author: FOTI, J.

text:
    JOHN TABONE v. COMMISSIONER OF CORRECTION
    (AC 23221)
    Foti, Schaller and West, Js.

      Argued June 4
    officially released August 26, 2003

      David B. Bachman, special public defender, for the appellant (petitioner).

      Judith Rossi, executive assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara F. Eschuk, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FOTI, J.

The petitioner, John Tabone, appeals from the habeas court’s denial of his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court’s refusal to hear testimony or other evidence concerning the facts and circumstances surrounding a statement he had given to the police prior to his arrest in the underlying criminal proceedings against him deprived him of his right to pursue his petition for a writ of habeas corpus, which alleged ineffective assistance of counsel with regard to the purported statement. We disagree and affirm the judgment of the habeas court.

On November 2, 2000, the petitioner pleaded guilty to sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (4), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), and risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (2). On December 22, 2000, pursuant to a plea agreement, the court, Damiani, J., sentenced the petitioner to a total effective term of ten years imprisonment followed by ten years special parole. On September 15, 2001, the petitioner filed a petition for a writ of habeas corpus in the judicial district of New Haven. The court, Hon. Frank S. Meadow, judge trial referee, held a hearing on the petition on April 25, 2002.

Before the habeas court, the petitioner alleged that he had received ineffective assistance of counsel. He claimed that for several months while he was in prison awaiting trial, the state had treated him with medication for his depression. He claimed that as a result of that treatment, he was not able to make appropriate decisions concerning his well-being and best interests regarding the charges, the impending trial and sentencing issues. He claimed that his attorney had failed to recognize the petitioner’s situation and improperly advised him to plead guilty under the Alford doctrine. The petitioner further claimed that his attorney had advised him inadequately about possible constitutional violations by the police who had obtained his confession, the chances of success on a motion to suppress the confession and the effect that a successful motion to suppress might have on the outcome of the impending trial.

The habeas court found that it could not predict that the trial court would have suppressed the confession had it heard a motion to suppress. The habeas court also concluded that the petitioner’s attorney provided effective assistance by using his professional judgment and experience to evaluate the chances of success at trial, and by advising the petitioner to accept a plea agreement that resulted in a much more favorable sentence than he would have faced had he gone to trial and been convicted. In a memorandum of decision filed June 10, 2002, the court denied the petition. On June 19, 2002, the court granted the petitioner’s petition for certification to appeal, and the petitioner filed a timely appeal.

The sole issue presented on appeal is whether the habeas court improperly excluded evidence relating to an inculpatory statement given by the petitioner at the Waterbury police department. The petitioner claims that the court abused its discretion in failing to allow him to introduce relevant evidence that may have shown that the trial court possibly could have granted his motion to suppress. In effect, he sought to have the habeas court decide the likely outcome of a hearing on the motion to suppress, which he had not pursued due to his guilty plea.

Generally, “[t]he conclusions reached by the [habeas] court in its decision to dismiss the habeas petition are matters of law, subject to plenary review. . . . Thus, [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 that appear in the record.” (Internal quotation marks omitted.) Wilson v. Office of Adult Probation, 67 Conn. App. 142, 145, 786 A.2d 1120 (2001). “In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” White v. Commissioner of Correction, 58 Conn. App. 169, 170, 752 A.2d 1159 (2000).

In the present case, the underlying claims involve the issue of whether the petitioner was deprived of his sixth amendment right to effective assistance of trial counsel. “For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” Id., citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992).

After reviewing the record, we conclude that the court had sufficient evidence before it to support its determination that the petitioner failed to prove that trial counsel’s performance fell below an objective standard of reasonableness or that there was a reasonable probability that, but for counsel’s allegedly deficient performance, the result would have been different.

It is the petitioner’s claim that the challenged evidentiary rulings violated his statutory right to an effective evidentiary hearing pursuant to General Statutes § 52-470 (a). The facts underlying that claim, as found by the habeas court, axe as follows: “Jury selection in this case was started October 31, 2000. The pleas by [the petitioner] were on November 2, 2000. . . . Attorney [Richard M.] Berke ... of the public defender’s office originally had the file. [Dennis P.] Harrigan, also of the public defender’s office, took over the file in August of 2000. A motion to suppress the statement of [the petitioner] to the Waterbury police was filed by Berke May 18, 2000.

“Harrigan testified he did not talk with the police about the statement because the Waterbury police typically would not answer questions if asked until the motion to suppress was heard. Harrigan testified that according to the affidavits, [the petitioner] was not under arrest at the time he gave the statement. . . . [The petitioner] told Harrigan [that] although he originally went into the police department, he was not allowed to leave. Harrigan testified [that] he did not undertake any sort of investigation about whether [the petitioner] was not free to leave the police department. Harrigan, however, testified [that] he [had] made adequate preparation to pursue the motion to suppress, which is customarily made after the jury is selected. The statement was accompanied by a waiver of rights form signed by [the petitioner]. [The petitioner] admitted he signed the form, but claimed he did not sign the waiver until after the statement. [The petitioner] claimed the statement was obtained by threats of bodily harm if he did not sign it.

“Harrigan discussed with Berke a mental disease or defect defense, which Berke discussed with [the petitioner]. Harrigan discussed with [the petitioner] the issue of the mental disease or defect defense and that it was not going to be raised as a defense. Harrigan investigated the mental disease defense with a doctor and decided nothing could be done with it and that it was not a viable defense. A motion for a speedy trial had been filed by [the petitioner] pro se some time earlier, which was never withdrawn. Prior to jury selection on November 1, 2000, Judge Damiani discussed during pretrial a sentence of ten years and ten years probation with special conditions. The offer had been rejected by [the petitioner] while being represented by Berke. Once an offer to plead is rejected, it generally is increased by the judge after the case is started. Harrigan felt he was successful to be able to get the original offer back during jury selection.”

The habeas court reviewed the statement that was contained in the petitioner’s competency report. The petitioner and Harrigan testified as to what each had told the other. Further, Harrigan testified as to why he advised the petitioner to accept the offer and why the petitioner decided to enter the plea. The petitioner acknowledged that Harrigan had advised him that the suppression hearing would be a credibility contest, that the state intended to call the victim to testify if the case went to trial and that it would be hard to prevail at trial with or without the statement. The petitioner also acknowledged that Harrigan had told him that to proceed to the suppression hearing would necessarily mean forgoing the favorable plea offer and that even if he prevailed on the suppression motion, it would be difficult to win at trial. Further, the petitioner understood that a trial would have exposed him to a significant risk of a substantial prison sentence.

The petitioner argues in his principal brief that the habeas court “could not possibly fairly assess whether [he] received effective assistance of counsel without appropriate information regarding the circumstances under which [he] gave his alleged ‘voluntary’ statement.” That court’s ruling to exclude evidence concerning the circumstances surrounding the statement, he argues, “undercuts the very purpose of the habeas hearing.” We do not agree.

The petitioner’s decision to plead guilty was his decision, made after his counsel advised him of the difficulty of prevailing on the motion to suppress, the strength of the state’s case and the likelihood of conviction even if the trial court had suppressed the statement. His attorney’s evaluation of the options and the consequences of each led to a review of the plea offer and the petitioner’s ultimate choice to accept the offer. The petitioner accepted the state’s offer rather than taking a chance that he might face a greater sentence following a trial.

We conclude that the habeas court did not abuse its discretion in its evidentiary rulings concerning the circumstances surrounding the taking of the petitioner’s statement.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial.” (Internal quotation marks omitted.) State v. Daniels, 248 Conn. 64, 66-67 n.2, 726 A.2d 520 (1999).

       The petitioner does not claim on appeal that he did not enter his pleas knowingly and voluntarily. His claim involves one of ineffective assistance of counsel in failing to be advised of the possible success of the motion to suppress and counsel’s advice to accept the state’s plea offer.

       General Statutes § 52-470 (a) provides: “The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.”

       Harrigan had requested the competency report pursuant to an examination under General Statutes § 54-56d before entry of the guilty pleas.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    WALTER SHERMAN ET AL. v. BRISTOL HOSPITAL, INC., ET AL.
    (AC 23183)
    Schaller, Dranginis and Hennessy, Js.

      Argued March 26
    officially released August 26, 2003

      Francis A. Miniter, for the appellants (plaintiffs).

      Amy F. Goodusky, for the appellees (defendants).
   Opinion

DRANGINIS, J.

In this medical malpractice action, the plaintiff Walter Sherman. appeals from the summary judgment rendered by the trial court in favor of the defendants, Bristol Hospital, Inc. (hospital), and its agent, nurse Sharon Silva, after the court granted the defendants’ motion in limine precluding the plaintiffs expert witness from testifying on the issue of causation. On appeal, the plaintiff claims that the court improperly (1) found that his expert witness was not qualified to testify as to the issue of causation, (2) refused to allow his expert witness to testify as to the issue of causation because, he claims, the court determined that her qualifications as to that issue related to the weight of her testimony and not its admissibility, (3) found that expert testimony by a physician was required to support causation and (4) concluded that the deposition testimony of the defendants’ experts was insufficient to support a showing of causation. We affirm the judgment of the trial court.

The relevant facts and procedural history are as follows. In 1995, the plaintiff learned that he required wrist fusion surgery. Prior to having the surgery, the plaintiff’s general physician examined the plaintiff and concluded that although the plaintiff was obese and had a history of heart problems, he could safely submit to the surgery. On November 3, 1995, the plaintiff underwent the wrist fusion surgery at the hospital on an outpatient basis. Following the surgery, however, he was admitted to the medical-surgical ward of the hospital because of intense pain. To alleviate the plaintiffs pain, an agent of the hospital prescribed the drug morphine, which the plaintiff self-administered by means of a patient controlled analgesia machine.

Silva, an employee of the hospital, was assigned to care for the plaintiff during the late evening hours of November 3 and into the morning of November 4,1995. When Silva checked on the plaintiff at approximately 4 a.m., she found him to be grayish in color and unresponsive. Silva summoned the physician on duty, who administered Narcan, a drug used to reverse the effects of morphine, to the plaintiff. Even after repeated doses of Narcan, however, the plaintiffs condition did not improve. The physician subsequently determined that the plaintiff had suffered a heart attack and had congestive heart failure.

Thereafter, the plaintiff instituted the present action against the defendants. In his complaint, filed June 22, 1998, the plaintiff alleged that the defendants knew or should have known that he was obese and had a history of heart problems, and that morphine has a depressive effect on the cardiac and pulmonary systems. He further alleged that given the defendants’ knowledge of those facts, the standard of care required that they monitor him much more frequently than they would other patients to assess the effect that the morphine was having on him. Finally, the plaintiff alleged that the defendants had failed to monitor him for a four hour period, which constituted a breach of the standard of care that caused him to suffer injuries. The defendants denied the allegations of the plaintiffs complaint.

In accordance with Practice Book § 13-4, the plaintiff initially disclosed Sanford Lewis, a physician, as his expert witness. A short time before trial was scheduled to begin, the plaintiff learned that Lewis was unavailable to testify. Consequently, on January 14, 2002, the plaintiff filed a motion for permission to disclose Victoria O. Odesina, an advanced practice registered nurse, as his expert witness. The court granted that motion on February 11, 2002. Thereafter, the plaintiff disclosed that Odesina would be testifying as to the standard of care required by a nursing professional, that the defendants had breached that standard of care and that it was their breach that caused the plaintiffs injuries. On May 7, 2002, the defendants filed a motion in limine, asking the court to preclude Odesina from testifying on behalf of the plaintiff as to those issues.

A hearing was scheduled to resolve the motion in limine. The parties agreed that a favorable ruling on that motion would be determinative of whether the plaintiff could maintain his action. After a two day evidentiary hearing, the court, Shortall, J., issued an order in which it concluded that although the plaintiffs proposed expert was qualified to testify as to the standard of care, the evidence presented by the plaintiff at the hearing did not demonstrate that Odesina possessed the experience or training that would qualify her to opine on the causation issues presented in this case. Accordingly, the court granted the defendants’ motion in limine in part, thereby precluding Odesina from testifying as to the issue of causation.

Thereafter, the defendants filed a motion for summary judgment in which they contended that there were no genuine issues of material fact in dispute and that they were entitled to judgment as a matter of law because the plaintiff was unable to produce expert testimony as to causation. Along with their motion for summary judgment, the defendants submitted the court’s order precluding Odesina from testifying on the issue of causation.

The plaintiff filed an objection to the defendants’ motion for summary judgment. He argued that the defendants were not entitled to a summary judgment because there was a genuine issue of fact in dispute regarding causation. The plaintiff argued that he could produce expert testimony on the issue of causation by introducing at trial portions of the deposition testimony of the defendants’ three expert witnesses and, therefore, there was a genuine issue of material fact as to whether the defendants had caused his injuries. In the alternative, the plaintiff argued that expert testimony was not necessary to establish causation in the present case because the case falls within numerous exceptions to the general rule that expert testimony is required to establish a cause of action for medical malpractice. The plaintiff attached portions of the depositions of the defendants’ three expert witnesses to his objection to the motion for summary judgment. The court granted the defendants’ motion for summary judgment. This appeal followed.

The plaintiff raises numerous claims in his appeal. We will first address those claims that relate to the court’s order on the motion in limine and then those claims that relate to summary judgment.

I

The plaintiffs first two claims relate to the defendants’ motion in limine. Specifically, he argues that in partially granting the defendants’ motion in limine, the court improperly (1) found that his expert witness was not qualified to testify as to the issue of causation and (2) refused to allow his expert witness to testify as to the issue of causation because, he claims, the court determined that her qualifications as to causation related to the weight of her testimony and not its admissibility. We address each of those claims in turn.

At the outset, we set forth the applicable standard of review. It is well established that “the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) Doe v. Thames Valley Council for Community Action, Inc., 69 Conn. App. 850, 871-72, 797 A.2d 1146, cert. denied, 261 Conn. 906, 804 A.2d 212 (2002).

A

The plaintiff claims that the court abused its discretion in finding that his expert witness was not qualified to testify as to the issue of causation. Specifically, he argues that after having found that Odesina was qualified to testify as to the applicable standard of care and breach of that standard of care, the court logically could not find that she was not qualified to testify as to the issue of causation. In other words, he argues that an expert’s qualifications to testify as to causation are inextricably bound with her qualifications to testify as to the standard of care and breach of the standard of care. We are not persuaded.

First, we note that the plaintiff has failed to cite any legal authority in support of his claim that if the court determines that a medical expert is qualified to testify as to the standard of care and breach of the standar d of care, the court must also conclude that the expert is qualified to testify on the issue of causation. We are unaware of any such authority.

Second, the test for admissibility of expert testimony involves, inter alia, a determination as to whether “the witness has a special skill or knowledge directly applicable to a matter in issue . . . .” (Emphasis added; internal quotation marks omitted.) State v. Francis D., 75 Conn. App. 1, 12-13, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003). In the present case, the defendants challenged Odesina’s qualifications to testily as to all three matters in issue, namely, (1) what was the applicable standard of care, (2) did the defendants breach that standard of care and (3) was the defendants’ alleged breach the cause of the plaintiffs injuries. Accordingly, before permitting the expert to testify, the court properly made an independent assessment as to whether the witness, Odesina, possessed sufficient skill or knowledge to testify as to each of the matters in issue. See Conn. Code Evid. §§ 1-3 (a) and 7-2; see also Hayes v. Decker, 263 Conn. 677, 683, 822 A.2d 228 (2003).

The court, therefore, did not abuse its discretion in precluding Odesina from testifying regarding the issue of causation, despite the fact that it did not preclude her from testifying as to the standard of care and the alleged breach of the standard of care.

B

The plaintiff next claims that the court abused its discretion in refusing to allow Odesina to testify as to the issue of causation because, he claims, the court determined that her qualifications to testify as to that issue related to the weight of her testimony and not its admissibility. Specifically, he argues that the court concluded that Odesina was qualified to testify as “an expert witness in nursing” and, therefore, any further objections to her testimony related to the weight of her testimony, not its admissibility. We disagree.

The court may properly admit expert testimony only from a witness it has first determined to be qualified to testify on a particular matter. See, e.g., Blanchard v. Bridgeport, 190 Conn. 798, 808, 463 A.2d 553 (1983). It is true that after the court has determined that the witness possesses reasonable qualifications to testify on the question presented, any further objections to that expert’s testimony relate to its weight, not its admissibility. Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 63, 717 A.2d 724 (1998). Here, however, the court did not determine that Odesina possessed the reasonable qualifications necessary to testify regarding the issue of causation. In asserting that the court held that Odesina was qualified to testify as “an expert witness in nursing,” the plaintiff mischaracterizes the court’s ruling. The court did not make a wholesale determination that Odesina was qualified to testify as “an expert in nursing.” Instead, it concluded that Odesina was qualified to testify as to the standard of care.

Accordingly, we conclude that the court’s determination that Odesina’s testimony on the issue of causation was inadmissible because she was not qualified to testify as to that issue did not constitute an abuse of discretion.

II

The plaintiffs final two claims relate to the defendants’ motion for summary judgment. Specifically, he argues that the court improperly concluded (1) that expert testimony by a physician was required to support causation in the present case and (2) that the deposition testimony of the defendants’ experts was insufficient to support a showing of causation.

Before addressing the plaintiffs arguments, we first set forth the applicable standard of review of a court’s ruling on a motion for summary judgment. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450, 820 A.2d 258 (2003).

A

The plaintiff claims that the court improperly concluded that expert testimony by a physician was required to support causation. He argues that a nurse’s expert testimony may be sufficient to prove medical malpractice in a nursing malpractice case. The plaintiff also argues that summary judgment was inappropriate here because this case falls within all three exceptions to the general rule that expert testimony is necessary to make out a case for medical malpractice.

We note that in support of their motion for summary judgment, the defendants submitted the court’s order on their motion in limine. In that order, the court did not find that expert testimony by a physician was required to prove causation. On the contrary, the court determined that a nurse who possesses sufficient skills or knowledge may be qualified to testify as to the issue of causation, but that the nurse in the present case did not possess such skills or knowledge. The court expressly stated: “Although the court agrees that.a nurse . . . through specialized experience or training, might be very qualified to give testimony about medical causation; Lesser v. St. Elizabeth Hospital, 807 S.W.2d 657, 659 (Tex. Civ. App. 1991); the evidence here did not demonstrate such specialized experience or training on nurse Odesina’s part as would qualify her to opine on the causation issues in this case.” Furthermore, the record reveals that the court did not conclude that the defendants were entitled to summary judgment because the plaintiff failed to offer testimony from a physician on the issue of causation. The court concluded that the defendants were entitled to summary judgment because the expert witness that the plaintiff had disclosed was not qualified to testify on the issue of causation, an essential element of the medical malpractice claim.

Additionally, we agree with the court that this case does not fall within any of the exceptions to the general rule that expert testimony on the issue of causation is required to maintain a claim for medical malpractice.

“Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person. . . . Expert medical opinion evidence is generally required in all cases involving professional competence and malpractice.

“An exception to the general rule with regard to expert medical opinion evidence is when the medical condition is obvious or common in everyday life. State v. Orsini, 155 Conn. 367, 372, 232 A.2d 907 (1967); see also Parker v. Supermarkets General Corp., 36 Conn. App. 647, 652 A.2d 1047 (1995). Similarly, expert opinion may not be necessary as to causation of an injury or illness if the plaintiffs evidence creates a probability so strong that a lay jury can form a reasonable belief. Gannon v. Kresge Co., 114 Conn. 36, 38, 157 A. 541 (1931). Expert opinion may also be excused in those cases where the professional negligence is so gross as to be clear even to a lay person. Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982); Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927).” Shegog v. Zabrecky, 36 Conn. App. 737, 745-47, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995).

In this case, the alleged negligence was that the defendants’ failure to monitor the effect that the morphine was having on the plaintiff, who was obese and had a history of heart problems, caused him to suffer a heart attack and congestive heart failure. The effect that morphine might have on a patient with a heart condition is not an obvious one.

The evidence also did not create a probability that was so strong that a lay juror could form a reasonable belief about what caused the plaintiffs injuries. The plaintiff alleged that the morphine depressed his cardiac system, which, because it was left unchecked, caused him to suffer a heart attack and congestive heart failure. There was, however, evidence that even after Narcan was administered to counteract the effects of the morphine, the plaintiffs condition did not improve. Furthermore, the defendants denied that the plaintiff was unattended for a four hour period, as he had alleged. Accordingly, as a matter of law, the evidence did not create a probability that was so strong that a lay juror could reasonably believe that the plaintiffs injuries were caused by the defendants’ failure to monitor his intake of morphine. Finally, we conclude that this case does not fall within the realm of cases involving gross negligence. See Puro v. Henry, supra, 188 Conn. 308 (surgical needle left in abdomen of patient after hernia operation); Slimak v. Foster, supra, 106 Conn. 370-71 (piece of surgical instrument left in patient after nose operation).

B

Finally, the plaintiff claims that the court improperly concluded that the deposition testimony of the defendants’ experts was insufficient to support a showing of causation. We disagree.

“[Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).

After carefully reviewing the record, we conclude that none of the evidence submitted by the plaintiff, namely, the deposition testimony of the defendants’ experts, discloses the existence of such an issue because none of the defendants’ experts testified that the defendants’ alleged negligence caused the plaintiffs injuries. This court has approved the grant of a summary judgment in a medical malpractice action when, as in this case, it is evident that the plaintiff will be unable to produce at trial an expert witness to testify regarding an essential element of his case. See Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn. App. 750, 766, 785 A.2d 588 (2001).

We agree with the court that there were no genuine issues of material fact in dispute as to the issue of causation and that the defendants were entitled to judgment as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Walter Sherman’s wife, Carol Sherman, initially was a plaintiff also. She had alleged a claim for loss of consortium. Carol Sherman died, however, in March, 2002, and her husband was appointed administrator of her estate. Thereafter, Walter Sherman, executor, was substituted as a party plaintiff in place of his wife as to that claim. We therefore refer in this opinion to Walter Sherman as the plaintiff.

       The plaintiff also claims that the court improperly refused to allow him to use his expert witness’ testimony in conjunction with the deposition testimony of the defendants’ expert witnesses to prove causation. Because we conclude that the court properly determined that the plaintiffs expert was not qualified to testify as to causation and because we also conclude that the deposition testimony of the defendants’ experts was insufficient to raise a genuine issue of material fact as to causation, we decline to address that claim.

       We note that the plaintiff did not allege that the defendants should not have prescribed morphine to him.

       Practice Book § 13-4 (1) (A) provides in relevant part: “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. . . .”

       The plaintiff raised that argument in opposing the motion for summary judgment despite the fact that both the trial judge and opposing counsel recollect that he previously had conceded, during a pretrial conference, that if his expert’s testimony was found to be inadmissible, he would not be able to prove his case.

       “In every professional malpractice action, the plaintiff is required to prove that (1) the defendant was obligated to conform to a recognized standard of care, (2) the defendant deviated from that standard, (3) the plaintiff suffered some injury, and (4) the defendant’s act in departing from the standard of care caused the plaintiffs injury. ... No matter how negligent á party may have been, if his negligent act bears no relation to the injury, it is not actionable.” (Citations omitted; internal quotation marks omitted.) Gordon v. Glass, 66 Conn. App. 852, 855-56, 785 A.2d 1220 (2001), cert. denied, 259 Conn. 909, 789 A.2d 994 (2002).


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. ERIC M.

    (AC 22747)
    Fotí, Dranginis and Bishop, Js.

      Argued June 3
    officially released August 26, 2003

      John R. Williams, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Paul N. Rotiroti, assistant state’s attorney, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 54-86e and this court’s policy of protecting the privacy interests of victims in sexual abuse matters, we decline to identify the victim by name, or others through whom the victim’s identity may be ascertained.

   Opinion

BISHOP, J.

The defendant, Eric M., appeals from the judgment of conviction, rendered after a jury trial, of two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (C), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), assault in the second degree in violation of General Statutes § 53a-60 (a) (1) and sexual assault in a spousal relationship in violation of General Statutes § 53a-70b (b). The defendant claims that the trial court improperly (1) denied him the right to a public trial, (2) denied him the right to be presumed innocent until proven guilty, (3) infected the case with judicial bias, (4) prohibited him from using as evidence excerpts of certain videotapes, (5) denied his motion for a mistrial, (6) delivered an unbalanced jury charge and (7) based his sentence on improper considerations. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At all times relevant to this proceeding, the victim, S, and the defendant were married. They separated in February, 2000, and divorce proceedings commenced. While the divorce was pending, the defendant and the victim had agreed that the victim would reside in the marital home and the defendant would stay at his parents’ house.

On May 9, 2001, the defendant told the victim that he would come to the marital home the following day to mow the lawn. When the victim arrived home on May 10, 2001, she did not see the defendant’s car in the driveway. She entered the house and noticed that the entertainment center in the living room had been moved slightly and that the power was out in the room. When she went to the basement to check the fuse box, the defendant pounced on her and placed her in a choke hold. He then pinned her down and forced her to put on handcuffs, threatening to choke her if she did not comply. The defendant removed the victim’s shirt and dressed her in jean shorts. He then tied her to a folding chair, using duct tape, rope and wire, and gagged her mouth with bandanas and rope.

The defendant left the victim tied to the chair despite her cries and pleas until, at some point, he allowed her to use a bathroom. While the victim remained handcuffed and gagged, the defendant led her upstairs to the bathroom where he watched her use the toilet and then performed cunnilingus on her.

The defendant attempted to tie the victim to the toilet, but she was able to run into the living room where the defendant tackled her on the couch. When she ran to the porch and attempted to open a storm door, the defendant caught her, and choked her until she lost consciousness and fell through the glass storm door.

Next, the defendant brought the victim to the bedroom and tied her to the bed. When he left the room to clean up the broken glass from the shattered storm door, the victim was able to maneuver enough to dial 911 and to seek help from the telephone operator. Subsequently, the defendant returned and pulled the telephone from the wall.

Benjamin Doerfler, a police officer with the Southington police department, arrived at the victim’s residence at 6:55 p.m. in response to the 911 call. He entered the residence through the porch door, and noticed broken glass and blood. He announced his presence and heard a female scream. He followed the scream to the bedroom, kicked open the door and saw the defendant on top of the victim on the bed. The victim’s hands and feet were bound, and she was crying and screaming. In conjunction with the arrest of the defendant, the police seized an eight millimeter videotape from a video-camera in the basement depicting the events that took place in the basement on the day in question.

At trial, the defendant’s defense was consent. He introduced various videotapes from earlier in the marriage depicting consensual, bondage type sexual activity between himself and the victim. Following a jury trial, the defendant was convicted and later sentenced to an effective term of seventy-five years incarceration, suspended after twenty-two years, and thirty-five years of probation with conditions. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied him his sixth amendment right to a public trial by sealing videotape exhibits in the case during and after the trial.

The court conducted a hearing on the defendant’s request to admit into evidence videotapes depicting consensual sexual activity between him and the victim during their marriage. The court ruled that the tapes were admissible as evidence in open court, but ordered that they not be disclosed to the general public, for inspection or copying, because of their explicit sexual nature. Thereafter, the defendant introduced into evidence twelve videotapes depicting scenarios of himself and the victim in consensual sexual bondage, and he played several of those tapes in open court dining the victim’s cross-examination.

The court based its order on its concern for the victim’s privacy and dignity, as reflected in article first, § 8 (b), of the state constitution, as amended by articles seventeen and twenty-nine of the amendments, together with the intent and purpose of the rape shield statute, General Statutes § 54-86f. In addition, the court stated a concern that it could be a participant in disseminating pornography if it allowed the tapes to be copied and made available to the general public.

The defendant claims that exhibits admitted into evidence are presumed open to the public and that a court may not seal them without overwhelming and clearly articulated reasons for doing so. Although we agree with the proposition advanced by the defendant that trial evidence, including exhibits, should generally be available to the public, we believe the court’s decision to limit dissemination of the subject videos while admitting them as evidence in a public trial struck an appropriate balance between the public’s right to access and the privacy interests of the victim.

“A defendant’s right to a public trial is guaranteed in all criminal proceedings by the sixth amendment to the United States constitution. . . . This right is made applicable to the states through the fourteenth amend-. ment . . . and also is encompassed in article first, § 8, of the Connecticut constitution. . . . Public trials vindicate an important public interest in the judicial system and help ensure testimonial trustworthiness. . . . Openness of a criminal trial enhances both its basic fairness and the appearance of fairness, which is essential to public confidence in the system. . . . The right to a public trial, however, is not absolute. ... An accommodation must sometimes be made between the individual’s right to a public trial and other societal interests that might justify closing the courtroom to the public. ... In light of these concerns, a court’s power to order a closure of the courtroom should be sparingly exercised, and limited to those situations where closure is demonstrably necessary to further the administration of justice.” (Citations omitted; internal quotation marks omitted.) Ostolaza v. Warden, 26 Conn. App. 758, 769-70, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).

The United States Supreme Court, in response to a claim that certain recordings played at trial be made available to the media for copying, held: “Nor does the Sixth Amendment require that the trial — or any part of it — be broadcast live or on tape to the public. The requirement of a public trial is satisfied by the opportunity of members of the public and the press to attend the trial and to report what they have observed.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 610, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978).

In the present case, there was no closure of the courtroom. The videotapes proffered by the defendant were played in open court, and members of the media and the public were not excluded from the courtroom. Thus, all had an opportunity to attend the trial and to report what they observed. The court’s order that the videotapes not be copied or be made available for inspection by the public was not, therefore, unlawful. In those circumstances, it also was not an abuse of discretion. As demonstrated by General Statutes § 54-86e (providing confidentiality of name and address), victims of sexual assault are entitled to some privacy protections in the criminal justice process. We believe the court’s order was in accord with that policy.

II

The defendant next claims that the court improperly denied him his constitutional right to be presumed innocent until proven guilty beyond a reasonable doubt. Specifically, he cites several instances in which, he claims, the court undermined the presumption of innocence by referring to the victim by a variety of pseudonyms such as “Ms. M” and “Ms. S,” by striking references to the victim’s full name, by referring to the victim as “the victim” and by characterizing the decision facing the jury as “not very complex.”

At the preliminary hearing on the admissibility of the videotapes, the victim stated that she did not care whether her full name was used on the record. The court, however, indicated that it would follow § 54-86e and not disclose her name on the record. During jury selection, the court informed the jurors that if it inadvertently used the word victim, it was referring to the complaining witness and that it was the jury’s prerogative to determine a person’s status as a victim. Prior to the introduction of evidence, the court instructed the jury on the presumption of innocence.

At trial, after Doerfler, the arresting officer, referred to the victim by her full name several times, the court ordered those references stricken from the record and informed the jury that it was following a statute that required that the identity of a victim of sexual assault remain confidential. It then reiterated its prior instruction to the jury that if it inadvertently referred to S as a victim, it did not necessarily mean she was, in fact, a victim.

In its final charge to the jury, the court explained that the defendant had the right to be presumed innocent. The court also characterized the determination the jury had to make as “not a very complex decision that you have to reach. Did [S] consent to what occurred .... Who or what you are going to believe and whether you believe it must be beyond a reasonable doubt. ... Is the state’s tape indicative of what the defense claims or what the state charges . . . .”

“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. . . . The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. ... In order to implement that presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Prutting, 40 Conn. App. 151, 165-66, 669 A.2d 1228, cert. denied, 236 Conn. 922, 674 A.2d 1328 (1996).

As to the defendant’s initial claim in that regard, the court’s use of pseudonyms to refer to the victim was proper and a well established method for courts to comport with § 54-86e, which provides for the confidentiality of the name and address of a victim of sexual assault. The court’s subsequent action in striking references to the victim’s full name from the record was little more than an effort to maintain compliance with the statutory requirements and was not improper.

Although we do not condone the court’s use of the word “victim” to refer to S during trial, any impermissible effect of the use of that term was ameliorated by the court’s twice stated instruction to the jurors that it was up to them to decide if the complaining witness was a “victim” and that any use by the court of that word was inadvertent. Moreover, the court provided both preliminary and final instructions accurately describing the defendant’s presumption of innocence, further negating any potential harm caused by the court’s use of the word “victim.”

Finally, the court’s marshaling of the evidence in its charge that the decision facing the jury was not very complex did not deprive the defendant of a fair trial. “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 128, 836 A.2d 224 (2003).

Although the statement that the decision facing the jury was not a complex one, if assessed out of context, may appear to be of questionable propriety, we review the statement in the broader context of the entire charge. From that perspective, and on the basis of our review of the entire charge, we conclude that the court’s instructions to the jury were balanced and fair. Additionally, the court’s assessment flowed from the evidence. It is clear from the record that a major aspect of the trial was the defense of consent, and, on that issue, the relative credibility of the witnesses was, no doubt, a significant factor. In that context, we conclude that the court’s comment regarding the difficulty of the jury’s task was not impermissible.

m

The defendant next claims that the case was fatally infected by judicial bias. Specifically, he claims that the court became, at an early point in the case, an active and interested participant on behalf of the state. We disagree.

The defendant refers to numerous parts of the proceedings to support his claim. Initially, the defendant claims that on several occasions, the court interposed its own objections to the defendant’s cross-examination of the victim. Initially, when defense counsel asked the victim whether she understood a comment by the defendant to mean that he was intoxicated, the court indicated that there had been no testimony to that effect. Next, when the defendant offered a hospital record as a full exhibit, the court requested the basis of admissibility. When the defendant responded that the record was admissible as a prior inconsistent statement, the court noted that the witness had not denied making the statement, but could not recall whether she had made the statement. Next, the court interjected that a question as to whether the victim recalled that she had denied being sexually assaulted already had been posed and answered. Finally, the court interposed its own objection when defense counsel attempted to elicit testimony from the victim regarding communications with her attorney, at a time when the jury had been excused.

Additionally, the defendant claims that the court acted in a biased manner by requiring that he be identified to the jury as the source of the consensual sex videotapes to establish a foundation for their admissibility. At that point, defense counsel noted that the state had not objected and that the court’s role in the courtroom was as a judge, not as an adversary. Counsel then requested that the judge recuse himself, which was denied.

The final incident of alleged judicial bias claimed by the defendant occurred when the victim testified that she did not recall the exact words she used when she spoke with her therapist regarding the sexual assault. When the defendant attempted to show the therapist’s notes to her, the state objected and the jury was excused. The state then argued that the notes were being used to try to impeach the victim. When the defendant disclaimed that strategy, the court commented that defense counsel had “perverted” the rules. The defendant then made another motion for the court to recuse itself, which also was denied.

“A judge is not an umpire in a forensic encounter. . . . He is a minister of justice. ... He may, of course, take all reasonable steps necessary for the orderly progress of the trial. ... In whatever he does, however, the trial judge should be cautious and circumspect in his language and conduct. . . . A judge should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him. ... It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.” (Internal quotation marks omitted.) Pickel v. Automated Waste Disposal, Inc., 65 Conn. App. 176, 181, 782 A.2d 231 (2001).

“Accusations of judicial bias or misconduct implicate the basic concepts of a fair trial. . . . The appearance as well as the actuality of [partiality] on the part of the trier will suffice to constitute proof of bias sufficient to warrant disqualification. . . . The standard that we employ on appellate review is whether a reasonable person who is aware of the circumstances surrounding the judicial proceeding would question the judge’s impartiality.” (Citations omitted; internal quotation marks omitted.) State v. William B., 76 Conn. App. 730, 749, 822 A.2d 265, cert. denied, 264 Conn. 918, 828 A.2d 618 (2003). “It is a well settled general rule that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for disqualification or a motion for mistrial.” (Internal quotation marks omitted.) In re Salvatore P., 74 Conn. App. 23, 31-32, 812 A.2d 70 (2002), cert. denied, 262 Conn. 934, 815 A.2d 135 (2003).

Upon review of the record, we do not find that judicial bias fatally infected the case. Rather, our review of the court’s rulings at trial, taken as a whole, reveals them to have been balanced and fair. The court ruled in the defendant’s favor on several occasions, and, in fact, dismissed two of the initial charges brought against the defendant as lacking evidentiary support. The instances of colloquy between the court and defense counsel that appeared to be adversarial took place out of the presence of the jury. We note also that defense counsel, out of the presence of the jury, at one point suggested to the trial judge that he should “put [his] robe back on” and that defense counsel was having a hard enough time with only one prosecutor. Those comments were both disrespectful and inappropriate. Although the court may have joined the forensic fray on a few occasions to an extent greater than we would recommend, a review of the entire trial transcript reveals that the court exercised restraint in the face of unwarranted personal attacks.

IV

The defendant next claims that the court improperly prohibited him from using excerpts from evidence during cross-examination of the victim while, at the same time, allowing the state to do so. We disagree.

The defendant attempted to introduce nine still photographs that had been isolated and copied from the various videotapes that already had been admitted into evidence. The court ruled that the stills were inadmissible because the format of the videotape was different from that of the stills and, as such, the context was changed. Additionally, the court ruled that there was no showing that the stills would assist the jury, the stills were more prejudicial than they were probative and that the defendant had the opportunity to use the videotapes themselves in his cross-examination of the victim. The defendant took exception because the court had allowed the state to introduce a “highlights” video, which incorporated excerpts from the videotapes, although in their video format.

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) State v. Ciccio, 77 Conn. App. 368, 382, 823 A.2d 1233 (2003).

Our review of the record reveals no abuse of discretion in the court’s action. The videotapes that previously had been introduced into evidence were the most accurate, truthful and representative evidence of the defendant and victim’s sexual history together. Still photographs of the same easily could be taken out of context and used to distort the evidence. In addition, the audio portion of the videotapes was integral to their accuracy and truthfulness. Contrary to the defendant’s claim, the “highlights” videotape introduced by the state was not analogous to the still photographs sought to be introduced by the defendant, as the highlights were in the same video format and retained the audio components. The court’s evidentiary ruling was not an abuse of discretion.

V

The defendant next claims that the court improperly denied his motion for a mistrial or a curative instruction after a prosecution witness repeatedly volunteered prejudicial and inadmissible testimony. We disagree.

Michael Shanley, a detective with the Southington police department, was called to testify concerning various items of evidence he took into his custody. During cross-examination by defense counsel, the following colloquy occurred:

“Q. My question was: Didn’t [the defendant] sign a consent to search? The answer is yes or no.
“A. He signed a consent for us to look for a weapon—
“Q. Is that what it was for?
“A. — that he indicated that he had purchased to kill both [S] and himself after he killed her.”

The defendant subsequently requested that the court strike the witness’ response and grant a mistrial. The court told the jurors to disregard the latter portion of Shanley’s testimony and excused them. After the court heard argument and ruled that the statement was more prejudicial than it was probative, and after the jury returned to the courtroom, the court gave this instruction: “Ladies and gentlemen, disregard the whole question, the response. Totally ignore it. There’s no basis in it.”

On redirect examination, the state asked Shanley to explain the basis of his knowledge of why the consent search was conducted at the defendant’s apartment. Shanley answered: “That potential harm could have come to [S] or to the [defendant]. And based upon that information, we went to his apartment or other detectives went to his apartment for the specific purpose of locating and seizing a specific type of item.” The defendant again made a motion to strike and for a mistrial. The court denied both and noted that the defendant had entered into evidence his written consent to search his premises and that the state was entitled to explore that subject.

As previously stated, we review the court’s evidentiary rulings to determine whether it abused its discretion. “Appellate review of a trial court’s decision granting or denying a motion for a [mistrial] must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 257, 780 A.2d 53 (2001).

The first challenged statement made by Shanley was promptly stricken from the record, and the jury was immediately instructed twice to disregard that statement. The jury also was reminded in the court’s final charge that stricken testimony is not evidence. “Unless there is evidence to the contrary, the jury is presumed to follow the court’s instructions.” (Internal quotation marks omitted.) State v. Aponte, 66 Conn. App. 429, 454, 784 A.2d 991 (2001), cert. denied, 259 Conn. 907, 789 A.2d 995 (2002). It was not an abuse of discretion for the court to deny the defendant’s initial motion for a mistrial.

The second challenged statement by Shanley was in response to a query as to why a search of the defendant’s apartment was conducted. The substance of his response was vague and not prejudicial. He did not repeat his earlier stricken testimony, but only explained that the motivation for the search was an effort to avert potential harm to the victim or the defendant. In addition, as the court found, the defendant had “opened the door” to that question by putting into evidence his written consent to search his apartment together with his query of Shanley: “Is that what [the consent to search] was for?” “Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” (Internal quotation marks omitted.) State v. Paulino, 223 Conn. 461, 467, 613 A.2d 720 (1992). We conclude the court did not abuse its discretion by denying the defendant’s renewed motion for mistrial.

VI

The defendant next claims that the court gave an improper jury instruction concerning consciousness of guilt. Specifically, he claims that the consciousness of guilt instruction was unbalanced because it did not include language that there may have been a possible innocent explanation for his behavior. We disagree.

The defendant submitted a request to charge that contained language addressing terrified innocence, i.e., that a person’s conduct or words may be explained by terrorized innocence and not a sense of guilt. The court did not include that language, but instead gave the following charge, in relevant part, over the defendant’s objection:

“There was a principle that came up in this case that we call, under the law, consciousness of guilt. There has been testimony that the defendant refused to respond to a question by Officer Fournier, specifically inquiring as to why the defendant moved his car to a particular area away from the house .... There has been testimony that the defendant responded to the questions — the questions both before and after his refusal to answer that question. Under our law, it is appropriate for you to consider such selective silence as evidence of consciousness of guilt.”

“[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 rules 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. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Citations omitted; internal quotation marks omitted.) State v. Coltherst, 263 Conn. 478, 490, 820 A.2d 1024 (2003). “[T]he decision whether to give an instruction on [consciousness of guilt], as well as the content of such an instruction, if given, should be left to the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Jackson, 75 Conn. App. 578, 590, 816 A.2d 742 (2003).

The defendant has cited no case law, nor have we discovered any, that requires the court to adopt the language advanced by the defendant in lieu of that utilized by the court. To the contrary, our Supreme Court has approved an instruction that certain conduct may be considered as evidence of guilt. See State v. Groomes, 232 Conn. 455, 474, 656 A.2d 646 (1995). The court properly phrased its instruction as a permissive inference and did not suggest that the jury was required to infer consciousness of guilt. Read as a whole, the court’s instructions to the jury were balanced and fair. The court’s instruction on consciousness of guilt was not an abuse of discretion.

VII

The defendant’s final claim is that the court based its sentence in part on improper considerations. Specifically, he claims that the court improperly used a newspaper article to increase the severity of his sentence. We are unpersuaded.

The following additional facts are relevant to our discussion of the defendant’s claim. On January 10, 2002, an article was published in the Hartford Advocate concerning the trial of this matter as well as the topics of bondage, domination and sadomasochism generally. The author of the article indicated that he had spoken with the defendant by telephone, and that the defendant and the victim had practiced consensual bondage before and during their marriage. The article actually discussed one such encounter. The author also stated that the defendant saw himself as the real victim on the basis of his claim that he had been framed by his legally savvy wife in possible retaliation for his pursuit of a divorce.

The court, during the sentencing hearing, informed defense counsel that it had read the article and that the article had, in its view, aggravated the crime by revictimizing the victim. The court stated: “Let’s just say my range changed a little bit after reading the article.” Additionally, before passing sentence, the court commented: “Well, now she’s the heroine and you’re the chump that’s going to jail,” and, “Laugh at him, he’s a loser.” In response to those comments, defense counsel asked the court recuse itself. The court denied the motion and stated that it would consider a whole range of factors in determining sentence and that the article was relevant to legitimate sentencing considerations: Lack of. remorse and exacerbating the crime by subjecting the victim to public ridicule.

Although the defendant acknowledges that judicial bias at sentencing would not entitle him to a new trial, he claims that the court’s comments evinced sufficient bias to warrant re-sentencing before a different judge. Thus, the question on appeal is whether it was an abuse of discretion for the court to decline to recuse itself in the face of defense counsel’s request following the court’s comments.

If “a sentence is within statutory limits it is not generally subject to modification by a reviewing court. . . . A sentencing judge has very broad discretion in imposing any sentence within statutory limits .... The court may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information [it] may consider or the source from which it may come. . . . Due process requires, however, that information be considered only if it has some minimal indicium of reliability. . . . Among the factors that may be considered by a court at a sentencing hearing are the defendant’s demeanor and his lack of veracity and remorse as observed by the court during the course of the trial on the merits.” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 212 Conn. 31, 47, 561 A.2d 897 (1989).

The gravamen of the defendant’s claim is that the court made reference to information that was not part of the record and that in commenting on that information, demonstrated bias against him.

As a general proposition, the court at sentencing is permitted to consider information not circumscribed by the mies of evidence. Specifically, the court is permitted to consider hearsay. See State v. Russell, 58 Conn. App. 275, 280, 752 A.2d 59 (2000). Thus, although the newspaper article clearly was hearsay, it was not inappropriate for the court to refer to it. Additionally, the article had some minimal indicia of reliability, as the defendant denied neither the accuracy of the article’s contents nor his involvement with its creation.

As to the propriety of the court’s comments, although we do not condone the court’s choice of language, neither do we condemn it, as we are mindful that the trial court, and not us, heard the evidence and had its own opportunity to gauge the severity of the offenses and the quality of the defendant’s remorse, if any, postconviction. Thus, although we expect the court to maintain a continuing demeanor of impartiality during trial, at sentencing, the court speaks as an agent of the community and as the voice of justice. That the court was human in expressing its indignation at the defendant will not be the cause of condemnation by this court. The defendant’s sentence was within the statutory limits; it was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to General Statutes § 54-86e, we will refer to the victim only as “S."

       It should be noted that at that time, defense counsel told the court to put its robe back on, and accused the court of becoming a participant and adversary.

       That colloquy took place in the absence of the jury.


author: SCHALLER, J.

text:
    SALLY ANN DURSO v. CHARLENE VESSICHIO
    (AC 23234)
    Foti, Schailer and Flynn, Js.
    Argued May 2
    officially released August 26, 2003

      Walter A. DeAndrade, for the appellant (defendant).

      Eric P. Smith, with whom, on the brief, was Marisa A. Bellair, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Charlene Vessichio, appeals from the judgment of the trial court rendered in favor of the plaintiff, Sally Ann Durso, after a trial to the court. On appeal, the defendant claims that the court improperly (1) applied General Statutes § 36a-290 and (2) determined that the defendant had converted the plaintiffs one-half interest in deposited funds held in joint bank accounts. We affirm the judgment of the trial court.

The following facts were admitted, stipulated to by the parties or reasonably found by the court on the basis of the evidence presented. On June 9, 2000, Salvatore Vessichio, the father of the plaintiff and the defendant, established joint survivorship bank accounts at Bank-Boston, now Fleet Bank, in East Haven. The accounts were established in the names of Salvatore Vessichio, Sally Ann Durso and Charlene Vessichio. Salvatore Vessichio died on August 17, 2000. At the time of his death, the balance of the joint accounts totaled $86,618.

After her father’s death, the defendant withdrew all of the funds from the accounts. From those funds, the defendant paid $11,933.80 toward her father’s funeral expenses and debts. The defendant then deposited the remaining $74,684.20 in an account in her name at Webster Bank. The plaintiff later demanded that the defendant pay her $43,309, a sum representing one-half of the funds originally deposited in the joint accounts. The defendant refused to pay the plaintiff any of the moneys that she demanded.

On November 2, 2000, the plaintiff commenced this action premised on the legal theory that the defendant had converted the funds. On August 2,2001, the plaintiff amended her complaint and alleged that she and the defendant were owners of the funds and, specifically, that the defendant had converted the funds.

After a trial to the court, on June 18, 2002, the court found in favor of the plaintiff and awarded her $37,342.10. The defendant thereafter filed a motion for an articulation of the court’s memorandum of decision. The court denied the motion, and the defendant filed a motion for review of the court’s decision denying articulation. On November 11, 2002, we granted the motion for review, but denied the relief requested therein. The defendant appealed.

I

The defendant claims that the court misapplied § 36a-290 because (1) the court improperly concluded that § 36a-290 (a) operates only as a bank protection provision and (2) § 36a-290 (b) does not apply when the account holders are alive. We disagree.

A

The defendant first argues that the court misapplied § 36a-290 because it improperly concluded that § 36a-290 (a) operates only as a bank protection provision. According to the defendant, the two clauses comprising § 36a-290 (a) should be read independently of one another. It is the defendant’s position that the first clause of § 36a-290 (a) grants a joint account holder the right to withdraw all of the funds from the account, places all other joint account owners on notice of that right and results in a first in time race to the funds rule. The second clause of § 36a-290 (a), the defendant argues, stands independently of the first clause and serves to protect the bank from liability when it permits a joint account owner to withdraw any amount of funds from the account. We disagree with the defendant’s reading of the statute.

The trial court disagreed with the defendant’s interpretation and, in its memorandum of decision, stated that § 36a-290 (a) “is of no assistance to the defendant, as that section is designed to protect the bank in situations such as this one.” In other words, the court determined that the entire text of § 36a-290 (a) served to function as a bank protection statute. The court then relied on § 36a-290 (b) to award the plaintiff damages.

We first set forth our standard of review. The defendant’s claim involves a determination of the construction to be given § 36a-290 (a). Statutory construction presents a question of law, and our review is, therefore, plenary. Chadha v. Charlotte Hungerford Hospital, 77 Conn. App. 104, 111, 822 A.2d 303 (2003).

In Fleet Bank Connecticut, N.A. v. Carillo, 240 Conn. 343, 691 A.2d 1068 (1997), a case concerning § 36a-290 in the context of a third party creditor’s setoff rights, our Supreme Court touched on the meaning of § 36a-290 (a) with respect to an account holder’s property rights. The court stated that § 36a-290 “provides that, when an account is created in the names of two or more people, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them. . . . Thus, under this statute, a bank is authorized to release up to the entire balance of a joint account to each and any coholder who so demands. In our view, this authorization not only provides protection for payor banks but also recognizes a sufficient property interest in each coholder to warrant characterizing all such deposits as a debt due to each coholder sufficient to trigger a third party creditor’s statutory right to execute against the entire balance of the joint account.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 349-50. The court recognized that the two sentences in § 36a-290 (a) should be read together and that they jointly serve to express the legislature’s intent to protect banks by allowing banks to release any amount of funds to any joint account holder without subsequent liability. The court also recognized the right of each account holder to withdraw any or all of the money on deposit in the account and that the provision giving that right to withdraw codified a sufficient property interest in each account holder to substantiate a “ ‘debt due.’ ” Id., 350; see also Grass v. Grass, 47 Conn. App. 657, 660-61, 706 A.2d 1369 (1998).

The specific property interest recognized by the court in Fleet Bank Connecticut, N.A., is limited, however, to permit a creditor of any of the holders of a joint account to exercise setoff rights against the account in its entirety. Fleet Bank Connecticut, N.A. v. Carillo, supra, 240 Conn. 350. In other words, § 36a-290 (a) recognizes the account holder’s right to the moneys as a debt due by the bank. It does not recognize an account holder’s rights to the moneys as between holders. See Grodzicki v. Grodzicki, 154 Conn. 456, 463, 226 A.2d 656 (1967) (“language of [General Statutes § 36-3, the predecessor of § 36a-290] does not determine the respective rights of the parties inter vivos”).

The defendant also cites Grodzicki v. Grodzicki, supra, 154 Conn. 463, for the proposition that the two clauses of § 36a-290 (a) should be read independently of one another. We disagree with that reading of Grodzicki because our Supreme Court expressly labeled § 36-3 (l), the predecessor of § 36a-290 (a), as a “bank protection [statute].” (Internal quotation marks omitted.) Id., 461; see also Fleet Bank Connecticut, N.A. v. Carillo, supra, 240 Conn. 358 (Berdon, J., dissenting).

Additionally, our Supreme Court decided Grodzicki twenty-seven years before the legislature divided § 36a-290 (a), the former § 36-3 (1), into § 36a-290 (a) and (b). Public Acts 1994, No. 94-122, § 133, reorganized, consolidated and streamlined our banking statutes to clear up internal inconsistencies and interpretations. See 35 H.R. Proc., Pt. 2, 1992 Sess., p. 590; see also Fleet Bank Connecticut, N.A. v. Carillo, supra, 240 Conn. 358 n.3 (Berdon, J., dissenting). The legislature made technical changes to § 36a-290 by dividing former § 36-3 (1) into § 36a-290 (a) and (b). See 35 H.R. Proc., supra, p. 590. The advisory committee responsible for the recodification effort was comprised of four groups. Conn. Joint Standing Committee Hearing, Banks, Pt. 1, 1994 Sess., pp. 105-106, remarks of Gayle S. Fierer, chief administrative attorney for the department of banking, concerning House Bill No. 5367, “An Act Concerning the Reorganization of the Banking Laws of Connecticut.” One of those groups specifically was concerned with deposits, and focused its efforts to consolidate, modernize and technically revise § 36a-290 to remove internal inconsistencies. Id. It is inconceivable to us, given the efforts to reorganize and clarify the banking laws, that in addition to subdividing § 36a-290 (a), the two clauses in § 36a-290 (a) were intended by the legislature to be read independently of one another in the manner proposed by the defendant.

We therefore conclude that the court properly determined that § 36a-290 (a) serves only as a bank protection provision and does not determine ownership interests in the disputed funds.

B

The defendant next argues that the court improperly determined on the basis of § 36a-290 (b) that the plaintiff was entitled to one-half of the amount of funds originally on deposit in the joint accounts because, according to the defendant, § 36a-290 (b) does hot apply when the account holders are alive. We disagree.

At the outset, we note that the defendant challenges the court’s finding that following Salvatore Vessichio’s death, she improperly transferred all of the deposited funds in the joint bank accounts into a private account and treated them as her own. The defendant argues, in support of that claim, however, that prior to Salvatore Vessichio’s death, § 36a-290 (b) would not properly apply. That is not the precise issue before this court in the context of the defendant’s claim on appeal, however. We therefore focus our review of the claim with respect to the court’s application of § 36a-290 Qo) following the death of Salvatore Vessichio, one of the holders of the joint bank account. That involves a question of statutory interpretation. Our review is therefore plenary. See Gelinas v. West Hartford, 65 Conn. App. 265, 275, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).

In support of her position, the defendant cites Grodzicki and Monachelli v. Mechanics & Farmers Savings Bank, 13 Conn. App. 662, 538 A.2d 1089 (1988). Those two cases are factually distinguishable from this case. First, those cases concern contests that were based on an alleged breach of duty to pay moneys properly according to the agreement between the depositor and the bank. Next, those cases involve § 36-3, the precursor to § 36a-290 (a) and (b), which, as discussed in part II, underwent substantial revisions and modifications. Finally, and most importantly, those cases involve property disputes in which all of the original holders were alive.

In Grodzicki, one holder withdrew funds from a joint account to which she had been the sole contributor of the funds on deposit in the joint account. Her fellow holder then brought an action against the sole depositing holder for conversion, claiming an ownership interest in the funds upon their deposit. Our Supreme Court reviewed the two clauses of § 36-3 (1). The court determined that the first clause, the precursor to § 36a-290 (a), served only as a bank protection provision. The second clause, the precursor to § 36a-290 (b), the court held, does not apply when all holders of the account are alive. That is, the court held that § 36-3 “does not determine the respective rights of the parties inter vivos”) (emphasis added) Grodzicki v. Grodzicki, supra, 154 Conn. 463; such that one account holder may claim community property rights in funds deposited by another account holder. Likewise, in Monachelli, the court stated that the second clause of § 36-3 (1) does not apply with respect to ownership rights when both account holders are alive. Monachelli v. Mechanics & Farmers Savings Bank, supra, 13 Conn. App. 665.

The defendant’s reliance on those two cases for the proposition that § 36a-290 (b) does not apply when one of the holders of the account has died is incorrect. In this case, Salvatore Vessichio, an account holder and the original depositor of the funds, died prior to the defendant’s withdrawal of the funds. Joint accounts are governed by § 36a-290 (b), and that provision creates a presumption, rebuttable only by clear and convincing evidence, that the creation of a joint account is evidence of the intent of all the named owners to have the proceeds, on the death of one of them, go to the other joint account holder or holders. See Cooper v. Cavallaro, 2 Conn. App. 622, 626, 481 A.2d 101 (1984). “The intent of the legislature in enacting General Statutes § 36-3 [the predecessor to General Statutes § 36a-290] was to make the existence of a joint bank account prima facie evidence of ownership by the survivor which can only be rebutted by clear and convincing evidence to the contrary.” (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 665, 680, 760 A.2d 989 (2000). Our Supreme Court has stated that the two primary objectives of § 36-3 were (1) to authorize banks to release any or all funds to each holder of a joint account on demand and (2) to establish a presumption of ownership in surviving joint account holders on the death of a fellow holder. Fleet Bank Connecticut, N.A. v. Carillo, supra, 240 Conn. 353 n.13.

Salvatore Vessichio, an account holder, died on August 17, 2000. Under the Supreme Court’s rationale, on his death, § 36a-290 (b) became applicable, and title in the account proceeds vested in both the plaintiff and the defendant through their survivorship rights. After title in the proceeds had vested in both the plaintiff and the defendant, the defendant improperly withdrew all of the funds in violation of § 36a-290 (b). The defendant does not contend that the account was not established as a joint bank account. Because joint accounts are governed by § 36a-290 (b), and that statutory subsection creates a presumption, rebuttable by clear and convineing evidence, that the creation of a joint account is evidence of the intent of all of the named owners to have the proceeds, on the death of one of them, go to the other joint account holder or holders, the defendant had the burden to prove by clear and convincing evidence that there was fraud, undue influence or other improper conduct involved in the creation of the joint account. See General Statutes § 36a-290 (b). To satisfy the standard for clear and convincing evidence, the defendant had to prove that “the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Miller v. Commissioner of Correction, 242 Conn. 745, 794, 700 A.2d 1108 (1997). Our Supreme Court has defined “clear and convincing” as a very demanding standard that “should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.” (Internal quotation marks omitted.) Id., 795.

In this case, the defendant failed to challenge the existence of a joint bank account, or the existence of fraud or undue influence, and our review of the record indicates that she produced no such evidence. In the absence of evidence of fraud or undue influence, the establishment of the bank account in the names of Salvatore Vessichio, Sally Ann Durso and Charlene Vessichio is prima facie evidence, pursuant to § 36a-290 (b), of Salvatore Vessichio’s intention to vest title in both the plaintiff and the defendant on his death. Our review of the record and briefs reveals that the defendant made no attempt at trial to rebut the presumption of ownership set forth in § 36a-290 (b). The court therefore correctly determined, on the basis of § 36a-290 (b), that the plaintiff had survivorship rights in the proceeds of the joint bank accounts.

II

The defendant claims that the court improperly concluded that she had converted the plaintiffs one-half interest in the account funds. We disagree.

In its June 18, 2002 memorandum of decision, the court ruled that pursuant to § 36a-290 (b), the plaintiff held joint title to the funds. The court disagreed with the defendant’s proposition that pursuant to § 36a-290 (a), the deposited funds “become the property of the one who got to the bank first.” That provision, the court stated, applies only to banks and serves to protect the bank when one depositor withdraws funds from a joint account. Accordingly, on the basis of the stipulated facts, the court found that under § 36a-290 (b), the plaintiff had a survivorship interest in the funds, and then implicitly found that the defendant wrongfully had converted $37,342.10 and awarded damages in the same amount.

Our Supreme Court has defined conversion as “some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.” (Internal quotation marks omitted.) Aetna Life & Casualty Co. v. Union Trust Co., 230 Conn. 779, 790-91, 646 A.2d 799 (1994). To establish a prima facie case of conversion, the plaintiff had to establish that “(1) the deposit given to the defendant belonged to the [plaintiff], (2) the defendant deprived the [plaintiff] of [her] funds for an indefinite period of time, (3) the defendant’s conduct was unauthorized and (4) the defendant’s conduct harmed the [plaintiff].” Aubin v. Miller, 64 Conn. App. 781, 796, 781 A.2d 396 (2001).

A determination by the court as to whether the defendant converted the funds necessarily would involve a finding of fact, requiring the application of the clearly erroneous standard of review. See id. “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Id.

The plaintiff clearly established a prima facie case of conversion. As discussed in part I, the court determined that on the death of Salvatore Vessichio, the plaintiff and the defendant, as survivors, each had a right to the deposited funds under § 36a-290 (b). Therefore, the plaintiff had an ownership interest in some amount of the funds. The defendant in her brief conceded that “[a] short time after Salvatore Vessichio’s death, [the] defendant withdrew all the funds from all the accounts and placed same in bank accounts in her name only” for an indefinite period of time. The defendant’s actions clearly were unauthorized by the plaintiff because the plaintiff had demanded that the defendant return one-half of the moneys, and the defendant refused to comply with the demand. Finally, the defendant’s actions harmed the plaintiff, as she was without her proportionate share of the funds.

We therefore conclude that the court’s implicit finding that the defendant converted one-half of the funds was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 36a-290 provides: “(a) When a deposit account has been established at any bank, or a share account has been established at any Connecticut credit union or federal credit union, in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them. Any such payment constitutes a valid and sufficient release and discharge of such bank, Connecticut credit union or federal credit union, or its successor, as to all payments so made.
      “(b) The establishment of a deposit account or share account which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds.
      “(c) This section shall not apply to any deposit account or share account where any owner died before October 1, 1971, nor shall it apply to any action pending on that date.”

       The defendant later transferred those funds to an account in her name at Salomon, Smith and Barney.

       In her brief, the defendant does not dispute the plaintiffs argument that the plaintiff enjoyed an interest in one-half of the funds. Instead, the defendant argues that regardless of the plaintiffs ownership interest in the funds, the first holder to withdraw the funds, on the death of Salvatore Vessichio, is the owner of any of the funds withdrawn.

       The court awarded $37,342.10 because that is half of the original $86,618 on deposit less one-half of the $11,933.80 that the defendant paid to cover the funeral expenses and debts of Salvatore Vessichio ($5966.90).

       Although the defendant, in her appellate brief, presented her claims in a different order than they are addressed here, we address the defendant’s claims in the following manner because to determine whether the court properly concluded that she had converted the funds, we must first analyze whether the court properly (1) determined that the plaintiff had an ownership interest in one-half of the deposited funds, and (2) applied General Statutes § 36a-290 (a) and (b).

       The defendant specifically states in her brief: “This portion of General Statutes § 36a-290 (a) does not seem to spell out that banks are protected but spells out the understanding of persons opening a joint account — in effect giving each coholder a right to withdraw all and a warning to each of them that the other can withdraw all the funds at any time.”

       Although the court did not expressly state that it found that the defendant had converted the funds, we conclude that the court’s reliance on General Statutes § 36a-290 (b), the court’s statement that § 36a-290 (b) is “clear and unequivocal,” and the award of damages implies that the court determined that she had converted one-half of the deposited funds. See Klug v. Inland Wetlands Commission, 30 Conn. App. 85, 92, 619 A.2d 8 (1993) (in interpreting judgment, intention of court is determined by considering all parts of judgment and effect must be given to that which clearly is implied). We review the court’s finding of conversion in part II.

       The defendant’s reliance on Ardito v. Olinger, 65 Conn. App. 295, 298, 782 A.2d 698, cert. denied, 258 Conn. 942, 786 A.2d 429 (2001), also is misplaced because in that case, the plaintiff was not an owner of the joint account.

       General Statutes (Rev. to 1962) § 36-3 provides: “JOINT DEPOSITS AND ACCOUNTS. (1) When a deposit has been made in this state in any state bank and trust company, national banking association, savings bank, industrial bank or private bank, or an account has been issued in this state by any budding or savings and loan association or federal savings and loan association or credit union, in the names of two or more persons and in form to be paid to any one or the survivor, or survivors, of them, such deposit or account and any additions thereto made by any of such persons after the making or issuance thereof, together with all dividends or interest or increases credited thereon, shall be held for the exclusive use of such persons and may be paid to any of them during the lifetime of all of them or to the survivor or survivors after the death of one or more of them, and such payment and the receipt or acquittance of the person or persons to whom such payment is made shall be a valid and sufficient release and discharge for all payments so made. The making of a deposit or issuance of an account in such form shall, in the absence of fraud or undue influence, be conclusive evidence, in any action orproceeding respecting the ownership of, or the enforcement of the obligation created or represented by, such deposit or account, of the intention of all of the named owners thereof to vest title to such deposit or account, including all additions and increments thereto, in such survivor or survivors.”
      The first sentence of that provision is the foundation for General Statutes § 36a-290 (a). The second sentence in that provision is the foundation for § 36a-290 (b).

       The first clause in General Statutes (Rev. to 1962) § 36-3 (1) ultimately became General Statutes § 36a-290 (a), and the second clause of § 36-3 (1) ultimately became § 36a-290 (b).

       General Statutes § 36a-290 (b) provides: “The establishment of a deposit account or share account which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds.”

       In her brief, the defendant argues that the “personal deposit account and agreement” (agreement) that was issued by BankBoston permitted the bank to pay out all accounts funds to any person named on the accounts. The defendant has failed to provide this court with a copy of the agreement. A review of the file, however, provides a summary of the agreement in the defendant’s trial brief. In the defendant’s June, 2002 brief, she stated that the “Personal Deposit Account Agreement, page 10, ‘Joint Accounts,’ . . . states that the balance in the account may be paid to any person named on the account during the lifetime of all of them.”
      Even if we accept the defendant’s understanding and interpretation of the agreement, it does not help her position. According to the defendant’s interpretation, the bank is permitted to release any amount of the funds on deposit in the joint accounts to any named account holder. Although that may be true, and appears to parallel the language of General Statutes § 36a-290 (a), that does not mean that the account holders have a right or that title in the funds has automatically vested with the signing of the agreement, especially on the death of a holder in light of General Statutes § 36a-290 (b).

       The first clause of General Statutes (Rev. to 1962) § 36-3 (1) is the foundation for current General Statutes § 36a-290 (a). The second sentence in this provision was the foundation for current § 36a-290 (b).

       On appeal, we are limited to review of the file, record and briefs, as the defendant has failed to file trial transcripts with this court.

       Because General Statutes § 36a-290 (b) does not provide for damages, but instead only determines survivorship rights in deposited funds between account holders, the court’s reliance on that specific provision to support its conclusion that $37,342.10 of the funds belonged to the plaintiff implies that the court awarded damages on a theory of conversion.
      “Ordinarily it is not the function of . . . the Appellate Court to make factual findings, but rather to decide whether the decision of the trial court was clearly erroneous in light of the evidence and pleadings in the whole record. . . . Conclusions of fact may be drawn on appeal only where the subordinate facts found [by the trial court] make such a conclusion inevitable as a matter of law ... or where the undisputed facts or uncontroverted evidence and testimony in the record make the factual conclusion so obvious as to be inherent in the trial court’s decision.” (Internal quotation marks omitted.) State v. Shashaty, 251 Conn. 768, 783, 742 A.2d 786 (1999), cert. denied, 529 U.S. 1094, 120 S. Ct. 1734, 146 L. Ed. 2d 653 (2000); Karantonis v. East Hartford, 71 Conn. App. 859, 863, 804 A.2d 861, cert. denied, 261 Conn. 944, 808 A.2d 1137 (2002).
      As stated previously, we declined to afford relief on the defendant’s motion for review concerning the trial court’s denial of the defendant’s motion for articulation, wherein the defendant requested further clarification as to whether the court had awarded the plaintiff damages on a theory of conversion. Although we granted review, we denied the underlying relief for further articulation. Accordingly, the court’s finding of conversion is inherent in its decision.

       We will not undertake a new accounting of the funds to determine damages because the court already has calculated damages, and the amount awarded was not specifically challenged on appeal. See footnote 3. We also note, however, that our holding is not intended to imply that General Statutes § 36a-290 (b) creates a presumptive equal interest in deposited funds between surviving account holders.