author: LANDAU, J.

text:
    FIRST FEDERAL BANK, FSB v. JON T. GALLUP ET AL.
    (AC 17714)
    Foti, Landau and Spear, Js.
    Argued September 24
    officially released November 10, 1998

      Scott M. Harrington, for the appellant (substitute plaintiff).

      Gerald M. Fox III, for the appellee (named defendant).
   Opinion

LANDAU, J.

This is an appeal from the deficiency judgment ordered by the trial court in favor of the substitute plaintiff, Wilshire Credit Coiporation (Wilshire), in the amount of $5049.29 against the defendant Jon T. Gallup. Wilshire claims that the trial court improperly admitted irrelevant and harmful evidence. We agree and remand the matter for a new deficiency hearing.

Although the procedural history is somewhat convoluted, only the following procedure and facts are relevant to our analysis. On November 6, 1995, following a hearing, the trial court rendered a judgment of strict foreclosure and found, inter alia, the market value of the premises to be $270,000 in accordance with an appraisal by Castiglia Associates, Inc., (Castiglia appraisal) dated October 12,1995, which was submitted by the plaintiff.

Following the passing of the law days and in the absence of redemption by any defendant, title to the premises became absolute in Wilshire on February 6, 1997. Wilshire filed a motion for a deficiency judgment on February 24,1997, pursuant to General Statutes § 49-14. The parties were heard on September 8 and September 29, 1997, at which time Wilshire offered the testimony of Wayne Wright, a certified real estate appraiser. Wright testified that the fair market value of the premises as of February 6, 1997, the date that title vested in Wilshire, was $191,000.

The defendant proffered an appraisal and testimony that the fair market value of the premises as of September 17, 1997, was $280,000. The defendant also requested that the trial court utilize the Castiglia appraisal, dated October 12, 1995, which indicated that the fair market value of the premises was $270,000. Wilshire objected to the Castiglia appraisal on the ground of relevancy, stating that the only issue before the trial court on the deficiency judgment was the fair market value of the premises as of February 6, 1997, the date on which title vested in Wilshire.

On October 1, 1997, the trial court entered a deficiency judgment in favor of Wilshire finding, inter alia, that the market value of the premises was $270,000 on February 6, 1997. In response to a motion for articulation, the trial court stated that it “was not convinced, following the introduction of the evidence of the February, 1997 appraisal, that the value of the property was $191,000. This amount is significantly lower than the appraisal fifteen months earlier. The [trial] court, therefore, was required to consider the September, 1997 appraisal for additional guidance. Following this testimony, the [trial] court evaluated all of the evidence and determined that the fair market value of the subject property was $270,000.”

“Evidence is admissible only if it is relevant. ” Tomlinson v. Board of Education, 226 Conn. 704, 728, 629 A.2d 333 (1993). “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . .’’(Citation omitted; internal quotation marks omitted.) State v. Cosby, 44 Conn. App. 26, 31, 687 A.2d 895 (1996), cert. denied, 240 Conn. 910, 689 A.2d 474 (1997). “It is well settled that questions of relevance are committed to the sound discretion of the trial court. State v. Weidenhof 205 Conn. 262, 277, 533 A.2d 545 (1987).” State v. Lyons, 43 Conn. App. 704, 707, 686 A.2d 128 (1996), cert. denied, 240 Conn. 906, 688 A.2d 335 (1997). That discretion is, however, not unbridled.

A deficiency proceeding has a very limited purpose. “In the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property. First Bank v. Simpson, 199 Conn. 368, 373, 507 A.2d 997 (1986).” (Internal quotation marks omitted.) Ferrigno v. Cromwell Development Associates, 44 Conn. App. 439, 444, 689 A.2d 1150 (1997), aff'd, 244 Conn. 189, 708 A.2d 1371 (1998). The deficiency hearing concerns the fair market value of the subject property as of the date title vests in the foreclosing plaintiff under § 49-14. Eichman v. J & J Building Co., 216 Conn. 443, 449, 582 A.2d 182 (1990).

During the deficiency hearing, the only relevant issue before the trial court was the value of the premises on the date that title vested in Wilshire. It is clear from a careful reading of the transcript that the trial court considered the Castiglia appraisal of October 12, 1995, together with the testimony of Wright that the fair market value of the premises was $191,000 and the appraisal dated September 17,1997, which indicated the fair market value to be $280,000. This is not a case in which the trial court set the property value at a compromise figure when confronted with conflicting expert testimony as to valuation; see New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 70, 459 A.2d 999 (1983); but a case in which it is clear that the trial court did not believe the relevant evidence before it and considered irrelevant evidence. It is apparent that the trial court improperly admitted and considered the Castiglia appraisal and the September, 1997 appraisal, which are irrelevant to the value of the subject property on the day title vested in Wilshire.

We cannot, however, end our analysis at this juncture. “It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985); State v. Marshall, 45 Conn. App. 66, 78, 694 A.2d 816 (1997), rev’d on other grounds, 246 Conn. 799, 717 A.2d 1224 (1998). “When determining [the issue of harm] in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.” (Internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752, 680 A.2d 301 (1996).

It is apparent from a reading of the record that the improper admission and consideration of the appraisals were harmful. The trial court’s ultimate determination that the premises had a fair market value of $270,000, the exact value of the Castiglia appraisal, clearly suggests that the admission of and reliance upon the Castiglia appraisal affected the result of the deficiency judgment hearing, which was harmful to Wilshire.

The deficiency judgment is reversed and the case is remanded for further proceedings to determine the amount, if any, of the deficiency.

In this opinion the other judges concurred.

       Subsequent to the entry of that judgment, it was opened and reopened several times for the purposes of substituting various parties and extending the law days. All earlier findings from the November 6, 1995 judgment were retained.

       General Statutes § 49-14 (a) provides in relevant part: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. ... At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       The following colloquy took place during the hearing:
      “The Court: All right. I’m going to take the papers. I’m going to look at the original appraisal of two-seventy, your second appraisal of one ninety-one and his appraisal of two-eighty.
      “[Counsel for Wilshire]: For the record, Your Honor, it will be my position . . . that my first appraisal is irrelevant since it’s—
      “The Court: Irrelevant?
      “Counsel: Well, it dates back to—
      “The Court: You should have said it was irrelevant when you brought it in here.
      “Counsel: Well, Your Honor, it's an appraisal that dates back to when we first—
      “The Court: But it’s your appraisal.
      “Counsel: But, Your Honor, it’s two years old.
      “The Court: Okay. That’s all right. But it’s your appraisal.
      “Counsel: And his. And also my position is his appraisal is irrelevant because it’s seven months late.”


source: Caselaw Access Project

license: Public Domain

text:
    IN RE ROSHAWN R. ET AL.

    (AC 17590)
    Foti, Landau and Sullivan, Js.

      Argued September 15
    officially released November 17, 1998

      David B. Rozwaski, for the appellant (respondent father).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Justine FitzGerald Miller, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LANDAU, J.

The respondent father appeals from the judgments of the trial court terminating his parental rights in two of his five children, R and M. On appeal, the respondent father claims that the trial court improperly found that (1) he had abandoned his children, (2) he had failed to achieve rehabilitation and (3) that it was in the best interests of R and M to terminate his parental rights pursuant to General Statutes (Rev. to 1995) § 17a-112 (b). We affirm the judgments of the trial court.

On March 3, 1995, the commissioner of the department of children and families (petitioner) filed termination of parental rights petitions against the respondents with respect to six children; the petitioner filed a similar petition with respect to a seventh child, J, in February, 1996. The respondent was subsequently determined not to be the biological father of two of the seven children, and the petitions with respect to those children were dismissed as to him. The amended petitions against the respondent alleged three grounds for termination pursuant to § 17a-112 (b): Abandonment, parental failure to achieve rehabilitation and acts of commission or omission. The parties were heard on numerous days from October 23,1996, to April 17,1997. The petitioner placed twenty exhibits in evidence and offered testimony from sixteen witnesses, including a court-appointed psychologist. The respondent testified on his own behalf, placed twenty-five exhibits in evidence and called five witnesses. Counsel for the children placed one exhibit in evidence. Counsel for the petitioner, the respondent and the minor children submitted posttrial briefs. The trial court rendered judgments terminating the respondent’s parental rights in R and M on July 24, 1997. This appeal followed.

In a comprehensive memorandum of decision, dated July 24, 1997, the trial court found the following facts. On January 22,1992, the respondent’s children, S, Y and R, were placed in the petitioner’s temporary custody, where they remained continuously until the time of judgment. On that same date, the petitioner filed neglect petitions with respect to each of these children, who were subsequently committed to the petitioner for a period not to exceed eighteen months. These eighteen month commitments were extended three times. Shortly after he was bom, M was voluntarily placed with the petitioner by his mother and thereafter committed to the petitioner. That commitment was twice extended.

The respondent has a history of chronic substance abuse. For more than five years, the respondent’s chemical dependency has rendered him unable to care for his children. Not only did the respondent use illegal dmgs, but he also sold them. When he was using illegal dmgs, the respondent cared more about dmgs than about his children. There was testimony that the respondent is a “nice man” when he is substance free, but becomes angiy and aggressive when he abuses dmgs. He physically abused the children’s mother and once assaulted a correction officer. The respondent attributed that behavior to heroin withdrawal.

As a result of the respondent’s experience with illegal drugs, he has an extensive history with the criminal justice system. He was imprisoned for six months in 1992 and seven months in 1993. He was incarcerated in 1994 until late March when the department of correction sent him to Crossroads, a residential drug treatment facility. While he was in treatment, he tested positive for illegal drug use. Less than two months after he arrived at Crossroads, the respondent left the facility without permission. As a result of his unauthorized departure from treatment, he was charged with the criminal offense of escape from custody. He was apprehended and returned to prison in 1995, where he remained at least until the end of the termination hearing. The respondent saw his children only sporadically on the street or in their foster homes between 1992 and 1995. He had only occasional and cursory involvement in the lives of his children from 1992 until his most recent incarceration in 1995.

Between 1992 and 1995, the petitioner was unable to offer services to the respondent due to his lifestyle, substance abuse, frequent periods of incarceration and lack of interest in services. The respondent’s leaving Crossroads demonstrated his resistance to rehabilitative assistance during that period of time. Since his return to prison in 1995, however, the respondent’s attitude toward reunification services has changed significantly. The respondent sought and participated successfully in a number of rehabilitation programs offered by the department of correction, including fatherhood seminars, the tier program, Narcotics Anonymous, Alcoholics Anonymous, the alternative to violence project, the families activities and parenting program, and the Connecticut prison association resettlement program.

To the extent possible, since 1995, the respondent has attempted to reunify with his children. He requested permission to visit with them, he solicited Christmas gifts for some of them through an inmate assistance program, and he took advantage of the limited number of parenting programs the department of correction offers to prisoners. The respondent’s efforts to achieve reunification with his children during the past two years were consistent.

As a result of his evaluation of the respondent in 1995, Anthony Campagna, a court-appointed psychologist, found that an active and vital parent-child relationship existed between the respondent and S and Y. He found that there was no relationship between the respondent and R and M. Campagna concluded that the respondent could not be expected to achieve a sufficient degree of rehabilitation within a reasonable period of time so that he could assume a responsible position in their lives due to his need for drug rehabilitation therapy and other psychological problems. In commenting on the best interests of the children, however, Campagna evaluated the children individually on the basis of their developmental needs, ages and relationships with the respondent. He concluded that it was in the best interests of R and M to terminate the respondent’s parental rights, but that it was not in the best interests of S and Y, who were emotionally attached to the respondent.

At the conclusion of the adjudication phase of the trial, the trial court found that the petitioner had proved by clear’ and convincing evidence that the respondent had abandoned his four oldest children pursuant to § 17a-112 (b) (1). With respect to S, Y and R, this ground was proven to have existed for more than one year prior to the initiation of the termination proceedings. Although one year had not yet passed between M’s birth on March 17, 1994, and the petitioner’s initiating termination proceedings against the respondent on March 3, 1995, the trial court found by clear and convincing evidence that the petitioner had proved that it was in M’s best interest, given all the facts and circumstances of this case, that the statutory one year requirement be waived.

Regarding the allegation of failure to achieve rehabilitation, the trial court found with respect to R and M that the petitioner proved by clear and convincing evidence that for a period of more than one year, the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, he could assume a responsible position in their fives. Although the petitioner proved by clear and convincing evidence that the respondent had failed to achieve a sufficient degree of rehabilitation for the requisite period of time prior to March 3, 1995, with respect to S and Y, the petitioner failed to prove by clear and convincing evidence that there was no belief that the respondent could assume a responsible position in their fives within a reasonable time.

The petitioner failed to prove by clear and convincing evidence that the respondent denied his children the care, guidance and control necessary for their physical, educational, moral or emotional well-being as the result of acts of parental commission or omission. The counts of the petitions with respect to that allegation against the respondent were dismissed.

Following the dispositional phase of the trial, the trial court found, on the basis of Campagna’s report, that it was not in the best interests of S and Y to terminate the respondent’s parental rights. It found, however, that it was in the best interests of R and M that the respondeni’s parental rights be terminated with respect to them and rendered judgments accordingly. On appeal, the respondent challenges the trial court’s factual findings and termination of his parental rights in R and M.

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In re Juvenile Appeal (84-3), 1 Conn. App. 463, 478, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). In re Luis C., supra, 210 Conn. 166.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually suppoited. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, [supra, 181 Conn. 222]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). In re Kezia M., 33 Conn. App. 12, [17], 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Felicia D., 35 Conn. App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994).” (Internal quotation marks omitted.) In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771, cert. granted on other grounds, 245 Conn. 917, 717 A.2d 234 (1998).

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). ‘In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child.’ Id.” In re Jessica M., 49 Conn. App. 229, 236, 714 A.2d 64, cert. granted on other grounds, 247 Conn. 915, 722 A.2d 806 (1998).

I

The respondent’s first claim is that the trial court improperly found that he had abandoned his children pursuant to § 17a-112 (b) (1). We do not agree.

“Abandonment focuses on the parent’s conduct. . . . A lack of interest in the child is not the sole criterion in determining abandonment. . . . General Statutes § 17a-112 (b) (1) defines abandonment as the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child .... Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare. . . .

“Section 17a-112 (b) (1) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern. . . .

“The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.” (Citations omitted; internal quotation marks omitted.) In re Kezia M., supra, 33 Conn. App. 17-18.

Our review of the record supports the trial court’s finding that the respondent abandoned his children and that the abandonment existed for at least one year prior to the petitioner’s filing the termination petition. From 1992 through the time of trial, the respondent was in prison more than he was out of prison. Although, as the respondent argues, a parent’s incarceration by itself does not constitute abandonment, our Supreme Court has noted that “the inevitable restraints imposed by incarceration do not in themselves excuse a failure to make use of available though limited resources for contact with a distant child.” In re Juvenile Appeal, (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982). Moreover, prior to 1995, the respondent made no effort to take advantage of services offered by the department of correction to keep in touch with his children. He failed to inform the petitioner of his whereabouts so that visitation with his children could be arranged.

The respondent also overlooks the fact that he was in prison because of his addiction to and selling of illegal drugs and that, prior to 1995, he took no interest in obtaining support to combat his addiction. The respondent left a residential drug treatment program, without permission, before he had completed the program. In fact, he tested positive for illegal drugs while at the residential program. By his own admission, the respondent recognized that when he was abusing narcotics he “had no conscience” and that he “wasn’t doing much of [anything] for [the] children.” He never visited R in his foster home, and he never knew M. Therefore, we conclude that the trial court’s finding that the respondent abandoned his children was not clearly erroneous.

II

The respondent’s second claim is that the trial court improperly found that he had failed to achieve rehabilitation as to R and M because that finding is inconsistent with the trial court’s finding as to S and Y on the same allegation. We are not persuaded.

“[T]he parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” (Emphasis added.) General Statutes (Rev. to 1995) § 17a-112 (b) (2). “ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as aparent.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). “Our Supreme Court has held that § [17a-112] (b) (2) requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ... A determination by the trial court under § [17a-112] (b) (2) that the evidence is clear and convincing that the parent has not rehabilitated [himself] will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Citations omitted; internal quotation marks omitted.) In re Felicia D., supra, 35 Conn. App. 500.

The essence of the respondent’s argument that the trial court’s findings are clearly erroneous is based in the disparate decisions that the trial court made with respect to S and Y and with respect to R and M. Both prongs of the test must be met to terminate parental rights for failure to achieve rehabilitation: One, that the parent has failed to achieve rehabilitation and, two, that there is no reason to believe that the parent could assume a responsible position in the life of the child within a reasonable time, considering the age and needs of the child. The trial court found that the petitioner met the first prong of the test by clear and convincing evidence as to all of the children. The trial court also properly analyzed the respondent’s rehabilitative status as it relates to the needs of each child.

Using Campagna’s report and testimony, in part, as a basis, the trial court found that there was a vital and active relationship between the respondent and S and Y. Y, who would soon turn eight, was sad about not seeing her father. S, who was nine, had recently experienced a number of emotional and behavioral problems that jeopardized his specialized foster care placement. Furthermore, the trial court found that the respondent’s consistent efforts to improve his ability to be a good parent since 1995 warranted the belief that the respondent could achieve a responsible role in the life of these two children within a reasonable period of time. These findings are supported by the record.

On the other hand, the trial court found that due to their ages and special needs, there was no reason to believe that the respondent could achieve a responsible role in the lives of R and M within a reasonable period of time. Campagna found that R and M, who were six and three years of age, respectively, at the time of trial, did not have the same type of bond with the respondent as did S and Y, who are older. The record discloses that R was bom in June, 1991, and placed in foster care seven months later, where he remained through the time of trial. M was bom in March, 1994, when the respondent was in prison, and has been in foster care virtually all of his life. On the basis of the record, we cannot say the that trial court improperly analyzed the respondent’s rehabilitative needs with respect to the needs of R and M, and that its findings are clearly erroneous. Therefore, we will not disturb the trial court’s findings.

Ill

The respondent’s final claim is that the trial court improperly found that it was in the best interests of R and M to terminate the respondent’s parental rights because the petitioner did not make reasonable efforts to reunify the children with the respondent pursuant to § 17a-112 (c). The respondent claims that at no time were any services offered to him by the petitioner, except visitation while he was incarcerated, which was sporadic until the last eighteen months of his incarceration. Therefore, the respondent claims that the petitioner failed to make reasonable efforts to reunify him with his children. We disagree.

In its memorandum of decision, the trial court made the seven findings mandated by General Statutes (Rev. to 1995) § 17a-112 (d). The trial court found by clear and convincing evidence that the petitioner and other agencies and treatment providers offered reasonable and appropriate reunification and rehabilitative services to the respondent. Prior to 1995, the respondent’s lifestyle, substance abuse and frequent periods of incarceration prevented the petitioner from offering him services. The department of correction offered the respondent drug rehabilitation services at Crossroads, but the respondent left the facility without permission and without finishing the program. Since 1995, the respondent has taken advantage of a number of parenting and substance abuse programs offered by the department of correction, and the petitioner has taken the respondent’s children to visit him, which the trial court considered to be reasonable efforts to reunite the respondent with his children.

The trial court also found that no court orders were entered with respect to the respondent and that he did not sign any court-approved expectations or service agreements. The trial court found by clear and convincing evidence that the respondent knew that he had to overcome his substance abuse and to avoid further involvement with the criminal justice system in order to reunite with his children.

The trial court further found that each of the children is in foster care. The respondent has an active and important parent-child relationship with S and Y. He has a weaker relationship with R and none with M. The respondent has reestablished visitation with the children, who appear to enjoy this time with their father. The children range in age from one to nine.

The trial court found that the respondent has made efforts to adjust his conduct, conditions and circumstances, but that his efforts have not been enough to encourage the belief that R and M could be restored to his parental home within a reasonable time. The respondent’s efforts to adjust were considered by the trial court in deciding not to terminate his parental rights in S and Y. Neither the petitioner nor any other agency took unreasonable action, and there were no adverse economic circumstances that prevented the respondent from maintaining a meaningful relationship with his children.

On the basis of these findings, which accord with § 17a-112 (b) and are not clearly erroneous, we will not disturb the trial court’s finding that termination of the respondent’s parental rights was in the best interests of R and M.

The judgments are affirmed.

In this opinion the other judges concurred.

       The commissioner of the department of children and families (petitioner) filed petitions to terminate the respondent’s parental rights in all five of his children, but termination was granted only with respect to the children who are the subject of this appeal. R was born in 1991 and M was bom in 1994.

       General Statutes (Rev. to 1995) § 17a-112 (b) provides in relevant part: “The superior court upon hearing and notice, as provided in sections 45a-716 and45a-717, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. . . .”

       The respondent mother has not appealed from the trial court’s judgments terminating her parental rights in all seven of her children. We refer in this opinion to the respondent father as the respondent.

         The termination petition with respect to J was subsequently dismissed on all counts alleged.

       In his brief, the respondent claims that Campagna’s report was out of date at the time of trial. We note, however, that the respondent was present throughout the trial and was represented by counsel. At no time during the trial did the respondent request that Campagna conduct additional studies or review his report in light of the passage of time.

       The petitioner petitioned to terminate the respondent’s parental rights pursuant to General Statutes (Rev. to 1995) § 17a-112 (b). We note that under § 17a-112 (b), the petitioner was not required to make reasonable efforts to reunify the parent with the child. But see § 17a-112 (b), as amended by Public Acts 1995, No. 95-238, § 3. The Superior Court was, however, required by § 17a-112 (d) to consider whether reasonable reunification efforts had been made. See footnote 7.

       General Statutes (Rev. to 1995) § 17a-112 (d) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the department of children and families has made reasonable efforts to reunite the family pursuant to the federal Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional lies; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to malee it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of Ihe parent.”

       Counsel for R and M filed a brief and participated in oral argument before this court. The children’s counsel took the position that the termination with respect to M should be affirmed but reversed with respect to R. Specifically, children’s counsel advocated that the trial court improperly found by clear and convincing evidence that it was in R’s best interest to terminate his father’s parental rights in him while also finding it was not in the best interest of his older brother and sister, S and Y. Although counsel presented no evidence in support of this position, the children’s counsel claimed that because R is emotionally fragile and has lived with S and Y at various times during his life, it would be detrimental to R if S and Y have access to their father but he does not. In our opinion, counsel’s position is an expression of a personal opinion or testimony. In a recent opinion that postdated the submission of the parties’ briefs, our Supreme Court held that Practice Book § 5-1 does not permit the introduction of an attorney’s personal opinions into his or her submissions to the court in any type of legal proceeding, including family matters. See Ireland v. Ireland, 246 Conn. 413, 435-40, 717 A.2d 676 (1998) (en banc).


text:
    STATE OF CONNECTICUT v. LUIS MARTINEZ
    (AC 18051)
    Lavery, Landau and Hennessy, Js.

      Argued September 18
    officially released November 17, 1998

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, was Eva Lenczewski, assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Luis Martinez, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2) and felony murder in violation of General Statutes § 53a-54c. On appeal, the defendant claims that the trial court (1) improperly denied his motion to suppress certain evidence because the affidavit in support of a search and seizure warrant failed to establish probable cause and (2) abused its discretion in admitting testimony that was irrelevant and prejudicial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. On September 15, 1994, the trial court issued a search and seizure warrant to search the first floor apartment at 54 Crown Street in Waterbury after determining that probable cause existed. The defendant’s arrest stemmed from the seizure of a handgun, ammunition, bloody clothing, photographs and a wallet from the apartment following the execution of the warrant.

The defendant filed a motion to suppress a revolver, a brown bloodstained sweatshirt with the word “Browns” printed in orange letters, photographs of the interior of the apartment and a black wallet containing personal papers belonging to the defendant that the state argued was seized under the plain view doctrine. The trial court denied the motion to suppress as to the gun, ammunition and bloody clothing, but granted it as to the wallet and its contents because the plain view doctrine was inapplicable. The trial court concluded that “the affidavit by the police officers plus the reasonable inferences necessarily drawn by the magistrate furnished a substantial factual basis for the magistrate’s conclusion that probable cause existed to search for the gun, ammunition and bloody clothing.” Other facts will be discussed where relevant to the issues in the case.

I

The defendant claims that the trial court improperly denied his motion to suppress the sweatshirt seized within the apartment. Specifically, the defendant claims that the affidavit in support of the search warrant (1) failed to establish probable cause and (2), in the alternative, was based on “stale” information.

The warrant application affidavit set forth the following facts. On September 14, 1994, an investigation led the police to the Crown Street apartment, the possible location of robbery suspects. After the police discovered that one of the residents, Demarise Williams, fit the description of one of the robbery suspects, Williams was arrested under a valid arrest warrant for a separate incident. When questioned, Williams told police that he had knowledge of a recent homicide and robbery, and detailed the events that transpired on September 12, 1994.

Williams revealed that on September 12, 1994, at approximately 10 p.m., the defendant came into the apartment in Waterbury where Williams and his girlfriend, Darlene Saunders, were watching television. The defendant told Williams that he wanted Williams to go with him to rob a man who was sitting on the wall by a nearby church. Williams noticed that the defendant was in possession of a gun. The defendant and Williams walked to the church wall, which was located at the corner of Beacon and Crown Streets, a short distance from the apartment. Williams walked part of the way across the street with the defendant. The defendant walked up to the victim, stood directly in front of him and told him to take everything out of his pockets. When the victim failed to follow the directions, the defendant shot him twice. Williams ran back to the apartment where he met Saunders. The defendant followed Williams to the apartment, where he talked and laughed about the shooting to Williams. The defendant then remained at the apartment.

The affidavit also contained information provided by Saunders regarding the defendant’s presence in the apartment prior to and after the shooting. Saunders reported that upon the defendant’s return to the apartment after the shooting, the defendant told her that he had shot a man six times in the chest. Although the victim had claimed to have no money, the defendant told Saunders that he knew that the victim had money by the way he was patting his pockets. Saunders informed the defendant that she was going to see if anyone was hurt and then contact the police. The defendant told Saunders that if she informed the police, she would not leave the apartment alive. The following morning, on September 13, 1994, Saunders notified the defendant that the man he had shot the night before had died. The defendant left the apartment in the early afternoon.

A

Initially, the defendant claims that the affidavit failed to set forth facts supporting a finding of probable cause for the seizure of the sweatshirt because there was no “credible or reliable information for the issuing magistrate to conclude there was a fair probability that bloody clothing would be found at that location.” Specifically, the defendant claims that the affidavit failed (1) to establish the defendant’s relationship to the apartment, other than the fact that Williams lived there and that the defendant went there after the shooting, and (2) to provide any information indicating that the defendant was so close to the victim when he shot the gun that blood would be found on his clothing. We disagree.

“In State v. Barton, [219 Conn. 529, 544, 594 A.2d 917 (1991)], our Supreme Court adopted the ‘totality of the circumstances’ standard for determining probable cause used by the federal courts pursuant to the decision of the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).” State v. Marsala, 42 Conn. App. 1, 5, 679 A.2d 367, cert. denied, 239 Conn. 912, 682 A.2d 1010 (1996). “Under this [standard], in determining the existence of probable cause to search, the issuing judge must make a ‘practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the “veracity” and the “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ State v. Johnson, 219 Conn. 557, 563, 594 A.2d 933 (1991).” State v. Rodriguez, 223 Conn. 127, 134-35, 613 A.2d 211 (1992). Therefore, “ ‘[i]f the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy . . . the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists.’ ” State v. Marsala, supra, 6, quoting State v. Barton, supra, 544.

“[0]ne of the most common factors used to evaluate the reliability of an informant’s information is the corroboration of the information by the police. . . . The theory of corroboration is that a statement [that] has been shown true in some respects is remarkably likely to be true in the remaining respects.” (Internal quotation marks omitted.) State v. Ruscoe, 212 Conn. 223, 230-31, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). “ ‘When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate.’ ” State v. Marsala, supra, 42 Conn. App. 6, quoting State v. Barton, supra, 219 Conn. 544-45.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched.” (Internal quotation marks omitted.) State v. Marsala, supra, 42 Conn. App. 6, quoting State v. Barton, supra, 219 Conn. 548. “Furthermore, it is axiomatic that [a] significantly lower quantum of proof is required to establish probable cause than guilt. . . . State v. Vincent, 229 Conn. 164, [172], 640 A.2d 94 (1994).” (Internal quotation marks omitted.) State v. Bova, 240 Conn. 210, 232, 690 A.2d 1370 (1997).

“This court’s scope of review, in evaluating the existence of probable cause, is limited to the facts that appear [within] the four comers of the affidavit or facts that may be properly inferred from those facts. State v. Couture, 194 Conn. 530, 536, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). In so doing, we must use common sense; State v. Castano, 25 Conn. App. 99, 101, 592 A.2d 977 (1991) ; and defer to the reasonable inferences drawn by the [issuing] magistrate. State v. Barton, supra, 219 Conn. 544-45. Our role is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed. State v. Johnson, supra, 219 Conn. 565. . . . State v. Anziano, [26 Conn. App. 667, 672, 603 A.2d 415 (1992) ].” (Internal quotation marks omitted.) State v. Marsala, supra, 42 Conn. App. 7. “[T]he resolution of doubtful or marginal cases . . . should be largely determined by the preference to be accorded to warrants.” (Internal quotation marks omitted.) State v. Barton, supra, 552. Furthermore, “[a] reviewing court should not invalidate a warrant as long as the inferences drawn by the issuing magistrate are reasonable under all of the circumstances set forth in the affidavit regardless of whether that court would have drawn the same inferences.” State v. Marsala, supra, 9, citing State v. Barton, supra, 545.

In the present case, the magistrate reasonably could have inferred that the information provided by Williams and Saunders was reliable. First, the warrant affidavit indicates that the investigation led the police to obtain information from Saunders that corroborated the information provided by Williams. With respect to Saunders, a citizen informant is “considered more deserving of credibility than are underworld informers, and courts have accordingly tended to examine the basis and sufficiency of a citizen informer’s information more closely than his credibility.” State v. Barton, supra, 219 Conn. 542 n.10; see also State v. Daley, 189 Conn. 717, 723-24, 458 A.2d 1147 (1983). Second, the informants, Williams and Saunders, were not anonymous. “Because [their] identity was known to the police, the informants] could expect adverse consequences if the information that [they] provided was erroneous.” State v. Barton, supra, 550. In Williams’ case, his statement indicating his involvement in the events that transpired that evening constituted a declaration against penal interest. “Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search. . . . Although the informant’s motive may be no loftier than the hope of leniency on other charges . . . courts have thought that one who knows the police are already in a position to charge him with a serious crime will not lightly undertake to divert the police down blind alleys.” (Citations omitted; internal quotation marks omitted.) Id., 551.

Even if we assume, arguendo, that the police investigation did not provide any corroboration of Williams’ statement because, as the defendant claims, Williams’ information was corroborated by Saunders, Williams’ girlfriend. Because Saunders’ motive to shift blame to the defendant categorizes her as being between a first time informant and a citizen informant, the magistrate could still reasonably have inferred that their statements were credible. While the affiants could have strengthened the warrant application through independent corroboration of some of the details contained within the affidavit, the affidavit sufficiently set forth underlying factual circumstances from which the police could have concluded that the informants were credible or that the information was reliable. See State v. Barton, supra, 219 Conn. 551. A review of the facts contained within the four comers of the affidavit indicates that the defendant was at the apartment with a gun before the shooting, was positioned directly in front of the victim when he shot him, returned to the apartment immediately after the shooting and remained at the apartment until the following afternoon.

“The nexus between the items sought and the place to be searched may be inferred from the type of crime, the nature of the evidence, the extent of an opportunity for concealment and normal inferences as to where a criminal would likely hide the item. . . . State v. Vincent, 30 Conn. App. 249, 257, 620 A.2d 152 (1993), aff'd, 229 Conn. 164, 640 A.2d 94 (1994).” (Internal quotation marks omitted.) State v. Ives, 37 Conn. App. 40, 46, 654 A.2d 789, cert. denied, 234 Conn. 906, 659 A.2d 1209 (1995). Although this could be considered a marginal case if we accept the defendant’s argument that the information came from informants who were motivated to shift the blame to him and that there was a lack of police corroboration, the issuing magistrate reasonably could still have inferred that probable cause existed to issue the warrant. Specifically, the magistrate reasonably could have inferred that because the defendant shot the victim at close range, there was a fan-probability that traces of blood would be on the clothing that the defendant was wearing that evening. Furthermore, because the defendant had remained in the apartment until the following afternoon, the magistrate reasonably could have inferred that there was a fair probability that the defendant normally spent time at this apartment and, therefore, that the clothing that the defendant had worn the previous day would be found within the apartment. After considering the search warrant affidavit under the “totality of the circumstances test,” we conclude that the affidavit presented a substantial basis to support the magistrate’s conclusion that the affidavit adequately described the basis of the informants’ knowledge, as well as permitted a reasonable inference that the information was reliable. Accordingly, probable cause existed to search the apartment.

B

The defendant claims in the alternative that even if the information in the affidavit is found to provide a substantial basis for believing that bloody clothing would be found at the apartment, the information was stale and, consequently, could not provide probable cause. The defendant concedes that this claim was not properly preserved at trial. The defendant maintains, however, that his claim is reviewable pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will review this claim because the record is adequate for review, and the defendant alleges the violation of his “fundamental constitutional right to be free from unreasonable searches unless supported by probable cause.” See State v. MacNeil, 28 Conn. App. 508, 519, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). The defendant’s claim, however, fails because the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial.

“It is undisputed that the determination of probable cause to conduct a search depends in part on the finding of facts so closely related to the time of the issuance of the warrant as to justify a belief in the continued existence of probable cause at that time. . . . Although it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when information has become too old to be rehable. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Vincent, supra, 229 Conn. 174.

“Consequently, whether a reasonable likelihood exists that evidence identified in the warrant affidavit will be found on the subject premises is a determination that must be made on a case-by-case basis. Accordingly, we have refused to adopt an arbitrary cutoff date, expressed ... in days, weeks or months, beyond which probable cause ceases to exist. . . . Moreover, we have recognized that [i]f items of property are innocuous in themselves or not particularly incriminating and are likely to remain on the premises, that fact is an important factor to be considered in determining the staleness of a warrant.” (Citation omitted; internal quotation marks omitted.) State v. Bova, supra, 240 Conn. 232-33.

In this case, the crimes occurred on September 12, 1994, the information was obtained from Williams and Saunders on September 14, 1994, and the search warrant was obtained on September 15, 1994. In that short period of time, it was not unreasonable for the magistrate to infer from the defendant’s remaining at the apartment and warning Saunders that she would not leave the apartment alive if she contacted the police that he was comfortable remaining there and felt it was a safe place and, therefore, that the apartment was a logical place for the defendant to conceal anything connected to the crimes. “Such an inference is not certainty, but a certainty is not required.” State v. Couture, supra, 194 Conn. 544. We are of the opinion that because it was reasonable for the magistrate to infer that the defendant’s clothing may have contained traces of blood, but not necessarily to the point where it was inherently incriminating, the clothing had lasting value and was likely to remain in the apartment. See State v. Ives, supra, 37 Conn. App. 47 (probable cause dissipates less rapidly when item seized not “consumable or inherently incriminating”).

The issuing magistrate, therefore, reasonably could have inferred that it was likely that the sweatshirt was in the apartment. Under the circumstances, we conclude that the three days between the night of the shooting and the challenged search did not render the information stale so as to preclude a finding that probable cause existed to issue a warrant. As a result, there was no clear constitutional violation, and the defendant was not clearly deprived of a fair trial.

II

The defendant finally claims that the trial court abused its discretion by (1) permitting the state to present the testimony of Chris Lovejoy when it was irrelevant and highly prejudicial and (2) admitting the testimony of a criminalist regarding the presence of blood and gunpowder residue on the sweatshirt because it was irrelevant and prejudicial. We disagree.

After Williams testified that the defendant was about four feet in front of the victim when he fired the gun and was wearing the Browns sweatshirt at the time of the murder, a state criminalist, Patricia Johannes, testified regarding evidence found on the sweatshirt. Johannes testified that a stain on the left cuff of the sweatshirt tested positive for blood but was inconclusive as to the blood type, and that both cuffs and the front waistband area of the sweatshirt tested positive for nitrates and nitrites, thereby indicating gunpowder residue. Love-joy later testified that on the day before the murder, September 11, 1994, he saw the defendant on Beacon Street wearing a Cleveland Browns sweatshirt.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Citations omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998). “Evidence is considered relevant when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.” (Internal quotation marks omitted.) State v. Garcia, 37 Conn. App. 619, 634, 657 A.2d 691, cert. denied, 234 Conn. 917, 661 A.2d 97 (1995). Furthermore, relevant evidence “has a logical tendency to aid the trier in the determination of an issue.” State v. Jeffrey, 220 Conn. 698, 704, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992).

A

The defendant claims that the trial court abused its discretion by permitting the state to present the testimony of Lovejoy because it was irrelevant and prejudicial to the defendant. Specifically, the defendant claims that the testimony was irrelevant because it was not connected to the issue of whether the defendant shot the victim on September 12, 1994.

Lovejoy’s testimony tended to support or corroborate the existence of other direct evidence in the case supplied by Williams and Saunders that the defendant wore a Browns sweatshirt on the evening of September 12, 1994. As such, it was relevant and properly admissible. We conclude, therefore, that the trial court did not abuse its discretion in permitting the state to present Lovejoy’s testimony.

B

The defendant claims that the trial court abused its discretion by admitting the testimony of Johannes because it was irrelevant and prejudicial. Specifically, the defendant argues that the testimony lacked a sufficient connection to the crimes or the defendant.

In State v. Jeffrey, supra, 220 Conn. 704-705, the defendant argued that a urine stained blouse should have been excluded as irrelevant because the state criminalist’s testimony did not exclude the possibility that the urine was from a source other than the defendant. The defendant argues that State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990), rather than Jeffrey, controls this case. In Jeffrey, our Supreme Court distinguished Moody, as we do in this case, because in Moody it could not be determined whether a stain on the defendant’s shoe was blood. The Jeffrey court held that “[t]he uncontroverted evidence of urine, not just something that might or might not have been urine, distinguishes this case from Moody and leads us to conclude that the shirt and test results were properly admitted into evidence.” State v. Jeffrey, supra, 705.

In this case, while the findings were inconclusive as to the blood type, Johannes was able positively to identify human blood in the stain on the sweatshirt. Furthermore, while it is true that evidence of human blood on the sweatshirt does not by itself indicate that the defendant caused the stain or exclude other possible explanations for its presence, these objections do not require its exclusion because “evidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion, even to a slight degree.” (Internal quotation marks omitted.) Id., 706. As such, to be relevant and properly admissible, it was not necessary that the evidence prove conclusively that the defendant’s or the victim’s blood was on the sweatshirt, but only that the testimony to some degree tended to support Williams’ testimony that the defendant was about four feet in front of the victim when he fired the gun. See id. We conclude, therefore, that the trial court did not abuse its discretion in admitting Johannes’ testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-49 (a) provides: “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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

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

       The trial court concluded that, since the defendant had his girlfriend’s permission to stay at the apartment when no one else was home and aut hority to exclude other persons from entering the apartment, the defendant “had a reasonable expectation of privacy [in the apartment] and, therefore, [had] standing to bring these . . . suppression motions. . . .”

       The plain view doctrine establishes an exception to the warrant requirement and “is based upon the premise that the police need not ignore incriminating evidence in plain view while they are . . . entitled to be in a position to view the items seized.” (Internal quotation marks omitted.) State v. Eady, 245 Conn. 464, 470, 733 A.2d 95 (1998).

       The defendant limits the present claim to the denial of the motion to suppress as to the sweatshirt.

       When the defendant initially pulled the trigger, the gun clicked but did not fire. The defendant then opened the cylinder of the gun, shut it and began firing at the victim.

       Although the defendant makes reference to federal case law that developed the “totality of the circumstances” standard; see Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); the defendant analyzes this claim using state case law. We, therefore, will analyze his claim as a matter of state law. See State v. Otero, 49 Conn. App. 459, 463 n.7, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).

       The defendant argues in his brief that Williams was motivated to shift blame to the defendant in light of the fact that the police had information independent of his admission that connected him to the shooting. Furthermore, Saunders’ motivation to shift blame to the defendant stemmed from her role as Williams’ girlfriend.

       “Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. ...” (Citations omitted; internal quotation marks omitted.) State v. Otero, 49 Conn. App. 459, 463 n.6, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).

       The defendant appears to assert in his brief that the admission of evidence that was improperly seized is subject to a claim that the seizure was done in violation of the fourth and fourteenth amendments to the United States constitution. Since the defendant analyzes his claim using state case law, however, we will analyze his claim as a matter of state law. See State v. Otero, 49 Conn. App. 459, 463 n.7, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).

       The defendant argues in his brief that State v. DeChamplain, 179 Conn. 522, 427 A.2d 1338 (1980), rather than State v. Couture, supra, 194 Conn. 530, governs this case. In DeChamplain, our Supreme Court held that the affidavit was insufficient to support a finding of probable cause because there was insufficient evidence connecting the marijuana to the apartment; the defendant received a telephone call in the apartment regarding a drug transaction, but was not seen leaving the apartment carrying a package. State v. DeChamplain, supra, 524-32. In the present case, similar to Couture, the apartment was factually implicated in the defendant’s criminal activity. See State v. Couture, supra, 545.

       Saunders also testified that the defendant was wearing a Browns brown and orange sweatshirt on the evening of September 12, 1994.

         Prior to Johannes’ testimony, the defendant objected to the testimony that Johannes was about to provide because it called for speculation, as the blood could not be connected to the victim or the defendant and the nitrates and nitrites could not be connected to the gun or this type of gun. The trial court concluded that the “proffer reveals circumstantial evidence that the jury can ponder and determine and possibly make the inference that the state hopes for in terms of tying it to the defendant, and the imperfections, if any, as to certainty go to the weight and the cross-examination that may take place at the hands of the defendant.”

       The following colloquy took place during the state’s direct examination of Johannes:
      “Q. And on what location of [the sweatshirt] did you locate ... a stain [that tested positive for blood]?
      “A. It was a stain that was located on the left cuff of the garment.
      “Q. And did you . . . perform further testing?
      “A. Yes, I did. . . . The next test that I performed was a test for human hemoglobin. ... If human hemoglobin was present in the sample, what I would see is a white band form between the two walls. And in this case, I did see that white band indicating to me that there was human blood in that stain.
      “Q. And was your opinion based on a reasonable degree of scientific certainty?
      “A. Yes, it was.
      “Q. Did you perform additional testing . . . ?
      “A. The next test that I performed was I was looking for the ABO antigens in order to try to determine what ABO blood type would be present in this stain. . . . My findings were inconclusive.
      “Q. Did you also perform testing on the sweatshirt, for gun residue?
      “A. Yes, I did.
      “Q. And did you obtain any positive results in connection with that testing?
      “A. Yes, I did. . . . Both of the cuffs were positive for nitrates and nitrites, and the front waistband area, just along the waistband.”

       The trial court overruled the defendant’s objection to Lovejoy’s testimony and concluded: “The confrontation clause guarantees the defendant only an opportunity for effective cross-examination, not cross-examination that is effective as the defense might wish. . . . Here, the court has sustained the defendant’s objection to the state’s use of misconduct evidence through the witness Lovejoy. That court ruling does not preclude Lovejoy’s testifying that he saw a particular sweatshirt, which is already in evidence in this trial on [the defendant] the day before the crime alleged here. . . .”

       The following colloquy took place on the state’s direct examination of Lovejoy:
      “Q. And on Sunday, September 11 of 1994, where were you just before the noon hour?
      “A. I was going toward my aunt’s house.
      “Q. And what street were you on?
      “A. At the time I thought it was Crown, but I later found out it was Beacon.
      * ** *
      “Q. And I’m going to ask you to look around the courtroom; do you see a person that you saw on September 11, 1994, in the courtroom today?
      “A. Yes, I do.
      “Q. And would you point out the person ....
      * * *
      “A. He’s seated on that side right there.
      “[Assistant State’s Attorney]: Your Honor, I’d ask that the record reflect he has identified the defendant.
      * * *
      “The Court: It may so reflect.
      “Q. And on September 11 of 1994, did you have a chance to observe any of the defendant’s clothing that day?
      “A. Yes, I did.
      “Q. And what parts of his clothing do you remember?
      “A. His shirt.
      “Q. Okay. Can you describe his shirt?
      “A. It was a Cleveland Browns shirt. It was a brown shirt with orangishred letters.
      “Q. And what kind of shirt was it, a button-down or—
      “A. No, it was just like a sweatshirt, like a hooded sweatshirt.”


author: FOTI, J.

text:
    BURTON FONTAINE v. ZEAKE THOMAS
    (AC 17511)
    Foti, Schailer and Daly, Js.
    Argued September 22
    officially released November 17, 1998

      Scott W. Jezek, for the appellant (defendant).

      Michael A. Blanchard, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, Zeake Thomas, appeals from the trial court’s denial of his motion to open and set aside a judgment rendered after he was defaulted for failing to appear. The defendant claims that the trial court improperly (1) concluded that his letter to the clerk of the court did not constitute a valid pro se appearance, (2) abused its discretion in concluding that the defendant did not sustain his burden of proving that he was prevented by mistake, accident or other reasonable cause from filing an appearance and (3) refused to allow him to testify concerning the status of his health. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In 1990, the plaintiff, Burton Fontaine, a tenant in a building owned by the defendant, allegedly slipped on ice outside a door to the building and sustained injuries to his head, neck and back. The present action was commenced against the defendant, alleging that the accumulation of ice was caused by the defendant’s negligence in not having installed a gutter over the doorway and in not having cleared away the ice.

The defendant received notice of the lawsuit by in-hand service on November 5, 1992. On February 11, 1993, the plaintiff moved for a default against the defendant for his failure to appear. The defendant was defaulted on February 16, 1993. Two days later, on February 18, 1993, the defendant wrote a letter* to the clerk of the court, stating that he had been defaulted under another name and that neither he nor his attorney had notice of the action. The defendant also sought to have forwarded to him all notices of court actions and dates. He signed his name as Virgil F. Thomas, but did not include the name of the action, the docket number or even his address.

On July 20, 1994, a hearing in damages was held, and judgment was rendered against the defendant in the amount of $112,352.82. On February 10,1997, the defendant filed a motion to open and set aside the judgment. A hearing was held on the defendant’s motion, at which time the court denied the defendant’s request to regard his February 18, 1993 letter to the clerk’s office as his appearance. In its written memorandum of decision, the trial court concluded that apart from its being typewritten, the letter met none of the requirements of Practice Book § 64 (b), now § 3-3. Thus, the trial corut found that “no appearance was filed by the defendant, despite evidence that he received in-hand service” on November 2, 1992. Additionally, the trial court concluded that the defendant was not prevented by accident, mistake or other reasonable cause from filing an appearance and, therefore, his motion to open should be denied.

I

The defendant first argues that the trial court improperly refused to recognize his February 18, 1993 letter to the clerk of the court as a valid pro se appearance. We disagree.

The rule concerning appearances “is a rule of convenience, and as such should be observed”; Schoonmaker v. Albertson & Douglass Machine Co., 51 Conn. 387, 393 (1884); however, “there may be an actual appearance for all the purposes of a defense without an entry on the docket.” Id., 393-94. Additionally, “The entry of an appearance need not necessarily be made by filing a formal appearance form.” Beardsley v. Beardsley, 144 Conn. 725, 730, 137 A.2d 752 (1957). The rules of practice will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work an injustice. Practice Book § 1-8, formerly § 6; Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978).

The defendant is correct when he argues that the letter may have constituted an appearance as a matter of law. He is not correct, however, when he states that the trial court “abused its discretion” in concluding that it did not. The trial court concluded that the letter lacked the substance to satisfy the minimum requirements of Practice Book § 64 (b), now § 3-3, which defines the requirements for a valid appearance. The letter did not contain the defendant’s address or the name of the case to which it was referring. In addition, the defendant did not cite the plaintiffs name or the return date. We note also that while the defendant knew, through the in-hand service of process, that the name “Zeake” Thomas was used to identify the named defendant, he never informed the clerk of court that this was his “other name.” While the defendant’s name is Virgil F. Thomas, he has often used Zeake Thomas, including in placing advertisements in the telephone directory.

We conclude that the trial court properly ruled that this letter did not satisfy the minimum requirements of an appearance. We find that the court’s determination was not clearly erroneous and conclude that the letter did not constitute an appearance as a matter of law.

II

The defendant next claims that the trial court improperly denied his motion to open by concluding that he had not sustained his burden of demonstrating that he was prevented by mistake, accident or other reasonable cause from appearing to defend this action. We disagree.

Where a trial court has the power to open a judgment, its action represents an exercise of discretion, and that court’s decision will not be disturbed on appeal “unless the court acted unreasonably and in clear abuse of its discretion.” Danise v. Budget Rent-A-Car of Westchester, Inc., 41 Conn. App. 297, 299, 675 A.2d 464 (1996). The denial of a motion to open a judgment should not be held to be an abuse of discretion in any case in which it appears that the moving party has not been prevented by mistake, accident or other reasonable cause from making a defense. See Jaconski v. AMF, Inc., 208 Conn. 230, 238, 543 A.2d 728 (1988); see also General Statutes § 52-212 (a); Practice Book § 17-43, formerly § 377.

In this case, although the defendant had actual notice of the pending case by reason of the in-hand service, he failed to take any action other than to send the letter. While it may have been his mistaken perception of what steps he had to take that prevented him from defending, his error does not constitute a demonstration of mistake, accident or other reasonable cause that prevented him from defending the plaintiffs case. The defendant did not sustain his burden. We cannot conclude that the trial court abused its discretion in denying the defendant’s motion.

Ill

The defendant’s final claim is that the trial court improperly excluded his testimony at the hearing on his motion to open concerning the status of his health. We disagree.

“The trial court has broad discretion in determining the relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). We afford atrial court’s ruling on the admissibility of evidence great deference. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). Its evidentiary rulings will be set aside only where there has been a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990).” State v. Reddick, 36 Conn. App. 774, 789, 654 A.2d 761, cert. denied, 232 Conn. 922, 656 A.2d 671 (1995).

Here, because there was no offer of proof made, we cannot review what the proffered evidence would have been so as to determine its relevance. The record is not clear as to what period of time the defendant sought to testify regarding his health. We similarly cannot ascertain the reason for which this evidence was being offered. “Without an adequate record on which to review the rulings of the trial court, this court must assume that the trial court acted properly. Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979); Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971).”State v. James L., 26 Conn. App. 81, 86, 598 A.2d 663 (1991). We therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant admitted to having received service of process during a hearing that was held on the his motion to open and set aside the default judgment rendered against him. The following colloquy took place between the court and the defendant:
      “The Court: Are you familiar with the lawsuit that has brought us here in court today, Burton Fontaine versus Zeake Thomas?

        “[The Defendant]: Yes, sir, I am.
      “The Court: When did you first learn about the lawsuit?
      “[The Defendant]: I got notice by a sheriff serving the papers from Brown, Jacobson [the plaintiff’s law firm],
      “The Court,: And when did you first become aware that Mr. Fontaine had a potential claim against you?
      “[The Defendant]: In the fall of 1992.”

       The defendant’s letter dated February 18, 1993, is as follows:
      “FROM: MR. VIRGIL F. THOMAS:
      TO: CLERK OF SUPERIOR COURT:
      RE: MOTION FOR DEFAULT:
      DEAR MS. DOHERTY,
      I RECEIVED THE FOLLOWING LETTER IN THE MAIL YESTERDAY, AND WAS SOMEWHAT TAKEN ABACK. I FIND THAT I HAVE BEEN TAKEN TO COURT, UNDER ANOTHER NAME, HAVE BEEN DEFAULTED IN AN ACTION, FOR WHICH I, OR MY ATTORNEYS HAVE NEVER BEEN NOTIFIED. I HAVE BEEN IN TOUCH WITH THE GOVERNOR’S OFFICE ABOUT THIS MATTER, AND HAVE BEEN ADVISED TO CONTACT THE COURT INVOLVED, WHICH I AM DOING.
      HAD I HAVE BEEN NOTIFIED OF ANY COURT DATES, CONCERNING MYSELF, I OBVIOUSLY WOULD HAVE APPEARED, WITH COUNSEL. I DID NOT GET ANY SUCH NOTICE FROM THE COURTS. IN CLOSING, I WISH TO HAVE THE NAMES OF THE PERSONS RESPONSIBLE FOR THIS NOTIFICATION PROCESS, AND ALSO THE .JUDGE PRESIDING, WHO ISSUED THIS MOTION. TIMES ARE CHANGING, BUT WE STILL ARE ENTITLED TO DUE PROCESS, AND IF ANY ACTIONS ARE TAKEN AGAINST ME OR ANY OF MY PROPERTY, BY MR. FONTAINE, OR HIS ATTORNEYS, BEFORE THIS MATTER IS SETTLED, I WILL NOTIFY GOVERNOR WEICKER’S OFFICE, ALONG WITH THE BAR REVIEW COMM., ABOUT THESE PROCEDURES YOU HAVE UNDERTAKEN.

        PLEASE FORWARD TO ME, ALL NOTICES OF COURT ACTION, DATES, ETC., ALONG WITH ANY CERTIFIED RECEIPTS OF SAME.
      RESPECTFULLY SUBMITTED:
      VIRGIL F. THOMAS”

       In this case, the defendant’s motion to open was filed on February 10, 1997, over two years after the judgment was rendered. Pursuant to Practice Boole § 377, now § 17-43, “[a]ny judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent . . . .” (emphasis added); see also General Statutes § 52-212. Normally, “[a] trial court has no jurisdiction to open a judgment beyond the four month period.” Serrano v. Behar, 15 Conn. App. 308, 311, 544 A.2d 250 (1988). The record discloses, however, that counsel for the plaintiff failed to mail notice of the default judgment to the defendant as required by Practice Book § 354, now § 17-22. “We have indicated that for the purpose of opening a default judgment pursuant to General Statutes § 52-212, a delay in notifying the defendant of the judgment would merely extend the time in which the defendant could move to set aside the judgment. DiSimone v. Vitello, 6 Conn. App. 390, 393, 505 A.2d 745 (1986).” Handy v. Minwax Co., 46 Conn. App. 54, 57, 698 A.2d 339, cert. denied, 243 Conn. 921, 701 A.2d 342 (1997). The court was correct, therefore, in entertaining the defendant’s motion and in applying the test set forth in Practice Book § 377, now § 17-43, and General Statutes § 52-212 (a) in determining whether that motion should be granted.

         The trial court’s memorandum of decision on the denial of the defendant’s motion to open was filed on July 29,1997. On August 25,1997, the defendant filed a motion for articulation, which was denied by the trial court on September 8, 1997. The defendant did not file a motion for review of that denial with this court.

       At the time of the defendant’s letter to the clerk of the court, Practice Book § 64 (b) provided: “After the writ has been filed the attorney for any party to any action, or any party himself, may enter his appearance in writing with the clerk of the court to which such action is returnable.
      “Each such appearance shall (1) be typed or printed on legal size paper until January 1, 1979, when size 8 1/2” x 11” paper shall thenceforth be used, (2) be headed with the name and number of the case, the name of the court to which it is returnable and the date, substantially in conformity with the applicable form in the Practice Book, (3) be legibly signed by the individual preparing the appearance with is own name and (4) state the party or parties for whom the appearance is being entered and the official (with position or department, if desired), firm, professional corporation or individual whose appearance is being entered, together with the juris number assigned thereto if any, and the mailing address.” See Practice Book § 3-3.

       The defendant does not claim that his conduct in any way operated as an appearance.

       The defendant refers to an incorrect standard of review. Our standard of review is whether the trial court’s findings were clearly erroneous; In re Michael A., 47 Conn. App. 105, 109, 703 A.2d 1146 (1997); and also whether the letter, as a matter of law, constituted an appearance by facially satisfying the minimum requirements of an appearance.


author: DALY, J.

text:
    ROBERTA D. STAMP v. ANTHONY J. VISCONTI
    (AC 17785)
    O’Connell, C. J., and Hennessy and Daly, Js.
    Submitted on briefs September 18
    officially released November 17, 1998

      John F. Morris and Raynald B. Cantin filed a brief for the appellant (defendant).

      Noah H. Starkey filed a brief for the appellee (plaintiff).
   Opinion

DALY, J.

The defendant, Anthony J. Visconti, appeals from the judgment of the trial court in an action for dissolution of marriage. The defendant claims that the trial court improperly excluded the plaintiffs 401(k) retirement plan as a marital asset. We agree.

The trial court found that the major asset of the marriage was the family home located at 21 Abbey Drive in the town of Hebron. The trial court found that the home’s fair market value was $142,000 subject to a mortgage balance of $83,800, leaving equity in the home of $58,200. The only other significant asset of either party in this fourteen year marriage was the plaintiffs 401(k) retirement account valued at $129,000, which was fully funded by her employer. After ordering no alimony to either party, the trial court awarded the family home to the plaintiff who was to transfer $20,000 from her 401(k) account to the defendant for his share therein.

In response to a motion for articulation, the trial court stated: “The 401(k) pension plan was entirely funded by the plaintiff’s employer . . . during the approximately 24 years the plaintiff has been employed by him. The defendant has made no contribution to this asset and neither has the plaintiff, thus there was no loss of marital income attributed to the 401(k) plan. It would not be equitable under these circumstances to award the defendant a share of this asset beyond that ordered to compensate him for the increased value of the real estate . . . .”

“An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented.” Rostain v. Rostain, 213 Conn. 686, 693, 569 A.2d 1126 (1990); see Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985). It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. On appeal, it is the function of this court to determine whether the trial court abused its discretion in its decision. Michel v. Michel, 31 Conn. App. 338, 340, 624 A.2d 914 (1993).

“Pension benefits represent a form of deferred compensation for services rendered. . . . They do not constitute mere gratuities ... as the interest in receiving such benefits is contractual in nature. Whether the plan is contributory or noncontributory, the employee receives a lesser present compensation plus the contractual right to the future benefits payable under the pension plan.” (Citations omitted; internal quotation marks omitted.) Krafick v. Krafick, 234 Conn. 783, 794-95, 663 A.2d 365 (1995). “Pension benefits are widely recognized as among the most valuable assets that parties have when a marriage ends.” Id., 796. “Thus, we conclude that ‘property’ as used in [General Statutes] § 46b-81, includes the right, contractual in nature, to receive vested pension benefits in the future.” Id., 798.

A fundamental principle in dissolution actions is that a trial court may exercise broad discretion as it considers all relevant statutory criteria. Burns v. Burns, 41 Conn. App. 716, 721, 677 A.2d 971, cert. denied, 239 Conn. 906, 682 A.2d 997 (1996). Here, the trial court failed to do so in not considering the plaintiffs 401(k) account as a marital asset. “[T]he financial orders in an action for dissolution of marriage are of necessity interwoven and because the rendering of a judgment in an action for the dissolution of marriage is a ‘carefully crafted mosaic’"; Michel v. Michel, supra, 31 Conn. App. 341; we must remand the case to the trial court for a new trial on all financial matters.

The judgment is reversed as to the financial orders only and the case is remanded for a new hearing on all financial issues.

In this opinion the other judges concurred.

       An employer who wants to provide retirement benefits for employees will oust omarily establish a pension, profit-sharing or stock bonus plan that qualifies for preferential tax treatment. See Internal Revenue Code (I.R.C.) § 401. A 401(k) plan is a type of pension plan under I.R.C. § 414(i). Under a 401(k) plan, employee contributions are not included in the income of a participant. See I.R.C. §§ 401(k) and 402(e)(3); Internal Revenue Code Reg. §§ 1.401(k)-l and 1.402(a)-l(d).


author: O’CONNELL, C. J.

text:
    DWAIN CHARLTON v. COMMISSIONER OF CORRECTION
    (AC 18189)
    O’Connell, C. J., and Hennessy and Stoughton, Js.
    Argued September 22
    officially released November 17, 1998

      James A. Shanley, special public defender, for the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Opinion

O’CONNELL, C. J.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas coipus. The petitioner claims that the habeas court improperly rejected his claim of “actual innocence” as articulated by our Supreme Court in Miller v. Commissioner of Correction, 242 Conn. 745, 700 A.2d 1108 (1997). We affirm the judgment of the habeas court.

The sole issue on appeal is whether the habeas court properly determined that the petitioner had failed to meet his burden of proof with respect to his claim of actual innocence. Our determination of this issue requires that we review both the evidence produced at the petitioner’s criminal trial and the facts found by the habeas court.

The evidence supporting the petitioner’s criminal conviction was as follows. On June 24, 1990, the petitioner and the victim were at an after-hours bar in New Haven. An argument ensued between them, and the victim was shot in the face causing a life threatening injury. The petitioner fled the bar immediately following the shooting and was later arrested.

The petitioner testified at the criminal trial that the victim produced the gun and was shot when the gun discharged accidentally during the altercation between the parties. The victim testified to the contrary, that the petitioner produced the pistol and shot him.

The petitioner’s criminal trial concluded on November 30, 1991, with a conviction of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). This court affirmed the judgment of conviction on direct appeal in State v. Charlton, 30 Conn. App. 359, 620 A.2d 1297, cert. denied, 225 Conn. 922, 625 A.2d 824 (1993).

At the habeas hearing, the petitioner called two witnesses who had not testified at his criminal trial. Roger Woodson and Stanley Thompson both testified that they were present in the bar on the night of the shooting and saw the victim produce the weapon. Both Woodson and Thompson are convicted felons who are presently serving prison sentences.

The habeas court considered all of the evidence in light of the “actual innocence” standard set forth in Miller and concluded that the petitioner failed to satisfy the second prong of the MiUer standard because “[w]hile the petitioner’s criminal case may have been enhanced by having his story reiterated by other witnesses, this enhancement fails to rise to the level of making the petitioner’s guilt so improbable that no reasonable trier of fact would convict him as was the case in Miller . . . .” The petitioner now claims on appeal that the habeas court improperly applied the “actual innocence” standard set forth in Miller in holding that the petitioner did not sustain his burden of proof of actual innocence.

A habeas petitioner’s claim of actual innocence may entitle him to a new trial despite the absence of a constitutional violation at the criminal trial. Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994). In Miller v. Commissioner of Correction, supra, 242 Conn. 745, our Supreme Court established a two-pronged test for evaluating a claim of actual innocence. “First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that, after considering all of that evidence and the inferences drawn therefrom ... no reasonable fact finder would find the petitioner guilty.” Id., 791-92.

With respect to the first Miller prong, the clear and convincing standard is met only if “the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Emphasis in original; internal quotation marks omitted.) Id., 794; State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 2103, 104 L. Ed. 2d 664 (1989). We are mindful that “[t]his standard of proof should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.” (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 539, 441 A.2d 151 (1981).

Here, the new evidence presented by the petitioner at the habeas hearing consisted of the unsupported testimony of two convicted felons who had little to lose by testifying falsely for their fellow inmate. Conversely, in Miller, the newly discovered evidence presented at the habeas hearing consisted of the inculpatory testimony of an individual who, by testifying, “was exposed to a substantial period of incarceration”; Miller v. Commissioner of Correction, supra, 242 Conn. 778; in addition to a substantial amount of circumstantial evidence in support of the witness’ testimony. The habeas court in Miller acknowledged that “ ‘if the petitioner’s case consisted of no more than [the new witness’] unvarnished claims, his credibility alone, without the external corroboration presented during the habeas hearing, would not entitle [the petitioner] to relief.’ ” Id., 780. In fact, in Miller, “[t]he habeas court specifically credited ‘substantial circumstantial evidence to corroborate [the witness’] testimony.’ ” Id., 784-85.

In the present case, in light of the victim’s testimony at the criminal trial, and in light of the highly suspect nature of the unsupported testimony of the two newly discovered witnesses, there is nothing to indicate that the testimony is “highly probably true” or that the probability that the testimony is true is “substantially greater” than the probability that it is false. Accordingly, the testimony falls short of the type of evidence necessary to satisfy the first prong of the Miller test.

The petitioner fares no better under the second Mi/fer prong. The habeas court correctly concluded that despite the testimony of the newly discovered witnesses, which testimony corroborated the petitioner’s version of the events of the evening of the shooting, it cannot be said that “no reasonable fact finder would find the petitioner guilty of the crime”; id., 747; based on the aggregate of evidence from the criminal and habeas trials. The credibility of witnesses is for the trier of fact to determine. State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995); State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). Merely because a greater number of witnesses testify as to a particular version of the facts does not make that version binding on the trier. Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 404, 461 A.2d 422 (1983). At the petitioner’s criminal trial, the victim testified that the petitioner pulled out a pistol, held that pistol to the victim’s face and fired. The habeas court was free to discredit the testimony of the two inmates who testified at the habeas trial.

“The appropriate scope of [appellate] review is whether, after an independent and scrupulous examination of the entire record, we are convinced that the finding of the habeas court [regarding whether the petitioner has established actual innocence] is supported by substantial evidence.” Miller v. Commissioner of Correction, supra, 242 Conn. 803. “[T]ruly persuasive demonstrations of actual innocence after conviction in a fair trial have been, and are likely to remain, extremely rare.” (Internal quotation marks omitted.) Id., 805-806. Applying the appropriate standard of review to the entire record in this case, we conclude that the habeas court properly determined that the petitioner did not establish that he is actually innocent of the crime for which he was convicted.

The judgment is affirmed.

In this opinion the other judges concurred.