author: ZARELLA, J.

text:
    STATE OF CONNECTICUT v. HERMINIO SOTOMAYOR
    (AC 20518)
    Zarella, Pellegrino and O’Connell, Js.

      Argued September 21, 2000
    officially released January 16, 2001

      Jeremiah Donovan, with whom was Rita Christopher, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph T. Corradino, assistant state’s attorney, for the appellee (state).
   Opinion

ZARELLA, J.

The defendant, Herminio Sotomayor, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the trial court improperly (1) admitted into evidence for substantive purposes prior inconsistent written statements of a witness, (2) refused to instruct the jury on manslaughter in the second degree pursuant to General Statutes § 53a-56 (a) (l), and (3) declined to instruct the jury that the use of a deadly weapon in some circumstances may be evidence of extreme indifference to human life pursuant to General Statutes § 53a-55 (a) (3). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the late evening of October 10, 1989, sixteen year old Angel Lauriano and several friends were hurling eggs at passing vehicles on William Street in Bridgeport. At approximately 11p.m., one of the eggs hit a passing vehicle. The driver, who later was identified as the defendant, immediately stopped and emerged from the vehicle armed with a rifle. The defendant chased the fleeing teenagers. Upon nearing Lauriano, the defendant shot the youth six times from behind. Lauriano died from multiple gunshot wounds.

Lauriano’s murder remained unsolved until 1998. In April, 1998, Bridgeport police arrested the defendant’s cousin, Manuel Arvelo, on an unrelated drug offense. While in custody, Arvelo asked to speak with a detective. Arvelo informed Detective Leonard Sattani of the Bridgeport police department that he had information about Lauriano’s death and that his cousin, the defendant, had committed the murder. In a written statement dated April 13, 1998, Arvelo averred: “I saw my cousin stop and get out of his car with this rifle and chase this kid down and shoot him up. ... I saw the kid bending down saying don’t shoot me, he shot him, he emptied out the rifle on him, close range, I was right there.” Arvelo gave a second statement on April 15, 1998, in which he reiterated much of the information that he had provided in his earlier statement. Arvelo swore to and signed each statement.

On April 17, 1998, Bridgeport police executed a warrant for the defendant’s arrest. After waiving his rights to remain silent and to the assistance of counsel, the defendant gave a written statement in which he confessed to shooting Lauriano. The defendant recounted the incident as follows: “I was going down Noble [Avenue] to William [Street]. They started to throw eggs at my car, and it was dark at that time, I got out of the car and I was armed, I saw someone running and I went around this house and I saw this guy coming out and he ran toward me and I did not know if he had a gun, I reacted and I fired several shots. I ran back to the car.” The defendant further stated that he fired about seven or eight shots. Subsequently, the defendant was charged with and convicted of Lauriano’s murder. This appeal followed.

I

The first issue we address is whether the court improperly admitted Arvelo’s written statements into evidence for substantive purposes. The following additional facts and procedural history are relevant to our resolution of this claim.

At trial, Arvelo repudiated his April 13 and 15, 1998 statements. He claimed not to recall the events of October 10, 1989, because they were “[t]oo long ago.” Although the state attempted to refresh Arvelo’s memory by showing him his two written statements, he could remember only talking to Sattani “about something that [he] heard about somebody being killed.” Arvelo attributed his lack of memory to his undergoing withdrawal from heroin at the time that he had given the statements. Nevertheless, Arvelo admitted to signing, without reading, each statement. He further testified that the police did not threaten, use force or promise help with the charges that were then pending against him to obtain his statements. He did claim, however, that the police paid him $20 for signing the April 15, 1998 statement.

On cross-examination by the defense, Arvelo testified that he gave the April 13, 1998 statement after being held for two days on an unrelated drug charge. He also contradicted his earlier testimony, claiming on cross-examination that he gave the April 15, 1998 statement after Sattani picked him up at his home, brought him to the police station and “threatened me if I wouldn’t sign the rest, he would put me back in jail.”

The state then called to the witness stand Sattani, the Bridgeport police detective who had taken each of Arvelo’s statements. Sattani disputed Arvelo’s recollection and testified as follows. On April 13, 1998, he received a call from the booking officer saying that an incarcerated individual wanted to speak with a detective. Sattani did not know Arvelo or why he wanted to talk to a detective. He also did not know Arvelo’s status with respect to any pending charges. According to Sat-tani, Arvelo told him that “he had information regarding a homicide that occurred several years ago and that he was willing to talk to me about that.” Without inducement or promises from Sattani, Arvelo agreed to give a signed, sworn statement.

Sattani further testified that he asked Arvelo the questions and then typed Arvelo’s responses. According to Sattani, Arvelo then read and signed each page of the written statement. Sattani testified that Arvelo also acknowledged the truth of the statement. Sattani recalled that Arvelo did not exhibit difficulty in reading the statement and that he did not ask any questions about its contents or want to correct the statement in any way.

On cross-examination by the defense, Sattani admitted that he did not know how long Arvelo had been at the station before speaking with him. When asked whether he could recognize an individual experiencing narcotics withdrawal, Sattani answered that he could and that Arvelo neither appeared to be under the influence of narcotics nor exhibited symptoms of withdrawal.

Following Sattani’s cross-examination, the court excused the jury and, thereafter, held a hearing on the admissibility of Arvelo’s April 13, 1998 written statement for substantive purposes. The defense did not dispute that Arvelo signed and swore to the statement. Instead, the defendant argued, as he does before this court, that the circumstances at the time Arvelo gave the statement, coupled with the fact that the events discussed therein took place at least nine years earlier, evidenced the inherent untrustworthiness of the information it contained. The state countered that State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), contemplated the present situation, namely, a witness on the stand repudiating his prior inconsistent written statement, and that the statements should be admitted for substantive purposes because each satisfies the four criteria for admissibility under Whelan.

The court found, inter alia, that Arvelo volunteered the information without suggestion from Sattani or any other officer and that Arvelo was not undergoing narcotics withdrawal at the time he gave the statement. The court further noted that although Arvelo claimed to be experiencing heroin withdrawal as he was testifying, “[h]e picked and chose what he was going to answer; which he would agree was in the statement; which he said was not accurate; his thought process while stating that he was at the present time undergoing withdrawal; was unimpaired as far as I could determine from making selective] decisions about the statement he had given.” Over the defendant’s objection, the court admitted Arvelo’s April 13, 1998 statement for substantive purposes.

In the presence of the jury, the state further questioned Sattani about Arvelo’s April 15, 1998 statement. According to Sattani, Arvelo returned to the detective bureau on April 15, 1998, of his own accord and gave a second statement regarding the Lauriano killing. In recording Arvelo’s second statement, Sattani followed the same procedures that he had used to transcribe the first statement. Sattani further testified that although he did not make any threats against or promises to Arvelo, another Bridgeport police officer gave Arvelo $20 because Arvelo claimed to need it for his children. Sattani emphatically denied that he and Arvelo discussed the $20 prior to taking the second statement or that Arvelo was given the money in exchange for his testimony. Over the defendant’s objection, the court admitted Arvelo’s April 15, 1998 statement pursuant to State v. Whelan, supra, 200 Conn. 743.

While the defendant does not dispute that Arvelo swore to and signed the two statements, he argues, instead, that the circumstances giving rise to the statements lack the necessary indicia of reliability for admission under the Whelan doctrine, and, thus, the court improperly admitted the statements into evidence for substantive purposes. The defendant calls our attention to the fact that the information contained in Arvelo’s statements pertained to events occurring approximately nine years earlier. He also points to Arvelo’s testimony that he was experiencing heroin withdrawal symptoms when he had given the statements. The defendant further highlights the facts that Arvelo was in custody when he gave the first statement and that Arvelo received $20 from the Bridgeport police after he signed the second statement.

The defendant contends that, regardless of whether the prior inconsistent statements meet the safeguards mandated in Whelan, a written and signed statement from a witness who is being held on pending criminal charges should not be admitted into evidence for substantive purposes. The state argues, on the other hand, that Arvelo’s two written statements meet the Whelan criteria and, therefore, that the court properly admitted the statements for substantive purposes. We agree with the state.

Under State v. Whelan, supra, 200 Conn. 753, a prior inconsistent statement may be admitted into evidence for substantive purposes where (1) the statement is in writing, (2) the statement is signed by the declarant, (3) the declarant has personal knowledge of the facts contained therein and (4) the declarant testifies at trial and is subject to cross-examination. Our Supreme Court recently reiterated in State v. Mukhtaar, 253 Conn. 280, 305-306, 750 A.2d 1059 (2000), that the admissibility of a prior inconsistent statement depends on the satisfaction of these four requirements.

“A Whelan claim is evidentiary in nature and, accordingly, the defendant bears the burden of establishing that the trial court’s erroneous ruling was harmful to him in that it probably affected the outcome of the trial.” (Internal quotation marks omitted.) State v. Robinson, 56 Conn. App. 794, 798, 746 A.2d 210, cert. denied, 253 Conn. 904, 753 A.2d 938 (2000). The admissibility of a prior inconsistent statement under Whelan “is a matter within the wide discretion of the trial court. . . . On appeal, the exercise of that discretion will not be disturbed except on a showing that it has been abused.” (Citation omitted.) State v. Newsome, 238 Conn. 588, 596, 682 A.2d 972 (1996).

“As with any statement that is admitted into evidence under a hearsay exception, a statement that satisfies the Whelan criteria may or may not be true in fact. But, as with any other statement that qualifies under a hearsay exception, it nevertheless is admissible to establish the truth of the matter asserted because it falls within a class of hearsay evidence that has been deemed sufficiently trustworthy to merit such treatment. Thus, as with all other admissible nonhearsay evidence, we allow the fact finder to determine whether the hearsay statement is credible upon consideration of all the relevant circumstances. Consequently, once the proponent of a prior inconsistent statement has established that the statement satisfies the requirements of Whelan, that statement, like statements satisfying the requirements of other hearsay exceptions, is presumptively admissible.

“Of course, a prior inconsistent statement that fulfills the Whelan requirements may have been made under circumstances so unduly coercive or extreme as to grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of the witness. In such circumstances, the trial court must act as a gatekeeper to ensure that the statement does not go to the jury for substantive purposes. We emphasize, however, that the linchpin of admissibility is reliability: the statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process. In the absence of such a showing by the party seeking to exclude a statement that meets the Whelan criteria, the statement is admissible as substantive evidence; like all other evidence, its credibility is grist for the cross-examination mill. Thus, because the requirements that we established in Whelan provide a significant assurance of reliability, it will be the highly unusual case in which a statement that meets the Whelan requirements nevertheless must be kept from the jury.” (Emphasis in original.) State v. Mukh-taar, supra, 253 Conn. 306-307.

The defendant must concede that Arvelo’s statements satisfy three of the four Whelan requirements: (1) Arvelo’s prior inconsistent statements were in writing; (2) Arvelo signed the statements; and (3) Arvelo testified and was subject to cross-examination at trial. Notwithstanding Arvelo’s testimony that he did not have personal knowledge of the facts contained in his statements, the court found that Arvelo signed and swore to the truth of the statements. See State v. McDougal, 241 Conn. 502, 510, 699 A.2d 872 (1997) (statement signed under oath after declarant advised that it is crime to give false statement provides significant assurance of statement’s accuracy); State v. Newsome, supra, 238 Conn. 600 (signed and sworn out-of-court statement has added assurance of reliability because, if untrue, declarant may face prosecution for giving false statement to police). Moreover, the court noted that Arvelo provided details of the shooting without suggestion from the interviewing officer and that the testimony of Marshall Robinson, a ballistics expert, corroborated much of the information provided. These findings are supported by the evidence and, therefore, are not clearly erroneous.

The court’s implicit finding that the circumstances surrounding Arvelo’s statements did not warrant withholding the statements from the jury was not an abuse of its wide discretion in such matters. The transcript of the proceedings shows that Arvelo initiated contact with the detective bureau of the Bridgeport police department and volunteered information about the Lauriano homicide, despite being in custody on an unrelated charge. Although the testimony conflicted regarding the $20 that a police officer gave to Arvelo after he signed and swore to his second statement, Arvelo testified that the police did not threaten or promise him anything in exchange for either of his statements. These circumstances are not so unduly coercive or extreme as to undermine grievously the reliability of Arvelo’s statements.

Lastly, whether Arvelo was under the influence of narcotics, experiencing narcotics withdrawal or felt pressured by the police to give each of his statements “were relevant and proper matters for cross-examination . . . [that] go to the weight of the evidence and not its admissibility.” (Internal quotation marks omitted.) State v. Mukhtaar, supra, 253 Conn. 308. We accordingly conclude that the court properly admitted into evidence Arvelo’s prior inconsistent statements for substantive purposes.

II

The defendant next claims that while the court instructed the jury on murder and, as the defense requested, manslaughter in the first degree, it improperly refused the defendant’s request to instruct the jury on the lesser included offense of manslaughter in the second degree. The defendant argues that this denial constitutes reversible error. We disagree.

Section 53a-54a (a) provides in relevant part that “[a] person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .” Whether the defendant was entitled to a jury instruction on a lesser included offense of murder depends on whether the defendant satisfied the requirements of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

A defendant does not have a “fundamental constitutional right to a jury instruction on every lesser included offense . . . rather, the right to such an instruction is purely a matter of our common law.” (Citation omitted; internal quotation marks omitted.) State v. Dupree, 56 Conn. App. 631, 642, 745 A.2d 832, cert. denied, 252 Conn. 952, 749 A.2d 1203 (2000). Under Whistnant, “[a] defendant is entitled to an instruction on a lesser-offense if, and only if ... (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” (Internal quotation marks omitted.) State v. Preston, 248 Conn. 472, 476, 728 A.2d 1087 (1999), quoting State v. Whistnant, supra, 179 Conn. 588; see also State v. Dupree, supra, 642.

For the third and fourth requirements of Whistnant to be satisfied, “there must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs, to justify a finding of guilt of the lesser offense.” (Emphasis in original; internal quotation marks omitted.) State v. Crafts, 226 Conn. 237, 251, 627 A.2d 877 (1993). In viewing the evidence in the light most favorable to the defendant; State v. Gebeau, 55 Conn. App. 795, 798, 740 A.2d 906 (1999), cert. denied, 252 Conn. 922, 747 A.2d 519 (2000); we conclude that there was insufficient evidence presented to justify a finding of guilty of manslaughter in the second degree and, therefore, that the defendant was not entitled to an instruction on that lesser included offense.

The requisite state of mind distinguishes murder from manslaughter in the first or second degree. The offense of murder requires that the defendant intentionally cause the death of another; General Statutes § 53a-54a (a); while the offense of manslaughter in the first or second degree requires the lesser state of mind of recklessness. General Statutes §§ 53a-55 (a) (3) and 53a-56 (a) (1).

What distinguishes manslaughter in the first degree from manslaughter in the second degree is the defendant’s level of recklessness that the state must prove to obtain a conviction. Under § 53a-55 (a), “[a] person is guilty of manslaughter in the first degree when . . . (3) . . . he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” Moreover, manslaughter in the first degree requires that the defendant have acted “under circumstances evincing an extreme indifference to human life . . . .” General Statutes § 53a-55 (a) (3). The offense of manslaughter in the second degree, by contrast, requires that the defendant merely acted recklessly and that such reckless conduct caused the death of another person. General Statutes § 53a-56 (a) (1).

At trial, the defendant made a written request, pursuant to Practice Book § 42-16 et seq., to charge the jury on manslaughter in the first and second degrees. Notwithstanding that the defendant testified in his own defense and denied shooting Lauriano, the defendant offered as the sole factual basis for his request to charge both lesser included offenses his earlier statement to the police that “I saw someone running and I went around this house and I saw this guy coming out and he ran toward me and I did not know if he had a gun, I reacted and fired several shots.”

The defendant hypothesizes in his appellate brief that if the instruction had been given, the jury could have determined that the defendant’s conduct resulted from an outburst of anger over having an egg thrown at his vehicle rather than from conduct evincing an indifference to human life. The defendant further contends that it was equally possible for the jury to determine that he shot at what he believed to be empty space and thereby hit Lauriano who was running away.

Our Supreme Court has “expressly rejected the proposition that a defendant is entitled to instructions on lesser included charges based on merely theoretical or possible scenarios.” State v. Crafts, supra, 226 Conn. 251; State v. Rasmussen, 225 Conn. 55, 66-67, 621 A.2d 728 (1993). The defendant’s argument rests solely on his statement to the police disavowing the charges and the attendant assumption that his conduct was merely reckless. Yet, the defendant’s statement was inextricably linked to overwhelming evidence showing that he chased Lauriano and shot him at close range, and that Lauriano was shot six times from behind. Moreover, there was no evidence introduced at trial indicating that Lauriano had in his possession a firearm or any other weapon on the night that he died.

At trial, Malka Shah, an associate medical examiner with the state, testified that “[tjhere were no entry wounds found on the front of [Lauriano’s] body” and that “[a]ll entry wounds were found in the back of the deceased person.” She further testified that she retrieved several bullets from Lauriano’s body during the autopsy examination. Robinson, who examined the shell casings found at the scene and the bullets retrieved from Lauriano’s body, testified that such casings and bullets were fired from a .22 rifle. Robinson’s testimony was consistent with the defendant’s statement that he shot the victim with “[a] rifle, a .22 rifle.” Rather than demonstrating guilt of the lesser included offense of manslaughter in the second degree, as required under the fourth requirement of Whistnant, the defendant’s statement, in conjunction with the other evidence, demonstrates that the defendant engaged in conduct that created “a grave risk of death to another person . . . .” General Statutes § 53a-55 (a) (3).

We conclude that the court properly determined that the evidence was insufficient to justify a finding of guilty of manslaughter in the second degree. We further conclude that the court acted properly when it denied the defendant’s request to instruct the jury on manslaughter in the second degree.

III

The defendant’s final claim is that the court improperly declined to instruct the jury that, in certain circumstances, the use of a deadly weapon could evince an extreme indifference to human life. The state argues in response that the decision to comment on the evidence, when charging the jury, is within the discretion of the trial court and that the court did not abuse its discretion in this instance.

“Our standard of review for claims of instructional impropriety is well established, [individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rule of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error.” (Citations omitted; internal quotation marks omitted.) State v. Floyd, 253 Conn. 700, 714, 756 A.2d 799 (2000). Therefore, “[t]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly represents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [J]ury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) State v. Taft, 57 Conn. App. 19, 29, 746 A.2d 813, cert. granted on other grounds, 253 Conn. 909, 753 A.2d 942 (2000).

The following additional facts are relevant to our resolution of this issue. The court prefaced its instructions to the jury by cautioning that “[i]f I refer to any evidence in this case, and I will during the course of this instruction, it will be for the purpose of illustration and clarification. You are not to understand that I intend to emphasize any evidence. And the evidence that I mention is not to be highlighted by you.” Thereafter, when defining the elements of murder, the court explained in relevant part: “An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wounds inflicted and the events leading to and immediately following the death. One who uses a deadly weapon upon the vital parts of another will be deemed to have intended the probable result of that act. And from such circumstances a proper inference may be drawn, in some cases, that there was an intent to kill.” The court did not explain, however, that the use of a deadly weapon also may evince extreme indifference to human life when it instructed the jury on manslaughter in the first degree.

Shortly after retiring to the deliberation room, the jury sought a clarification of the elements of murder and manslaughter. The court reinstructed the jury in the same manner as it did with its original instruction. The court reiterated its instruction on the element of intent, explaining that “[t]he intent to commit murder, as we indicated, may be inferred from the circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wounds inflicted and the events leading up to and immediately following the death of Lauriano. One who uses a deadly weapon upon the vital part of another will be deemed to have intended the probable result of that act and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.”

The defendant objected to the court’s original instruction. The defendant argued that “the court should not direct the jury to find that in some cases that they can infer an intention to kill by the use of a deadly weapon.” The defendant also objected to the court’s reinstruction on the element of intent.

The defendant argues to this court that although the use of a deadly weapon is not material to whether the charge is murder or manslaughter in the first degree, “[w]hat is material is the intent that such use demonstrates.” The defendant further argues that because the court instructed the juiy that the use of a deadly weapon maybe evidence of specific intent in the murder charge, it also should have instructed the jury that such use maybe considered evidence of an extreme indifference to human life under the manslaughter in the first degree charge.

We agree with the defendant insofar as the use of a deadly weapon is immaterial to whether the charge is murder or manslaughter in the first degree. We disagree, however, that the facts of this case required the judge to charge in accordance with the defendant’s request that the use of a deadly weapon could be evidence of an extreme Indifference to human life. The objective evidence in this case shows that Lauriano was shot six times from behind and that he died from these gunshot wounds. Moreover, there was no evidence of any frontal entry wounds. Therefore, under the circumstances of this case, the instruction fairly represented the case to the jury so that injustice was not done to either party. We conclude that the court did not abuse its discretion by refusing to give the requested instruction.

We next inquire whether there is a reasonable probability that the instruction as a whole misled the jury. We conclude that the instruction did not mislead the jury, especially in light of the court’s lengthy explanation of the meaning of recklessness in the context of manslaughter in the first degree.

The court explained that to find the defendant guilty of manslaughter in the first degree, the jury must find that the state proved beyond a reasonable doubt that the defendant “recklessly engaged in conduct which created a grave risk of death to another person.” The corut further stated that “ [t]he defendant’s conduct then must have created a grave risk of death to another and the defendant’s conduct must have been reckless. A person acts recklessly with respect to a result or to a circumstance described by statute defining an offense when he is aware of and consciously disregards a substantial, unjustifiable risk that such result will occur or that such a circumstance exists. ... In other words, recklessness involves a subjective realization of a risk and a conscious decision to ignore it. The risk must be substantial and unjustifiable.”

The court continued: “There must be a great or substantial difference between, on the one hand, the defendant’s conduct in disregarding a substantial and unjustifiable risk and, on the other hand, what a reasonable person would have done or could have done under the circumstances. The risk that the defendant disregarded must be substantial and unjustifiable. Whether a risk is substantial and unjustifiable is a question of fact for you to determine. You must decide whether the state has proven that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk such that the circumstances under which he acted evidenced an extreme indifference to human life.”

In its reinstruction to the jury, the court again discussed at length each of the elements of manslaughter in the first degree. In explaining the reasonable person standard in the context of the element of recklessness, the court reiterated, in part, that “[y]ou must determine the question of reasonable care by placing an ordinary, prudent person in the situation and the circumstances in which the defendant found himself and then ask yourselves what would a reasonably prudent person have done or not have done in such a situation and under such circumstances. . . . This is a question of fact for you to determine. All [of] the circumstances as you find them to be are to be considered .... That is, [the defendant’s] statement which he’s asking you to consider . . . together with any and all other evidence bearing on his conduct at that time as has been testified to by other witnesses in the case.”

In viewing the court’s instruction to the jury in its entirety, we conclude that the instruction correctly stated the law and sufficiently guided the jury in arriving at a proper verdict. Moreover, whether the court should have commented on the evidence, as the defendant argues, “is largely a matter within its sound discretion.” (Internal quotation marks omitted.) Bushy v. Forster, 243 Conn. 596, 599, 706 A.2d 8 (1998).

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

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

       At trial, the defendant denied telling the police that he lulled Lauriano. Notwithstanding the defendant’s sworn and signed statement, he testified that he did not read the statement before signing it and that he signed it because he feared police retaliation.

       The defendant received an effective sentence of fifty years imprisonment.

       The defendant appealed from the judgment of conviction to our Supreme Court, which transferred the matter to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       Responding to the questions of the state’s attorney, Arvelo testified in relevant part:
      “Q. Mr. Arvelo, were you in the vicinity of Noble Avenue, William Street and Huntington Road on October the 10th of 1989?
      “A. No.
      H: * *
      “Q. Did you ever see someone throw an egg at your cousin Herminio Sotomayor’s car in 1989?
      “A. No.
      * * *
      “Q. On April the 13th of 1998, did you ever tell the police detective you were there to tell him about a shooting that took place in ‘89 or ‘90?
      “A. Yes.
      “Q. And did you also tell the police at this time I was there; it was my cousin Herminio Sotomayor?
      “A. I don’t remember that.”
      * * *
      “Q. Did you ever tell the police I saw my cousin stop and get out of his car with this rifle?
      “A. I don’t recall.
      * * *
      “Q. Did you ever say that your cousin shot the kid because he hit his car with an egg?
      “A. That’s what I heard, hearsay, that some guy named Chino—
      “Q. Did you ever say that?
      “A. No.
      * * *
      “A. I’m a heroin addict, man. I can’t remember a lot of stuff.”

       Sattani testified that he was unaware of the Lauriano homicide at the time Arvelo gave his April 13, 1998 statement.

       The April 13, 1998 statement provides in relevant part:
      “Q. What is your education level?
      “A. 10 grade then GED state.
      * * *
      “Q. Have any promises or rewards been offered to you or have you been threatened in any way into making this statement?

        “A. No.
      * * *
      “Q. At this time, do you waive your rights and are you willing to talk to me, understanding that you do not have to and that I am a sworn police officer?
      “A. Yes.
      “Q. What do you have to tell me?
      “A. I am here to tell you about a shooting that took place back in ‘89 or ‘90,1 was there, it was my cousin Herminio Sotomayor. He was driving his car and I was following him.

        * * *
      “Q. What happened?
      “A. We were right there on William, I did not know what was going on, I saw my cousin stop and get out of his car with this rifle and chase this kid down and shoot him up.
      “Q. Did you see your cousin shoot this kid?
      “A. Yes, I was right there, I saw the kid bending down saying don’t shoot me, he shot him, he emptied the rifle on him, close range, I was right there.
      * * *
      “Q. Why did your cousin shoot this kid?
      “A. Because he hit his car with an egg.
      “Q. Did you know the victim?
      “A. Yes. I knew him, I went out with his sister.
      “Q. What was the name of the victim?
      “A. Angel, they called him Mimo. They put that on the wall across from the funeral parlor in his memory.
      * * *
      “Q. Have you seen your cousin with that gun after the shooting?
      “A. Yes, he still carried it, the cops took the gun from 777 Ogden Street, a red house . . . because this ldd John shot out a light and the cops took the guns and said that if you want them back to come to the police department.
      “Q. Did your cousin ever get the rifle back?
      “A. He never went to pick it up. John did not get his either, he was scared.
      “Q. Why was John scared?
      “A. Because he knew the gun had a body.
      “Q. When you say he knew the gun had a body, do you mean that he knew that your cousin shot and killed the kid with one of the guns taken by the police?
      “A. Yes.
      “Q. Do you remember what month of the year the shooting took place?
      “A. It was October, before Halloween, it was at night, it was dark at the time.
      “Q. You said it was dark at the time of the shooting, did you get a good view?
      “A. I seen him shoot him, there were lights from the funeral home.
      * ** *
      “Q. Why are you talking to the police now about this?
      “A. Because I feel he should pay for this, I am paying for this shit know that’s bullshit, the kid was a good kid.
      “Q. After reading this statement and finding it to be trae as you have told me, will you sign it?
      “A. Yes.”

       Sallará testified that Detective Gill Del Valle of the Bridgeport police department was present when Arvelo signed the April 13, 1998 statement, and that Del Valle administered the oath to Arvelo.

       Under Whelan, a prior inconsistent statement may be admitted into evidence for substantive purposes if it is in writing and signed by the declarant, who has personal knowledge of the facts stated, and the declarant testifies at trial and is subject to cross-examination. State v. Whelan, supra, 200 Conn. 753.

       The April 15, 1998 statement provides in relevant part:
      “Q. Do you remember me talcing a statement from you about two days ago?
      “A. Yes.
      “Q. There are a few things I would like to ask you, would you mind answering a few more questions?
      “A. No, I don’t mind.
      “Q. Were you treated fairly by me before?
      “A. Yes.
      “Q. In regard to the homicide we spoke of, do you remember telling me that your cousin Sotomayor did the shooting back in October of 1989?
      “A. Yes.
      “Q. Did you tell me that he shot and killed Angel who was known as Mimo?
      “A. Yes.
      * ** *
      “Q. Is there anything else you could add that might help us in this case? “A. I can’t think of nothing else right now.
      “Q. Will you make yourself available to us in the future if we need to speak with you?
      “A. Yes.
      “Q. After reading this statement and finding it to be true as you have told me, will you sign it?
      “A. Yes.”

       The court admitted Arvelo’s second statement on the same grounds under Whelan as those on which his April 13,1998 statement was admitted.

       At oral argument before this court, the defendant narrowed his claim, arguing only that the declarant’s condition of experiencing narcotics withdrawal makes his statements to the police so unreliable that the trial court, as the gatekeeper, should have excluded them.

       “Of course, the trial court’s factual findings on this issue will not be disturbed on appeal unless they are clearly erroneous.” State v. Mukhtaar, supra, 253 Conn 307 n.26.

       “[T]he Whelan criteria, particularly cross-examination, provide substantial assurance of reliability. The witness who has told one story aforetime and another today has opened the gates to all the vistas of truth which the common law practice of cross-examination and re-examination was invented to explore. The reasons for the change of face, whether forgetfulness, carelessness, pity, terror or greed, may be explored by the two questioners in the presence of the trier of fact, under oath, casting light on which is the true story and which the false. It is hard to escape the view that evidence of a prior inconsistent statement when the declarant is on the stand to explain it if he can, has in high degree the safeguards of examined testimony. 2 C. McCormick, Evidence [4th Ed. 1992] § 251, p. 120.” (Internal quotation marks omitted.) State v. Mukhtaar, supra, 253 Conn. 305 n.25.

       Although our Supreme Court decided State v. Mukhtaar, supra, 253 Conn. 280, after the parties filed their briefs in this case, the defendant was aware of Mukhtaar and, in fact, substantially based his oral argument to this court on the decision.

       In so deciding, we decline the defendant’s invitation to establish a per se rule that a prior inconsistent statement from a witness who is being held on pending criminal charges should not be admitted for substantive purposes under Whelan.

       Because we decide that the defendant has failed to satisfy the third and fourth requirements under Whistnant, we do not address the state’s argument that the defendant also failed to satisfy the other two requirements.

       The defendant’s sworn and signed, written statement to the police was introduced into evidence. The statement provides in relevant part:
      “Q. Do you know what you are being charged with?
      “A. They say murder.
      H: * *
      “Q. You are being charged with a crime, do you remember what happened and when it occurred?

        “A. In 1989, I was going down Noble Avenue to William Street. They started to throw eggs at my car, and it was dark at that time, I got out of my car and I was armed, I saw someone running and I went around this house and I saw this guy coming out and he ran toward me and I did not know if he had a gun, I reacted and I fired several shots. I ran back to the car.
      “Q. How many shots did you fire?
      “A. About seven or eight, it was something quick.
      “Q. What kind of gun did you have?
      “A. A rifle, a .22 rifle.
      “Q. How many bullets did you have in the gun?
      “A. I don’t remember.
      “Q. How many bullets did the gun hold?
      “A. 14 shots.
      * Hi **
      “Q. What did you do with the .22 rifle?
      “A. I left it at John’s house at 777 Ogden Street.
      “Q. What ever happened to that .22 rifle?
      “A. The police took it from John’s house, John shot at a pole, I think he was trying to shoot out the light.
      “Q. Did you ever go to the police department to get the rifle back?
      “A. No, I don’t know where it is.”

       The court instructed the jury on manslaughter in the first degree substantially in accordance with the defendant’s requested charge. The court charged, in part, that “the state must prove beyond a reasonable doubt that ... the circumstances of the defendant’s conduct demonstrated an extreme indifference to human life. The phrase extreme indifference to human life has its ordinary meaning. Mere callousness is not enough nor is ordinary recklessness sufficient to constitute demonstrating extreme indifference to human life. The law requires circumstances demonstrating the defendant’s extreme indifference to human life.”

       The defendant’s claim is not that the court improperly instructed the jury on an element of murder or manslaughter in the first degree. Rather, the defendant argues that the court improperly refused to instruct the jury that it could also infer from the defendant’s use of a deadly weapon that he acted with extreme indifference to human life.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    ROBERT A. GINSBURG v. CADLE COMPANY
    (AC 19915)
    Landau, Zarella and O’Connell, Js.
    Argued October 17, 2000
    officially released January 16, 2001

      Kenneth A. Votre, for the appellant (plaintiff).

      Timothy D. Miltenberger, for the appellee (defendant).
   Opinion

O’CONNELL, J.

The plaintiff, Robert A. Ginsburg, appeals from the judgment of the trial court denying his amended petition for a new trial on the ground of newly discovered evidence. He claims that the court improperly (1) held that he failed to sustain his burden of proof that there was newly discovered evidence, (2) held that he had the burden of due diligence in discovering untrue testimony and (3) failed to find that untrue testimony at the original trial in this matter affected the outcome of the case. We affirm the judgment of the trial court.

The genesis of this appeal is a promissory note from Ginsburg to Great Country Bank. A similar note was signed by his uncle, Gary Ginsberg. The defendant, Cadle Company (Cadle) purchased both notes from Great Country Bank as part of a package of notes. Cadle thereafter brought separate actions against Robert Ginsburg and Gary Ginsberg. Ajudgment of $161,643.88 plus $15,000 in attorney’s fees rendered in the action against Robert Ginsburg was affirmed on appeal in Cadle Co. v. Ginsburg, 51 Conn. App. 392, 721 A.2d 1246 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999).

Whether Cadle was a holder in due course of Ginsburg’s note was at issue in the former trial. In that action, the court determined that Cadle was a holder in due course because it took the note for value, in good faith and without notice of any defenses. Id., 395-96. In the present case, Ginsburg attempted to show that Cadle did not take the note for value and, therefore, could not be a holder in due course. The court was not persuaded and rendered judgment denying Ginsburg’s petition for a new trial.

Ginsburg claims to have shown that there was newly discovered evidence on the basis of a comparison of the testimony, at the former trial, of Jeffrey Joseph, one of Cadle’s employees, and Joseph’s later testimony in a deposition in the Gary Ginsberg case.

Ginsburg contends that Joseph’s deposition testimony is new evidence of the amount that Cadle paid for Ginsburg’s promissory note and, thus, is new evidence that Cadle was not a holder in due course. The court disagreed with Ginsburg because he had “the burden of proving that the evidence was in fact newly discovered; that it would be material to the issue on a new trial; that it could not have been discovered and produced on the former trial by the exercise of due diligence; that it is not merely cumulative; and that it is likely to produce a different result in a new trial.” Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983).

Joseph testified as follows in the prior action:

“Q. And I think you testified that this [promissory note] was acquired as a package of several loans; is that fair to say?

“A. I believe it’s over a hundred.

“Q. And, sir, can you tell us what the Cadle Company paid for this obligation?

“A. I have no idea. Again, it is a package of loans. There is no way of putting a dollar amount on just this loan.

“The Court: So, what you are saying, sir, is not that you don’t remember, but that the calculation can’t be made because there is one price for the entire package; is that correct?

“Witness: Yes, sir.

“The Court: Thank you.” (Emphasis added.)

Joseph testified as follows in a deposition in the Gary Ginsberg case:

“Q. So, is it fair to say that Cadle paid one cent on the dollar on Mr. [Gary] Ginsberg’s note?

“A. That was the average we paid for the entire pool.

“Q. Do you know how much Cadle specifically paid for Mr. [Gary] Ginsberg’s note?

“A. No.

“Q. Do you know anyone who does know that information?

“A. Again, we acquired this note in a bulk sale, in a bulk purchase, so that one particular note—there was no price for that one. Again, we based our bid on a portfolio of loans.” (Emphasis added.)

In its memorandum of decision, the court concluded: “There is little new in the evidence that [Ginsburg] claims is newly discovered. At the trial of the underlying action, Mr. Joseph testified that [Ginsburg’s] promissory note was acquired as part of a ‘package’ which contained over a hundred other loans. Cadle had bid on the package as a whole. Joseph had ‘no idea’ what Cadle paid for just [Ginsburg’s] loan because it was in ‘a package of loans. There’s no way of putting a dollar amount on just this loan.’

“In his subsequent deposition, Joseph stated that the transaction in which Cadle purchased the note was a ‘bulk sale transaction’ which included ‘approximately 150’ other promissory notes. The nature of the transaction, however, was evident from his trial testimony in which he described the purchase as ‘a package.’”

In denying the petition, the court held that the claimed newly discovered evidence was cumulative of evidence produced at the prior trial. A new trial is not required if the evidence is merely cumulative or duplicative. Carrione v. State, 3 Conn. App. 633, 635, 491 A.2d 421, cert. denied, 197 Conn. 801, 495 A.2d 280 (1985). Where essentially the same evidence is submitted with somewhat more detail, it is, ordinarily, nonetheless cumulative. Dortch v. State, 142 Conn. 18, 26-27, 110 A.2d 471 (1954).

Moreover, “ [t] o entitle a party to a new trial for newly-discovered evidence, it is indispensable that he should have been diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted.” White v. Avery, 81 Conn. 325, 328, 70 A. 1065 (1908).

A new trial will be granted on the basis of newly discovered evidence only if: (1) the newly discovered evidence is in fact newly discovered such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3)' it is not cumulative; and (4) it is likely to produce a different result in a new trial. Williams v. Commissioner of Correction, 41 Conn. App. 515, 528 n.8, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997).

“The function of a court at a hearing for a new trial is to determine whether the evidence presented at the hearing considered with the evidence presented at the original trial warrants the granting of a new trial. That determination is within the sound discretion of the court. Pass v. Pass, [152 Conn. 508, 510, 208 A.2d 753 (1965)]; Krooner v. State, 137 Conn. 58, 62 [75 A.2d 51 (1950)]; Gannon v. State, 75 Conn. 576, 578-79 [54 A. 199 (1903)].” Reilly v. State, 32 Conn. Sup. 349, 356, 355 A.2d 324 (1976). The basic question that the court has to decide is whether, on all of the evidence, an injustice has been done; Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959); and whether it is probable that on a new trial a different result would be reached. Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955).

“A petition for a new trial is addressed to the discretion of the trial court and will never be granted except upon substantial grounds. As the discretion which the court is called upon to exercise is not an absolute but a legal one, we will upon appeal set aside its action when it appeal's that there was a misconception on its part as to the limits of its power, that there was error in the proceedings preliminary to the exercise of its discretion, or that there was a clear- abuse in its exercise of its discretion. Wood v. Holah, 80 Conn. 314, 315, 68 A. 323 [1907].” (Internal quotation marks omitted.) Kubeck v. Foremost Foods Co., supra, 190 Conn. 669-70, quoting E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 610, 153 A.2d 463 (1959).

After concluding that there was no new evidence that would warrant a new trial, the court proceeded to analyze the law pertaining to the due diligence requirement as well as the law pertaining to the requirement that any new evidence would likely produce a different result in a new trial. We have no quarrel with the court’s discussion but, for appellate purposes, the finding that there was no new evidence ended the case.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff and the defendant in the present case were, respectively, the defendant and the plaintiff in a prior, related case. See Cadle Co. v. Ginsburg, 51 Conn. App. 392, 721 A.2d 1246 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999). In an effort to avoid confusion, in this opinion we refer to the parties by name, rather than as the plaintiff and the defendant.

       General Statutes § 52-270 (a) provides in relevant part: “The Superior Court may grant a new trial of any action that may come before it, for . . . the discovery of new evidence . . . .”

       Robert A. Ginsbwrg and his uncle Gary Ginsberg do not spell their last names identically.

       A purchaser of an instrument as part of a bulk transaction may become a holder in due course unless the transaction was not in the regular course of business of the transferor. See General Statutes § 42a-3-302 (c) (ii); cf. Rosa v. Colonial Bank, 207 Conn. 483, 488-89, 542 A.2d 1112 (1988). In the present case, the court found that there was no evidence before it or in the prior case that the transaction by which Cadle acquired the note at issue was other than in the ordinary course of the business of Great Country Bank.

       Ginsburg’s second and third issues concern whether the court, after hearing the evidence, properly concluded that Joseph’s testimony at the prior trial was false or inadvertently untrue. The court heard Ginsburg’s evidence and found that Joseph’s testimony at the prior trial “ ‘appears to be fair and truthful.’ ” That was part of the court’s ultimate conclusion that there was no new evidence.


text:
    STATE OF CONNECTICUT v. ANTOINE WRAGG
    (AC 20000)
    Foti, Schaller and O’Connell, Js.
    Argued October 24, 2000
    officially released January 16, 2001

      Joaquina Borges King, special public defender, for the appellant (defendant).

      Robin S. Schwartz, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C.

      Benedict, state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree in violation of General Statutes § 53a-102 (a), conspiracy to commit burglary in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-102 (a), conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 (a), 53a-123 (a) (2) and 53a-119, and larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (2) and 53a-119. He claims that the trial court improperly (1) denied his motion for a mistrial and (2) denied his motion to suppress evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 7 o’clock on the morning of September 6, 1998, Officer Chris Rubis of the Fairfield police department observed a vehicle in which the operator was not wearing a seat belt in violation of General Statutes § 14-100a (c) (l). Rubis followed the car and radioed for information on the car’s license plate number. In response, he learned that the license plate had not been issued for the vehicle that he was following.

When the driver stopped to get gas, Rubis pulled in behind him and approached the driver, who was identified as the defendant. Although he could not produce any identification for himself or registration documents for the vehicle, he gave Rubis his correct name and date of birth. The defendant and his passenger both told Rubis that they were en route to Stamford despite the fact that they were headed in the opposite direction. During the ensuing conversation, the defendant volunteered the information that he had been released from jail within the past year.

As Rubis was speaking with the defendant and his passenger, Sergeant Tom Mrozek arrived in response to Rubis’ call for backup. Mrozek assisted Rubis by performing criminal history checks which revealed that both the defendant and his passenger had records for burglary and larceny.

During his conversation with the defendant, Rubis observed electronic equipment and a large number of compact discs in plain view on the backseat. The defendant told Rubis that they were his and consented to Rubis’ looking through them. Rubis then asked the defendant if he could take them for safekeeping until the defendant could produce documentation showing his ownership. The defendant agreed. At that point, Rubis had no knowledge of a burglary or similar crime having taken place. Rubis determined that the car belonged to the defendant’s uncle and that the defendant had permission to use it. The defendant then produced the correct license plates and paperwork from the trunk of his car, and Rubis helped put the license plates on the vehicle. Rubis allowed the defendant to leave after issuing him a citation for operating a motor vehicle without a license and misuse of license plates.

The items in question were subsequently identified as having been stolen in a burglary in Fairfield. About three weeks later, as a result of further police investigation, the defendant was arrested on the charges that gave rise to this appeal. At trial, the court, after a hearing, denied his motion to suppress evidence of the items seized from the backseat of his car.

I

The defendant first argues that the court improperly denied his motion for a mistrial on the ground that Rubis improperly testified as to the defendant’s prior criminal record. We do not agree.

The following additional facts are necessary for a resolution of this claim. During trial, Rubis testified on cross-examination as follows:

“Q. . . . What drew your attention to the knapsack or the items on the backseat?

“A. I had no identification on who the operator was and I had no information on what type of vehicle [it] was at that point in time. The assisting officer, Sgt. Mrozek, called into headquarters to assist in identifying who [the defendant] was and ran his name and date of birth through the state of Connecticut criminal history check. In that criminal history check, it was determined that he’s been—he has past convictions for burglaries as well as larcenies, et cetera. And also in interviewing [the defendant] on scene, he told me he had just gotten out of jail within a year prior to that. I’m not sure of the exact amount of time that we had determined.”

The defendant did not move to strike the testimony or request that the court give the jury a curative instruction. Instead, defense counsel completed her cross-examination, and the trial continued with five more witnesses before the state rested.

The following morning, before closing arguments, the defendant moved for a mistrial on the grounds that the court had failed to strike Rubis’ testimony sua sponte and to instruct the jury sua sponte to disregard it.

“[Ejvidence that a criminal defendant has been convicted of crimes on prior occasions is generally not admissible.” State v. McClain, 23 Conn. App. 83, 85, 579 A.2d 564, cert. denied, 216 Conn. 822, 581 A.2d 1056 (1990). This rule, is not, however, without exception. The facts of this case present one such exception. A party may not complain when evidence he invites comes into a case. State v. Smith, 212 Conn. 593, 611, 563 A.2d 671 (1989); State v. Brokaw, 183 Conn. 29, 33, 438 A.2d 815 (1981). In the present case, defense counsel’s cross-examination invited Rubis’ reference to the defendant’s criminal record. Defense counsel knew, from the suppression hearing, that Rubis was suspicious of the items in the backseat, yet counsel made no effort to interrupt Rubis’ testimony, nor did she move to strike it or seek a curative instruction.

The defendant, nevertheless, argues that the corut had a duty to strike the testimony sua sponte and to give a curative instruction. He bases his sua sponte argument on State v. Traficonda, 223 Conn. 273, 282-83, 612 A.2d 45 (1992). This reliance is misplaced. The trial court in Traficonda was not acting sua sponte. Rather, after a witness uttered improper testimony, “[djefense counsel immediately objected, moved to strike and moved for a mistrial.” Id., 281. The court struck the witness’ testimony, gave a cautionary instruction to the jury, but denied the motion for a mistrial. Id.

Traficonda is inapposite not only because in that case the court was acting in response to defense counsel’s motion, but also because the court denied the motion for a mistrial. By contrast, in the present case, the only issue raised concerns the court’s failure to grant a mistrial. Because a mistrial was denied in Traficonda, we are hard pressed to rely on that case as authority for the defendant’s claim that a mistrial should have been granted here sua sponte.

Furthermore, when opposing counsel does not object to evidence, it is inappropriate for the trial court to assume the role of advocate and decide that the evidence should be stricken. State v. Delarosa, 16 Conn. App. 18, 27, 547 A.2d 47 (1988). The court cannot determine if counsel has elected not to object to the evidence for strategy reasons. State v. Hickey, 23 Conn. App. 712, 717-18, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115 L. Ed. 2d 1058 (1991). Experienced litigators utilize the trial technique of not objecting to inadmissible evidence to avoid highlighting it in the minds of the jury. Such court involvement might interfere with defense counsel’s tactical decision to avoid highlighting the testimony. “When subsequent events reveal that it was an imprudent choice, however, the defendant is not entitled to turn the clock back and have [the appellate court] reverse the judgment because the trial court did not, sua sponte, strike the testimony and give the jury a cautionary instruction. No limiting instruction was given at the time [of the offending] remark and none was required because none was requested.” Id.

The defendant appears to believe that a mistrial and a curative instruction are interchangeable, and that he has a right to choose which one he will utilize. He is mistaken. Each is a separate procedural device designed to serve a discrete function.

We affirm the denial of the defendant’s motion for a mistrial.

II

The defendant next claims that the seizure of the evidence from the backseat of his car was an unreasonable warrantless search in violation of the fourth amendment to the United States constitution and the constitution of Connecticut, article first, §§ 7 and 9.

We first note what we are not deciding in this appeal. Although urged to do so by the parties, we are not determining whether the police had a reasonable and articulable suspicion of criminal conduct to justify what is well known as a “Terry stop.” Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). It is established law that law enforcement officers do not violate the fourth amendment by merely approaching an individual on the street and asking him questions if he is willing to answer. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Story, 53 Conn. App. 733, 745 n.6, 732 A.2d 785 (Hennessy, J., dissenting), cert. denied, 251 Conn. 901, 738 A.2d 1093 (1999). Our Supreme Court has recognized that “[effective crime prevention and detection underlie the recognition that a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.” (Internal quotation marks omitted.) State v. Perez, 181 Conn. 299, 305, 435 A.2d 334 (1980). The present case clearly fits within the principles of Royer and Perez. The defendant had stopped his automobile in a gas station when Rubis approached and questioned him. There is no suggestion that the defendant was even slightly reluctant to answer the questions. He was not in custody and was free to leave at any time.

The officer knew that he did not have probable cause to arrest the defendant or to search the vehicle without his consent. “A warrantless search ... is not unreasonable, however, under the fourth amendment to the United States constitution . . . when a person with authority to do so has freely consented.” State v. Martinez, 49 Conn. App. 738, 743, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1175 (1998). “It is . . . well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search [or seizure] that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); see also State v. Reddick, 189 Conn. 461, 467, 456 A.2d 1191 (1983). Whether a defendant has voluntarily consented to a search is a question of fact to be determined from the totality of the circumstances. The trial court makes this determination on the basis of the evidence that it deems credible along with the reasonable inferences that can be drawn therefrom. State v. Ortiz, 17 Conn. App. 102, 103-104, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988).

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Story, supra, 53 Conn. App. 739.

“Whether there was valid consent to a search is a factual question that will not be lightly overturned on appeal.” State v. Zarick, 227 Conn. 207, 226, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). Examination of the record in the present case leads us to the inescapable conclusion that the defendant’s will was not overborne and that his consent was his unconstrained choice.

The trial court’s denial of the motion to suppress was legally and logically correct, and was properly supported by the facts.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s statement of issues also claimed that the court improperly failed to suppress statements of the defendant derived from the allegedly illegal search. The defendant merely mentions this issue without analysis. A reviewing court will not consider an inadequately briefed issue. See Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996). An issue merely mentioned will be deemed abandoned. Fromer v. Freedom of Information Commission, 36 Conn. App. 155, 156, 649 A.2d 540 (1994).

       General Statutes § 14-100a(c) (1) provides in relevant part: “The operator of ... a private passenger motor vehicle . . . equipped with seat safety belts . . . shall wear such seat safety belt while the vehicle is being operated on the highways of this state . . . .”

       At the hearing on the defendant’s motion to suppress the seized evidence, Rubis testified as follows under cross-examination by defense counsel:
      “Q. And you told him you were going to take these items in for safekeeping, is that correct?

        “A. I asked him if I could and I asked him if he would be able to produce receipts, and he said he would, it’s okay. I don’t know the exact wording, but in a sense he said yes.
      “Q. Well, in a sense?
      “A. Yes.
      “Q. It’s important—
      “A. It’s okay. He said that it’s not a problem.”

       In his brief, the defendant invoked both the United States constitution and the constitution of Connecticut. Because he has not provided a separate and distinct analysis of his claim under the state constitution, we address only his federal constitutional claim. See State v. Joyce, 243 Conn. 282, 288 n.6, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998).

       The officer was originally attracted to the vehicle because the defendant was not wearing a seat belt. General Statutes § 54-33m expressly provides that failure of an operator to wear a seat belt “shall not constitute probable cause for a law enforcement official to conduct a search of such vehicle and its contents.”


author: PER CURIAM.

text:
    WEBSTER BANK v. JOANNA V. ZAK ET AL.
    (AC 20906)
    Landau, Zaxella and Daly, Js.
    Argued December 12, 2000
    officially released January 16, 2001

      Kerry M. Wisser, with whom was Nathan A. Schatz, for the appellant (defendant MFR of East Hampton, LLC).

      Jeffrey T. Beatty, with whom, on the brief, was Richard J. Beatty, for the appellee (substitute plaintiff EMC Mortgage Corporation).
   Opinion

PER CURIAM.

The judgment of the trial court in this case must be reversed and the case remanded for the purpose of making factual findings to determine whether the defendant MFR of East Hampton, LLC, has standing to assert its claim to an interest in the property under foreclosure and to otherwise participate in the proceedings. We retain jurisdiction over this appeal for purposes of any further appellate proceedings, without the necessity of filing another appeal.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.


text:
    DOUGLAS JAYNES v. COMMISSIONER OF CORRECTION
    (AC 19880)
    Foti, Schailer and Spear, Js.
    Submitted on briefs December 4, 2000
    officially released January 16, 2001

      Raymond J. Rigat filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, and Leon F. Dalbec, Jr., and Beth Baron, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Douglas Jaynes, appeals following the denial by the habeas court of his petition for certification to appeal, filed pursuant to General Statutes § 52-470 (b), from the denial of his petition for a writ of habeas corpus. We dismiss the appeal.

On July 6, 1992, in the judicial district of New Haven, the petitioner was convicted, after a jury trial, of the crime of murder, for which he was sentenced to a term of fifty-five years imprisonment.

In his petition for a writ of habeas corpus, the petitioner claimed that he was denied the right to effective assistance of trial counsel. Specifically, he claimed that defense counsel failed to investigate adequately his mental condition insofar as it affected his ability to form the requisite mental intent, to appreciate the wrongfulness of his conduct, to understand the proceedings and to assist in his own defense. The court denied the petition, concluding that “defense counsel took more than adequate steps to protect [the defendant], both as to his competency and as to the insanity defense.”

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

On the basis of our review of the record and briefs, we conclude that the petitioner failed to sustain his burden of persuasion that the habeas court’s denial of his petition for certification to appeal was a clear abuse of discretion or that an injustice has been committed. The petitioner further failed to make a substantial showing that he was denied a state or federal constitutional right. See id.; Johnson v. Commissioner of Correction, 58 Conn. App. 729, 731, 754 A.2d 849, cert. denied, 254 Conn. 928, 761 A.2d 753 (2000); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.

       General Statutes § 52-470 (b) provides in relevant part: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried ... to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       The judgment was affirmed on direct appeal. State v. Jaynes, 36 Conn. App. 417, 650 A.2d 1261 (1994), cert. denied, 233 Conn. 908, 658 A.2d 980 (1995).

       In its memorandum of decision, the habeas court noted: “The petitioner was charged with a murder committed on February 23, 1989. He was originally represented by the public defender’s office but when a potential conflict of interest appeared, a special public defender was appointed to represent the petitioner at trial. On September 24, 1990, the public defender’s office filed a motion to determine competency pursuant to section 54-56d of the statutes and the petitioner was found to be incompetent to stand trial. He had previously been examined by an expert hired by the public defender’s office who had concerns about his competency. He was subsequently found competent, but a notice to assert the insanity defense was filed in his behalf, after consultation with the expert. The public defender’s office next engaged Dr. Kenneth M. Selig, a forensic psychiatrist and member of the bar. After a thorough review of [the petitioner’s] records and a long interview of him, Dr. Selig concluded that the mental disease [defense] was not available. In addition, [the petitioner] had denied he was present at the crime scene so that the defense would have been faced with incompatible defenses had it attempted to advance an insanity defense. The special public defender who assumed the petitioner’s defense actually tried the murder charge twice, the first trial resulting in a hung jury. Counsel testified that he and his partner worked on this case and questioned the competency finding. In discussions with the public defender, he was advised of the attempt to prepare an insanity defense. Both counsel expressed their reservations about [the petitioner’s] competency, and took the appropriate steps to protect him on that issue.”


text:
    STATE OF CONNECTICUT v. LEROY MIMS
    (AC 19694)
    Zarella, Pellegrino and Peters, Js.
    Argued October 27, 2000
    officially released January 16, 2001

      Mark Diamond, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Leroy Mims, appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes § 53a-167c (a) (l). On appeal, the defendant claims that (1) the evidence presented at trial was insufficient to establish guilt beyond a reasonable doubt, (2) he received ineffective assistance of counsel and (3) the statutory definition of physical injury violated his due process rights because it is overbroad and, even if it is not overbroad, the officer’s injury was not legally sufficient to sustain a felony charge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 6, 1998, at approximately 10:25 p.m., a Hartford police officer who was patrolling Footguard Place observed the defendant approach a man and a woman who were preparing to get on a motorcycle. The defendant held his hand out to the man, and the man gave him money. The officer considered that conduct “panhandling” and decided to intervene when the defendant became more aggressive and the couple looked intimidated. The officer approached the defendant, told him to stand against a wall and informed him that he was under arrest. During the arrest, the couple left the scene. The officer patted the defendant down and handcuffed him behind his back. Shortly thereafter, another officer arrived to assist with the arrest. The defendant then became angry, and started yelling and pulling away from the officers. In the ensuing struggle, the defendant kicked one of the officers in the left testicle, causing sharp pain. As the struggle continued, one of the officers, in an effort to subdue the defendant, discharged pepper spray in the direction of the defendant. The officers then completed the defendant’s arrest and transported him to the police station.

“When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. . . . We then determine whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... It is the cumulative impact of a multitude of facts that establishes guilt.” (Citation omitted; internal quotation marks omitted.) State v. Lash, 23 Conn. App. 663, 666, 583 A.2d 653 (1990).

“We must determine whether the jury could have logically reached its conclusion from the facts shown.” Id., 667. “It is the function ofthejury to weigh conflicting evidence and to determine the credibility of the witnesses. ... If there is any way that the jury might have reconciled the conflicting testimony presented to them, we will not disturb their verdict.” (Citation omitted.) State v. Moore, 3 Conn. App. 503, 504, 489 A.2d 1069 (1985).

The cumulative impact of the evidence in this case sufficiently enabled the jury to conclude beyond a reasonable doubt that the defendant was guilty of assault of a peace officer. The evidence indicates that the injured officer was in uniform at the time of the arrest and that the defendant knew that he was a police officer. The evidence further indicates that the officer was proceeding to carry out his lawful duty in an orderly manner at the time the defendant became angry and kicked him. Moreover, under the circumstances, the jury properly could have concluded that the defendant intended to prevent the officer from performing his duties. Finally, it is clear that the defendant physically injured the officer by kicking him in the left testicle, causing pain.

As to the defendant’s second claim, namely, that he received ineffective assistance of counsel, “[t]his court has emphasized . . . that a claim of ineffective assistance of counsel is more properly pursued on a petition for [a] new trial or on a petition for a writ of habeas corpus rather than on direct appeal.” (Internal quotation marks omitted.) State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91L. Ed. 2d 550 (1986). “As our Supreme Court has stated [in State v. Leecan, supra, 542], an ineffective assistance claim should be resolved, not in piecemeal fashion, but as a totality after an evidentiary hearing in the trial court where the attorney whose conduct is in question may have an opportunity to testify.” (Internal quotation marks omitted.) State v. Laracuente, 57 Conn. App. 91, 97, 749 A.2d 34, cert. denied, 253 Conn. 923, 754 A.2d 798 (2000). Therefore, we conclude in accordance with well established precedent that this claim is not properly pursued on direct appeal.

The defendant also claims that the statutory definition of physical injury violated his due process rights because it is overbroad and that even if the definition is not overbroad, the officer’s injury was not legally sufficient to sustain a felony charge. The defendant’s analysis of his claim consists of the following: “[General Statutes] § 53a-3 defines ‘physical injury’ as ‘impairment of physical condition or pain.’ This overbroad definition lacks sufficient notice of proscribed behavior, violating the due process clause of the federal and state constitutions [U.S. Const., amends. V, VI; Conn. Const., art. I, § 8],” and “[t]he pain received by [the officer] cannot be deemed of sufficient severity to support a felony conviction.” Those assertions, without further analysis, are inadequate to warrant review. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citations omitted; internal quotation marks omitted.) Mercer v. Commissioner of Correction, 49 Conn. App. 819, 820-21 n.1, 717 A.2d 763, cert. denied, 247 Conn. 920, 722 A.2d 810 (1998). We decline to review this claim due to inadequate briefing.

The judgment is affirmed.

       General Statutes § 53a-167c (a) provides in relevant part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties (1) such person causes physical injury to such peace officer . . . .”

       The injury sustained by the officer did not cause him to miss work or require hospitalization.


text:
    STATE OF CONNECTICUT v. PEDRO H. MATUTE
    (AC 20020)
    Lavery, C. J., and Zarella and Dranginis, Js.
    Submitted on briefs December 4, 2000
    officially released January 16, 2001

      Michael Dearington, state’s attorney, RobertM. Spec-tor, deputy assistant state’s attorney, and Philip Scar-pellino, senior assistant state’s attorney, filed a brief for the appellant (state).
   Opinion

PER CURIAM.

This is an appeal by the state following the granting by the trial court of the defendant’s motion to vacate the judgment of conviction of possession of cocaine in violation of General Statutes § 21a-279 (a) and to allow him to withdraw his guilty plea entered pursuant to the Alford doctrine. The state claims that the court improperly vacated the judgment and allowed the defendant to withdraw his guilty plea on the ground that the original trial court had not advised the defendant of the deportation consequences of the guilty plea as required by General Statutes § 54-lj. The trial court, in vacating on August 6, 1999, the judgment that was based on the guilty plea entered by the defendant on August 19, 1993, determined that Public Acts 1997, No. 97-256, § 6, which amended General Statutes § 54-lj (c) and instituted a three year statute of limitations on the filing of motions to vacate, did not apply retroactively to the defendant. Since the trial court’s ruling, the Supreme Court resolved the issue of retroactivity in State v. Parra, 251 Conn. 617, 741 A.2d 902 (1999). In Parra, the Supreme Court held that the three year statute of limitations applied not only to defendants who pleaded guilty after the effective date of the amendment, but also retroactively to all defendants who claimed that they were not canvassed on the deportation consequences of their plea in accordance with § 54-lj. See id., 620.

The decision of the trial court allowing the defendant to withdraw his guilty plea is reversed and the case is remanded with direction to deny the defendant’s motion to vacate the judgment of conviction.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes § 54-lj provides: “(a) The court shall not accept a plea of guilty or nolo contendere from any defendant in any criminal proceeding unless the court advises him of the following: ‘If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, pursuant to the laws of the United States.’
      “(b) The defendant shall not be required at the time of the plea to disclose his legal status in the United States to the court.
      “(c) If the court fails to advise a defendant as required in subsection (a) of this section and the defendant not later than three years after the acceptance of the plea shows that his plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.”


author: SPEAR, J.

text:
    ROSA BROTHERS, INC. v. MICHAEL MANSI ET AL.
    (AC 19665)
    Lavery, C. J., and Spear and Hennessy, Js.
    Argued September 20, 2000
    officially released January 23, 2001

      Charles B. Angelo, for the appellant (named defendant).

      William H. Cashman, for the appellee (plaintiff).
   Opinion

SPEAR, J.

In this action for damages, the defendant Michael Mansi appeals from the order of the trial court granting a motion for sanctions filed by the plaintiff, Rosa Brothers, Inc., after the defendant invoked his fifth amendment privilege against self-incrimination and refused to answer questions at his deposition. The defendant claims that the court abused its discretion by (1) granting the motion for sanctions without first requiring the plaintiff to file a motion to compel, (2) ordering excessive sanctions, (3) ordering sanctions that violate the defendant’s constitutional privilege against self-incrimination and (4) ordering sanctions without first determining that the defendant’s refusal to testily prejudiced the plaintiff. We dismiss the appeal for lack of subject matter jurisdiction.

The following facts and procedural history are relevant to this appeal. The defendant, a distributor of goods for Pepperidge Farm, Inc., made deliveries of bread to the plaintiffs store for a period of several years. At some point, the plaintiff suspected that the defendant had been (1) deliberately misstating the amount of bread he delivered, and (2) underpaying the plaintiff for its returns and credits. The defendant subsequently was arrested and charged with larceny.

Thereafter, the plaintiff commenced this civil action to recover for its losses and served a notice of deposition to take testimony from the defendant. The defendant responded with a motion for a protective order, requesting that he not be required to answer questions involving the larceny charges because it would infringe on his constitutional privilege against self-incrimination. The court denied the motion, but the defendant asserted the privilege at the deposition, and refused to answer questions pertaining to the facts and circumstances giving rise to the civil action. The court granted the plaintiffs motion that sought sanctions based on the defendant’s refusal to testify and ordered that the defendant be “precluded from testifying in his defense at trial concerning matters to which he has asserted his privilege against self-incrimination or submitting an affidavit concerning such matters in opposition to a motion by the plaintiff for summary judgment, except that should the plaintiff question the defendant at trial he may be cross-examined by his attorney, within the discretion of the trial court.” The court denied the defendant’s motion to reargue the ruling, and this appeal followed. We denied the plaintiffs motion to dismiss the appeal for lack of appellate jurisdiction, presumably without prejudice, because both parties raised the jurisdictional issue again in their briefs and at oral argument.

The plaintiff claims that this court lacks jurisdiction to hear the appeal because an order granting discovery sanctions is not an appealable final order. We agree.

“A threshold inquiry of this court upon every appeal presented to it is the question of appellate jurisdiction. ... It is well established that the subject matter jurisdiction of the Appellate Court ... is governed by [General Statutes] § 52-263, which provides that an aggrieved party may appeal to the court having jurisdiction from the final judgment of the court.” (Citation omitted; internal quotation marks omitted.) King v. Sultar, 253 Conn. 429, 434, 754 A.2d 782 (2000).

Our Supreme Court recently considered whether an order granting sanctions constitutes an appealable final order in Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488, 736 A.2d 851 (1999). In that case, the plaintiff initially complied with monetary sanctions for refusing to answer questions at his deposition, but later brought a writ of error, claiming that the sanctions were improper. The court dismissed the writ of error, reasoning that “[g]iven the facts of this case, and our well established rules regarding reviewability of discovery orders, the sanctions order with which [the plaintiff] complied does not constitute a final judgment from which a writ of error lies. Just as an appeal, a writ of error requires a final judgment as a predicate. See Practice Book § 72-1; see also State v. Ross, 189 Conn. 42, 51, 454 A.2d 266 (1983) (the use of a writ of error would in no way overcome the objections ... to the appeal process based upon . . . the absence of finality in the judgment).

“An order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment, at least in civil actions. Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226, 429 A.2d 478 (1980) ....

“Although this sanctions order was not itself a discovery order, it was an order for sanctions for failure to comply with the discovery procedure of a deposition. We can perceive no reason or policy why we should treat the sanctions order differently, for purposes of finality of judgment, from the discovery procedure of which it is a part. We, therefore, regard it as governed by the same principles of finality as discovery orders.” (Citations omitted; internal quotation marks omitted.) Green Rock Ridge, Inc. v. Kobernat, supra, 250 Conn. 497-98.

Here, as in Green Rock Ridge, Inc., and Chrysler Credit Corp., the court ordered sanctions for a party’s refusal to comply with a discovery order. Accordingly, we conclude that the sanctions order is not a final judgment for purposes of appellate review and dismiss the appeal for lack of jurisdiction.

The defendant cites CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 685 A.2d 1108 (1996), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 155, 735 A.2d 333 (1999), for the proposition that an order granting sanctions is an appealable final order. In CFM of Connecticut, Inc., however, the court imposed sanctions against an attorney for bad faith pleading, not against a party for a discovery abuse. Moreover, the court in Green Rock Ridge, Inc., limited the application of CFM of Connecticut, Inc., stating that “to the extent that in CFM of Connecticut, Inc., we suggested that any monetary sanctions order imposed by a trial court is a final judgment for the purposes of an appeal or a writ of error, we confine that case to its facts.” (Emphasis in original.) Green Rock Ridge, Inc. v. Kobernat, supra, 250 Conn. 499 n.13.

The appeal is dismissed.

In this opinion the other judges concurred.

       The 1hree count complaint filed by the plaintiff, Rosa Brothers, Inc., names two defendants, Mansi and Pepperidge Farm, Inc. Counts one and two allege theft against Mansi in violation of General Statutes §§ 52-564 and 52-564a, respectively. Count three alleges negligence against the other defendant in this action, Pepperidge Farm, Inc., for, inter alia, hiring and failing to supervise properly Mansi, with whom it had entered into a distributor’s contract. The present appeal was brought solely by Mansi. We therefore refer in this opinion to Mansi as the defendant.

       Rosa Brothers, Inc., is a Connecticut corporation doing business as the Guilford Food Center.

       We previously denied the plaintiffs motion to dismiss the appeal for lack of a final judgment. Both parties fully briefed the jurisdictional issue for our reconsideration at oral argument.

       The larceny case is pending.