author: SPEAR, J.

text:
    PERCELL BLAKENEY v. COMMISSIONER OF CORRECTION
    (AC 15788)
    O’Connell, C. J., and Foti and Spear, Js.

      Argued September 18, 1997
    officially released February 3, 1998

      James A. Shanley, special public defender, Nicole Anker, certified legal intern, and Percell Blakeney, pro se, with whom were Timothy H. Everett, and, on the brief, Audrey Felsen, certified legal intern, for the appellant (petitioner).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Christopher A. Alexy, assistant state’s attorney, for the appellee (respondent).
   Opinion

SPEAR, J.

The petitioner sought a writ of habeas corpus challenging his convictions of burglary in the first degree in violation of General Statutes § 53a-101 and burglary in the second degree in violation of General Statutes § 53a-102. He appeals from the judgment of the habeas court dismissing the petition and claims that (1) the prosecutor’s failure to sign the information that charged burglary in the first degree deprived the trial court of subject matter jurisdiction as to that offense, (2) counsel was ineffective in pursuing the petitioner’s appeal because of her conflict of interest, and (3) the trial court deprived him of effective assistance of trial and appellate counsel by (a) denying his motion to withdraw his guilty pleas, (b) denying trial counsel’s motion to withdraw, (c) denying the petitioner the right to represent himself, (d) failing to inquire into trial counsel's conflict of interest and (e) failing to appoint a new attorney to file his appeal. We affirm the judgment of the habeas court.

The trial court’s memorandum of decision and the record disclose the following facts and procedural history. On the count of burglary in the first degree the petitioner was sentenced to a term of fourteen years, with the execution of the sentence suspended after nine years. On the count of burglary in the second degree, charged in a separate information, the petitioner was sentenced to a term of nine years to be served concurrently with the sentence for burglary in the first degree. On the day of sentencing, the petitioner moved to vacate his guilty pleas claiming, inter alia, that his trial counsel had been ineffective. His trial attorney then moved to withdraw, citing a breakdown in communication between her and the petitioner. The court denied both motions.

After the petitioner was sentenced, trial counsel filed an appeal on his behalf. Thereafter, counsel filed an Anders brief stating that any appeal would be frivolous and requesting permission to withdraw as appellate counsel. The trial court, pursuant to Practice Book § 954, granted the motion to withdraw and declined to appoint new appellate counsel. The petitioner appealed pro se and this court affirmed his conviction in State v. Blakeney, 36 Conn. App. 939, 651 A.2d 1354 (1995). The petitioner thereafter filed a petition for a writ of habeas corpus alleging, inter alia, the matters that he now raises on appeal.

The habeas court dismissed the petition concluding that although Practice Book § 617 provides that “[a]n information shall be signed by the prosecuting authority,” the rules of practice cannot confer subject matter jurisdiction and, therefore, the petitioner’s guilty plea constituted a waiver of this nonjurisdictional defect. The habeas court also found that the petitioner’s trial counsel had no conflict of interest, concluding that the alleged conflict was “at most, a personal conflict brought on by the petitioner’s unwillingness to place his confidence in the public defender who had been assigned to represent him.” The habeas court further found that “[t]he petitioner has failed to prove that this ‘personal’ conflict adversely affected [counsel’s] representation either in the trial court or on appeal.”

Addressing the claim concerning counsel’s alleged conflict on his appeal, the habeas court found that at the time trial counsel filed the petitioner’s appeal, she intended to pursue it and determined that the appeal would be frivolous only after the appeal was filed. The trial court found that trial counsel had “an open mind at the time she was appointed to represent the petitioner on appeal and that she conducted an objective review of the transcripts of the proceedings up to and including the petitioner’s sentencing to determine if there were any nonfrivolous issues that could be advanced on the petitioner’s behalf.” Finally, the habeas court concluded that the trial court that allowed counsel to withdraw as appellate counsel fully complied with Practice Book § 954 and properly refused to appoint new appellate counsel. This appeal followed.

I

We first address the petitioner’s claim that the trial court lacked subject matter jurisdiction because the prosecutor failed to sign the information charging burglary in the first degree. “Jurisdiction involves the power in a court to hear and determine the cause of action presented to it and its source is the constitutional and statutory provisions by which it is created.” (Internal quotation marks omitted.) State v. Carey, 222 Conn. 299, 305, 610 A.2d 1147 (1992), on appeal after remand, 228 Conn. 487, 636 A.2d 840 (1994). “Lack of subject matter jurisdiction may be raised at any time. . . . Whenever the absence of jurisdiction is brought to the notice of the court or tribunal, cognizance of it must be taken and the matter passed upon before it can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction.” (Citations omitted; internal quotation marks omitted.) Second Injury Fund v. Lupachino, 45 Conn. App. 324, 330, 695 A.2d 1072 (1997).

The petitioner’s jurisdictional argument is premised primarily on the following statement in an 1816 Supreme Court decision: “[W]hat is intended by exhibiting a complaint, or information, in criminal cases [is] . . . [t]he presentment of the complaint, signed by some proper informing officer, to a court or public officer, who has authority to receive the same, and to issue a warrant to apprehend the offender, and bring him to trial . . . .” (Emphasis in original.) Newell v. State, 2 Conn. 38, 40 (1816). Reasoning that at common law a prosecutor had to exhibit a proper information to invoke the criminal jurisdiction of the Superior Court and that a proper information is one that is signed, the petitioner asserts that the court has no subject matter jurisdiction where the information is not signed.

Missing from this syllogism is the important fact that the language in Newell on which he relies is dicta. The Supreme Court was not asked to pass on whether an information that was not signed by a proper informing officer deprived the court of subject matter jurisdiction. Rather, the question presented was whether the applicable one year statute of limitations barred prosecution for an offense where the complaint was exhibited to a justice of the peace within one year of the offense, but not presented to the court until after the year had expired. We are not inclined to imbue the quoted phrase with jurisdictional significance where the Supreme Court in Newell did not consider the issue raised here. Our reticence is buttressed by “the principle that every presumption is to be indulged in favor of subject matter jurisdiction.” Sheff v. O’Neill, 238 Conn. 1, 15, 678 A.2d 1267 (1996).

The petitioner’s reliance on Koennicke v. Maiorano, 43 Conn. App. 1, 682 A.2d 1046 (1996), is also misplaced. The petitioner cites Koennicke for the axiomatic proposition that “while the Superior Court is a court of general jurisdiction, that jurisdiction must be properly invoked by the parties in order for a court to entertain a cause of action.” In Koennicke, we said that the attorney trial referee and the trial court had no subject matter jurisdiction over the third count of a civil complaint that alleged criminal trespass in violation of General Statutes § 53a-107. Although not stated expressly, Koennicke implicates the standing aspect of subject matter jurisdiction rather than the general power of the court to hear criminal cases. “ ‘Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.’ ” Monroe v. Horwitch, 215 Conn. 469, 473, 576 A.2d 1280 (1990); Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest ... in the subject matter of the controversy.” (Internal quotation marks omitted.) Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983), quoting Hiland v. Ives, 28 Conn. Sup. 243, 245, 257 A.2d 822 (1966).

No citation of authority is necessary for the proposition that only an authorized official has the right to prosecute a criminal charge. The plaintiff in Koennicke v. Maiorano, supra, 43 Conn. App. 1, lacked standing to bring a criminal charge because he was not a prosecutor. More than 100 years ago, our Supreme Court stated that “[i]t has been uniformly held since 1730 that the office [of state’s attorney] then established carried with it the duty to conduct all criminal prosecutions in the Superior Courts, and the power to institute and carry on in every court having criminal jurisdiction (unless restrained by some statute) any criminal prosecution within the jurisdiction of the court, and also the power and duty to exercise the common law powers appertaining to the office ... so far as applicable to our system of jurisprudence. ... It is then the common law of this State that authorizes the State’s Attorney to file informations in the Superior Court . . . .” State v. Keena, 64 Conn. 212, 215, 29 A. 470 (1894). Our Supreme Court recently affirmed these principles, stating that “public prosecution for crimes against the sovereign originated in colonial times. Prosecutors were appointed by and answerable to the sovereign because public justice could not depend upon the financial resources of victims.” Massameno v. Statewide Grievance Committee, 234 Conn. 539, 555, 663 A.2d 317 (1995), citing State v. Keena, supra, 214.

The prosecutor here had standing because of his actual authority as a prosecuting official. That authority is conceded by the petitioner and his attempt to make a signed information the sine qua non of the court’s jurisdiction finds no support in Connecticut case law. In a footnote, the petitioner cites Housing Authority v. Collins, 38 Conn. Sup. 389, 449 A.2d 189 (1982), and Shokite v. Perez, 19 Conn. App. 203, 561 A.2d 461 (1989). In Collins, the Appellate Session of the Superior Court affirmed the trial court’s dismissal of a summary process action because the complaint was not signed by an attorney as required by the rules of practice. The court said that the unsigned complaint should not have been accepted for filing and because the time within which a technical defect was curable by amendment had passed, “there was no complaint properly before the court to which an amendment might be annexed.” Housing Authority v. Collins, supra, 393. This court held in Shokite that where the applicable statute required only that the writ be signed in civil process, the lack of an attorney’s signature on the complaint did not deprive the trial court of subject matter jurisdiction, even though the rules of practice required an attorney’s signature on all pleadings. We noted in Shokite that the plaintiff filed a signed complaint within the thirty day period after the return date during which a defect was curable as of right pursuant to the rules of practice. That fact distinguished Shokite from Collins.

Neither of those cases avails the petitioner. Collins does not address a situation where, as here, judgment has entered on an unsigned complaint. Shokite makes clear that the lack of an attorney’s signature on a complaint, although violative of Practice Book § 617, does not implicate subject matter jurisdiction.

The petitioner directs us to four cases from other states in support of his jurisdictional claim. None of those cases advances his cause. In South Dakota v. Escalante, 458 N.W.2d 787 (S.D. 1990), a statute required that informations be signed by a prosecuting attorney, and case law established that the court’s jurisdiction turns on such signature. In contrast, General Statutes § 54-46 does not require that an information be signed and our case law, contrary to the petitioner’s claim, does not make the signature a jurisdictional prerequisite.

While Joplin v. Graham, 679 S.W.2d 897 (Mo. App. 1984), did hold that the trial court lacked subject matter jurisdiction where the prosecutor failed to sign the information, Joplin was overruled by State v. Knight, 764 S.W.2d 656 (Mo. App. 1988). The Knight court held that, pursuant to a post-Joplin rule of court, the lack of a prosecutor’s signature was only a minor defect that did not prejudice the defendant.

In Robertson v. Indiana, 650 N.E.2d 1177 (Ind. App. 1995), a deputy prosecutor signed the information instead of the statutorily designated prosecuting attorney. The court affirmed the conviction and held that the statute had been satisfied because it allowed for a substitute signature if it was sworn to by a prosecuting attorney.

In Hawaii v. Knoeppel, 71 Haw. 168, 785 P.2d 1321 (1990), the court did hold that the lack of a prosecutor’s signature was a fatal, as opposed to a formal, defect because a statute required that the prosecutor sign complaints. We note that in reversing the conviction the court did not expressly state that the defect implicated the court’s subject matter jurisdiction. Even if we assume that the defect was jurisdictional, Knoeppel is inapposite because our statute has no signature requirement.

Our review of other cases from our sister states on this issue discloses a divergence of opinion that is weighted in favor of viewing the defect as nonjurisdictional. Concluding that the lack of a prosecutor’s signature on the information is jurisdictional are Buis v. State, 792 P.2d 427 (Okla. Crim. 1990) (state’s failure to endorse information and thereby to verify arresting officer’s signature as required by statute deprived court of subject matter jurisdiction), and Smokes v. Wilmington, 282 A.2d 634 (Del. Super. 1971) (attorney general’s failure to sign information as required by statute was jurisdictional defect requiring reversal of conviction). In State v. Johnson, 101 Ohio App. 3d 129, 655 N.E.2d 208 (1995), the court reversed the conviction because the information was unsigned, in violation of the controlling statute, and therefore void. We note that in each of these cases a statute required the prosecutor’s signature on the information.

The following cases upheld convictions despite the lack of a prosecutor’s signature on the information. Montanez v. State, 630 So.2d 1163 (Fla. App. 1993) (objection to prosecutor’s failure to sign information untimely when raised for first time on appeal; rule provided that objection to lack of proper signature on information waived if not raised prior to pleading to substantive charges); State v. Hobson, 284 N.W.2d 239 (Iowa 1979) (failure to have authorized person sign and file trial information does not affect subject matter jurisdiction); State v. Thompson, 543 So.2d 1132 (La. App. 1989) (prosecution fully ratified filing of formal charges by presenting case at trial and defendant’s failure to move to quash information at trial constituted waiver of his right to object to unsigned information); State v. Romulus, 315 Md. 526, 555 A.2d 494 (1989) (omission of prosecutor’s signature mere irregularity that can be remedied and, once judgment of conviction rendered without defendant’s raising defect, defendant conclusively presumed to have waived issue); State v. Holdner, 96 Or. App. 445, 772 P.2d 1382 (1989) (statute requiring prosecutor’s signature on information enacted to avoid frivolous litigation and fact that prosecutor tried defendant proved that he did not regard complaint as frivolous, thus lack of signature not fatal defect); Commonwealth v. Slyman, 334 Pa. Super. 415, 483 A.2d 519 (1984) (unsigned information merely voidable and defendant’s failure to file motion to quash information waives his right to attack information on appellate review); Mills v. State, 802 S.W.2d 400 (Tex. App. 1991) (lack of statutorily required prosecutor’s signature must be attacked by pretrial objection as required by rules of procedure and statute and absent such objection there can be no appellate review of issue).

We find further support for the proposition that the lack of a prosecutor’s signature is not jurisdictional in cases involving the other traditional charging document, the bill of indictment. In the following cases, convictions were affirmed despite the lack of a required signature on the indictment. See Williams v. State, 512 So. 2d 666 (Miss. 1987) (absence of foreman’s signature procedural defect waived by defendant’s failure to demur to indictment); State v. Colvin, 92 N.C. App. 152, 374 S.E.2d 126 (1988) (lack of grand jury foreman’s signature mere clerical error and clearly not prejudicial to defendant, especially where other four indictments properly signed and bill of indictment could be amended by adding foreman’s signature); Pringle v. State, 339 S.E.2d 127 (S.C. 1986) (foreman’s signature not essential to validity of indictment; “True Bill” stamp on indictment conclusive proof that grand jury voted to indict defendant where indictment in writing and published by clerk); State v. Chambless, 682 S.W.2d 227 (Tenn. Crim. App. 1984) (in dicta, court said signature of grand jury foreman ministerial act; if defendant goes to trial without objecting to lack of signature, defect waived and indictment valid).

In People v. Benitez, 169 Ill.2d 245, 661 N.E.2d 344 (1996), the court held that, although the signatures of the prosecutor and the grand jury foreman were required by statute on the indictment and neither person signed, the lack of signatures did not require reversal. The Supreme Court of Ohio has held in a habeas corpus case that the failure of the grand jury foreman to sign the indictment did not deprive the trial court of jurisdiction. See State ex rel. Justice v. McMackin, 53 Ohio St. 3d 72, 558 N.E.2d 1183 (1990); see also Brown v. State, 177 Ga. App. 284, 339 S.E.2d 332 (1985) (where special assistant signed indictment, district attorney’s failure to sign it did not render indictment subject to attack); Peck v. State, 923 S.W.2d 839 (Tex. App. 1996) (absence of foreman’s signature does not invalidate indictment that otherwise fulfills legal requirements as where assistant foreman signs indictment in place of foreman).

The more well reasoned and persuasive cases are those that hold that the lack of a required signature on an information or indictment is a waivable, nonjurisdictional defect. Moreover, when we consider the underlying purpose of signatures, the implausibility of the petitioner’s claim becomes even more apparent. “The significance of a signature appearing on documents . . . lies in the fact that a signature is the name of a person written with his own hand to signify that the writing which precedes accords with his wishes or intentions. . . . The signature to a writing is placed there, moreover, for the purpose of authenticating it.” (Citation omitted; internal quotation marks omitted.) Fidelity & Casualty Co. v. Constitution National Bank, 167 Conn. 478, 491, 356 A.2d 117 (1975). Authentication of a document is the primary purpose of a signature requirement. See Woodruff & Son v. Rhoton, 251 Iowa 550, 556, 101 N.W.2d 720 (1960); Parma Tile Mosaic & Marble Co. v. Estate of Short, 87 N.Y.2d 524, 527, 663 N.E.2d 633, 640 N.Y.S.2d 477 (1996); Mesibov, Glinert & Levy, Inc. v. Cohen Bros. Mfg. Co., 245 N.Y. 305, 310, 157 N.E. 148 (1927); Capital Bank v. American Eyewear, Inc., 597 S.W.2d 17, 19 (Tex. Civ. App. 1980). There is no claim here that the prosecuting official lacked authority. By the very act of pursuing the charges to conviction, the prosecutor authenticated the information even more effectively than his signature could have done.

Absent a statutory or case law requirement that the information be signed by a prosecutor and where the actual authority of the prosecutor is unquestioned, common sense dictates that we treat such a lack of signature as a nonjurisdictional defect. That conclusion is further compelled by the rationale of the cases from our sister jurisdictions that so hold.

While historically it has been customary for a prosecutor to sign the information and although Practice Book § 617 codifies that practice, such a procedural rule does not implicate subject matter jurisdiction. Our Supreme Court has stated: “Practice Book rules do not ordinarily define subject matter jurisdiction. General Statutes § 51-14 (a) authorizes the judges of the Superior Court to promulgate rules regulating pleading, practice and procedure in judicial proceedings. . . . Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction of any of the courts. The defendant has not presented us with any examples of criminal Practice Book rules that affect subject matter jurisdiction.” (Internal quotation marks omitted.) State v. Carey, supra, 222 Conn. 307. “Even if a statute or Practice Book rule must be strictly construed and is mandatory, compliance with its requirements does not necessarily become a prerequisite to a court’s subject matter jurisdiction.” Id., 310. The rule of practice, § 617, that requires the prosecutor’s signature on the information is rooted in custom, but not common law as the petitioner asserts.

We conclude that the prosecuting authority’s failure to sign the information did not deprive the trial court of subject matter jurisdiction. Consequently, the petitioner’s guilty pleas constituted a waiver of this nonjurisdictional defect. See State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991). We now turn to the claim of ineffective assistance of counsel.

II

The petitioner asserts that his attorney had a conflict of interest that rendered her assistance ineffective in pursuing his appeal. He claims that trial counsel should not have agreed to serve as appellate counsel because of her inherent conflict with the petitioner. Alternatively, he claims that she should have requested that new counsel be appointed to review the entire file after she determined that an appeal would be frivolous. Both claims hinge on counsel’s having an actual conflict of interest.

A two-pronged analysis for evaluating claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Citing Strickland, we have said that “[f]irst, the petitioner must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as the counsel guaranteed to the criminal defendant under the sixth amendment, which in turn requires a showing that counsel’s representation fell below an objective standard of reasonableness. . . . Second, the petitioner must show that counsel’s errors were so serious as to render the result of the trial unreliable. It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, the petitioner must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. In this context, a reasonable probability does not require a showing that counsel’s deficient conduct more likely than not altered the outcome in the case, but rather requires that the petitioner establish a probability sufficient to undermine confidence in the outcome. . . . The petitioner must satisfy both prongs of the analysis to prevail on his ineffectiveness of counsel claim.” (Citations omitted; internal quotation marks omitted.) Rodriquez v. Commissioner of Correction, 35 Conn. App. 527, 534, 646 A.2d 919, cert. denied, 231 Conn. 935, 650 A.2d 172 (1994).

Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. “Where, however, the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice. . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. ... In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance.” (Citations omitted; internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 132-33, 595 A.2d 1356 (1991).

On appellate review, the “historical facts found by the habeas court may not be disturbed unless they were clearly erroneous . . . .” Id., 131. When, as in this case, those facts are essential to a determination of whether the petitioner’s sixth amendment rights have been violated, we are presented with a mixed question of law and fact requiring plenary review. See id.; McIver v. Warden, 28 Conn. App. 195, 203, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992); Rodriquez v. Commissioner of Correction, supra, 35 Conn. App. 535.

The petitioner’s claim founders because there is no evidence that establishes an actual conflict of interest. He asserts that a conflict arose because he wanted to argue that his guilty pleas should be vacated due to ineffective assistance of counsel and that trial counsel, not surprisingly, did not wish to press such a claim. No details regarding the ineffective assistance claim were given to the trial court. The petitioner claims that once he alleged that trial counsel was ineffective, an inherent conflict of interest was created without the need for details and, as a result of the conflict, trial counsel could not properly act as appellate counsel. The petitioner offers no authority for the proposition that simply by mouthing the words “ineffective assistance” he was entitled to a new attorney for appeal purposes. He offers no analysis as to why the trial court’s finding of no actual conflict is incorrect and points to no evidence that establishes an actual conflict. He relies solely on the fact that trial counsel both asked to withdraw in the trial court and stated that another attorney should be appointed because of the ineffective assistance allegation. Faced with an uncooperative and distrustful client, counsel’s motion to withdraw and her request for a new attorney are understandable, but do not establish an actual conflict.

The respondent properly points out the caution from the United States Supreme Court that “the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” (Emphasis added.) Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). “To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest an impairment or compromise of his interests for the benefit of another party.” (Emphasis added.) Danner v. United States, 820 F.2d 1166, 1169 (11th Cir. 1987), cert. denied, 484 U.S. 1012, 108 S. Ct. 713, 98 L. Ed. 2d 663 (1988).

We are not persuaded that a mere conclusory allegation of ineffective assistance, without specific details, creates a disqualifying conflict of interest on the part of the accused attorney. Our review of the record convinces us that the trial court properly found that there was no actual conflict of interest and, therefore, no ineffective assistance of appellate counsel.

Ill

The petitioner’s last claim is that the trial court deprived him of effective assistance of trial and appellate counsel by (1) denying his motion to vacate his guilty pleas, (2) denying trial counsel’s motion to withdraw, (3) denying the petitioner the right to represent himself, (4) failing to inquire into trial counsel’s conflict of interest and (5) failing to appoint a new attorney to file his appeal.

The first three subparts of this claim are directed at the actions of the trial court in the trial court proceedings. As such, they are not within the issue of ineffective assistance of appellate counsel that was certified by the habeas court. Therefore, we will not review them.

We view the last two claims as within the certification, but decline to review them because of inadequate briefing. The petitioner briefed these issues pro se even though he is represented by counsel who briefed his other claims. “Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Zanoni v. Hudon, 42 Conn. App. 70, 77, 678 A.2d 12 (1996). The petitioner cites no cases, statutes, rules or any other legal authority in support of his claims. He simply asserts that there was an “obvious” conflict “between the petitioner, counsel and counsel’s investigator but also a conflict between the petitioner, the Meriden Superior Court and the Meriden public defender’s office that was reported to the trial court by [trial counsel] . . . requesting that the case be transferred to another court . . . because of the inherent conflict of interest in the matter.”

“We are not required to review issues that have been improperly presented to this court through an inadequate brief.” Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). The petitioner has provided us with nothing more than conclusory assertions.

The judgment is affirmed.

In this opinion the other judges concurred.

        Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). In that case, the United States Supreme Court set out the proper procedure for counsel and the court where counsel believes that an appeal would be frivolous.

       Practice Book § 954 provides: “Finding that Appeal Is Frivolous
      “The presiding judge shall fully examine the briefs of counsel and of the defendant, and shall review the transcript of the trial. If, after such examination, the presiding judge concludes that the defendant’s appeal is wholly frivolous, he may grant counsel’s motion to withdraw and refuse to appoint new counsel. Before refusing to appoint new counsel, the presiding judge shall make a finding that the appeal is wholly frivolous and shall file a memorandum, setting forth the basis for his finding.”

       See footnote 2.

       The habeas court granted certification to appeal the following issues: “(1) Did the court err in its determination that the petitioner was not denied effective assistance of counsel on his appeal, and (2) Did the court err in its determination that his prosecution [for burglary in the first degree] on an unsigned information did not deprive the court of subject matter jurisdiction.” Although the certification was granted as to three issues, two of them are identical (ineffective assistance on appeal).

       In Newell v. State, supra, 2 Conn. 38, the plaintiff in error claimed that 1he prosecution was barred by the one year statute of limitations. The statute required that the information be exhibited within one year after the offense is committed. The brief opinion of Chief Justice Swift is as follows: “The question is, what is intended by exhibiting a complaint, or information, in criminal cases. The presentment of the complaint, signed by some proper informing officer, to a court or public officer, who has authority to receive the same, and to issue a warrant to apprehend the offender, and bring him to trial, must be a compliance with the law. In this case, a justice of the peace had power to cause the offender to be apprehended; and though he had not final cognizance of the offence, he had power to take proper measures to cause him to appear before a court of competent jurisdiction to try him. To exhibit the information to such public officer, is a strict and literal compliance with the statute; and such has been the immemorial and uniform usage in the state. And unless such power is given to single ministers of justice, a very convenient opportunity would often be afforded to offenders, to escape from justice.” (Emphasis in original.) Newell v. State, supra, 2 Conn. 40.

       Nothing in Koennicke v. Maiorano, supra, 43 Conn. App. 1, indicates that the plaintiff was a prosecutor. Even if he were a prosecutor at the time, he was not acting as such in pursuing the civil action.

       General Statutes § 54-46 provides in relevant part: “Prosecution on complaint or information. For all crimes charged by the state . . . the prosecution may be by complaint or information. . . .”

       See footnote 4.

       Even if these claims were within the certification, they would not be reviewable because they were briefed inadequately. See our discussion with respect to the last two parts of the claim.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROLAND NORWOOD
    (AC 15979)
    O’Connell, C. J., and Lavery and Hennessy, Js.

      Argued December 12, 1997
    officially released February 3, 1998

      H. Jeffrey Beck, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was Gerard Eisenman, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from his conviction, after a jury trial, of having a weapon in a motor vehicle without a permit in violation of General Statutes § 29-38. At the same time, the defendant was also convicted of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). On appeal, he does not challenge his robbery conviction.

The defendant claims that the trial court improperly (1) instructed the jury on the weapons charge, (2) denied his motion for judgment of acquittal and (3) admitted an exhibit without a proper chain of custody. We reverse the trial court’s judgment in part and order a new trial.

The following facts are necessary for the disposition of this appeal. On May 24,1995, the victim and a friend were walking on Broad Street in downtown Bridgeport when the defendant approached the victim and placed a gun to his head. The defendant stole money from the victim’s person and then ran down the street and entered a vehicle. The victim found a police officer in the immediate vicinity and together they gave chase in a cruiser until the vehicle carrying the defendant was stopped nearby. The defendant was seated in the backseat of the vehicle and was identified by the victim as the individual who had committed the robbery. After the officer conducted a lawful search of the vehicle and found two guns therein, he placed the defendant under arrest.

In his first claim, the defendant argues that the trial court’s jury instruction improperly omitted an essential element of the crime with which he was charged. It is axiomatic that it is the state’s burden to prove every element of the crime beyond a reasonable doubt, and the court’s failure to charge on an essential element of a crime constitutes a constitutional defect. State v. Tweedy, 219 Conn. 489, 510-11, 594 A.2d 906 (1991).

In the present case, the trial court failed to include in its instruction the statutory definition of a pistol as set forth in General Statutes § 29-27. The defendant properly preserved this claim for review by filing a request to charge the jury that the length of the gun barrel must be less than twelve inches.

This appeal is controlled by State v. Hamilton, 30 Conn. App. 68, 74-78, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994). In Hamilton, the defendant walked up to a backyard swimming pool where a boy and his friends were swimming and, at gunpoint, ordered them into the house. Once inside, the defendant demanded money, pointed the gun at the boy’s father and fired one shot into the ceiling. Id., 70. The defendant was subsequently charged with, inter alia, carrying a pistol without a permit. In its charge to the jury, the trial court failed to define the term pistol as specified in § 29-27, and failed to inform the jury that to find the defendant guilty of carrying a pistol without a permit, it first must find proven beyond a reasonable doubt that the defendant was carrying a weapon that had a barrel less than twelve inches in length.

The Hamilton court held that the length of a gun’s barrel was an essential element of the crime of carrying a pistol without a permit in violation of General Statutes § 29-35 and that failure to instruct the jury thereon required reversal of the judgment of conviction. “A jury’s verdict finding an accused guilty of a crime necessarily includes a determination that the state has proven all the elements of that crime beyond a reasonable doubt. . . . Such a verdict cannot be upheld unless the jury had a proper instruction from the court as to the law, which must include an identification of each and every essential element for which the state has the burden of proof beyond a reasonable doubt. Without such a basic instruction, we cannot conclude that the jury acted in a fair manner.” (Citation omitted.) State v. Hamilton, supra, 30 Conn. App. 76.

“We find . . . where the trial court failed to instruct the jury that in order to find the defendant guilty of carrying a pistol without a permit it must specifically find that the defendant had carried upon his person a firearm having a barrel less than twelve inches in length. The omission of any instruction on the barrel length of the weapon deprived the jury of the ability to perform its task properly.” Id., 78.

For the purposes of this opinion, we discern no material difference between the crime of carrying a pistol without a permit in violation of § 29-35, as in Hamilton, and having a pistol in a motor vehicle without a permit in violation of § 29-38, as in the present case. Accordingly, in light of Hamilton, the defendant’s conviction for violation of § 29-38 cannot stand.

Our conclusion on the defendant’s first claim is dis-positive of this appeal. We do not reach the issues in the defendant’s other claims because they are not likely to arise on retrial.

The judgment is reversed only as to the conviction of having a weapon in a motor vehicle without a permit and the case is remanded for a new trial on that charge.

In this opinion the other judges concurred.

       General Statutes § 29-38 provides in pertinent part: “Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued . . . shall be fined not more than one thousand dollars or imprisoned not more than five years or both, and the presence of any such weapon in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. The word ‘weapon’, as used in this section, means any pistol or revolver . . . .”

       General Statutes § 29-27 provides: “The term ‘pistol’ and the term ‘revolver’, as used in sections 29-28 to 29-38, inclusive, mean any firearm having a barrel less than twelve inches in length.”

       General Statutes § 29-35 provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same . .


author: SPALLONE, J.

text:
    STATE OF CONNECTICUT v. SOLOMON BARNES
    (AC 16241)
    SchaUer, Hennessy and Spallone, Js.

      Argued December 8, 1997
    officially released February 10, 1998

      Norman A. Pattis, special public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger Dobris, assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

In this appeal from his conviction of possession of cocaine in violation of General Statutes § 21a-279 (a), the defendant claims that the trial court improperly (1) declined to give a Secondino charge where the state failed to call one of the two police officers who allegedly had witnessed the defendant holding illegal narcotics and (2) allowed into evidence narcotics seized from the defendant absent an adequate showing of chain of custody.

The defendant was tried by a jury and acquitted of the crimes of possession of cocaine with intent to sell by a person who is not drug-dependent and possession of cocaine within 1500 feet of a school in violation of General Statutes § § 21a-278 (b) and 21a-278a (b). The jury convicted the defendant on the lesser included offense of possession of cocaine in violation of § 2la-279 (a).

From the evidence adduced at trial and from all reasonable inferences to be drawn therefrom, the jury reasonably could have found the following facts. Early in the evening of June 25,1995, New Haven police officers Peter Carusone and Andrew Muro, a drug interdiction team, were patrolling the Newhallville section of the city, which was plagued with high levels of drug activity. In the vicinity of several abandoned, boarded-up multifamily houses, certain suspicious activities led them to leave their cruiser and enter one of the buildings. There they surprised the defendant who was standing inside the entrance. The defendant was holding a clear plastic bag that held a large number of smaller bags of what appeared to be crack cocaine packaged for sale. The defendant was holding the bag in one hand and reaching into it with the other hand. The defendant, upon spotting the police, said, “Oh shit.” Both officers seized the defendant. Carusone grabbed one of the defendant’s arms, and Muro grabbed the other arm while taking the plastic bag from the defendant. The officers arrested and searched the defendant. The defendant had a roll of small bills totaling $162 in his pocket. The bag contained fifty-three small bags of crack cocaine that totaled 1.2 grams.

Both Muro and Carusone testified at a pretrial suppression hearing. The officers’ testimony regarding the incident was identical in all significant aspects and closely matched the testimony that Carusone later delivered at trial.

The prosecution did not present Muro as a witness at trial. The defendant requested, pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), that the trial court instruct the jury that it could draw an adverse inference from the failure of the state to call Muro to testify at trial.

Two threshold criteria must be fulfilled before a party is entitled to a Secondino charge: (1) the witness must be available and (2) the witness is one whom the party would naturally produce. The party claiming the benefit of the Secondino rule must show that he or she is entitled to it. State v. Carrione, 188 Conn. 681, 688, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983). “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra, 147 Conn. 675. Where the testimony of the uncalled witness would be “comparatively unimportant, cumulative or inferior to what has been offered, [the witness] should be dispensed with on the general ground of expense and inconvenience . . State v. Carrione, supra, 188 Conn. 688; State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989); without the need for an adverse charge.

Appellate courts will not disturb a trial court’s Secondino ruling absent a clear abuse of the trial court’s discretion. See State v. Grant, 221 Conn. 93, 106, 602 A.2d 581 (1992). In reviewing claims that the trial court abused its discretion, great weight is attached to the trial court’s decision and every reasonable presumption is given in favor of its correctness. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985).

The trial court properly declined to issue the missing witness instruction described in Secondino. The trial court found that although Muro was “available” within the contemplation of Secondino, he was not a witness that the prosecution would naturally produce because, given his testimony at the suppression hearing, his trial testimony would be virtually identical to and therefore cumulative of that of Carusone. The trial court did not improperly refuse to give the jury a missing witness instruction.

The defendant further claims that the court improperly admitted evidence because the prosecution had not established a chain of custody for a six month interval between the laboratory’s receipt of the narcotics and the analysis of the sample. That claim is without merit.

At trial, the state offered as evidence the narcotics seized from the defendant at the time of his arrest. In support of its proffer, the prosecution relied on the expert testimony of Richard Pinder, the director of the department of health toxicology laboratory. Pinder testified that the laboratory records show that the laboratory received the narcotics on June 29, 1995. The evidence was in aplastic container that bore the number 95-6-9376, which had been assigned to it by laboratory personnel. The container also bore an evidence seal with the date on which the test results were submitted, January 22,1996, and with Pinder’s signature. Carusone also testified, verifying that the narcotics offered into evidence were the same cache of crack cocaine Muro had seized from the defendant.

Appellate courts grant great deference to a trial court’s ruling on the admissibility of evidence; State v. Barnes, 27 Conn. App. 713, 717, 610 A.2d 689, cert. denied, 223 Conn. 914, 614 A.2d 826 (1992); and will not disturb such rulings absent a clear abuse of the trial court’s discretion. Id. “As a general rule, it may be said that the prosecution is not required or compelled to prove each and every circumstance in the chain of custody beyond a reasonable doubt; the reasonable doubt must be to the whole evidence and not to a particular fact in the case.” State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903 (1972). “It is not necessary for every person who handled the item to testify in order to establish the chain of custody. It is sufficient if the chain of custody is established with reasonable certainty to eliminate the likelihood of mistake or alteration. ’’ State v. Rumore, 28 Conn. App. 402, 410, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992).

Carusone, at the trial, identified the narcotics as those seen by him. His certitude, prior knowledge and intimacy with the evidence, standing alone, provided an adequate basis for admitting the evidence as unchanged and untampered with. See State v. Taylor, 37 Conn. App. 464, 480-82, 657 A.2d 659, cert. denied, 234 Conn. 907, 660 A.2d 859 (1995).

The testimony elicited from Pinder demonstrated an adequate and secure chain of custody. Muro, in the presence of Carusone, seized the evidence. Detective Mark Corporate hand delivered the evidence to the laboratory, where it was received by laboratory technician Nina Joseph. Pinder signed and dated the evidence container.

Our appellate courts have dealt with inadequate chain of custody claims and those decisions are dispositive of the claim in this case. In State v. Johnson, supra, 162 Conn. 229-31, the court noted that there was evidence sufficient to establish an adequate chain of custody including, as in this case, testimony showing the transfer of evidence among various law enforcement personnel, the delivery and transfer of evidence to the state laboratory, its receipt at the laboratory, the assignment of a laboratory number to evidence and the marking on the evidence, and testimony from the officers who had obtained the evidence, identifying it as the same evidence in an unchanged condition with no indication of tampering that was seized from the defendant. The court expressly noted that “[i]n the case at bar there was no affirmative showing that the three glassine bags in the shoe box were tampered with, or that there was insufficient proof as to the identification and nature of the contents of the three bags that were seized, so that it cannot be said that the trial judge clearly abused his discretion in admitting the three bags in evidence.” Id., 233.

In State v. Burns, 23 Conn. App. 602, 615, 583 A.2d 1296 (1990), this court concluded that “[n]o evidence was presented indicating that the evidence in this case was tampered with. The court was well within the limits of its discretion in reasonably concluding that the evidence was not tampered with, either during transportation or while at the state lab where it would be highly unlikely that ‘intermeddlers’ would tamper with the evidence.”

In essence, our appellate courts have held, and we hold here, that mere gaps of time between the various steps in seizing, transporting, delivering, storing and analyzing the evidence, in the absence of an affirmative showing that the evidence was in some way tampered with, misplaced, mislabeled or otherwise mishandled, are insufficient to establish abuse of the court’s discretion in admitting the evidence. The trial court properly admitted the evidence contested here.

In sum, given the facts and circumstances in this case, the trial court, in refusing to give the jury a Secondino charge and in admitting the evidence, acted properly, legally and in accordance with applicable law.

The judgment is affirmed.

In this opinion the other judges concurred.

         Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).


text:
    STATE OF CONNECTICUT v. ALEX MALAVE
    (AC 15615)
    Foti, Spear and Cretella, Js.

      Argued November 10, 1997
    officially released February 10, 1998

      Brien P. Horan and Lisa Gizzi, with whom, on the brief, was Darrell Cook, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The defendant claims that the trial court improperly (1) restricted his voir dire thereby preventing him from identifying venirepersons who were unqualified to serve as jurors, (2) instructed the jurors that they could draw an adverse inference from the defendant’s failure to produce a certain witness, (3) emphasized the criminal records of the defendant and his key witness and (4) failed to instruct the jury that lack of motive should be considered in assessing reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 12, 1994, Jose Garcia drove his brother, Oswaido Garcia, to the Latin American Club located on South Colony Street in Meriden. After Jose left, Oswaido was approached by a man who claimed that Oswaido had wrongfully intervened in an altercation at the club the night before. After Oswaido telephoned Jose and asked him to return to the club, a group gathered around Oswaido. Someone in the group asked Oswaido if he wanted to “go one on one” with the man who had originally approached him. The defendant threw a beer bottle at Oswaido, and a fight erupted between Oswaido and the defendant, who was supported by the other men. During the altercation, a hunting knife that Oswaido carried fell to the ground. The defendant retrieved the knife and stabbed Oswaido several times. Jose arrived during the fight and Oswaido managed to get into Jose’s car. Before Jose was able to drive away, the defendant stabbed Jose in the shoulder. During the drive to the hospital, Oswaido removed the knife from Jose’s shoulder and threw it out the window.

While at the hospital, Oswaido told police officers that the defendant, whom he had known for several years, was the assailant. Thereafter, Jose and Oswaido independently identified a photograph of the defendant as being of the assailant. The defendant’s picture was selected from an array of photographs that was presented separately to the brothers by police detectives.

The officers obtained an arrest warrant for the defendant and arrested him several weeks later. Rejecting the defendant’s alibi defense, the jury convicted him of both counts of assault in the first degree. This appeal followed.

I

Certain additional facts are necessary for the resolution of the defendant’s first claim that the trial court improperly restricted his voir dire of prospective jurors. One venireperson, Leta Carson, stated during her voir dire that she had heard a woman make a statement to the effect that she had seen the defendant and had “already made up her mind as to whether or not he was guilty.” Although she had sat across from the woman, Carson did not remember the woman’s name. In response to the defendant’s request to question Carson further as to the woman’s identity, the trial court responded that Elizabeth Wright was the only other woman in the corridor. The state and the defendant accepted Carson as a juror and the trial court excused her with instructions to report for trial on the following Monday. Wright was called in thereafter and denied having expressed any opinion as to the defendant’s guilt or innocence. The trial court refused to excuse her for cause and the defendant excused her with his second peremptory challenge.

The defendant then asked to recall Carson for further questioning in order to “pin down” the identity of the person who had made the remarks. The trial court conceded that Carson might have heard the remark while female venirepersons other than Wright were in the corridor, but refused to recall Carson that day. The subject proceedings were on a Wednesday, and the trial court offered to allow the defendant to recall Carson on Friday.

The trial court excused the three remaining female venirepersons on the panel, even though each denied hearing any comments about the case or the defendant. No jurors were chosen after Carson and at the end of the day the trial court again offered to allow the defendant to recall Carson on Friday. The defendant never recalled Carson nor did he ask the court to do so.

The defendant claims that the trial court impinged on his right to voir dire in five specific ways: (1) he was not allowed to question Carson sufficiently to ascertain the identity of the woman who allegedly made the remark concerning the defendant’s guilt; (2) the court improperly refused to recall Carson before proceeding with the voir dire of the other venirepersons, thereby impairing his ability to exercise his peremptory challenges intelligently; (3) the defendant was not allowed to ask questions of Wright that he claimed were reasonably necessary to ascertain any potential prejudices that she may have harbored toward him; (4) the court improperly refused to ask each of the remaining female venirepersons on the Wednesday panel whether she had made the alleged remark; and (5) the trial court failed to inquire of the two jurors selected before Carson as to whether they had heard the alleged remark or whether one of them had made the remark.

The defendant has both a constitutional and statutory right to voir dire prospective jurors. Our Supreme Court has stated that “[w]e have recognized that the purpose of examining members of the venire is twofold: first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge.” State v. Dolphin, 203 Conn. 506, 512, 525 A.2d 509 (1987). The defendant’s appeal centers on the second of those purposes as he claims that he was not able to obtain the information necessary to exercise his peremptory challenges intelligently.

In Dolphin, the Supreme Court also said that “[b]ecause of the wide range of cases submitted to juries and the impossibility of establishing a set pattern of questions appropriate for the voir dire examination of prospective jurors, the trial court is vested with broad discretion in determining the scope of counsel’s inquiry. . . . The court has a duty to analyze the examination of venire members and to act to prevent abuses in the voir dire process. . . . Therefore, the court’s actions ordinarily will not be disturbed unless the court has clearly abused its discretion or it appears that prejudice to one of the parties has resulted.” (Citations omitted.) Id., 511-12.

We note initially that this claim is properly before us even though the defendant did not exhaust all of his peremptory challenges. The Dolphin court instructs that “[t]he defendant, however, must be entitled to explore the area of possible bias or partiality before he can intelligently challenge for cause or exercise his right of peremptory challenge. ... It cannot be said, then, that the defendant permitted a juror to serve whom he regarded as biased, without first having had the opportunity to inquire into that possible bias. Therefore, the fact that the defendant did not exercise all of his peremptory challenges does not foreclose his ability to raise the present claim of error.” (Citations omitted.) State v. Dolphin, supra, 203 Conn. 513-14 n.5.

Having considered the first two claims together as they both relate to Carson, we conclude that the first claim is not supported by the facts and the second claim has no merit.

After the trial court rejected the defendant’s request to recall Carson and before proceeding further with the voir dire, the defendant exercised two additional peremptory challenges. With his third peremptory challenge, he excused a male former police officer without asking any questions about the alleged remark. In response to the court’s questions, however, that venireperson stated that he had not overheard any comments or discussions by anyone with respect to the defendant’s guilt or innocence. The defendant exercised his fourth peremptory challenge to excuse a male venireperson who stated to the court that he had not heard any comments about the defendant. The remaining venirepersons on that panel were excused by the court, with the exception of one male who was excused by the state.

The defendant does not claim that on Wednesday the trial court improperly excused the last three female venirepersons or any of the venirepersons. A new panel that could not have heard the alleged remark was brought in on Thursday. The defendant’s claim as to the Wednesday venirepersons is that he was forced to exercise two peremptory challenges, after Carson was selected, without the benefit of further information from Carson as to the identity of the woman who had made the alleged remark. Both persons whom the defendant excused were male. Thus, neither could have been the person who made the alleged remark and both denied hearing the alleged remark. There is no indication in the record that the defendant was restricted in any way in his questioning of those two venirepersons before he excused them. Because he did not ask either venireperson any questions about the alleged remark, we may fairly assume that he had reasons for exercising his peremptory challenges other than the possibility that the venirepersons were not being truthful in denying any knowledge of the alleged remark.

The defendant’s third claim, that he was not allowed to ask questions of Wright in order to ascertain any of her potential prejudices, has no basis in fact. Before Wright was brought in, the court stated: “I will inquire of her, and then counsel can pursue it, if there is any reason to.” When Wright was brought in, the court asked: “Well, I was just wondering whether you had expressed to anyone regarding your opinions in this case?” Wright answered no. During his voir dire, the defendant asked: “Have you made any remarks to any of the other panel members this morning about the way my client looks?” Wright answered no. The defendant asked no other questions regarding the alleged remark. The court clearly invited counsel to inquire further into the remarks and counsel took the opportunity to ask only one question. The defendant’s claim that the trial court hampered him in questioning Wright is without merit.

The defendant’s claim that the trial court refused to ask each of the remaining three female venirepersons on the Wednesday panel whether she had made the alleged remark is also without merit. The record clearly reveals that the trial court inquired of each venireperson whether she had heard any such remarks and each answered in the negative. While it is true that the court did not ask each person whether she had made the remark, all three were excused by the court without objection by the defendant. The defendant neither sought further voir dire of any of the three women nor offered any explanation as to how the court impaired his right to voir dire.

The defendant’s last claim with respect to his voir dire rights is that the court did not inquire of the two selected jurors whether they had heard the alleged remark or whether the female juror had made the alleged remark. This claim fails because the defendant did not ask the court to inquire of the two jurors who had been selected nor did he ask to recall Carson so that she could testify as to whether the female juror that was selected had made the alleged remark. The defendant simply asserts that the court had a duty to inquire, sua sponte, of the jurors selected because of its duty to “zealously protect” the rights of the accused. The defendant offers no analysis or authority for this specific claim. To allow the defendant to raise this claim on appeal after an adverse verdict, without making any effort to have the jurors questioned before trial, would be to condone the kind of conduct that we disapproved in Pineau v. Home Depot, Inc., 45 Conn. App. 248, 260, 695 A.2d 14, cert. granted on other grounds, 243 Conn. 902, 701 A.2d 332 (1997). In that case, we said that “ ‘[w]e do not allow parties to await the outcome of a matter before deciding whether to make an objection but require parties to raise the objection, if possible, when there is still an opportunity for the court to correct the proposed error.’ ” Id., quoting Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 57 n.10, 634 A.2d 870 (1993).

In oral argument, the defendant referred to State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995), where our Supreme Court, addressing a claim of jury misconduct, said that “[ejxercising our inherent supervisory power over the administration of justice, we now hold that henceforth a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. Although the form and scope of such an inquiry he within a trial court’s discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between.”

We do not believe that Brown applies to the present case for three reasons. First, the trial court received the information and conducted the voir dire proceedings before the Brown decision was released. Second, the remarks were allegedly made by a person in the venire before the jury was empaneled. There is no indication that any juror, after being selected, engaged in any form of misconduct. Finally, we are not persuaded that the supervisory mandate of Brown sweeps so broadly as to require the trial court to recall, sua sponte, selected jurors for further questioning during voir dire regarding possible taint from an improper remark by someone in the venire. State v. Brown, supra, 235 Conn. 502, operates in the sphere of juror misconduct claims, while the voir dire process properly allows counsel to investigate fully bias, preconceived notions and the like. The voir dire process is designed to weed out those who are unfit to serve because of prejudicial notions. The trial court in no way impeded the defendant from exercising his voir dire rights.

II

The defendant next claims that the trial court improperly instructed the jury that it could draw an adverse inference against the defendant because he failed to call Cindy Castro to testify in support of his alibi defense. Such a charge is commonly referred to as a Secondino or missing witness charge. See Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). Certain additional facts are necessary for our resolution of this issue.

The defendant testified that he did not commit the assaults and that he was inside the club playing pool when the fight erupted. He presented testimony in support of his alibi defense from several witnesses, including Maria Castro. The evidence showed that Cindy Castro was in the club with Maria Castro and the defendant. The state requested a Secondino charge because of the defendant’s failure to call Cindy Castro.

The defendant makes three claims of impropriety regarding the court’s Secondino instruction, two of which are not reviewable. The defendant claims that (1) the Secondino rule should be abandoned, (2) the trial court improperly confused the requirement that Cindy Castro be available to testify with the requirement that she be a witness whom the defendant would naturally produce and (3) the availability of Cindy Castro was not sufficiently established to support a Secondino instruction.

With respect to the first claim, the Secondino rule was established by a Supreme Court decision and it is axiomatic that this court cannot review or reverse Supreme Court precedent. State v. Panella, 43 Conn. App. 76, 83, 682 A.2d 532, cert. denied, 239 Conn. 937, 684 A.2d 710 (1996); State v. Oliver, 41 Conn. App. 139, 146, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996). While the defendant is aware that we cannot review this claim, he makes it nonetheless to preserve the record in the event of Supreme Court review.

With respect to the defendant’s second claim, the trial court instructed the jury as follows: “In order to make this inference in this case, you must first find that it is more probable than not that Cindy Castro was available and, second, that she is a witness whom the defendant would naturally produce. Whether the witness is available is a question of fact for you to determine, before you draw an adverse inference from [Cindy Castro’s] absence. Availability may be determined not only from mere physical presence or accessibility, but also from the usefulness or nature of the expected testimony. Also relevant is whether the witness is in such a relationship with the defendant that it is likely that her presence could be produced.”

The defendant claims that this language has been disavowed by our Supreme Court in Shelnitz v. Greenberg, 200 Conn. 58, 509 A.2d 1023 (1986), because the language “overlaps the two distinct requirements of the [Secondino] rule.” Id., 74. The defendant asserts that the jury may have “improperly drawn the adverse inference based solely upon the anticipated ‘usefulness or nature of the expected testimony’ of Cindy Castro” even though she was not available.

Practice Book § 4185 provides in relevant part: “The [appellate] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” The defendant made the following exception to the trial court’s instruction: “I also except to it for these specific circumstances, given the factors about whether or not she is available, and whether or not she is merely a cumulative of evidence witness. I think it was inappropriate.” This exception did not distinctly bring the defendant’s present claim to the attention of the trial court.

The reason for exceptions to a court’s charge is to alert the court to a possible error at a time when the trial court can correct it. See Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 592, 627 A.2d 443 (1993). The exception that was taken certainly addresses availability. The claim that the defendant makes on appeal is not detailed in that exception, nor was the court put on notice in any way of that claim. We, therefore, decline to review this unpreserved claim.

The last aspect of the defendant’s Secondino claim is that the availability of Cindy Castro was not established. Our review of the transcript shows that Maria Castro testified that she and Cindy Castro were roommates in New Haven and that she answered affirmatively to the question: “And you still see [Cindy Castro]?” In State v. Hudson, 14 Conn. App. 463, 469, 541 A.2d 534, cert. denied, 209 Conn. 803, 548 A.2d 439 (1988), we found that evidence that a “missing” witness lived in New Haven at the time of trial and had been seen three weeks before trial was sufficient for the jury to find availability. We conclude that the evidence here was sufficient on the availability prong of Secondino.

Ill

The defendant next claims that the trial court improperly emphasized the criminal records of the defendant and the defendant’s key witness in instructing the jury on credibility. We are unpersuaded.

The defendant asserts that the trial court unfairly emphasized that the defendant had been convicted of prior felonies without balancing its instruction by mentioning that Jose Garcia, a state’s witness, had two prior felony convictions that could be considered in the assessment of his credibility. The defendant also asserts that the court acted unfairly in mentioning that the jury could consider, in assessing credibility, that a witness has been convicted of a crime involving dishonesty, such as shoplifting. The defendant’s key witness, Maria Castro, was the only witness who had admitted to a shoplifting conviction.

With respect to the felony convictions, the trial court properly explained to the jury that it was not to use the defendant’s prior felony convictions as a basis for assuming that the defendant committed the crimes charged, but rather that any consideration of those prior felonies was limited to assessing the defendant’s credibility. Indeed, the court would have been remiss in not giving such an instruction. See State v. Curley, 25 Conn. App. 318, 328, 595 A.2d 352, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991).

The court’s comments with respect to shoplifting merely differentiated that crime from felony convictions in terms of assessing a witness’ credibility. The trial court did not mention the witness by name and the instruction was clearly designed to assist the jury in assessing credibility.

The court did give a general charge with respect to the jury’s consideration of the felony conviction of any witness, to which no exception was taken. Although it might have been preferable to mention Jose Garcia’s convictions, in viewing the charge as a whole, we find no unfair emphasis.

IV

The defendant’s final claim is that the trial court improperly refused to instruct the jury as to the defendant’s lack of motive to commit the crimes. We find no merit to this claim.

The defendant properly points out that “[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given.” State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). Our Supreme Court stated in State v. Pinnock, 220 Conn. 765, 790, 601 A.2d 521 (1992), that “[a]n instruction on motive and lack of motive is sometimes required because [e]vidence tending to show the existence or nonexistence of motive often forms an important factor in the inquiry as to guilt or innocence of the defendant.” (Internal quotation marks omitted.) The Pinnock court went on to hold that “[i]n this case, the evidence warranted an instruction concerning the possible tendency of an absence of evidence of motive to raise a reasonable doubt, and the defendant made a timely request to charge. The state adduced no evidence of the defendant’s motive to kill [the victims].” Id., 791. Our Supreme Court has also held that “[i]f, however, the state introduces evidence tending to demonstrate a motive to commit the offense, then the trial court is not obligated to give such an instruction.” State v. Raguseo, 225 Conn. 114, 133, 622 A.2d 519 (1993).

The defendant asserts that there was no evidence of motive based on Oswaldo Garcia’s testimony that he did not ascribe a particular motive to the defendant. There was evidence from which the jury could have inferred that there was enmity between the defendant and Oswaldo Garcia because of prior hostile encounters and a prior dispute over a woman. Therefore, the court properly refused to charge on motive.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       Article second, § 19, of the constitution of Connecticut as amended by article four of the amendments to the constitution provides in relevant part: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. ...”

       General Statutes § 54-82f provides in relevant part: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action . . . .”

       The defendant used six of his eight peremptory challenges.

       The defendant did not cite State v. Brown, supra, 235 Conn. 502, in his briefs. We address this claim, despite the lack of briefing, because of the claim that the trial court violated a supervisory directive of our Supreme Court. See State v. Patterson, 230 Conn. 385, 400, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996).

        Secondino v. New Haven Gas Co., supra, 147 Conn. 675, states that " ‘[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ”

       Our Supreme Court has held that “[a] party who fails to make a timely objection to the giving of a Secondino charge will be deemed to have waived the issue for appeal. The giving of a Secondino charge is purely an evidentiary issue and is not a matter of constitutional dimensions.” (Internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 490, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).


text:
    STATE OF CONNECTICUT v. THOMAS F. KIRKER, JR.
    (AC 16362)
    (AC 16866)
    Schaller, Hennessy and Spallone, Js.
    Argued December 8, 1997
    officially released February 10, 1998

      Jeremiah Donovan, for the appellant (defendant).

      Peter McShane, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Christopher Lasaracina, certified legal intern, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Thomas F. Kirker, Jr., appeals from his conviction oflarceny in the first degree and criminal mischief in the first degree and from the resultant judgment of violation of his conditional release.

The jury reasonably could have found the following facts. Dominic Pianlca owns property at 615 North Stonington Road in Stonington, consisting of a house and approximately eighty-seven acres of land. Pianka’s property is bounded on the north by approximately 180 acres of land owned by Clifford Stimpson. Both Pianka and Stimpson testified that they were familiar with the boundaries of their land. The boundaries were delineated by stone walls. The boundaries were also shown on an aerial map and on the tax assessor’s map. The particular boundary between the Pianka and Stimpson property was indicated by a blue line on the assessor’s map.

While walking his property in February, 1995, Pianka discovered that the stone walls were damaged and many of the stones removed from the property. He also observed that hundreds of his trees were damaged or removed from his property. On a subsequent occasion, Pianka discovered and videotaped the defendant working with an individual named Kevin Bialowas who was operating a slddder on Pianka’s property.

In the summer of 1994, Stimpson gave the defendant permission to cut and remove firewood from his land. Stimpson provided the defendant with a reduced assessor’s map of his property and told him to “stay away from my neighbors.” Stimpson had had a previous dispute with another abutting landowner.

The amount of timber sold by the defendant during this period exceeded the amount of timber standing on Stimpson’s land. Although Stimpson did not give the defendant permission to remove stones or stone walls, the defendant sold approximately 156 tons of weathered, mossy fieldstone, which was described as “something that was coming off boundary walls.” The cost of providing material and labor for the replacement of the missing stone walls on Pianka’s property was $56,087 and the value of the timber removed from Pianka’s property was $8505.60.

The defendant was charged with larceny in the first degree in violation of General Statutes § 53a-122a (2), conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122a (2), criminal mischief in the first degree in violation of General Statutes § 53a-115 (a) (1) and criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1). The case was tried to a jury. At the close of the state’s case, the defendant moved for a judgment of acquittal as to all counts. The court granted the motion as to the fourth count, criminal trespass in the first degree.

After both sides rested, the court denied the defendant’s subsequent motion for judgment of acquittal. The jury convicted the defendant on count one, larceny in the first degree, and on count three, criminal mischief in the third degree. The jury found the defendant not guilty as to count two, conspiracy to commit larceny in the first degree. As a result of the convictions, the defendant, who was under a conditional release, was found to be in violation of the terms of his release, which resulted in a six month sentence consecutive to that imposed as a result of the present conviction.

The defendant, in his appeal, claims that the trial court improperly (1) admitted into evidence an aerial photograph of the boundary line between the Stimpson and Pianka properties, (2) questioned witnesses to the extent that the defendant was deprived of a fair and impartial trial, and (3) denied the defendant’s motion for judgment of acquittal.

In his first claim, the defendant contends that the trial court improperly admitted into evidence the Stonington tax assessor’s map of the Pianka property. We find no merit to this claim. Although the defendant offered a general objection to the map’s introduction, the map was allowed into evidence for the purpose of indicating where the assessor believed the boundary was, which evidence the jury could weigh and accept or reject when viewed in the light of the evidence as a whole.

The appropriate standard of review in cases concerning the admissibility of evidence is limited to whether the trial court abused its discretion. See State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). It is generally accepted that a trial court has broad discretion in ruling on the admissibility of evidence, and appellate courts “will ordinarily not disturb a trial court’s ruling on admissibility of evidence unless a clear abuse of discretion is shown.” State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985); see also State v. Napoleon, 12 Conn. App. 274, 285, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987). “ ‘Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Reversal is required only when an injustice appears to have occurred.’ State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).” State v. Jackson, 198 Conn. 314, 319, 502 A.2d 865 (1986).

Our Supreme Court has called a map “no more than the pictorial representation of the testimony of the witness through whom it was offered into evidence.” Aczas v. Stuart Heights, Inc., 154 Conn. 54, 56, 221 A.2d 589 (1966). Any inaccuracies of the exhibit do not raise a question of admissibility, but rather a question of what weight the jury will afford it. See Sitnik v. National Propane Corp., 151 Conn. 62, 67, 193 A.2d 503 (1963). The admissibility of a map is similar to the admissibility of a photograph in that the trial court should examine whether the exhibit aids the jury in understanding the evidence. See State v. Dontigney, 215 Conn. 646, 652, 577 A.2d 1032 (1990). The trial court in ruling on admissibility is concerned with whether the map is relevant and whether it will assist the jury in understanding the testimony.

In addition to illustrating where the assessor believed the boundary was located, the map served as a reference to Pianka and Stimpson who, in their testimony, stated where their mutual boundary was located. Their testimony did not rely on the map but on their own knowledge of the boundary. “An owner is presumed in law to have knowledge of the boundaries of his own land.” Connecticut Light & Power Co. v. Fleetwood, 124 Conn. 386, 390, 200 A. 334 (1938).

In his second claim, the defendant alleges that the actions of the trial court denied him a fair trial before an impartial judge. Specifically, the defendant claims that the trial court’s questioning of the tax assessor, Stimpson and the defendant was improper.

The appropriate standard of review of a trial court’s actions is whether the trial court abused its discretion. State v. Smith, 200 Conn. 544, 548, 512 A.2d 884 (1986). A defendant is entitled to a new trial if the judge’s comments are improper and the defendant can demonstrate that prejudice resulted. See State v. Pharr, 44 Conn. App. 561, 577, 691 A.2d 1081 (1997); Fair v. Warden, 211 Conn. 398, 414, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989).

The defendant claims that the trial court “interjected itself’ into the voir dire of the tax assessor concerning the admissibility of the tax assessor’s map and, by doing so, undermined counsel’s attempt to “muddy” the testimony. There is no merit to this contention. While the defense strategy may be to obfuscate, a primary function of a criminal trial is to search for the truth. See State v. Morales, 232 Conn. 707, 723, 657 A.2d 585 (1995). The trial court has a duty to preside at a trial and to take appropriate actions, when necessary, that promote truth at a trial. See Goggins v. Fawcett, 145 Conn. 709, 713, 147 A.2d 187 (1958). Such actions include bringing out the facts more clearly and bringing out facts to resolve any doubts as to the admissibility of evidence, for example, by questioning a witness. See State v. Fernandez, 198 Conn. 1, 10-11, 501 A.2d 1195 (1985). The defendant failed to establish that prejudice resulted from the trial court’s questions. See Fair v. Warden, supra, 211 Conn. 414. The trial court did not abuse its discretion in questioning the tax assessor, where the purpose of such questioning was to clarify (unmuddy) the testimony and to determine what evidence was admissible.

The court did not conduct separate and distinct examinations of the witnesses. The trial court’s questions were interspersed in the direct and cross-examination. Such questioning is not reflective of advocacy but is indicative of clarification. Where there is no separate and distinct questioning by the court, counsel has an opportunity to follow up, in context, on a question posed by the trial court without appearing adversarial to the judge.

“ ‘One of the chief roles of the trial judge is to see that there is no misunderstanding of a witness’s testimony. The judge has a duty to comprehend what a witness says as much as it is his duty to see that the witness communicates with the jury in an intelligible manner. A trial judge can do this in a fair and unbiased way. His attempt to do so should not be a basis of error. Where the testimony is confusing or not altogether clear the alleged “jeopardy” to one side caused by the clarification of a witness’s statement is certainly outweighed by the desirability of factual understanding. The trial judge should strive toward verdicts of fact rather than verdicts of confusion.’ Ray v. United States, 367 F.2d 258, 261 (8th Cir. 1966), cert. denied, 386 U.S. 913, 87 S. Ct. 863, 17 L. Ed. 2d 785 (1967), quoted in United States v. McColgin, 535 F.2d 471, 475 (8th Cir.), cert. denied, 429 U.S. 853, 97 S. Ct. 145, 50 L. Ed. 2d 128 (1976).” State v. Bember, 183 Conn. 394, 402-403, 439 A.2d 387 (1981).

Our review of the record and transcripts indicates that the trial court’s questioning of the witnesses was for the purpose of clarification, both for itself and the jury, and was within the parameters defined by applicable law. Given the facts presented in this case, we cannot say that the trial court abused its discretion in its questioning of the witnesses.

The defendant’s final claim, that the court improperly denied his motion for judgment of acquittal on the counts of larceny in the first degree and criminal mischief in the first degree, is unavailing.

A motion for judgment of acquittal must be granted if the evidence would not reasonably permit a guilty finding. Practice Book § 883. In ruling on a motion for judgment of acquittal, the trial court must determine whether a rational trier of fact could find the crime proven beyond a reasonable doubt. State v. Delarosa, 16 Conn. App. 18, 33, 547 A.2d 47 (1988). Appellate review does not consist of substituting an appellate court’s judgment for that of the jury. State v. Almeda, 211 Conn. 441, 450, 560 A.2d 389 (1989). “If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. . . . Katz v. Delohery Hat Co., 97 Conn. 665, 679, 118 A. 88 (1922).” (Citation omitted; internal quotation marks omitted.) Berndston v. Annino, 177 Conn. 41, 43-44, 411 A.2d 36 (1979). The question of whether such evidence exists is “a question for the judge; whether that evidence is sufficient to establish the fact in controversy is a question for the jury.” (Emphasis added.) Id., 44; Mancini v. Bureau of Public Works, 167 Conn. 189, 200, 355 A.2d 32 (1974).

The record and transcripts clearly indicate the existence of evidence that, if credited by the jury, supports the jury’s finding the defendant guilty of the crimes of larceny in the first degree and criminal mischief in the first degree.

In sum, we find that the trial court, in admitting the assessor’s map into evidence and in questioning witnesses, acted rationally, lawfully and within the parameters of its discretionary powers. In denying the defendant’s motion for judgment of acquittal, the trial court acted in accordance with applicable law.

The judgments are affirmed.

In this opinion the other judges concurred.

       A slddder is described as a large vehicle that could operate in forested areas.