text:
    Debra M. Fisette v. Rudolph A. DiPietro
    (10831)
    Norcott, Landau and Heiman, Js.
    Argued May 11
    decision released July 28, 1992

      Edward W. Case, with whom was Joseph Adinolfi, Jr., for the appellant (defendant).

      Daniel H. Kennedy, Jr., for the appellee (plaintiff).
   Norcott, J.

The defendant property owner appeals from the judgment of the trial court denying his requests to dissolve a temporary injunction and to stay a contempt order, and, instead, issuing a permanent injunction barring the outdoor storage of certain items and requiring the removal of a parking lot at his premises.

The defendant claims that the trial court improperly determined that (1) he was not deprived of his fourteenth amendment right to due process when the town published notice in a local newspaper of a proposed zoning change affecting his property, (2) the newspaper that published the notice had substantial circulation as required by statute, (3) the town did not waive the requirements of its zoning regulations regarding outdoor storage prior to 1988, (4) a state highway known as Route 3, or Cromwell Avenue, is a street within the meaning of the zoning regulations, and (5) the regulations required that he remove all boats and other items from behind the property’s building line unless they are covered or screened from the street. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff is the zoning enforcement officer of the town of Rocky Hill. In an amended complaint dated September 14, 1990, the plaintiff brought suit against the defendant, seeking, inter alia, injunctive relief prohibiting violations of §§ 3.47 and 9.42 (c) of the town zoning regulations.

Since 1977, the defendant has owned land and buildings fronting Cromwell Avenue in Rocky Hill, where he has operated a business involved in the repair and sale of engines, engine parts and boats. In 1984, the defendant submitted a site plan and application for a building permit to the planning and zoning commission in order to expand his operation. Although an inspection by town officials determined that some boats were temporarily stored outdoors, the commission approved the site plan without issuing any ruling as to whether the outdoor storage was in violation of then existing regulations.

In 1988, the defendant filed another site plan application. Shortly thereafter, in February, 1989, an inspection disclosed wood pallets, miscellaneous materials and fifty to sixty boats outside the building on the defendant’s premises, uncovered and unscreened. The next day the zoning enforcement officer issued a cease and desist letter to the defendant, citing a violation of § 3.47 of the Rocky Hill zoning regulations, and ordering that all items stored outside be removed. The defendant did not appeal from this order to the zoning board of appeals, and, in April, 1989, he withdrew his site plan application.

In June, 1989, the defendant applied for a variance from § 3.47 of the regulations relating to outdoor storage. The zoning board of appeals denied the request in July, 1989. At that time, the defendant again filed a site plan application and sought approval to erect a building on his premises. An inspection of the site by town officials again disclosed that boats, trailers, and other goods and materials were being stored and displayed throughout the premises. In August, 1989, the defendant withdrew his site plan application.

The next month, the plaintiff’s predecessor zoning enforcement officer, Thomas P. Rust, served on the defendant and filed in court a complaint and an application for an order to show cause, seeking a temporary injunction prohibiting the storage of boats and other items in the front yard and other specified locations on the premises. The court, O’Neill, J., conducted a hearing and issued a temporary injunction to that effect. Thereafter, five more inspections by town officials in late 1989 and 1990 again disclosed that boats and other items were being stored in locations that violated the court order. As a result, the defendant was found in contempt and fined. On appeal, this court affirmed the trial court’s decision. See Rust v. DiPietro, 26 Conn. App. 901, 596 A.2d 947 (1991) (per curiam).

Shortly thereafter, the defendant moved to dissolve the injunction and to stay the contempt. The state trial referee, Hon. Robert Satter, acting as the trial court, heard the case on its merits and on July 23,1991, rendered judgment denying the defendant’s request to dissolve the temporary injunction and to stay the contempt order. In November, 1991, in an articulation of his decision, the referee stated that he had issued a permanent injunction that superseded the temporary injunction. The permanent injunction barred the defendant from storing boats and other items at certain locations on his premises in violation of § 3.47, and ordered that these items be removed or screened or covered if placed in other areas. The defendant also was ordered to cease using and thereafter to remove a parking area he had installed in violation of § 9.42 (c). This appeal followed.

The defendant first claims that the trial court improperly failed to find that he was denied his fourteenth amendment right to due process because the town did not provide him with personal notice of a proposed zone change affecting his property. We disagree.

At the outset, we note that because this and other claims the defendant raises challenge factual determinations made by the trial court, our review is limited to whether the judgment is clearly erroneous or contrary to law. Shailer v. Planning & Zoning Commission, 26 Conn. App. 17, 24, 596 A.2d 1336 (1991).

First, the proposed zone change of which the defendant complains occurred in 1988. In its memorandum of decision, the trial court correctly determined that “this case is not about the application of the zone change to the defendant. It is about § 3.47, which imposes restrictions on front yard storage and on outdoor, unscreened storage behind the building in line ‘in all zones.’ Therefore, for purposes of this case, it is irrelevant that defendant’s property was rezoned to restricted commercial.” Second, notice regarding changes in zoning districts and regulations is governed by General Statutes § 8-3 (a), which authorizes notice by publication in a newspaper having a substantial circulation in the municipality. Our Supreme Court has stated that the “ ‘fundamental reason for the requirement of notice is to advise all affected parties of the opportunity to be heard . . . .’What is required is not actual notice, but, rather, constructive notice.” (Citations omitted.) Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 47, 301 A.2d 244 (1972). Here, the town gave the defendant constructive notice by the newspaper publication. The trial court’s determination was neither clearly erroneous nor contrary to law.

The defendant next asserts that the trial court improperly determined that notice of the proposed zone change was not printed in a newspaper with substantial circulation in Rocky Hill as required by General Statutes § 8-3 (a). We disagree.

Whether a newspaper’s circulation is substantial is a factual determination that cannot be disturbed unless it is clearly erroneous. Practice Book § 4061. “ ‘[Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .’"Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 723, 563 A.2d 1339 (1989).

Because our courts have not determined what constitutes substantial circulation, we look to decisions of other courts as well as to dictionaries in order to determine commonly accepted usage. See In re Carlson Bulletin, 85 Cal. App. 3d 785, 795, 149 Cal. Rptr. 764 (1978). Webster, New World Dictionary (2d College Ed.) gives as one definition of “substantial” that it is something “considerable” or “ample.” Webster, Third New International Dictionary defines it as “considerable in amount, value, or worth.” Similarly, in common legal usage, the term “substantial” has been defined as “of real worth and importance.” Black’s Law Dictionary (6th Ed.). In any event, the term “substantial circulation” is relative. See In re Carlson Bulletin, supra (paid circulation to 12 people in a city of 79,000 not “substantial”).

Although the defendant argued at trial that the New Britain Herald lacked substantial circulation in Rocky Hill, our review of the record discloses that he failed to sustain his burden of proof. The trial court heard testimony that the Herald published notice of the zone change, and that the newspaper is circulated to 16 percent of the occupied households in Rocky Hill. Testimony also was elicited that the newspaper indexes Rocky Hill news on its front page, reports the news of town government meetings in the Rocky Hill news sections, and prints public notices on the same page. On the basis of this evidence, the court determined that the Herald has substantial circulation in Rocky Hill, and that the probability of its public notices’ being read is much greater than if those notices were printed in the paper’s classified section. In light of this evidence and the commonly accepted usages of the term substantial, we cannot conclude that the trial court’s factual determination that the New Britain Herald is a newspaper with substantial circulation in Rocky Hill is either clearly erroneous or contrary to law.

The defendant’s third claim is that the trial court should have found that the plaintiff waived the requirements of its zoning regulations prior to 1988. In essence, he argues that because town officials waived any objections they may have had to the storage of boats on his premises prior to 1988, such activity became a permissible nonconforming use when § 3.47 in the 1988 regulations was adopted. We disagree.

Waiver involves an “intentional relinquishment of a known right.” Hanover Ins. Co. v. Firemen’s Fund Ins. Co., 217 Conn. 340, 351, 586 A.2d 567 (1991). There cannot be a finding of waiver unless the party has “both knowledge of the existence of the right and intention to relinquish it.” Breen v. Aetna Casualty & Surety Co., 153 Conn. 633, 645, 220 A.2d 254 (1966). Inherent in the concept of waiver is the notion of assent, which is an act of understanding that presupposes that the party to be affected has knowledge of its rights but does not want to assert them. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 562, 316 A.2d 394 (1972). “ ‘Waiver may be inferred from the circumstances if it is reasonable so to do.’ ” Id. Whether conduct constitutes a waiver is a question of fact. National Casualty Ins. Co. v. Stella, 26 Conn. App. 462, 464, 601 A.2d 557 (1992).

Prior to 1988, outdoor storage was governed by § 5.3 (b) (4) of the 1974 zoning regulations. This section does not provide for waiver by implication, but in accordance with an approved site plan. At trial, Rust, the plaintiffs predecessor, testified that in connection with the defendant’s 1984 application for site plan approval, he inspected the defendant’s premises and saw a number of boats stored outdoors. Rust testified that he did not think the situation warranted a citation pursuant to § 5.3 (b) (4). The zoning commission approved the defendant’s site plan with no discussion of waiver.

Although the defendant contends that the town’s conduct in failing to cite him for outdoor storage prior to 1988 and in approving his 1984 site plan constitutes a waiver of its zoning requirements, we cannot agree. A zoning body does not forever surrender the right to enforce its regulations because it finds that enforcement is not required at an earlier time. See, e.g., West Hartford v. Rechel, 190 Conn. 114, 459 A.2d 1015 (1983); Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969). The determination as to whether enforcement was necessary was in the domain of the town official charged with that task. Whether to credit his testimony to that effect is within the province of the court. Season-All Industries, Inc. v. R. J. Grosso, Inc., 213 Conn. 486, 498, 569 A.2d 32 (1990). Under these circumstances, it was not improper for the trial court to determine that it would be unreasonable to find that the town had waived its right to enforce its regulations in accordance with the 1984 site plan approval. We cannot say the court’s factual determination was clearly erroneous or contrary to law.

Storage of boats outdoors at the defendant’s premises also did not become a permissible nonconforming use when § 3.47 in the 1988 regulations was adopted. A use prior to the enactment of a regulation must be a legal use before it can become a valid nonconforming use after the regulation’s enactment. Bianco v. Darien, supra, 558. Here, § 5.3 (b) (4) provided that outdoor storage was impermissible “except behind an opaque fence six feet high.” Because the court determined that the defendant had no such fence, he was not engaging in a legal use that could become a valid nonconforming use with the adoption of § 3.47 in 1988.

The defendant’s fourth claim alleges that the trial court improperly determined that the state highway known as Route 3, or Cromwell Avenue, is a street within the meaning of the Rocky Hill zoning regulations. Again, we disagree.

Although the trial court determined that the defendant’s property can be seen from Cromwell Avenue, which is a state highway, it relied on the testimony of town planner Kimberly Ricci, who stated that she had examined town records and concluded that the town had approved the layout of all streets in Rocky Hill, including Cromwell Avenue. Ricci testified that, because sections of Cromwell Avenue had been approved in 1958, she believed that all sections of that road had since been similarly approved. Because assessment of the credibility of witnesses is within the domain of the trial court; Season-All Industries, Inc. v. R. J. Grosso, Inc., supra; we cannot substitute our judgment for that of the trier unless its determination is clearly erroneous or contrary to law. In this instance, such is not the case.

Finally, the defendant argues that the trial court improperly determined that he must remove all boats and other items from behind the property’s building line unless they are covered or screened from Cromwell Avenue. We disagree.

“General Statutes § 8-12 was enacted to provide loeal zoning enforcement officers with a means of enforcing their regulations, and it provides that the zoning enforcement officer may seek injunctive relief to prevent [violations of the regulations].” Planning & Zon ing Commission v. Desrosier, 15 Conn. App. 550, 558, 545 A.2d 597 (1988); Johnson v. Murzyn, 1 Conn. App. 176, 179, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). All that need be shown is a violation of the ordinance. Farmington v. Viacom Broadcasting, Inc., 10 Conn. App. 190, 197, 522 A.2d 318, cert. denied, 203 Conn. 808, 525 A.2d 523 (1987); Johnson v. Murzyn, supra, 180. The decision to grant or to deny an injunction to enforce zoning regulations is discretionary and will not be reversed absent a clear abuse of discretion. Crabtree v. Coyle, 19 Conn. App. 208, 211, 561 A.2d 455 (1989); Johnson v. Murzyn, supra, 183. Here, the evidence amply supports the trial court’s determination that the defendant violated § 3.47 of the town zoning regulations. Having examined the record thoroughly, we conclude that the court’s decision is within its discretionary authority.

The judgment is affirmed.

In this opinion the other judges concurred.

       Section 3.47 of the Rocky Hill zoning regulations provides: “Display of storage materials — In all zones, the display, exhibition or storage of merchandise, materials or articles for sale in the required front yard shall be prohibited and the storage of such materials behind the building line shall be covered or screened from the street.”
      Section 9.42 (c) of the Rocky Hill zoning regulations provides: “Required Submission . . . The submission of a site plan in accordance with those regulations shall also be required whenever any of the following conditions exist:
      * ** *
      “C. A change in use of the existing building and or land use . . . shall reduce or modify . . . parking layout.”

       Section 5.3 (b) (4) of the 1974 Rocky Hill zoning regulations provides: “No outdoor storage shall be permitted except behind an opaque fence six feet high. Said requirement may be waived by the Commission in the case of the display of new or used merchandise for sale at retail, in accordance with an approved site plan.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Gerald Migliaro
    (10074)
    Norcott, Heiman and Freedman, Js.
    Argued May 12
    decision released July 28, 1992

      Robert M. Casale, with whom, on the brief, was Catherine Browning, law student intern, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Elpedio Vitale, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, rendered after a jury verdict, of criminally negligent homicide in violation of General Statutes § 53a-58, and risk of injury to a child in violation of General Statutes § 53-21. He claims that the trial court violated his state and federal constitutional rights when it failed (1) to conduct an adequate inquiry into whether any jurors improperly relied on medical books brought to court by one of the jurors, and (2) to declare a mistrial because of the potential juror misconduct. We remand the case for an evidentiary hearing regarding potential juror misconduct.

The jury could reasonably have found the following facts. On October 8,1989, the defendant dialed 911 and reported that Anna, his twelve week old daughter, was not breathing. Emergency medical personnel were dispatched immediately to the defendant’s house, where they found the victim lying on the floor at the foot of a set of stairs. A paramedic observed that the victim’s hands and lips had a bluish tinge and that her breathing was irregular. They concluded that the irregular breathing pattern was consistent with Cheyne-Stokes type respiration, a sign of brain injury. They also noted a red mark of unknown origin on her forehead. Her pulse rate was normal.

The defendant was present when the emergency medical personnel arrived. When asked what had happened, the defendant replied that the victim had been in her crib screaming and that when he went up to check on her, she stopped breathing. He further stated that he performed cardiopulmonary resuscitation on her. The defendant claimed that he had no idea how the victim got to the bottom of the stairway.

While still at the defendant’s house, the paramedics inserted a tube into the victim’s windpipe to assist her breathing. This was difficult because the victim’s tracheal opening was so narrow. Once the victim was intubated, however, her skin became pinker, and she was brought by ambulance to Yale-New Haven Hospital. During the trip, the defendant, who accompanied the victim in the ambulance, appeared to be distraught.

At the hospital, the victim was taken to a trauma room, where she was treated by hospital personnel. The endotracheal tube still was in place and the victim appeared to be breathing in a normal pattern. Some concern was expressed regarding whether the tube had been placed in her esophagus, a circumstance that could have caused the victim’s respiration to become compressed. The endotracheal tube, however, began to loosen and was removed. The victim’s breathing again became labored, she was reintubated and doctors suctioned a small amount of what appeared to be baby formula from her trachea. The victim then was placed in the pediatric intensive care unit, where she died forty hours after being picked up by the emergency medical personnel.

At the time of her two month pediatric checkup, the victim was in normal physical condition. On the night of the occurrence, however, the defendant told the victim’s pediatrician, who had come to the hospital, that she had vomited just before she had stopped breathing. The principal issue at trial was the cause of the victim’s death. The state produced expert medical testimony indicating that the victim died as the result of a head injury caused by abuse, or shaken baby syndrome. The defendant produced an expert medical witness who opined that the victim died not from a traumatic brain injury but from either an inadequate supply of blood to her brain or an insufficiently oxygenated supply of blood to her brain, which in turn caused some of her brain tissue to die. The victim’s pediatrician testified that his physical examination of her on the night of the occurrence disclosed no signs of bruises or other external injuries. Thus, the verdicts in this case necessarily were driven by the resolution of conflicting medical evidence.

The jury commenced its deliberations on January 28, 1991. Late that afternoon and again the next day, the jury sent the trial court a series of notes requesting reinstruction on certain elements of the offenses charged. The next morning, the trial court reinstructed the jury in accordance with its initial request, and reminded the jury that it was to decide the case only on the evidence presented in the courtroom. On the morning of January 29,1991, when the jurors returned to resume their deliberations, one of the jurors brought two medical books with her, which apparently were taken by a courtroom clerk before the juror entered the deliberation room. How the books came to the attention of either the clerk or the trial court is unclear. After the trial court concluded its supplementary instruction, the following colloquy took place between Robert Casale, the defendant’s attorney, Elpedio Vitale, the prosecutor, and the trial court regarding this incident.

“Mr. Casale: Judge, I would ask you just — We know that the juror dropped off a couple of medical books on the way. We just don’t know if they were relied upon by that juror in any respect over the previous evening, and it’s a delicate matter. And in that I don’t know what the proper way to handle this is, I would imagine at this point forward the juror has been properly admonished to rely upon solely what has taken place in the courtroom. We don’t know what may have taken place last night, since, as I say, the juror did come in armed with formidable medical texts this morning.

“Mr. Vitale: Mr. Casale calls them ‘formidable.’ They look like home health books that someone could purchase at a pharmacy. There’s no evidence — Yesterday they were not in the courtroom for part of the jury deliberations; certainly, they are not today. So it’s simply speculation on Mr. Casale’s part. Chances are the juror was not aware of the fact she couldn’t do that when she brought them in. And she was apprised of the fact they could not be utilized so she dropped them off.

“The Court: Certainly my guess would be she was told by someone probably upstairs that she certainly couldn’t carry these into the jury room with her and she left them with the clerk. And that of course is why I gave that last admonishment, and I am confident that nothing will be made of anything that she might have read in the books. And I hate to single her out and bring her out there and then by doing that of course everyone is going to wonder why she’s been brought out alone and admonished. It may have been given to her and curiosity might lead into an area that we don’t want them to go into. And I frankly feel that in advising all of them that they could not base their decision on anything other than what they heard here in this courtroom, that they will confine their deliberations to that evidence that they heard here in the courtroom and only to that evidence.

“So, is there something that you’re asking me to do?

“Mr. Casale: The great difficulty of course is we don’t know what this juror may have learned on her own last night. And if she has acquired some independent information and that’s part of the deliberation, the deliberation process being secret, we’d never know. There’s no way to get at that.

“The defendant is in a difficult position. Really, the only alternative that I know of under the statute is to move for a mistrial, and for the reasons stated that’s the only thing we can do to seek to protect ourselves under the circumstances.

“It’s a funny thing because I don’t know the information in those books, if any, was acquired and it could be fatal, it could be negative to us, it’s not something we could ever know. With that caveat in mind, I think the defendant is constrained to move and we would so move.

“The Court: In that you are moving for a mistrial-let me get the book that is in question so we can make some record of what it is exactly. All right. Let the record indicate that the juror dropped off with the clerk something called, ‘The Second Edition of the Complete Guide to Symptoms, Illness, and Surgery’ written by H. Winter Griffith, M.D., published by the Body Press with a copyright date of 1985. The other is ‘The Sixth Edition of The Complete Guide to Prescription and Nonprescription Drugs’ by the same author, same press, with a copyright date of 1983. Did you wish to be heard before I make a ruling?

“Mr. Vitale: Only Mr. Casale’s comments about we don’t know what goes on in the jury room applies to any case. We can only presume that the jurors are going to follow the court’s instructions about what they are to consider when reaching a verdict. Other than that, I have nothing else to say, Judge.

“The Court: And I would agree with your analysis. We must presume that the jurors’ acts are in accordance with the instructions and the tenets of the oath. The mere fact that the books were dropped off rather than taken into the jury room indicates to me that especially after my cautionary instruction that nothing amiss can or will happen in the jury room. Your motion is, therefore, denied.

“Mr. Casale: Exception, please.

“The Court: Exception may be noted.”

No evidence was taken as to whether the juror who brought the books to court had read them or whether the books contained any text that might be viewed as pertinent to the issues in the case. The jury returned verdicts as indicated previously.

The defendant claims that the trial court violated his state and federal constitutional rights when it failed to conduct an adequate inquiry into whether any jurors improperly had relied on the medical books brought to court by one of the jurors.

“ ‘[T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, “indifferent” jurors.’ Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1369, 6 L. Ed. 2d 751 (1961).” State v. Ziel, 197 Conn. 60, 64, 495 A.2d 1050 (1985). A necessary component of the right to an impartial jury is the right to have the jury decide the case “solely on the basis of the evidence and arguments given them in the adversary arena after proper instructions on the law by the court.” State v. Rodriguez, 210 Conn. 315, 325, 554 A.2d 1080 (1989). “Consideration of extrinsic evidence is jury misconduct and has been found to be sufficient to violate the constitutional right to trial by an impartial jury. See, e.g., United States v. Winkle, 587 F.2d 705, 714 (5th Cir. 1979).” State v. McCall, 187 Conn. 73, 80, 444 A.2d 896 (1982). Whether juror consideration of extrinsic evidence was prejudicial to a defendant depends on “the magnitude of the juror’s deviation from his proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury’s verdict.” State v. Asherman, 193 Conn. 695, 739, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1748, 84 L. Ed. 2d 814 (1984).

Although the trial court enjoys broad discretion in determining whether jury misconduct occurred, and, if so, whether such misconduct prejudiced the defendant; State v. McCall, supra, 77; State v. Martinez, 173 Conn. 541, 543-44, 378 A.2d 517 (1977); the court must have some factual basis on which to exercise that discretion. State v. Gonzalez, 25 Conn. App. 433, 439, 596 A.2d 443, cert. granted on other grounds, 220 Conn 928, 598 A.2d 1099 (1991). After all, “the trial judge is not simply a referee presiding over a forensic contest, but is a minister of justice . . . .’’State v. Lucci, 25 Conn. App. 334, 341, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991). Where it appears during the course of a trial that the jury panel may have been exposed to prejudicial extrinsic evidence, the trial court must conduct an investigation to determine whether jury misconduct occurred. United States v. Anello, 765 F.2d 253, 259 (1st Cir. 1985); United States v. Griffith, 756 F.2d 1244, 1252 (6th Cir.), cert. denied, 474 U.S. 837, 106 S. Ct. 114, 88 L. Ed. 2d 93 (1985); United States v. Savage, 701 F.2d 867, 871 (11th Cir. 1983); United States v. Pomponio, 517 F.2d 460, 463 (4th Cir.), cert. denied, 423 U.S. 1015, 96 S. Ct. 448, 46 L. Ed. 2d 386 (1975); State v. Gonzalez, supra, 440. “There is no magic formula that the trial court must follow in conducting this inquiry. Rather, it must use whatever inquisitorial tools are necessary and appropriate to determine whether there was a ‘reasonable possibility’ of prejudice.” United States v. Savage, supra.

Here, the trial court was presented with sufficient indicia that at least one juror had been exposed to potentially prejudicial extrinsic evidence to trigger the trial court’s duty to investigate the potential jury misconduct further. The trial court knew that a juror brought medical books into the courthouse. It also knew that medical evidence was critical to the jury’s resolution of the issue of the cause of the victim’s death, the primary and most hotly contested issue in the case. Despite this knowledge, the trial court failed even to attempt to ascertain whether that juror or any other juror had utilized information from the books during the course of deliberations. Additionally, the trial court failed to make even a rudimentary inquiry into the substantive contents of the books, in particular whether the books contained any information that might be interpreted by the reader to be material to the issues in this case. “A basic factual inquiry into the substantive content of the alleged misconduct was required before the trial court could exercise its discretion in determining the scope or extent of any [further] investigation needed.” State v. Gonzalez, supra.

Because the trial court failed to conduct the necessary inquiry into the potential juror misconduct, we are required to remand this case for a hearing to determine (1) whether either or both of the books contained information pertinent to the medical issues involved in this case, (2) if so, whether the juror who possessed the books used them to assist her in deciding any issue in this case, (3) if so, the extent to which that juror relied on the books, (4) whether that juror shared any information gleaned from the books with any of her fellow jurors, and (5) whether the defendant was prejudiced by any of the jurors’ reliance on the information contained in the books. If the trial court determines that the books contained no information material to this case, that the books were not utilized by any juror or that no prejudice resulted from the jurors’ use of the books, then the trial court may exercise its discretion with respect to the defendant’s motion for mistrial.

The case is remanded to the trial court for further proceedings consistent with this opinion. If the trial court determines that the books were utilized by the jurors and that the defendant was prejudiced thereby, the judgment is set aside and a new trial is ordered. In the event that the trial court is unable to make the requisite factual findings because of witness unavailability or for other cause, the judgment is set aside and a new trial is ordered. In the event that the trial court denies the motion for mistrial and no timely appeal is taken from such denial, the judgment is affirmed.

In this opinion the other judges concurred.

       The defendant originally was charged with manslaughter in the first degree in violation of General Statutes § 53a-58. Criminally negligent homicide was in this case a lesser included offense of manslaughter in the first degree.

       Because the defendant has not provided an independent analysis to support his state constitutional claim, we will not review it. Our Supreme Court and this court have declined to review a defendant’s state constitutional claim, deeming it to have been abandoned, when the defendant has not separately briefed and analyzed that claim. See, e.g., State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Redente, 19 Conn. App. 521, 531 n.5, 563 A.2d 1365 (1989); State v. Thompson, 17 Conn. App. 490, 498 n.5, 554 A.2d 297, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989). That declination, however, does not mean that we are not able to review such a claim if we choose to do so. State v. Hoeplinger, 27 Conn. App. 643, 652 n.2, 609 A.2d 1015 (1992); State v. Geisler, 25 Conn. App. 282, 283-84, n.2, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992).


author: O’Connell, J.

text:
    Dorothy Redfearn v. Everol Ennis et al.
    (10290)
    O’Connell, Landau and Heiman, Js.
    Argued February 11
    decision released July 28, 1992

      Joseph Glass with whom, on the brief, was Paul Glass, for the appellant (plaintiff).

      Judith A. Sarathy, assistant corporation counsel, for the appellee (defendant city of New Haven).
   O’Connell, J.

The plaintiff appeals from the trial court’s granting of summary judgment in favor of the defendant city of New Haven. On appeal, the plaintiff claims that the trial court improperly (1) concluded that the duty owed by the defendant to the plaintiff constituted a public duty, (2) characterized the issuance of a food service license as discretionary, (3) held that the defendant’s act of issuing a food service license was discretionary as a matter of law, (4) failed to consider the nature of the act of the zoning enforcement officer, and (5) granted the defendant’s motion for summary judgment. We affirm the judgment of the trial court.

The pertinent facts are as follows. On June 23,1987, the plaintiff entered into a five year lease with the owners of premises located at 88 Winchester Avenue in New Haven. Prior to this date, the plaintiff had spoken with Francesco Garguilo, the zoning enforcement officer of New Haven, and inquired as to whether 88 Winchester Avenue was zoned for a grocery-convenience store. Garguilo informed the plaintiff that the premises were zoned for that purpose. The plaintiff then applied to the department of health of New Haven to secure a food service license. The license was issued to her, and, on June 23,1987, the plaintiff opened her store at that location.

On July 1,1987, the defendant revoked the plaintiff’s food service license. The plaintiff was served with notice to close her store because Garguilo had mistakenly informed her that 88 Winchester Avenue was zoned for use as a grocery-convenience store. The plaintiff brought suit against the defendant alleging that she relied on Garguilo’s information that the leased premises were zoned for use as a grocery-convenience store and suffered monetary damages as a result of his inaccurate information. Further, the plaintiff alleged that the defendant was negligent because it did not have competent and knowledgeable employees.

On September 24,1990, the defendant filed a motion for summary judgment claiming that there were no genuine issues of material fact and that, on the basis of the doctrine of sovereign immunity, the defendant was entitled to a judgment in its favor. The trial court granted the defendant’s motion and this appeal followed.

Pursuant to Practice Book § 384, summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Further, it is axiomatic that the burden is on the moving party to demonstrate the absence of any such issue of material fact. Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 295-96, 596 A.2d 414 (1991). The trial court properly concluded that there was no genuine issue of material fact in the present case.

Governmental immunity implicates the distinction between ministerial and discretionary (governmental) acts. “ ‘A municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. ... On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.’ ” (Citation omitted; internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68, 544 A.2d 1185 (1988). Although there are numerous exceptions and qualifications of the immunity doctrine; see Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982); Heigl v. Board of Education, 218 Conn. 1, 5, 587 A.2d 423 (1991); note, “The Official Responsibility Rule and its Implications for Municipal Liability in Connecticut: Shore v. Town of Stonington, 15 Conn. L. Rev. 641 (1983); the plaintiff bases her claims on the assertion that the defendant owed her a private duty and that the granting of the food service license was a ministerial act.

We first note that the determination of whether the act complained of constituted a ministerial or governmental act is a matter of law for the court to decide. See Heigl v. Board of Education, supra; Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989); Gordon v. Bridgeport Housing Authority, supra. The plaintiff asserts that the trial court improperly found that the duty owed by the defendant was a public duty. In Gordon v. Bridgeport Housing Authority, supra, however, our Supreme Court stated “although the public duty doctrine provides the starting point of the analysis, distinctions between discretionary acts and ministerial acts are often controlling without regard to whether the duty is ascertained to be public or private.” Id., 170. Thus, because we find that the act of issuing the food permit was a governmental act, the public-private duty analysis will not be addressed here.

As stated previously, governmental acts, as distinguished from ministerial acts, necessarily involve the exercise of judgment or discretion on the part of the public official. Here, the plaintiff claims that the trial court failed to consider the nature of Garguilo’s act as zoning officer and that it incorrectly concluded that the issuance of the food service license was a governmental act. The criteria that an applicant for a food service license must meet are set forth in §§ 19-13-B40 and 19-13-B42 of the Public Health Code. Pursuant to these sections, inspection and approval of the premises sought to be licensed are required. The department of health, charged with inspection and approval of a premises, must exercise considerable discretion and judgment in determining whether the premises involved satisfy the criteria of the health code. As such, the trial court properly held that the act of issuing a food service license is a governmental act. Accordingly, the doctrine of governmental immunity bars this action against the city of New Haven.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff brought suit against three defendants. Only the defendant city of New Haven moved for summary judgment. Because this appeal involves only the propriety of the trial court’s granting summary judgment in favor of the city of New Haven, we will refer to the defendant in the singular.

       Despite the plaintiffs challenge to the trial court’s failure to consider the nature of Garguilo’s actions, we note that on that claim she focuses, in her brief, only on whether the issuance of the food service permit is ministerial or governmental.


text:
    State of Connecticut v. Ronald Rumore
    (9794)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued December 12, 1991
    decision released July 28, 1992

      Christopher M. Cosgrove, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Edward Narus, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault of a victim sixty or older in the first degree in violation of §§ 53a-59a (a) and 53a-59 (a) (3) and robbery in the first degree in violation of General Statutes § 53a-134 (a) (l). The defendant was found not guilty of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) and 53a-49 (a) (2) and of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A).

The defendant claims that the trial court improperly (1) admitted evidence under the constancy of accusation exception to the hearsay evidence rule, (2) admitted exhibits into evidence despite a defective chain of custody, and (3) marshaled the evidence against the defendant. The defendant also claims that the evidence was insufficient to prove the element of serious physical injury beyond a reasonable doubt as required by General Statutes § 5Sa-134 (a) (1). We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At approximately 7:45 p.m. on January 4,1990, the doorbell rang at the Enfield home of the seventy year old victim. An exterior light over the door afforded the victim a clear look at the side of the defendant’s face from a distance of eighteen to twenty-four inches. When the defendant failed to give a satisfactory reason for his presence, the victim told him she was going to call the police. She dialed the emergency 911 ntimber, but before she could determine whether the phone connection had been completed, the defendant broke down the door and lunged at her. He punched the left side of her face, then grabbed her by the ankles, thereby picking her up off the ground. She fell backward and lost consciousness. Upon regaining consciousness, she could not immediately stand because her slacks and underwear were below her hips. Her sweatshirt and lower torso were wet and she was bleeding from a cut on the back of her head.

At this point, the police, who had heard screaming over the 911 telephone connection, arrived. They administered first aid and arranged for transportation to Saint Francis Hospital in Hartford. Before leaving for the hospital, it was discovered that the victim’s wallet, containing $30 and credit cards, was missing.

At the hospital, the victim discovered that the nipple of her left breast was partially torn. The hospital record contains the following entry: “Patient had been undressing for bed at the time and had unbuckled her bra. Upon awakening, her clothes were all intact but she had bleeding from left nipple. She does not believe she was sexually assaulted and injury to left nipple was from wire in bra. Presently, patient has no complaints.” The hospital records were introduced as a defense exhibit pursuant to General Statutes § 4-104.

Meanwhile, at the victim’s house, the police continued their investigation with the assistance of a state police tracking dog. The dog’s handler testified at trial concerning the route of a person whose footprints were found in the snow outside the victim’s house. Although the defendant’s residence was about 500 yards from the victim’s house, the dog did not track in that direction — in fact, it followed a trail leading in the opposite direction. The police made plaster casts of the footprints. Three weeks later the casts were sent to the state forensic laboratory for comparison with boots that had been seized from the defendant’s house pursuant to a search warrant.

At the hospital, the victim told her daughter that she thought the defendant was her attacker. The daughter relayed this information by telephone to the Enfield police. Although at least two attempts at a photographic identification were inconclusive, a face-to-face show-up produced a positive identification of the defendant, who was then arrested.

At trial, the defendant relied on an alibi defense that he was at home at the time of the incident.

Additional facts pertaining to individual issues are included in the following discussion.

I

Constancy of Accusation

The defendant first complains that the trial court improperly allowed testimony from both the victim’s daughter and a detective under the constancy of accusation exception to the hearsay rule. The defendant contends that the exception was erroneously applied because the victim did not expressly testify that she had been sexually assaulted. The victim’s daughter testified, inter alia, that her mother had named the defendant as her attacker. The police detective testified, inter alia, that the victim had told him that upon regaining consciousness she had found that her underwear had been pulled down around her hips and that a portion of her torso and clothing were wet.

Under our constancy of accusation rule, a witness in a sexual assault case is permitted to testify concerning the victim’s prior consistent statements about the assault and the identity of the attacker, provided the victim has first testified about the incident and has testified as to those persons whom she has told about the incident. State v. Rodgers, 207 Conn. 646, 649-50, 542 A.2d 1136 (1988). In the present case, the victim testified concerning everything that she knew about the incident and identified her daughter and the detective as the persons to whom she had reported these facts. The defendant argues, however, that the victim failed to testify from her own knowledge that she had been sexually assaulted and, therefore, the constancy of accusation exception to the hearsay evidence rule does not apply. The cause of the victim’s lack of complete knowledge was the fact that she lost consciousness shortly after the assault began. A similar situation occurred in State v. Rodgers, supra, where the victim was rendered unconscious shortly after the attack commenced. The Rodgers court ruled that as long as a reasonable inference could be drawn that a sexual assault had occurred, the constancy of accusation exception applied because holding otherwise “would confer a benefit on defendants who render their victims unconscious during sexual assaults, and . . . thereby deprive the state of the ability to present constancy of accusation evidence as to the circumstances surrounding an alleged sexual assault.” Id., 650.

In the present case, the victim testified that early in the attack she fell to the floor, struck her head and lost consciousness. Upon regaining consciousness, her pants and underwear were down below her hips, her sweatshirt was wet and the nipple of her left breast was bleeding where it was torn. The trial court could reasonably have inferred that attempted sexual assault in the first degree or sexual assault in the third degree had taken place.

The defendant next argues that the victim’s statements in the hospital report, that she did not believe that she had been sexually assaulted, and that a wire in her brassiere had caused the torn nipple, mandate reversal. We do not agree. The hospital records were not before the court at the time of its ruling on the constancy exception. Further, upon admission of the records into evidence, the defendant did not move to strike the constancy testimony on this basis. Moreover, the victim’s hospital statement is not inconsistent with the crimes charged. The fourth count charged the defendant with attempted, not completed, sexual assault in the first degree. A denial that she, in fact, had been sexually assaulted is therefore consistent with the charge of attempted sexual assault in the first degree. Finally, although the fifth count charged the defendant with sexual assault in the third degree, it is reasonable to assume that, as a person lacking knowledge of our criminal code, the victim did not know that the touching of intimate parts could constitute sexual assault in the third degree.

The defendant also argues that this misapplication of the constancy of accusation rule allowed the state to put facts before the jury that it would not have otherwise heard. The only fact not included in the victim’s testimony was the detective’s statement that the victim’s torso was wet. In view of the fact that the victim had testified that her sweatshirt was wet, however, we cannot conclude that the additional fact that her torso was also wet has material significance.

Nor is the defendant’s acquittal of the sexual assault counts significant. They were properly before the trial court when the evidentiary ruling on constancy of accusation was made. The trial court cannot be expected to forecast the outcome of the case. The trial court properly admitted the testimony of the victim’s daughter and the detective into evidence under the constancy of accusation rule.

II

State’s Exhibits

A

CHAIN OF CUSTODY

The defendant next contends that the trial court improperly admitted the plaster casts of boot prints into evidence over the defendant’s objection that a proper chain of custody had not been established. A detective testified that, on the night of the crime, he made plaster casts of boot prints that were found in the snow outside the victim’s window. The detective wrapped the casts in newspaper and placed them in the evidence locker. About three weeks later, pursuant to a search warrant, a pair of boots was seized from the defendant’s house. The detective gave instructions for the police department’s civilian aide to take both the casts and the boots to the state police forensic laboratory for comparison. The detective also testified that the casts were in substantially the same condition at trial as when he had made them. The defendant objected to their admission on the ground that there had been no showing of the chain of actual care and custody of the casts from the time they were made until they were sent to the forensic lab.

The state’s burden is satisfied by showing that the exhibit is the actual item in question; see B. Holden & J. Daly, Connecticut Evidence (1988) § 91c; and that there is a reasonable probability that the item has not been changed in any important respect. State v. Greene, 209 Conn. 458, 479, 551 A.2d 1231 (1988). It is not necessary for every person who handled the item to testify in order to establish the chain of custody. It is sufficient if the chain of custody is established with reasonable certainty to eliminate the likelihood of mistake or alteration. State v. Burns, 23 Conn. App. 602, 614-15, 583 A.2d 1296 (1990). The trial court properly ruled that a sufficient foundation had been laid for the admission of the casts when the detective testified that there was no substantial change in the casts after they were made.

B

TAMPERING

After the admission of the plaster casts into evidence, it came to light that the date on the newspaper in which the casts were wrapped was later than the date on which the officer testified he had originally wrapped them. The officer explained that when the boots were given to him, he rewrapped the casts and the boots together for transport to the lab. The defendant, however, raised no additional objection following disclosure of the rewrapping. Accordingly, for two reasons, we will not review the defendant’s claim that the issue of the newspaper dates shows a probability of tampering. First, at best, it is only a claim of tampering with the wrapping and not a claim of tampering with the exhibit itself. Second, in the absence of an exception, the claim was not properly preserved. Because this is a claimed error in a discretionary evidentiary ruling, it is not entitled to Evans-Golding review. State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990).

Ill

Marshaling of Facts

The defendant next argues that the trial court deprived him of his constitutional right to a fair trial by unfairly marshaling facts in favor of the state. “A trial court often has not only the right, but also the duty to comment on the evidence.” State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991). “Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case.” (Internal quotation marks omitted.) State v. Pollitt, 205 Conn. 132, 157, 531 A.2d 125 (1987). In marshaling the evidence, the court must be careful not to imply any favor or criticism of either side. State v. Hernandez, supra, 463. “ ‘The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter.’ ” State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d (1989). The test of a court’s instruction is “ ‘whether, taken as a whole, [it] fairly and adequately presents] the case to a jury in such a way that injustice is not done to either party under the established rules of law.’ ” State v. Tatum, 219 Conn. 721, 734, 595 A.2d 322 (1991).

The defendant’s reliance on Hernandez is misplaced. In Hernandez, the defendant’s conviction was reversed because the trial court detailed the state’s evidence and commented favorably on the credibility of the state’s witnesses, but made only a slight reference to the defendant’s exculpatory evidence or to his theory of defense. State v. Hernandez, supra, 464. By contrast, the trial court here, detailed the defendant’s theories of defense, (i.e., alibi, absence of sexual assault and unreliability of identification) and outlined the evidence supporting these defenses. In addition, the court properly instructed the jury on evaluating identification and expert testimony.

As part of his improper marshaling argument, the defendant further argues that the trial court made only “fleeting reference” to the hospital report that contained the victim’s comment that she did not feel that she had been sexually assaulted. Insofar as the claimed improper treatment was relevant to the sexual assault counts, such a claim is now moot because the defendant was acquitted on these counts. Insofar as it is relevant to the “serious physical injury” element of the robbery and assault counts, we conclude that, viewing the charge in its entirety, the two references to the report in the jury charge did not mislead or improperly influence the jury. State v. Shannon, supra; State v. Owens, 25 Conn. App. 181, 191, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991).

IV

Sufficiency of Evidence

The defendant’s final claim is that the evidence presented at trial was insufficient to convict him of robbery in the first degree and assault of a victim sixty years or older in the first degree. The defendant’s argument focuses on the “risk of death” and the “serious physical injury” elements of these crimes.

“In reviewing the sufficiency of the evidence, an appellate court, first, must examine the evidence presented at trial in the light most favorable to sustaining the verdict . . . and, second, must determine whether, when considered in that light, the evidence could have led a jury to conclude beyond a reasonable doubt that the defendant was guilty.” (Citations omitted.) State v. Aleksiewicz, 20 Conn. App. 643, 646-47, 569 A.2d 567 (1990).

In the present case, the victim lost consciousness after the defendant lifted her by her ankles, thereby causing her to fall to the floor. When she regained consciousness, she found blood running from a deep laceration in the back of her head, abrasions to the left side of her face and back, and an injury to the nipple of her left breast. These injuries caused her pain and she was taken to Saint Francis Hospital where she was treated in the emergency room and discharged. Staples were used to close the wound to her head, and it was necessary to remove surgically the tom portion of the injured nipple.

The second count of the information charged the defendant with assault of a victim sixty years or older in the first degree by virtue of having committed assault in the first degree in violation of General Statutes § 53a-59 (a) (3). To establish guilt beyond a reasonable doubt under this subsection of the statute, the state must prove that under circumstances evincing an extreme indifference to human life, the defendant recklessly engaged in conduct which created a risk of death to the victim and thereby caused serious physical injury to her.

The risk of death element of the statute focuses on the conduct of the defendant, not on the resulting injury to the victim. The statute does not require that the victim was in fact at a risk of death. The issue is whether grabbing a seventy year old woman by the ankles and picking her up so that she is thrown against an object causing a head laceration and unconsciousness is reckless conduct that creates a risk of death. The jury could properly infer that this constituted reckless conduct that created a risk of death to the victim. We cannot substitute our judgment for that of the jury. State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989).

We next consider whether the state has proven that the victim suffered serious physical injury, which is an element common to both the robbery and assault charges. “ ‘Serious physical injury’ means physical injury which creates a substantial risk of death or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ. ’’(Emphasis added.) General Statutes § 53a-3 (4). Whether a victim has suffered serious physical injury is a question of fact for the jury. State v. Graham, 21 Conn. App. 688, 717, 575 A.2d 1057, cert. denied, 216 Conn. 805, 577 A.2d 1063 (1990). Although our case law apparently does not require expert medical testimony to establish the element of serious physical injury, there must be sufficient direct or circumstantial evidence or a combination of both presented to the jury from which it may find such injury.

The prosecution and the trial court both relied on the victim’s unconsciousness after she had fallen to the floor to satisfy the serious injury requirement. In the assault instruction, the trial court told the jurors that it was up to them “to determine from your common experience whether or not [the unconsciousness] was a serious impairment of a bodily organ.” (Emphasis added.) In the robbery instruction, the trial court charged the jury that “it may be inferred that . . . by a loss of consciousness there is an impairment of the function of the brain, an organ of the body.” (Emphasis added.)

It is axiomatic that it is the function of the jury to consider the evidence, draw reasonable inferences from the facts proven and to assess the credibility of witnesses, and it is the duty of this court to view the evidence in the light most favorable to upholding the verdict. State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).

The statute does not require that the impairment of the organ be permanent. The jury could properly interpret the evidence to prove that the victim’s brain was not functioning at a cognitive level when she was unconscious and thus was impaired. “Despite the difficulty of drawing a precise line as to where ‘physical injury’ leaves off and ‘serious physical injury’ begins, in light of the evidence concerning the extent of [the] injuries [sustained by the victim here], we cannot say as a matter of law that the jury could not reasonably have found that [she] suffered ‘serious physical injury.’ ” State v. Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987). The serious physical injury element was satisfied and consequently there was sufficient evidence presented at trial to convict the defendant of robbery in the first degree and assault of a victim sixty or over in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) provides in pertinent part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       General Statutes § 53a-59a (a) provides: “A person is guilty of assault of a victim sixty or older in the first degree, when he commits assault in the first degree under section 53a-59 (a) (2) or 53a-59 (a) (3) and the victim of such assault has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf.”

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.” (Emphasis added.)

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime . . . .”

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-49 (a) provides in pertinent part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-72a (a) provides in pertinent part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . . ”

       General Statutes § 53a-65 (3) provides: “ ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”
      General Statutes § 53a-65 (8) provides: “ ‘Intimate parts’ means the genital area, groin, anus, inner thighs, buttocks or breasts.”

        State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

       See footnote 3, supra.


author: Norcott, J.

text:
    State of Connecticut v. Frankie Estrada
    (10304)
    Dupont, C. J., Norcott and Lavery, Js.
    Argued April 28
    decision released July 28, 1992

      James J. Ruane, with whom was Michael A. Fitzpatrick, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, and Jonathan C. Benedict, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48. He was sentenced to a term of twenty years imprisonment to run concurrent with other sentences that had been imposed previously for a total effective sentence of twenty years.

On appeal, the defendant raises the following issues, which he claims are the basis for a judgment of acquittal: (1) whether a certain threatening statement made by a coconspirator against the victim of a murder was competent evidence; (2) whether the trial court’s instructions improperly removed the evidence of the threat from the jury’s consideration under the conspiracy count; (3) whether the evidence was sufficient to find the defendant guilty of conspiracy; (4) whether the evidence of a coconspirator’s shooting of a third person was relevant and nonprejudicial; and (5) whether the state improperly expanded the conspiracy count beyond the information and bill of particulars. We conclude that there was insufficient evidence to find the defendant guilty of conspiracy to commit murder, even if the statement of the coconspirator is competent evidence. Accordingly, a judgment of acquittal must result.

The jury could reasonably have found the following facts. In the early morning of April 23,1990, Jeremy Jacobs, Christopher Adams, Michael Adams, Christopher Smith, Tyrone Holman and others were leaving the Marquess Lounge at the northwest comer of Main Street and Railroad Avenue in Bridgeport. As they came out of the lounge, they were shot at from the direction of elevated railroad tracks that ran next to the lounge parking lot. Jacobs was hit and subsequently died from his wounds. Another patron, Julie Hanks, suffered a foot wound. The shooting lasted for between twenty seconds and three minutes.

After the gunfire stopped, the victim’s brother carried him to Park City Hospital. Others from the lounge followed. While at the hospital, Holman saw a van drive by. He identified it as the same van in which he had seen the defendant on the previous day. Bridgeport police officers Juan Gonzalez and Ernest Garcia went to the hospital to control the crowd. On the basis of information gathered there, these officers drove from the hospital to the P.T. Bamum housing complex, which the defendant was reported to frequent. While en route, the officers saw a van driven by the defendant, who was recognized by Gonzalez. Without being hailed by the police, the van pulled over on Pine Street, where the police ordered the occupants out of the vehicle. The defendant, Luis Colon and Joseph “Dinky” Diaz got out of the van and subsequently were taken to police headquarters. Later that day, John Buturla of the state police lifted four footwear impressions from the top of the impounded van. Thereafter, the police seized the three men’s footwear. Kenneth Zercie of the state police forensic laboratory testified that one of the footprints matched that of footwear seized from Colon.

At the time of the shooting, Tyrone Smith was one of the individuals in the parking lot who saw two shooters, both of whom were wearing two-toned hooded sweatshirts. One was taller than the other. Smith knew that neither of the two people was the defendant. Before the shooting, he had been outside the Marquess Lounge on Railroad Avenue, talking with Rolando Pierce. While standing there, Smith saw a yellow-brown van with stripes slowly cruise past the lounge. Smith could not identify the driver, but described him as “big” with a “hairy face” and “mean looking.” Smith had seen the defendant and, on another occasion, another Hispanic male drive this same vehicle.

John Morey also testified that he saw the van Smith described shortly after the shooting, between 1 and 1:30 a.m., at the P.T. Barnum complex, which is a few minutes away from the Marquess Lounge. Morey’s sighting of the van occurred prior to the encounter with the police on Pine Street. At the housing complex, the van was being driven by a stocky Hispanic male known as “T” who “came from New York.” Morey did not see the defendant in the van when the vehicle reached the complex, but he claimed to have seen him later near some of the housing units after the van left the housing complex.

Although no one who was at the lounge could identify the person or persons who did the shooting, everyone agreed that the gunfire originated from the area of the railroad tracks. Detective Richard Herlihy investigated the area of the tracks and found no steps or ladders that would provide access to them. He reached the tracks by first walking up an embankment about 200 feet east of the area from which the shots were reported to have come, and then by walking west, back toward the lounge. On the tracks, Herlihy found twenty shell casings of the same caliber within a fifteen foot radius. No weapon was introduced into evidence at the trial.

According to Edward McPhillips, a state firearms examiner, five of the casings Herlihy found matched one of numerous shell casings found by police officer David Kalagian at the scene of a separate incident in which Ronald Dunbar had been shot five times by a person he later identified as Colon on April 19,1990, near an apartment in the P.T. Barnum complex. Dunbar identified his assailant’s gun as “big,” stating that it “looked like a rifle.”

Finally, a state’s witness, Teisha Edmonds, who was the victim’s girl friend at the time he was shot, testified that on April 16, 1990, she was confronted by Joseph Diaz, who told her, “When you see your nigger, tell him I’m going to get him; he's going to die.” It is clear that the defendant was not present when Diaz made this statement. It is against this factual backdrop that we measure the defendant’s claim that there was insufficient evidence on which to sustain a conviction of conspiracy to commit murder.

At the outset, we note that “[o]ur review is conducted without regard to the credibility of the witnesses. State v. Robinson, 213 Conn. 243, 256, 567 A.2d 1173 (1989).” State v. Lynch, 21 Conn. App. 386, 392, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). “When reviewing a claim of evidentiary sufficiency, we employ a two part test. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. Next, we determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the cumulative force of the evidence established the defendant’s guilt beyond a reasonable doubt. . . . In determining if the jury reasonably could have found the defendant guilty, we ask if any rational factfinder could have done so.” (Citations omitted.) State v. Channer, 28 Conn. App. 161, 164, 612 A.2d 95 (1992).

“ ‘To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators.’ State v. Vessichio, [197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986)]; State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982); State v. Smith, 15 Conn. App. 122, 125, 543 A.2d 301, [cert. denied, 209 Conn. 805, 548 A.2d 441] (1988). ‘The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are “knowingly engaged in a mutual plan to do a forbidden act.” State v. Holmes, 165 Conn. 140, 149, 274 A.2d 153 [1970].’ State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975); State v. Smith, supra. Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. State v. Vessichio, supra, 656; State v. Smith, supra, 126.” State v. Lynch, supra. Moreover, it is well settled that conspiracy is a specific intent crime, with the intent divided into two parts: (1) the intent to agree to conspire; and (2) the intent to commit the offense that is the object of the conspiracy. State v. Beccia, 199 Conn. 1, 3-4, 505 A.2d 683 (1986). “To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also they intended to commit the elements of the offense.” (Internal quotation marks omitted.) State v. Boykin, 27 Conn. App. 558, 567, 609 A.2d 242 (1992), quoting State v. Beccia, supra.

At trial, the state relied on certain evidence to establish the existence of the defendant’s role in a conspiracy. The keystone to this evidentiary framework was the defendant’s presence in the van with Colon and Diaz a short time after the shooting at the lounge. To establish the defendant’s guilt on the conspiracy charge, the state necessarily asked the jury to draw certain inferences, including inferences (1) that Colon and Diaz were the shooters based on Diaz’ statement to Edmonds regarding Jacobs’ death, on Colon’s connection to the Dunbar shooting by virtue of the similar shell casings, and on Colon’s footprint on top of the van, and (2) that the defendant, who was identified as resembling a person who drove a van similar to the one in which he was later apprehended with Colon and Diaz, drove the van to “scout” the Marquess Lounge and then transported the shooters to the scene of the ambush. From this, the jury was required to infer further that the defendant intended to make an agreement with Colon and Diaz to carry out the shooting.

Although Connecticut law accepts the practice of allowing inferences based on other inferences; State v. Gonski, 155 Conn. 463, 468, 232 A.2d 483 (1987); the stacking of reasonable inferences the jury was required to draw was built on a weak foundation that failed to establish any semblance of the defendant’s participation in an agreement to engage in a conspiracy. It is axiomatic that the jury as factfinder determines if any reasonable inference in a particular case should be drawn. The jury accomplishes this function, however, only where there exists sufficient evidence to support reasonable inferences. State v. Williams, 202 Conn. 349, 356-57, 521 A.2d 150 (1987); see also State v. Boykin, supra, 568.

In this case, sufficient evidence permitting such inferences is lacking. The facts presented did not permit the jury reasonably and logically to infer that the defendant agreed to engage in the criminal activity that was the object of the alleged conspiracy. No shooters were ever actually identified, no weapon was ever found, and a very short time after the shootings, Colon and Diaz tested negative for gunpowder residue on their hands. Further, no evidence was ever introduced connecting the defendant to ownership or registration of the yellow-brown van, and the only noncircumstantial connection between the defendant, Colon and Diaz was their presence together in the van after the shooting. Even if the defendant had been at the scene and had knowledge of the crime, this would still be insufficient to establish guilt of a conspiracy. See State v. Lynch, supra; State v. Stellato, 10 Conn. App. 447, 454, 523 A.2d 1345 (1987). The facts presented did not permit the jury reasonably and logically to infer that the defendant intended to engage in the criminal activity that was the object of the alleged conspiracy; such a link is too far attenuated. Therefore, on the basis of our careful review of the entire record, we conclude, as a matter of law, that there was insufficient evidence from which the jury could have drawn reasonable inferences leading to the defendant’s conviction on the conspiracy charge.

Our examination of other decisions in which our appellate courts have reviewed claims of evidentiary insufficiency in the context of conspiracy convictions discloses that much more is required than exists in this case. For example, in State v. Vessichio, supra, a significant issue on appeal was the admission of damaging statements by a coconspirator confirming the defendant’s involvement in illegal cocaine transactions. In sustaining the trial court’s finding that the evidence of the defendant’s participation in the conspiracy to sell cocaine, while not “overwhelming”; id., 657; was sufficient, our Supreme Court reviewed the following evidence: observation of narcotics transactions conducted from the defendant’s van on three occasions; the positive identification of the defendant as the driver of the van; the observation of the defendant who cruised the neighborhood of a cocaine sale involving an undercover police officer before the drug transaction and the defendant’s act of picking up the coconspirators involved in the sale immediately after the crime.

In State v. Warren, 14 Conn. App. 688, 544 A.2d 209 (1988), cert. denied, 488 U.S. 1030, 109 S. Ct. 839, 102 L. Ed. 2d 971 (1989), in which this court held that evidence of the defendant’s activities and participation in a barroom sexual assault was sufficient to sustain his conviction for conspiracy, the defendant was clearly present in the poolroom where the victim was assaulted by a group of men. Further, the defendant blocked the door to prevent the victim’s escape and announced that he would act as “the doorman” while others raped the woman. The victim also identified the defendant as one of the men who raped her.

Finally, in State v. Cavanaugh, 23 Conn. App. 667, 583 A.2d 1311 (1990), cert. denied, 220 Conn. 930, 598 A.2d 1100 (1991), we again required that there be a substantial degree of evidence of the conspiracy to overcome the claim of insufficiency. In that case, the defendant and an accomplice were involved in a drug purchase by an undercover police officer. The defendant’s accomplice told the officer she could get drugs from the defendant, whom the accomplice pointed out. This was followed by an exchange of cocaine for money, which the accomplice then took to the defendant. All of this was seen by the police. This court therefore concluded that the jury could reasonably and logically have inferred that the defendant and his accomplice had agreed to work in concert to commit the crime of selling narcotics.

In this case, however, the strength of the factual situation pales in comparison with those in the cases cited. As stated earlier, although a jury may base reasonable inferences on other reasonable inferences, successive inferences must be justified by the facts of the particular case. State v. Carter, 196 Conn. 36, 45, 490 A.2d 1000 (1985). The evidentiary scenario here does not lend itself to an accumulation of inferences that leads to the reasonable and logical conclusion that the defendant had the intent to agree to conspire to commit the crime charged by the state.

We acknowledge the all too frequent incidences of gunplay in our city streets and find them to be both lamentable and deplorable; often these situations are the product of clear conspiratorial design. The crime of conspiracy, however, must be established by a sufficient quantum of evidence which, in this case, is absent.

The judgment of conviction of conspiracy to commit murder is reversed, and the case is remanded with direction to render judgment of acquittal.

In this opinion the other judges concurred.

       The defendant was acquitted of the charge of murder in violation of General Statutes § 53a-54a (a).

       Because we find that the defendant’s third claim of error is dispositive of this appeal, we need not reach the other issues he has briefed.

       It was McPhillips’ opinion that five of the shell casings found by Herlihy and one found by Kalagian were fired from the same weapon.


author: Lavery, J.

text:
    Samuel J. Veal v. Warden, State Prison
    (10485)
    O’Connell, Foti and Lavery, Js.
    Argued April 6
    decision released August 4, 1992

      Denise Ansell, special public defender, for the appellant (petitioner).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Dennis O’Connor, senior assistant state’s attorney, for the appellee (respondent).
   Lavery, J.

The principal issue in this habeas corpus appeal is whether the habeas court properly found that the petitioner, Samuel J. Veal, was afforded effective assistance of counsel as guaranteed by the United States and Connecticut constitutions. A jury found the petitioner guilty of murder in violation of General Statutes § 53a-54a, and the trial court imposed a sentence of sixty years. The petitioner appealed to the Supreme Court which upheld the conviction in State v. Veal, 201 Conn. 368, 517 A.2d 615 (1986).

The petitioner then brought a petition for a writ of habeas corpus in the Superior Court, claiming that he had been deprived of his constitutional right to effective assistance of counsel as guaranteed by the United States and Connecticut constitutions. In the habeas court, the petitioner claimed that he had received ineffective assistance of counsel because his trial counsel (1) had failed to raise and present an affirmative defense of extreme emotional disturbance when adequate pretrial investigation by counsel would have disclosed that this was the only viable defense available, (2) had presented a “defense of apologia” as the sole defense, and (3) had failed to object on hearsay grounds concerning threats made by the petitioner against the victim.

The following findings of fact were among those made by the habeas court in its memorandum of decision: (1) the petitioner had failed to make the required showing of either deficient performance or sufficient prejudice; (2) the petitioner had a fair trial and had not sustained his burden of proving ineffective assistance of counsel under the United States or Connecticut constitutions; and (3) the petitioner made no showing that the justice of his trial was rendered unreliable by a breakdown in the adversarial process caused by deficiencies in counsel’s assistance. The habeas court dismissed the petition, and the petitioner, upon the granting of certification, appealed to this court.

On appeal, the petitioner claims that the habeas court failed to recognize trial counsel’s deficient performance and the resulting prejudice to the petitioner’s defense because (1) the trial counsel failed to object properly on the grounds of hearsay to the admission of the statements of three witnesses, (2) the trial court improperly concluded that trial counsel had conducted an adequate investigation into the petitioner’s defense of extreme emotional disturbance, (3) the court improperly concluded that the failure to advance the affirmative defense of extreme emotional disturbance was a strategic or tactical decision, (4) the court failed to find that the petitioner overcame the presumption that the challenged actions of trial counsel were sound trial strategy, and (5) the court did not find trial counsel’s performance to be deficient and that such deficiency prejudiced the petitioner. We affirm the judgment of the habeas court.

The facts relevant to the petitioner’s murder conviction can be summarized as follows. “During the evening of July 30,1983, a number of people were sociably playing cards at a private home in Hartford. When additional visitors arrived around 11 p.m., the card game broke up and four of the visitors, the [petitioner], another man and two women, then left the house. As they were walking away from the house, the [petitioner], without visible provocation, fired a shot at one of the women, who had formerly been his girlfriend. After the victim fell to the ground, the [petitioner] fired additional shots at her at close range. The victim died at St. Francis Hospital without ever having regained consciousness. In firing at the victim, the [petitioner] also hit the other woman, who suffered a bullet wound in her arm. The [petitioner] fled from the scene of the crime but was apprehended later that evening by the Hartford police.” State v. Veal, supra, 370.

We first address our scope of review. In a habeas corpus appeal, this court may not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Phillips v. Warden, 220 Conn. 112, 131, 595 A.2d 1356 (1991). When determining whether those facts constitute a violation of the petitioner’s right to effective assistance of counsel, however, this court is not bound by such a limited standard of review, because such a determination is a mixed determination of law and fact that requires the application of legal principles to the historical facts of this case. Id.

The sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution guarantee the right to effective assistance of counsel. Quintana v. Warden, 220 Conn. 1, 4, 593 A.2d 964 (1991); Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985).

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984)

“Establishing that counsel’s performance was deficient requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment. ... To demonstrate this the defendant must show that counsel’s representation fell below an objective standard of reasonableness. ... In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. . . . Judicial scrutiny of counsel’s performance must be highly deferential, and courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” (Citations omitted; internal quotation marks omitted.) Fair v. Warden, 211 Conn. 398, 402-404, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989); Williams v. Warden, 217 Conn. 419, 422-23, 586 A.2d 582 (1991).

“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the [petitioner] as a result of the alleged deficiencies. . ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” (Citations omitted; internal quotation marks omitted.) Fair v. Warden, supra, 411.

“It is axiomatic that ‘[t]he petitioner, as the plaintiff in a habeas corpus proceeding, bears a heavy burden of proof; Lubensky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989); see also Hayes v. Maggio, 699 F.2d 198 (5th Cir. 1983); and that the claimed error of law must constitute a 'fundamental defect which inherently results in a miscarriage of justice . . . . Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). Habeas corpus provides an extraordinary legal remedy for illegal detention; McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d 1072 (1983); and should be available to those ‘ “whom society has grievously wronged.” ’ Kuhlman v. Wilson, 477 U.S. 436, 447, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986). It is against these standards that we measure the petitioner’s claims.” Ostolaza v. Warden, 26 Conn. App. 758, 760, 603 A.2d 768, cert. denied, 222 Conn. 906 608 A.2d 692 (1992).

I

The Admission of Alleged Hearsay Statements

At trial, the state introduced statements the victim made to three individuals shortly before her death. The substance of these statements is as follows. First, Lillian Newton testified that the day before the victim was murdered the victim told her that the petitioner had showed her a gun the previous night and that she was afraid of him. Newton further testified that the victim told her that the petitioner had threatened her. Second, Willie Mae Slayton testified that two days before the victim was murdered the victim had asked her not to leave “because Sammy is going to kill me.” Finally, Vanessa Dunston, the victim’s daughter, testified that approximately one week prior to the murder the victim told her, “I know Sammy has a gun and he’s not afraid to use it.” Dunston further testified that the victim told her that “she hoped that [the petitioner] don’t shoot her in the head with it.” Trial counsel objected to the admission of each of the statements on the basis of relevance and prejudice, expressly disavowing reliance on any hearsay theory. State v. Veal, supra, 376. The trial court overruled the objections, finding the testimony to be relevant, probative and not prejudicial.

After reviewing the evidence introduced by the state on the element of intent, the habeas court concluded that the petitioner was not prejudiced by the admission of the statements made by the victim to the three witnesses.

On this issue, the habeas court made the following findings of fact. “Three days before the murder, the petitioner told Willie Mae Slayton that he was going to kill ‘that black bitch’ [the victim]; on the night of the murder, the petitioner tried to pick a fight when he arrived at the card game; while playing cards, the petitioner kept reaching under the table, ‘messing with his leg’; when asked what the problem was, he replied T just got something to do’; as the card game broke up and the parties left, the petitioner pulled something out of his sock, fired a shot, and the victim fell; the petitioner ran to the victim and when he reached her, he bent over her and kept firing the gun, saying, ‘Bitch, I finally got you. Bitch, I finally got you.’ There was a total of seven different bullet tracks, three of which involved the brain, any one of which could have caused death by itself. When arrested a short time later, the petitioner told Detective [James] Pasquerell that he had shot the victim because ‘he had just about had it with her.’ ”

The petitioner argues that he was prejudiced because the alleged hearsay statements not only substantiated the claim of intent to kill but essentially made the state’s case. He claims that outside of Slayton’s statement there was no other proof of intent without those statements, and that but for the admission of the statements the state would not have met its burden of proof on the element of intent. We disagree.

“Generally, intent can be proved only by circumstantial evidence. . . . Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984); State v. Grant, 219 Conn. 596, 603, 594 A.2d 459 (1991). Indeed, “[t]he question of intent is purely a question of fact to be determined by the jury.” State v. Adams, 14 Conn. App. 119, 124, 539 A.2d 1022 (1988).

The evidence of intent, absent the statements of Newton, Slayton and Dunston, was overwhelming. In addition to his statement to Slayton, the petitioner was observed instigating a fight with the victim on the night of the incident. He was observed shooting seven bullets into her head at close range while exclaiming, “Bitch, I finally got you. Bitch, I finally got you.” After he was arrested, the petitioner told the police that he shot the victim because “he had just about had it with her.” We agree with the habeas court that the evidence, both direct and circumstantial, was overwhelming even without the statements at issue. The petitioner has not sustained his burden of proving the result of the trial would have been different if the three statements had been precluded, and thus the prejudice prong of Strickland has not been satisfied.

II

Pretrial Investigation of Extreme Emotional Disturbance Defense

The habeas court made the following findings of fact relating to counsel’s investigation of the petitioner’s potential emotional disturbance defense. “After the petitioner informed his trial attorney that he was interested in pursuing the defense of extreme emotional disturbance, trial counsel had the petitioner examined by Walter Borden, a forensic psychiatrist. Borden concluded that there was no clinical evidence to suggest either an insanity defense or an extreme emotional disturbance defense. Trial counsel then had the petitioner examined by another forensic psychiatrist, John Felber. Felber also concluded that there was no clinical basis for an extreme emotional disturbance defense. The investigation conducted by trial counsel and trial counsel’s investigator included the contacting of witnesses who could testify regarding the relationship between the petitioner and the decedent.”

The court also found that trial counsel was familiar with the relationship between the petitioner and the victim, and that trial counsel had hired two well known psychiatrists who separately found that the there was no clinical basis to support the defense of extreme emotional disturbance. The court concluded that the experienced trial counsel’s decision not to go forward on an extreme emotional disturbance defense without the benefit of an expert witness was sound trial strategy. This conclusion was based on the trial counsel’s reasoning that the state could put on psychiatric experts who could testify not only as to the lack of extreme emotional disturbance but also as to their opinions of the petitioner’s mental state or condition pursuant to General Statutes § 54-86 (i).

We conclude that the habeas court’s findings and conclusions were proper. As in Fair v. Warden, supra, the petitioner has failed to demonstrate the deficiency of trial counsel’s performance under the first prong of Strickland.

“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. [Strickland v. Washington, supra], 688. Judicial scrutiny of counsel’s performance must be highly deferential and courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id., 689 . . . .” (Citations omitted; internal quotation marks omitted.) Fair v. Warden, supra, 403-404.

In the present case, trial counsel thoroughly investigated the defense of extreme emotional disturbance, consulting two well qualified psychiatrists. We agree with the habeas court that “[b]ecause of the calculated, logical progression that trial counsel went through in analyzing the problem of whether to pursue an extreme emotional disturbance defense, the petitioner has failed to overcome the strong presumption that the action of not pursuing the defense was sound trial strategy.” We conclude that the petitioner did not sustain his burden of proof that trial counsel's performance fell below the Strickland standard.

The petitioner’s remaining claims are subsumed into the extreme emotional disturbance defense claim. As in Fair v. Warden, supra, 405-407, trial counsel advised the petitioner to accept a plea bargain but the petitioner refused. Counsel then pursued a strategy of attempting to explain the petitioner’s conduct and to raise a reasonable doubt on the element of intent. In Fair, the petitioner’s entire case at trial consisted of a plea for juror sympathy. Id., 406. Our Supreme Court observed that “[e]ven if trial counsel’s actions amounted only to a plea for juror sympathy or for a lenient sentence, such a tactical choice has been held not to amount, per se, to ineffective assistance of counsel.” Id., 407. In this case, trial counsel actively sought to negate the element of intent. Our review of the record reveals that trial counsel’s performance was more than merely competent.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a provides: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress, or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       Because the Connecticut constitutional issue has not been separately briefed, however, we decline to address it. State v. Rosado, 218 Conn. 239, 251 n.12, 588 A.2d 1066 (1991).