decedent, Thomas J. DiDomizio, was a passenger in a pickup truck that was traveling toward an entrance ramp to Route 8 southbound in Naugatuck. As the truck came onto the ramp and turned to the left in a curve, the vehicle slid, rotated 180 degrees, continued backwards up the ramp, and knocked down the guardrail on the right side of the ramp. The vehicle then plunged fourteen feet into the Naugatuck River, and DiDomizio drowned.

This action was brought against the commissioner of transportation pursuant to § 13a-144, the highway defect statute, for the wrongful death of DiDomizio. The plaintiffs alleged that the defendant had neglected to maintain a portion of the highway in accordance with his duty and failed to maintain a guardrail beside the highway. The plaintiffs asserted that the ramp was excessively slippery and further claimed that the guardrail on the entrance ramp was insufficient to prevent vehicles from going through it. The plaintiffs claim that the guardrail was defective because the supporting posts were inadequately anchored, were placed in insufficiently firm soil and were not anchored deep enough in the soil.

At trial, the plaintiffs offered evidence of a prior accident on the same ramp to show the defect in the guardrail and to prove that the defendant had notice of the defect. This evidence was excluded by the trial court.

After the plaintiffs rested their case, the defendant moved for a directed verdict. The court determined that the plaintiffs had failed to produce sufficient evidence to establish a prima facie highway defect case, and directed a verdict in favor of the defendant. This appeal follows.

“ ‘The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion.’ . . . Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 285-86, 587 A.2d 1056 (1991); see also Bleich v. Ortiz, 196 Conn. 498, 500-501, 493 A.2d 236 (1985). We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. Giles v. New Haven, 228 Conn. 441, 444, 636 A.2d 1335 (1994); Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).” Bilodeau v. Bristol, 38 Conn. App. 447, 454, 661 A.2d 1049, cert. denied, 235 Conn. 906, 665 A.2d 899 (1995). “While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven; Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 529, 562 A.2d 1100 (1989); it may not resort to mere conjecture and speculation. Burke v. West Hartford, 147 Conn. 149, 151-52, 157 A.2d 757 (1960). If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury. Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 584, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986).” Merola v. Burns, 21 Conn. App. 633, 636, 575 A.2d 1025 (1990).

I

The plaintiffs claim first that the trial court improperly directed the verdict for the defendant. They claim that they produced sufficient evidence in their case-in-chief to establish a prima facie case of liability under § 13a-144. We disagree.

Pursuant to § 13a-144, the plaintiffs must present evidence sufficient to establish the following elements by a fair preponderance of the evidence: “(1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways ... it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries . . . .” Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

Our Supreme Court has defined a highway defect as “[a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . . .” (Internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 461-62, 569 A.2d 10 (1990). “ ‘Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . . ” Sullivan v. Norwalk, 28 Conn. App. 449, 453, 612 A.2d 114 (1992); see also Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201, 592 A.2d 912 (1991).

The essence of the plaintiffs’ claim is that the commissioner breached his statutory duty to keep the highway free of defects. “The mere fact that a defect exists, however, does not allow recovery under [§ 13a-144], which also requires proof that the defendant had actual or constructive notice of the defect and had a reasonable opportunity to correct the defect. Hall v. Burns, supra, [213 Conn.] 462.” Langton v. Westport, 38 Conn. App. 14, 19, 658 A.2d 602 (1995). Thus, even if we assume that the plaintiffs produced sufficient evidence to prove that the defects existed at the time of the accident, “[i]t is the settled law of our state that [i]n a case seeking recovery for damage from defects in a highway, it is a prerequisite of liability that the authority charged with maintenance shall have had either actual notice of the defect or constructive notice through its existence for such a length of time that it would have been known in the exercise of reasonable care . . . .” (Internal quotation marks omitted.) Baker v. Ives, 162 Conn. 295, 305, 294 A.2d 290 (1972). “It is also settled law that the notice must be of the particular defect itself which caused the injury and not merely notice of the conditions naturally productive of the defect and in fact producing it.” Id.

In this case, the plaintiffs do not claim that the defendant had actual notice of the slippery surface of the ramp or the condition of the guardrail. Instead, the plaintiffs claim that they produced sufficient evidence to show that the alleged defects existed for a sufficient period of time so that the condition should have been discovered had the state exercised reasonable supervision over its highways. See Sullivan v. Norwalk, supra, 28 Conn. App. 454.

Our review of the record indicates that the plaintiffs failed to introduce sufficient evidence to establish constructive notice to the defendant. The plaintiffs failed to produce evidence to show when the allegedly defective condition of the ramp and guardrail came into existence or how long the defects existed. Also, although the plaintiffs did submit some evidence of the loose soil in the embankment where the guardrail was set, the plaintiff failed to introduce any evidence to establish how long the soil had been in that condition. Without evidence of when the alleged defects arose, a jury could only speculate as to whether the defendant should have discovered the alleged defects. We conclude that the trial court properly determined that there was insufficient evidence to submit the issue of constructive notice to the jury, and, therefore, properly directed a verdict in favor of the defendant because of the plaintiffs’ failure to prove a prima facie case under § 13a-144.

II

The plaintiffs next claim that the trial court improperly excluded evidence of a prior accident that occurred on the same ramp as in the present case. The plaintiffs assert that the prior accident was substantially similar to this accident and should have been admitted to prove the existence of a defect and notice of the defect. The defendant claims that the trial court properly rejected the evidence because there was insufficient proof of similarity of conditions, circumstances and use.

“Evidence of other similar accidents is admissible to prove the existence of a particular physical condition, situation, or defect. C. McCormick, Evidence (3d Ed.) § 200; Zheutlin v. Speery & Hutchinson Co., 149 Conn. 364, 179 A.2d 829 (1962); Facey v. Merkle, 146 Conn. 129, 136, 148 A.2d 261 (1959); Wilkins v. G. Fox & Co., 125 Conn. 738, 7 A.2d 434 (1939). A party attempting to offer evidence of prior accidents or evidence of the experience of others has the burden of proving that the circumstances were substantially the same as those under which the plaintiff was injured, and that the use by others was substantially similar to that of the plaintiff. . . . Moreover, [e]vidence of prior occurrences will be admitted only if the proffering party first lays a sufficient foundation of substantial similarity of conditions between the immediate and the prior happenings. Marois v. Paper Converting Machine Co., 539 A.2d 621, 625 (Me. 1988). The question whether the essential preliminaries have been established is for the court, and the court’s decision will not be disturbed unless there is clear and manifest error.” (Citations omitted; internal quotation marks omitted.) Hall v. Burns, supra, 213 Conn. 451-52.

At trial, the plaintiffs attempted to show the similarity of the accidents through a report made by the state police in October, 1990, of an accident that occurred on the same ramp as in this case. The police report indicated that the prior accident involved a motorcycle that fell over, skidded 110 feet on its side and knocked down two steel posts of the guardrail on the right side of the ramp. The motorcycle did not knock down the same posts that were knocked down by the vehicle in this case, nor did it knock down the guardrail. The report also revealed that the operator admitted to ingesting alcohol prior to operating the motorcycle and tests showed his blood alcohol level to be 0.188. Further, the report indicated that the operator admitted that the wheels of his motorcycle were hard, which caused the bike to slide out from under him. Finally, the police report indicated that the road was dry. In excluding the evidence of the prior accident, the trial court determined that the speed of the motorcycle had not been established, that the vehicle involved was a different type and that the plaintiffs failed to prove that the alleged cause of the present accident, the slippery roadway or a defective guardrail, was similar to that of the prior accident.

“It is a well established principle of law that the trial court may exercise its discretion with regards to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion.” Id., 451. Given the facts and circumstances of this case, we cannot say that the trial court abused its discretion in excluding evidence of the prior accident.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-144 provides in pertinent part: “Damages for injuries sustained on state highways or sidewalks. Any person iryured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the aborning ground so as to be unsafe for travel or, in the case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . .”


author: HENNESSY, J.

text:
    DONNA EISENBAUM v. ALAN EISENBAUM
    (14792)
    Schaller, Spear and Hennessy, Js.
    Argued December 17, 1996
    officially released April 1, 1997

      Arnold H. Klau, with whom were Nancy Thomson and, on the brief, Donald J. Cantor, for the appellant (defendant).

      Raynald B. Cantin, with whom was John F. Morris, for the appellee (plaintiff).
   HENNESSY, J.

The defendant appeals from the trial court’s pendente lite order of child support. On appeal, the defendant claims that the trial court improperly (1) exceeded its jurisdiction in ordering the defendant to make payments other than child support, (2) awarded the plaintiff counsel fees and (3) changed the effect of its order in its response to the plaintiff’s motion for clarification.

The facts relevant to this appeal are as follows. The parties’ marriage was dissolved in 1980. They later resumed living together and, in 1983, the parties had a child. They had a second child in 1986. The defendant has acknowledged paternity of both children. From November, 1983, to September, 1993, the parties lived together as husband and wife, although they were not legally married. Throughout the ten year period, the plaintiff has not worked outside the home, by mutual agreement of the parties. She has, instead, attended to the children’s needs and to household matters. The defendant, who terms himself an investor, has had an income averaging approximately $250,000 per year over the past five years.

The parties separated in September, 1993. After the separation, the defendant moved out of the house but continued to pay household expenses, credit card bills, gas charges and expenses for the children, such as clothes, gymnastics and soccer. The plaintiff subsequently brought an action seeking, inter alia, support for the children. After a hearing on February 14, 1995, the trial court temporarily ordered the defendant to pay as child support, $1000 per week and to continue to pay the household expenses and the outstanding credit card balance. In its March 28, 1995 memorandum of decision and its May 4, 1995 response to the plaintiffs motion for clarification, the trial court stated that its prior temporary order would continue as the permanent pendente lite order.

On May 17, 1995, the defendant filed an appeal from the trial court’s order regarding his obligation to pay the household and credit card expenses. On July 19, 1995, the trial court granted the plaintiffs motion to terminate the stay and awarded her $10,000 in counsel fees. Upon the defendant’s motion for review, this court reinstated the appellate stay. On November 2, 1995, the trial court responded to the plaintiffs motion for clarification indicating that its March, 1995 order was a “combination child support order of cash and in kind necessary to maintain the family home for the benefit of the children.” The defendant amended his appeal to include the issues regarding the trial court’s award of counsel fees and its November 1995 response to the motion for clarification.

The defendant first claims that the trial court exceeded its jurisdiction by making a pendente lite order other than child support. He argues that the portion of the trial court’s order requiring him to pay the household expenses *and the credit card bill is a disguised alimony order and, therefore, the order was outside the court’s jurisdiction.

General Statutes § 46b-61 allows the trial court to make any order as to the “custody, care, education, visitation and support of any minor child of the parties” in all cases in which the parents of the minor child live separately. “To determine the amount of support required by minor children, the court considers the needs of the children and the respective abilities of the parents to maintain them.” Whitney v. Whitney, 171 Conn. 23, 29, 368 A.2d 96 (1976); see also General Statutes § 46b-84 (c).

“ ‘In determining whether a trial court has abused its broad discretion in domestic relations matters, [the reviewing court allows] every reasonable presumption in favor of the correctness of [the trial court’s] action.’ ” Ashton v. Ashton, 31 Conn. App. 736, 742, 627 A.2d 943, (1993), cert. denied, 228 Conn. 901, 634 A.2d 295 (1994). We conclude that the trial court did not abuse its discretion in ordering the defendant to pay the household expenses. We also conclude, however, that the court improperly ordered the defendant to pay the credit card balance.

In the plaintiffs financial affidavit, she listed her total weekly expenses for herself and her two children as approximately $1843. We conclude that the trial court properly ordered the defendant to pay the household expenses in addition to $1000 per week based on the needs of the children and the parties’ ability to pay. The trial court, however, had no authority to order the defendant to pay the credit card debt as part of pendente lite child support. “Child support orders must be based on the statutory criteria enumerated in General Statutes § 46b-84 of which one of the most important is the needs of the child.” Brown v. Brown, 190 Conn. 345, 349, 460 A.2d 1287 (1983). Here, the record contains no evidence that the payment of the credit card balance was necessary for the maintenance of the children. This part of the support order was, therefore, improper.

The defendant next claims that the trial court improperly awarded the plaintiff $10,000 in counsel fees to defend the appeal. He maintains that because the appeal does not involve an order for either alimony or child support, the court was without jurisdiction to award the fees. He also argues that the trial court failed to apply the statutory criteria. We disagree with both of the defendant’s assertions.

General Statutes § 46b-62 allows the trial court to order either parent to pay the reasonable attorney’s fees of the other in any family relations matter. “Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. ... In determining whether to allow counsel fees, the court must consider the statutory criteria set out in §§ 46b-62 and 46b-82 and the parties’ respective financial abilities. ... An abuse of discretion in granting the counsel fees will be found only if this court determines that the trial court could not reasonably have concluded as it did.” (Citations omitted; internal quotation marks omitted.) Cook v. Bieluch, 32 Conn. App. 537, 544, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993).

It is clear that this appeal is based on a family relations proceeding involving pendente lite child support and, therefore, the court had jurisdiction to award counsel fees. The defendant’s argument that the trial court’s order was not actually child support is irrelevant and does not change the undisputed fact that the hearing was a child support hearing. Furthermore, our review of the record indicates that the trial court considered the statutory criteria and the parties’ financial abilities in determining whether to award attorney’s fees. We, therefore, cannot conclude that the trial court abused its discretion or acted unreasonably in awarding the plaintiff counsel fees.

In the defendant’s last claim on appeal, he argues that the trial court’s November, 1995 clarification of its pendente lite judgment amounted to an impermissible modification of the judgment. The record reveals, however, that the clarification did not modify the judgment. In its November, 1995 clarification, the trial court stated that its order was a “combination cash and in kind” child support order. Although the trial court failed specifically to state so in its memorandum of decision, in its May, 1995 clarification, the court made clear that the orders concerning payment of the household expenses and the credit card balance would continue during the pendente lite period. Furthermore, because the sole purpose of the proceedings was to decide child support, the court did not need specifically to articulate that these orders were child support orders. Thus, the November, 1995 clarification was not a modification of the pendente lite judgment.

The judgment is reversed as to the order requiring the defendant to pay the credit card balance, and the case is remanded with direction to render judgment as on file except as modified to eliminate that order.

In this opinion the other judges concurred.

       Ordinarily, an appeal may not be taken from an order as to articulation or rectification. The sole remedy is a motion for review. State v. Vincent, 30 Conn. App. 249, 262, 620 A.2d 152 (1993), aff'd, 229 Conn. 164, 640 A.2d 94 (1994). In this case, the defendant filed a motion for review of the trial court’s clarification of the orders with this court. We specifically allowed an appeal challenging the clarification by granting review and denying the relief requested without prejudice to the defendant’s filing of an appeal as to the clarification.

       The plaintiff conceded at, trial that, she is not entitled to alimony because there was no marriage.

       The defendant does not contest the portion of the trial court’s order requiring him to pay $1000 per week.

      The trial court explained that household expenses included utilities, taxes, cable television and any other expenses associated with the maintenance of the home, but did not include long distance telephone calls.

       The defendant further argues that because there is no automatic stay of orders of alimony and child support, both the plaintiff and the trial court essentially admitted that the orders were not child support by the plaintiffs filing and the trial court’s granting the plaintiffs motion to terminate the stay. We reject this argument. The plaintiffs and the trial court’s actions did not automatically characterize the orders as not being child support.

       General Statutes § 46b-84 (c) provides: “In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employ-ability, estate and needs of the child.”

       See footnote 6.

       General Statutes § 46b-62 provides in pertinent part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .”
      General Statutes § 46b-82 provides in pertinent part: “In determining whether [attorney’s fees] shall be awarded . . . and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . .

       In complicated dissolution cases, ”[t]he rendering of a judgment . . . is a carefully crafted mosaic, each element of which may be dependent on the other.” Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). Therefore, when a reviewing court remands a case because of an improper order, it is necessary for the trial court to reconsider all of its financial orders. Here, however, the trial court need not reconsider all of its orders because this case involves child support only and does not affect any other proceeding.