author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. ULISES COLLAZO
    (AC 28878)
    DiPentima, Gruendel and Pellegrino, Js.

      Argued April 23
    officially released July 21, 2009

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and David R. Shannon, assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Ulises Collazo, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-59 (a) (5), three counts of assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59 (a) (1), three counts of assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59 (a) (4), one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (1), and one count of conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (4). On appeal, the defendant claims that the trial court improperly (1) failed to order an evaluation of his competency to stand trial and to conduct an independent inquiry as to the need for such evaluation, (2) instructed the jury that it could find him guilty as either a principal or an accessory and (3) denied his Batson challenge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 30, 2004, Rudy Ortiz, the president of the Danbury Latin Kings, was involved in a fight with several young men from Stamford. Ortiz was angry about the fight and wanted revenge. Ortiz crafted a plan to seek his revenge and arranged for Sabrina Colon, who knew one of the men from Stamford, Keven Louis, to invite the Stamford men to Danbury. On August 2, 2004, five men from Stamford, Louis, Cliff Certillian, Kenny Poteau, Herbie Servil and Stanley Bruno, arrived at a basketball court at Eden Drive in Danbury. Waiting in the bushes to ambush the five Stamford men were Ortiz, Juan Macias, Luis Guzman, Alex Garcia, the defendant and a few others. As the five Stamford men walked onto the basketball court, Macias and the defendant followed them. After a prearranged signal, the defendant threw the first punch, and the remaining Danbury men ran out from the bushes to continue the assault. Gunshots were heard.

Garcia had a nine millimeter assault rifle and shot Louis once in the leg and at least once more in the abdomen. Servil suffered twelve to thirteen separate stab wounds to his back, abdomen and right arm, one of which damaged his liver. Bruno ran off but was either shot or stabbed in the back, resulting in a collapsed lung. The defendant elected a trial by jury and was tried together with Garcia. The jury found the defendant guilty of seven counts of assault in the first degree as an accessory and two counts of conspiracy to commit assault in the first degree. He was sentenced to a total effective term of thirty-five years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court denied him due process of law by improperly denying his counsel’s request for a competency evaluation, pursuant to General Statutes § 54-56d, and by failing to conduct an independent inquiry to determine the need for such an evaluation. We disagree.

The very incident that the defendant claims denied him due process occurred in the Danbury Superior Court on April 13, 2006, when he was before the court for a status conference involving this matter and an additional unrelated criminal matter. See State v. Collazo, 113 Conn. App. 651, 967 A.2d 597, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). On that date, attorney Robert Field represented the defendant in both cases. The defendant, at that status conference, informed the judge that he did not want Field to represent him. Field informed the court that the defendant was very contentious, would not listen to him, would yell at him, told him that he did not know what he was doing and threatened to file a slander lawsuit against him. Field suggested that the defendant might have bipolar disorder or intermittent explosive disorder and moved for a competency examination. After the court questioned the defendant, it denied the request for a competency examination. The court, however, appointed new counsel to represent the defendant.

The defendant argues here, as he did in State v. Collazo, supra, 113 Conn. App. 651, that he was denied due process because the court denied his request for a competency examination and failed to conduct an independent inquiry to determine the need for such an evaluation. After its review of the April 13, 2006 transcript, this court observed in its opinion that the attorney-client relationship had broken down, the defendant did not want Field to represent him and that the defendant responded appropriately to the court’s questions and presented himself as being able to think reasonably and lucidly. Id., 663-64. This court concluded in Collazo that the trial court did not abuse its discretion by denying the defendant’s motion for a competency examination. Id., 665.

We will not conduct an additional analysis of the defendant’s claim, as it has been decided previously. “The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 406, 968 A.2d 416 (2009); see also State v. Jones, 98 Conn. App. 695, 704-706, 911 A.2d 353 (2006) (res judicata barred defendant from raising sufficiently similar claim previously decided), cert. denied, 281 Conn. 916, 917 A.2d 1000 (2007). This claim was raised previously, fully and fairly argued in this court and a decision was rendered. Moreover, once the defendant was provided with new trial counsel, no additional claims as to his competency were ever raised. Neither his new trial counsel, nor the judge presiding over his criminal trial, raised any issue regarding the defendant’s competency. Accordingly, this claim fails.

II

The defendant next claims that the court improperly instructed the jury that it could find him guilty as either a principal or an accessory on the counts of assault in the first degree. The defendant did not raise his claim in the trial court and did not object at trial to the court’s instruction on principal liability- The defendant contends, however, that the claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree that the record is adequate for review and that the defendant raises a constitutional claim with regard to his rights to present a defense and to notice of the charges against him. We do not agree, however, that the claimed constitutional violation clearly exists because we conclude that the defendant waived this claim at trial. This claim, therefore, fails under the third prong of Golding.

“Waiver is an intentional relinquishment or abandonment of a known right or privilege. ... It involves the idea of assent, and assent is an act of understanding. . . . The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct. ... In order to waive a claim of law it is not necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy. . . . Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court’s order, that party waives any such claim. . . .

“Under [State v. Golding, supra, 213 Conn. 239-40], a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial. . . .

“A defendant in a criminal prosecution may waive one or more of his or her fundamental rights. ... In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial. ... In Fabricatore, our Supreme Court cited with approval opinions of this court holding that a defendant who has waived a constitutional right at trial cannot prevail on that claim on appeal. In [State v. Cooper, 38 Conn. App. 661, 670, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996), this court] held that a defendant could not satisfy the third prong of Golding where he had implicitly waived at trial a challenge to the alleged constitutional deprivation that was the basis of his claim on appeal. Therefore, a defendant cannot prevail under Golding on a claim that he implicitly waived at trial. . . . [This court] determined that the defendant’s claim [in Cooper] was reviewable under the first two prongs of Golding, but concluded that, because he had waived his right to have the state prove all elements of his crime, he failed to demonstrate that the alleged constitutional violation clearly existed. . . .

“In Cooper, this court also concluded that the defendant had waived any challenge to the alleged constitutional violation because the defendant not only failed to object to the court’s instruction, but also voiced satisfaction with it. . . . To allow [a] defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state with that claim on appeal.” (Citations omitted; internal quotation marks omitted.) State v. McDaniel, 104 Conn. App. 627,633-34, 934 A.2d 847 (2007), cert. denied, 285 Conn. 912, 943 A.2d 471 (2008). In the present matter, during the charging conference, the court indicated that the state had asked for a charge on both principal and accessory liability as to each count. After a discussion regarding the elements of the assault charge and that the jury could find the defendant guilty as either a principal or as an accessory, defense counsel, when asked for comment replied, “I have no comment at this time,” and, “I’m in agreement.” After continued discussion regarding the jury charge, defense counsel expressed concern over the instruction for count two that the instrument that caused the injury must be a firearm and not a knife. After even further discussion, defense counsel then stated: “I have no disagreement with the way the court’s going to charge it; it’s just how it’s going to charge because there-—it’s in [the] alternative each way, and if the court . . . [is] . . . going to group them . . . this is a confusing long form information ... for the jurors, who really are unfamiliar.”

The defendant’s right to challenge the jury instruction on appeal was effectively waived. Defense counsel expressed his concern that, as to the charge on count two, § 53a-59 (a) (5) requires that the injury must be from a firearm and not a knife. Defense counsel, however, expressed no disagreement with the jury instruction as to assault in the first degree as both a principal and an accessory. Moreover, two days later, once the jury had been instructed in its entirety, the court again asked counsel if there were any exceptions to the charges as given, and defense counsel stated: “Nothing from the defense ... for [the defendant].” Accordingly, we conclude that because the defendant has waived this claim, there is no clear, existing constitutional violation, and thus the claim fails to satisfy the third prong of Golding.

III

The defendant’s final claim is that the court improperly denied a Batson challenge, after the state exercised a peremptory challenge against B in a discriminatory manner during voir dire. B stated that she was bom in New York and went to high school and college there. She stated that she is married, has one child and works as a teacher. At some point, she went to the Dominican Republic but had returned to New York seventeen years ago, prior to moving to Connecticut. B stated that she previously had served on a jury in a criminal case in New York. The defendant accepted B as a juror, but the state exercised a peremptory challenge and dismissed her. Because the defendant and B are both Hispanic, the defendant raised a Batson challenge. The prosecutor responded that he was exercising his challenge on two grounds: (1) B was a teacher, and “there is the stereotype [that] teachers are sometimes more sympathetic, not always the best jurors for the state,” and (2) B had never heard of the Latin Kings, and “there hasn’t been a juror that I’ve taken who hasn’t heard at least the term Latin King, to my knowledge.” The court noted that the jury already included a Hispanic venireperson and denied the defendant’s Batson challenge.

“In Batson . . . the United States Supreme Court recognized that a claim of puiposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness .... [T]he Equal Protection Clause [of the fourteenth amendment] forbids the prosecutor to challenge potential jurors solely on account of their race . . . .” (Internal quotation marks omitted.) State v. Monroe, 98 Conn. App. 588, 590-91, 910 A.2d 229 (2006), cert. denied, 281 Conn. 909, 916 A.2d 53 (2007).

“Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson’s removal. . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party’s] articulated reasons are insufficient or pretextual. . . . [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination. . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination.” (Internal quotation marks omitted.) Id., 591. “[T]he trial court’s decision on the question of discriminatory intent represents a finding of fact .... Accordingly, a . . . court’s determination that there has or has not been intentional discrimination is afforded great deference and will not be disturbed unless it is clearly erroneous.” (Internal quotation marks omitted.) Id., 592. “Nonetheless, because of the constitutional implications of the alleged defects in the jury selection process, in reviewing the defendant’s claims under the state constitution, we will subject the findings of the trial court to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding . . . . We invoke that heightened review, however, within the broader context of the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) State v. Morales, 71 Conn. App. 790, 802-803, 804 A.2d 902, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002).

As noted, after the defendant asserted his Batson claim, the state responded with two reasons for its peremptory challenge. Additionally, the prosecutor argued that he had already accepted a Hispanic juror so that there was no pattern of purposeful discrimination. Once the prosecutor had offered his race neutral reasons, the burden of persuasion rested on the defendant to demonstrate to the court that the state purposefully discriminated against this potential juror. See State v. Hamlett, 105 Conn. App. 862, 878, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008). The court, after stating that it was not sure that being a schoolteacher was a reason to excuse a juror, ultimately concluded that “out of four jurors, one is clearly Hispanic. And ultimately after one—[the defendant has] the burden of proving that the selection process is tainted by purposeful discrimination. I can’t conclude that there’s purposeful discrimination on the record before me.”

On appeal, the defendant argues that the state made no attempt to determine specifically whether B’s occupation as a teacher caused her to have the liberal bias for which the prosecutor excused her. Additionally, the defendant argues that the state had accepted other, non-Hispanic jurors who had not heard of the Latin Kings. The defendant claims that the prosecutor’s reasons for excusing B were inadequate and pretextual, and, therefore, the court improperly denied the defendant’s Batson challenge. We disagree.

Our review of the record reveals that the following day, the prosecutor corrected the record to indicate that he had actually accepted the first two Hispanic jurors prior to exercising his peremptory challenge as to B. The first Hispanic juror that the prosecutor had accepted was excused by the defendant. In light of the prosecutor’s reasons and his acceptance of two Hispanic jurors, we cannot say that the court’s determination that there was no pattern of discrimination and that its rejection of the defendant’s Batson challenge was clearly erroneous. “[T]he fact-bound determination concerning the propriety of the use of peremptory challenges is a matter that necessarily must be entrusted to the sound judgment of the trial court, which, unlike an appellate court, can observe the attorney and the venireperson and assess the attorney’s proffered reasons in light of all the relevant circumstances.” State v. Hodge, 248 Conn. 207, 261, 726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999). Although the court did not specifically think that B’s occupation as a teacher was a reason to excuse her, the court ultimately determined that there was no pattern of discrimination and denied the defendant’s Batson challenge.

We note, however, that “ [peremptory challenges based on employment reasons have been upheld.” State v. Cepeda, 51 Conn. App. 409, 425, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999); see, e.g., United States v. Johnson, 4 F.3d 904, 913-14 (10th Cir. 1993) (striking teacher race neutral), cert. denied sub nom. Nottingham v. United States, 510 U.S. 1123, 114 S. Ct. 1082, 127 L. Ed. 2d 398 (1994); United States v. Nelson, 450 F.3d 1201, 1208 (10th Cir.) (no racially discriminatory intent in explanation that teachers or other highly educated persons do not make good jurors), cert. denied, 549 U.S. 937, 127 S. Ct. 326, 166 L. Ed. 2d 244 (2006); Williams v. State, 939 S.W.2d 703, 706 (Tex. App. 1997) (excusing teacher race neutral when defendant did not challenge explanation); State v. Sanders, 263 Kan. 317, 327, 949 P.2d 1084 (1997) (race neutral to strike one teacher and not another when nonexcused teacher had sister who was victim of crime), superseded by statute on other grounds as stated in State v. Bedford, 269 Kan. 315, 327, 7 P.3d 224 (2000). Moreover, the defendant did not contest the peremptory challenge on the ground that the state’s reason was due to B’s employment; defense counsel stated instead: “I’m not going to claim that one, but I am going to claim the second part because she doesn’t know the Latin Kings, and she is Hispanic.”

The prosecutor’s second reason, that B previously had not heard of the Latin Kings, appears to have been accepted as race neutral by the court. “A neutral explanation means an explanation based on something other than the race of the juror. . . . [T]he issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral. ... If the prosecutor’s reason, however, is without regard to the particular circumstances of the trial or the individual responses of the jurors, [it] may be found by the trial judge to be a pretext for racial discrimination. . . . The factors that might be used to determine pretext have been discussed by our appellate courts. . . . [This] include [s] whether the prosecutor’s reasons are related to the case . . . .” (Citations omitted; internal quotation marks omitted.) State v. Patterson, 37 Conn. App. 801, 807, 658 A.2d 121 (1995), rev’d on other grounds, 236 Conn. 561, 674 A.2d 416 (1996). Here, B was excused because she had not heard of the Latin Kings, and the potential involvement of the defendant with the Latin Kings was related to the case. Accordingly, we cannot conclude that the court’s denial of the defendant’s Batson challenge was clearly erroneous. We conclude, therefore, that the court properly determined that the state had not exercised its peremptory challenge in a racially discriminatory manner.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of one count of assault in the first degree as an accessory.

       See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

        State v. Garcia, 115 Conn. App. 766, 973 A.2d 1278 (2009).

       General Statutes § 54-56d provides in relevant part: “(a) ... A defendant shall not be tried, convicted or sentenced while the defendant is not competent. For the purposes of this section, a defendant is not competent if the defendant is unable to understand the proceedings against him or her or to assist in his or her own defense. . . .

        “(c) ... If, at any time during a criminal proceeding, it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency. ...”

       We refer to the venireperson by initial to protect legitimate privacy interests. See, e.g., State v. Wright, 86 Conn. App. 86, 88 n.S, 860 A.2d 278 (2004).

       The state relies on State v. Lane, 101 Conn. App. 540, 548^49, 922 A.2d 1107, cert. denied, 283 Conn. 910, 928 A.2d 538 (2007), and State v. Owens, 63 Conn. App. 245, 263, 775 A.2d 325, cert. denied, 256 Conn. 933, 776 A.2d 1151 (2001), and argues that this court need not reach the merits of this claim because B’s ethnicity was not established prior to the court’s ruling on the Batson challenge, and thus the record is inadequate for review. We choose to reach the merits, however, because unlike in Lane and Owens, B’s ethnicity was established on the record, albeit after the court had made its ruling.

       B did not state her ethnicity on the juror questionnaire. Prior to the court’s ruling on the Batson challenge, neither the court nor the prosecutor would affirmatively say that B was Hispanic. The court, however, after its ruling, had B return to the courtroom to ask her ethnicity, to which she responded that she is Hispanic.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. ALEX GARCIA
    (AC 29501)
    DiPentima, Gruendel and Pellegrino, Js.
    Argued April 23
    officially released July 21, 2009

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were Stephen J. Sedensky III, state’s attorney, and, on the brief, David R. Shannon, assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Alex Garcia, appeals from the judgment of conviction, rendered after a jury trial, of one count of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), two counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-59 (a) (1), two counts of assault in the first degree as an accessory in violation of §§ 53a-8 and 53a-59 (a) (4), one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 and 53a-59 (a) (1), and one count of conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (4). On appeal, the defendant claims that the trial court improperly (1) allowed Michael Walker, an orthopedic surgeon, to testify as to an assault victim’s statement regarding the cause of his injury, which was testimonial in nature, and violated the defendant’s right to confront the victim and (2) denied a Batson challenge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 30, 2004, Rudy Ortiz, the president of the Danbury Latin Kings, was involved in a fight with several young men from Stamford. Ortiz was angry about the fight and wanted revenge. Ortiz crafted a plan to seek his revenge and arranged for Sabrina Colon, who knew one of the men from Stamford, Keven Louis, to invite the Stamford men to Danbury. On August 2, 2004, the five victims from Stamford, Louis, Cliff Certillian, Kenny Poteau, Herbie Servil and Stanley Bruno, arrived at a basketball court at Eden Drive in Danbury. Waiting in the bushes to ambush the five Stamford men were Ortiz, Juan Macias, Luis Guzman, Ulises Collazo, the defendant and a few others. As the five Stamford victims walked onto the basketball court, Macias and Collazo followed them. After a prearranged signal, Collazo threw the first punch, and the remaining Danbury men ran out from the bushes to continue the assault. Gunshots were heard.

The defendant had a nine millimeter assault rifle and shot Louis once in the leg and at least once more in the abdomen. Servil suffered twelve to thirteen separate stab wounds on his back, abdomen and right arm, one of which damaged his liver. Bruno ran off but was either shot or stabbed in the back, an injury which resulted in a collapsed lung. The defendant elected a trial by jury and was tried together with Collazo. The jury found the defendant guilty of all counts. He was sentenced to a total effective term of forty years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the defendant first claims that the court improperly admitted the testimony of Walker about Bruno’s description of the alleged cause of his injuries in violation of the defendant’s federal constitutional right under the confrontation clause. The defendant argues that Bruno’s statement to Walker was testimonial and therefore should have been excluded under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Specifically, the defendant claims that the admission of Bruno’s statement regarding his injuries, introduced through Walker’s testimony, violated the defendant’s right to confront Bruno. In the alternative, the defendant argues that if this court finds that Bruno’s statement to Walker was nontestimonial, it still should have been excluded under the state constitution’s confrontation clause.

At trial, Walker, who treated Bruno, testified that when he treats a patient, he typically asks the patient what caused the injury. He asked Bruno what caused his injury and did so because “the mechanism of injury is very important to what the injuries could be,” and it is very helpful in the treatment of his patients. Walker also testified that he does not ask questions to gain information for law enforcement or for testimony in court. He further testified that his handwritten report stated that “patient heard gunshot, felt injury in the back.”

At trial, the defendant’s counsel objected, claiming that because Walker indicated that Bruno believed that his wound was a gunshot wound and Bruno was not testifying, the defendant was denied the right to cross-examine Bruno. In response, the prosecutor argued that (1) the testimony came within the medical exception to the hearsay rule, (2) the availability of Bruno was immaterial and (3) the testimony did not implicate Crawford v. Washington, supra, 541 U.S. 36. After a review of the relevant law, the court overruled the objection, stating that the testimony was for diagnostic purposes in an emergency situation and was not gathered in a testimonial sense for repetition in a courtroom. On appeal, the defendant argues that Bruno’s statement to Walker was testimonial and therefore should have been excluded under Crawford. The defendant argues that this court must determine “whether a reasonable person in Bruno’s position would have believed his statements would be available for use in his assailants’ trial.”

The defendant argues that Bruno should have realized that his statement would be used because the police were present when the ambulance arrived for him and he was questioned by police officers at the hospital. Additionally, the nurses helped lift him up so that the police officers could photograph his wound. Therefore, according to the defendant, Bruno must have known that the physicians and nurses were cooperating with the police, and a reasonable person would have concluded that his statements would be used as part of the police investigation. The state, on the other hand, argues that Bruno’s statement to Walker was in response to his question and was nontestimonial; therefore, the court properly admitted Bruno’s statement through Walker’s testimony. We agree with the state.

Our review of the court’s determination as to the testimonial nature of a victim’s statement to a treating physician regarding an injury is plenary. See State v. Kirby, 280 Conn. 361, 389, 908 A.2d 506 (2006). The defendant’s claim regarding Walker’s testimony as to what Bruno told him regarding his injury implicates the third formulation of testimonial statements under Crawford, namely, “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . .” (Internal quotation marks omitted.) Crawford v. Washington, supra, 541 U.S. 52. “Most courts considering statements made for medical treatment . . . have concluded that, if an interview is done strictly for medical purposes, and not in anticipation of criminal proceedings, the statement would be considered nontestimonial. . . . [I]f a statement is made as part of an investigation by government officials the statement is generally considered testimonial.” (Internal quotation marks omitted.) State v. Kirby, supra, 389. “The key to the inquiry is whether the examination and questioning were for a diagnostic purpose and whether the statement was the by-product of substantive medical activity. . . . Also significant to whether the statement is testimonial is whether such statements . . . accuse or identify the perpetrator of the assault.” (Citation omitted; internal quotation marks omitted.) Id., 391.

In the present matter, in response to a direct question from Walker regarding the cause of Bruno’s injury, Bruno replied that he had heard a gunshot and felt a pain in his back. Walker did not ask the question for law enforcement. Walker testified that he asks the cause of injury of all his patients because the cause of an injury is helpful to the diagnosis and treatment of a patient. Additionally, Bruno was questioned by the police while at the hospital. More importantly, Bruno did not specifically identify anyone as his attacker when he replied that he had heard a gunshot and felt a pain in his back.

On the basis of Kirby and in light of the foregoing, we conclude that Bruno’s statement to Walker was not testimonial under Crawford, and, therefore, the court properly admitted it under the medical treatment hearsay exception.

II

The defendant’s next claim, raised in a supplemental brief submitted to this court, is that the court improperly denied a Batson challenge, after the state exercised a peremptory challenge in a discriminatory manner during voir dire. During the course of jury selection, the state exercised a peremptory challenge against B. B stated that she was bom in New York and went to high school and college there. She stated that she is married, has one child and works as a teacher. At some point, she went to the Dominican Republic but had returned to New York seventeen years ago, prior to moving to Connecticut. B stated that she previously had served on a jury in a criminal case in New York. The defendant and Collazo accepted B as a juror, but the state exercised a peremptory challenge and dismissed her. The defendant and Collazo, as well as B, are Hispanic; therefore, Collazo raised a Batson challenge. The defendant concedes that he did not speak during the objection. He claims, however, that to the extent that Collazo raised this issue, this court could deem it a preserved constitutional issue. We disagree.

In State v. Green, 62 Conn. App. 217, 247, 774 A.2d 157 (2001), aff'd, 261 Conn. 653, 804 A.2d 810 (2002), this court held that a defendant who does not join in a codefendant’s objection to a venireperson’s removal waives his right to make a Batson claim and his right to respond to the state’s explanation of its peremptory challenge. “In State v. Patterson, [230 Conn. 385, 393, 645 A.2d 535 (1994)], our Supreme Court concluded that because the defendant can waive one of the primary rights protected by the judicial supervision of the entire voir dire, namely, his equal protection right against discriminatory peremptory challenges, the defendant can also waive the right to judicial supervision over the voir dire process itself. It follows that the defendant can waive part of the process intended to protect his equal protection right, that is, his opportunity to demonstrate that the state’s neutral explanation of its peremptory challenge is in fact pretextual.

“The Patterson court also held that, in such circumstances, waiver can be made by counsel, and it will ordinarily be inferred from the absence of an objection.” (Internal quotation marks omitted.) State v. Green, supra, 62 Conn. App. 247. Accordingly, our Supreme Court in Green held that the defendant’s failure to join his codefendant’s objection to the removal of the venireperson and his failure to take exception to the court’s ruling or the state’s proffered race neutral reason waived his opportunity to make a Batson claim. Id. The court, therefore, deemed his claim not reviewable and did not address the merits of his argument. Id. The present matter is indistinguishable from Green. The record indicates that at the time Collazo made his Bat-son challenge, the defendant did not object and remained silent. Moreover, similar to the situation in Green, the defendant also did not take an exception to the court’s ruling denying Collazo’s Batson challenge or to the state’s proffered race neutral reason for excusing the venireperson. We conclude, therefore, that this claim was waived at trial and is not reviewable on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

         State v. Collazo, 115 Conn. App. 752, 974 A.2d 729 (2009).

       The defendant argues in the alternative that if this court finds the testimony to be nontestimonial in nature, then this court should conclude that the state constitution’s confrontation clause protects defendants from unreliable nontestimonial hearsay. We reject this claim because we find that the statement properly was admitted under Connecticut Code of Evidence § 8-3 (5).

       We refer to the venireperson by initial to protect legitimate privacy interests. See, e.g., State v. Wright, 86 Conn. App. 86, 88 n.3, 860 A.2d 278 (2004).

       B did not state her ethnicity on the juror questionnaire. Prior to the court’s ruling on the Batson challenge, neither the court nor the prosecutor affirmatively stated that B was Hispanic. The court, however, after its ruling, had B return to the courtroom to ask her ethnicity, to which she responded that she is Hispanic.


author: LAVINE, J.

text:
    PATRICE HAMILTON, CONSERVATOR (ESTATE OF F)
      v. UNITED SERVICES AUTOMOBILE ASSOCIATION
    (AC 29633)
    Harper, Lavine and Hennessy, Js.
    Argued February 5
    officially released July 21, 2009

      Paul A. Slager, with whom was Amanda R. Whitman, for the appellant (plaintiff).

      Joseph J. Areata III, with whom were Charles A. Deluca and, on the brief, Catherine S. Nielzel, for the appellee (defendant).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

LAVINE, J.

In this declaratory judgment action, the plaintiff, Patrice Hamilton, as conservator of the estate of the victim, F, appeals from the judgment of the trial court, Shaban, J., granting the motion to dismiss filed by the defendant, United Services Automobile Association. On appeal, the plaintiff claims that the court improperly granted the defendant’s motion to dismiss because (1) she has standing to bring the action, (2) the action is ripe for adjudication and (3) there are no alternative remedies. We conclude that the matter is not ripe for adjudication and, therefore, affirm the judgment of the trial court.

In her amended complaint filed on September 12, 2007, the plaintiff sought a declaratory judgment pursuant to Practice Book § 17-54 et seq. She alleged that the defendant, an insurance company licensed to do business in Connecticut, had issued a homeowners liability insurance policy (policy) to John E. Thorson, providing coverage from August 25, 2001, through August 25, 2002. The defendant renewed the policy for subsequent periods of one year that ended on August 25, 2006. The defendant also issued an umbrella insurance policy to Thorson that was in effect from October 18, 2001, until September 21, 2006.

In addition, the amended complaint alleged that the plaintiff, as conservator of the victim’s estate, had commenced a civil action against Thorson in the judicial district of Danbury, Hamilton v. Thorson, Superior Court, judicial district of Danbury, Docket No. CV-06-5001461-S (Thorson action), that is currently pending. The Thorson action alleges professional negligence and negligent infliction of emotional distress against Thor-son and alleges that as a result of Thorson’s negligence, the victim has suffered permanent and severe injuries. The amended complaint also alleges that the defendant has disclaimed coverage of the claims in the Thorson action and has refused to provide Thorson with a defense in that action. The plaintiff claims that the defendant has a duty to defend and to indemnify Thor-son for the claims alleged against him in the Thorson action.

The amended complaint further alleges that the plaintiff, as the conservator of the victim’s estate, has a legal or equitable interest by reason of the uncertainty of the defendant’s rights and obligations with regard to the plaintiffs claims in the Thorson action and that there is an actual and substantial issue in dispute due to the uncertainty of the legal relations between the parties that requires settlement. Moreover, all parties having an interest in the subject matter of the declaratory judgment action have been served with the complaint and made a party to the action or have been given notice of it. The plaintiff also alleged that there is no other form of proceeding that can provide her with immediate redress. In her prayer for relief, the plaintiff alleged that the defendant has a duty to defend Thorson in the Thorson action and to indemnify Thorson in that action as well.

On October 26, 2007, the defendant filed a motion to dismiss the declaratory judgment action, claiming that the court lacked subject matter jurisdiction because (1) the plaintiff did not have standing to bring the action, (2) the claim was not yet ripe for adjudication and (3) the plaintiff has rights pursuant to General Statutes § 38a-321. The plaintiff objected to the motion to dismiss on November 30, 2007, expounding on the factual allegations in the Thorson action. In the Thorson action, the plaintiff alleged that Thorson, a licensed professional counselor, had treated the victim in his home for a variety of emotional and mental health issues. Thorson was negligent in his treatment of the victim between 2002 and 2005 because, the plaintiff alleged, he failed to maintain professional boundaries between himself and the victim and encouraged the victim to communicate with him via telephone and e-mail at all times of the day and night. Thorson allegedly cultivated the victim’s trust and dependence on him, which allowed him to manipulate and to exploit the victim sexually over a period of years. As a result of Thorson’s negligence and negligent infliction of emotional distress on the victim, the plaintiff alleged that the victim has suffered severe and permanent injuries.

In her objection to the motion to dismiss, the plaintiff stated that as a result of discovery in the Thorson action, she learned that her claims against Thorson potentially were covered by insurance policies issued to him by the defendant but that the defendant had disclaimed any duty to defend or to indemnify Thorson. “Because of the sensitive nature of the subjects involved in the [Thorson action], and the potential harm the discovery process, including being subject to deposition, may have on [the victim’s] delicate mental state, [the] plaintiff wishes to determine whether there is insurance coverage for her claims before proceeding with the [Thorson action]. If it is determined that no insurance coverage exists for [the] plaintiffs claims, [the] plaintiff may decide it is not in [the victim’s] best interests to subject [her] to the emotional strain of litigating the underlying case, if [the victim] is unlikely to obtain any meaningful recovery due to a lack of insurance coverage.” (Emphasis added.)

The court issued a memorandum of decision on February 1, 2008, granting the motion to dismiss. In its memorandum of decision, the court concluded that (1) although the defendant might be liable to pay the claim against Thorson, the amended complaint did not allege that the defendant and Thorson intended the defendant to assume a direct obligation to the plaintiff, and, therefore, she lacks standing to bring the action, (2) the action is not ripe because there has been no determination in the Thorson action that Thorson is liable to the plaintiff for professional negligence and negligent infliction of emotional distress, and (3) the plaintiff cannot avail herself of Thorson’s rights under § 38a-321 until a final judgment has been rendered in her favor in the Thorson action. The plaintiff appealed, claiming that the court improperly granted the defendant’s motion to dismiss.

“Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. ...” Practice Book § 10-30. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Tuchman v. State, 89 Conn. App. 745, 750, 878 A.2d 384, cert. denied, 275 Conn. 920, 883 A.2d 1252 (2005).

“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it .... If a court lacks subject matter jurisdiction to hear and determine cases of the general class to which the proceedings in question belong, it is axiomatic that a court also lacks the authority to enter orders pursuant to such proceedings. . . . [A] court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . [Wjhere a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.) ABB Automation, Inc. v. Zaharna, 77 Conn. App. 260, 263-64, 823 A.2d 340 (2003).

“A determination regarding atrial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Miller v. Egan, 265 Conn. 301, 313, 828 A.2d 549 (2003).

In its motion to dismiss, the defendant claimed, in part, that the plaintiffs declaratory judgment action was not ripe for adjudication. Our Supreme Court “has not defined expressly the precise relationship between ripeness and justiciability, [but] it is well settled in the federal courts that ripeness is one of several justiciability doctrines, including standing and mootness.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009). “An issue regarding justiciability . . . must be resolved as a threshold matter because it implicates the court’s subject matter jurisdiction . . . .” (Internal quotation marks omitted.) Id.

Our Supreme Court has stated that a declaratory judgment action commenced under General Statutes § 52-29 provides “a valuable tool by which litigants may resolve uncertainty of legal obligations. . . . The [declaratory judgment] procedure has the distinct advantage of affording to the court in granting any relief consequential to its determination of rights the opportunity of tailoring that relief to the particular circumstances. ... A declaratory judgment action is not, however, a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies. . . . Invoking § 52-29 does not create jurisdiction where it would not otherwise exist.” (Internal quotation marks omitted.) Id., 812-13.

“[W]hile the declaratory judgment procedure may not be utilized merely to secure advice on the law ... or to establish abstract principles of law ... or to secure the construction of a statute if the effect of that construction will not affect a plaintiffs personal rights . . . it may be employed in a justiciable controversy where the interests are adverse, where there is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement, and where all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.” (Citations omitted; internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 323, 709 A.2d 1089 (1998).

“In deciding whether the plaintiffs complaint presents a justiciable claim, [the court] make[s] no determination regarding its merits. Rather, we consider only whether the matter in controversy [is] capable of being adjudicated by judicial power according to the . . . well established principles. . . . [T]he rationale of the ripeness requirement . . . [is] to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . .” (Citation omitted; internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., supra, 290 Conn. 813-14.

On the basis of the allegations in the plaintiffs complaint, we conclude that this declaratory judgment action is not ripe for adjudication because any claim that the plaintiff may have against the defendant is contingent on her prevailing in the Thorson action, which has not yet been adjudicated. Although the plaintiffs desire to protect the victim from any possible harm that may result from the litigation is understandable, it cannot negate the established principles of subject mater jurisdiction. When the plaintiff filed this action, her claim against the defendant was, and still is, a mere possibility. Until there has been a judicial determination that Thorson is liable to the plaintiff, the question of whether the defendant is obligated to provide insurance coverage in this declaratory judgment action is a hypothetical one.

By means of comparison, this court determined that the question of coverage was ripe for adjudication in St. Paul Fire & Marine Ins. Co. v. Shernow, 22 Conn. App. 377, 577 A.2d 1093 (1990). In that case, the plaintiff insurer (insurer) filed a declaratory judgment action to determine whether, under the policy at issue, the defendant dentist, Robert Shernow (dentist), was entitled to indemnification for damages awarded to the intervening defendant (dentist’s victim), the plaintiff in an underlying civil action alleging medical malpractice and sexual assault (malpractice action). Id., 378. Pursuant to the relevant policy, the insurer defended the dentist in the malpractice action “with a reservation of its rights on the question of indemnity. The jury found for the [dentist’s victim] on both counts, awarding her $400,000 in damages. The [dentist] moved to set aside the verdict and for a new trial. The trial court, Hon. James T. Healey, state trial referee, ordered the verdict to be set aside and a new trial granted unless [the dentist’s victim] filed a remittitur within fifteen days. [The dentist’s victim] did not file the remittitur and filed her appeal from the trial court’s order. That appeal was the subject of Sciola v. Shernow, [22 Conn. App. 351, 577 A.2d 1081, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990).]” St. Paul Fire & Marine Ins. Co. v. Shernow, supra, 379. This court reversed the judgment in Sciola v. Shernow, supra, 351, and remanded the case with direction to reinstate the jury’s verdict. Id., 362.

After the dentist’s victim appealed, the insurer instituted a “declaratory judgment action seeking a declaration that the [dentist] is not entitled to indemnification under its policy for any part of the damages awarded to [the dentist’s victim]. The trial court, Langenbach, J., dismissed the declaratory judgment action based on its conclusion that (1) the action was premature because the civil action was on appeal, and (2) it was impossible to determine from the jury verdict whether the [dentist] intended to cause the injury that resulted to [the dentist’s victim].” St. Paul Fire & Marine Ins. Co. v. Shernow, supra, 22 Conn. App. 379. Judge Langenbach concluded that it was not possible to tell from the jury verdict in the malpractice action whether the dentist intended to cause injury to the dentist’s victim, and, therefore, the declaratory judgment action was not yet ripe. Id., 382. This court disagreed and reversed the dismissal and remanded the case for further proceedings. Id., 384.

This court’s reasoning in the declaratory judgment appeal in St. Paul Fire & Marine Ins. Co. illustrates what is necessary for an action to be ripe for adjudication. “It is axiomatic that no insurer is bound to provide indemnification or defense beyond the scope of the coverage described in the insurance contract, the policy. . . . The . . . insurer sought to have the trial court make a determination that fulfilled the purpose of a declaratory judgment. It requested only that the trial court decide the issue of whether these claims made by [the dentist’s victim] fell under the coverage provided by the [dentist’s] policy.” Id., 381. A “trial court must construe an insurance policy, like any other contract, in a reasonable way, giving the words their common, ordinary and customary meaning.” Id., 382.

The deciding factor in St. Paul Fire & Marine Ins. Co. was whether the dentist intended to cause injury to the dentist’s victim. The dentist’s victim alleged in count one that the dentist, “in the discharge of his duties did assault and batter [her] by making unconsented sexual contact with her, and that the [dentist] later admitted the assault and battery. In count two of her complaint, she alleged that the [dentist] negligently failed to render those professional services with the requisite standard of care and practice. [The dentist’s victim] further alleged that she sustained injuries as a result of these actions. A full trial was held on these claims, and the jury returned a verdict in [favor of the dentist’s victim] on both counts.” Id., 381-82.

The jury returned a general verdict in favor of the dentist’s victim and answered special interrogatories, indicating that the dentist injured the victim by making unconsented sexual contact with her as alleged in the malpractice action, breached the standard of care in providing professional treatment to his victim as alleged in the malpractice action and that the breach was the proximate cause of the damages sustained by the dentist’s victim. Id., 383-84. This court determined that Judge Langenbach had sufficient facts from which he could have determined whether the dentist’s actions were covered by his insurance policy. The complaint of the dentist’s victim and the evidence presented at trial clarified her claims, and the jury clearly found in her favor. Id., 383.

In the declaratory judgment action before us, the allegations in the Thorson action are known, but the evidence that the plaintiff will present in her effort to prove those allegations and the jury’s findings are not. Until the evidence is known, as well as the jury’s verdict with respect to those allegations, it is not possible to determine whether the defendant is obligated to indemnify Thorson. The action therefore seeks the answer to a hypothetical question, which is not the purpose of a declaratory judgment action. As the plaintiff stated in her opposition to the defendant’s motion to dismiss, she is seeking advice as to whether to subject the victim to the rigors of litigation. “[A court] must be satisfied that the case before [it] does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire.” Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 626, 822 A.2d 196 (2003). Here, the plaintiffs claims are not yet ripe because they are contingent on the outcome of the Thorson action. We decline to accept the plaintiffs request that the trial court issue, in a factual vacuum, what would in effect be an advisory opinion. We conclude, therefore, that the court properly granted the defendant’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       John E. Thorson and Personal Counseling Associates were given notice of this action as required by Practice Book § 17-56 (b). Thorson filed an appearance before the trial court as an interested party.

       Because we conclude that the action is not ripe for adjudication, we need not reach the plaintiffs other claims. Although this case is decided on the ground of ripeness, no inference should be drawn with respect to whether the plaintiff has standing to bring a declaratory judgment action under the factual circumstances of this case.

       The court, Mintz, J., granted the plaintiffs motion to stay the Thor-son action.

       The plaintiff attached a certificate stating that notice was given to both Thorson and Personal Counseling Associates via certified mail at the Bridgeport Correctional Facility. Thorson is the only known principal of Personal Counseling Associates.

       We note that the plaintiff sought a judicial declaration that the defendant had a duty to defend Thorson. That prayer for relief is not analyzed by the parties in their motion papers, although the defendant cited 16 L. Russ & T. Segalla, Couch on Insurance (3d Ed. 2005) § 227:32, pp. 227-45-46 (cases of third party attempts to determine duty of insurer to defend insured in underlying tort action frequently found to be improper due to third party’s lack of standing; no actual controversy between insurer and third party; third party has no present adverse legal interest in insurer’s obligation to insured) in its motion to dismiss. In her objection to the motion to dismiss, the plaintiff did not analyze the insurer’s duty to defend or respond to the legal proposition from Couch. Her objection to the motion to dismiss is focused on the plaintiffs need to determine coverage to avoid invading the victim’s privacy, if it is unlikely that she will obtain a meaningful recovery.
      It is axiomatic that an insurer’s duty to defend is broader than its duty to indemnify and is triggered by the nature of the claims alleged in the pleadings, not by an assessment of which party will prevail. See Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463-64, 876 A.2d 1139 (2005). In its memorandum of decision, the court mentioned only that the plaintiff sought a declaratory judgment with respect to the duty to defend. It did not address the issue specifically, including the defendant’s reliance on Couch. The plaintiff did not seek an articulation of the court’s decision with respect to the duty to defend. See Practice Book §§ 61-10 and 66-5. The record is inadequate for our review with respect to the defendant’s duty to defend, and we therefore do not address it. See Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 232, 828 A.2d 64 (2003).

       General Statutes § 38a-321 provides in relevant part: “Each insurance company which issues a policy to any person . . . insuring against loss or damage on account of bodily injury . . . for which loss . . . such person ... is legally responsible, shall, whenever a loss occurs under such policy, become absolutely liable, and the payment of such loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss ... by such casualty. . . . Upon the recovery of a final judgment against any person . . . including administrators . . . for loss or damage on account of bodily injury ... if the defendant in such action was insured against such loss ... at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”

       See also Practice Book § 10-31, which provides in relevant part: “(a) The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter .... This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
      “(b) Any adverse party who objects to this motion shall . . . file and serve ... a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”

       General Statutes § 52-29 (a) provides: “The Superior Court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.”

       The plaintiffs fears that the victim may suffer harm are speculative, as she has not alleged that pursuing the Thorson action is contrary to medical advice.

       See Sciola v. Schernow, 22 Conn. App. 351, 577 A.2d 1081, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990).

       The insurer’s first claim was rendered moot by Sciola v. Shernow, supra, 22 Conn. App. 251. St. Paul Fire & Marine Ins. Co. v. Shernow, supra, 22 Conn. App. 379-80.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. RANDY VIRGO
    (AC 28877)
    Harper, Lavine and Beach, Js.

      Argued March 17
    officially released July 21, 2009

      Jeremy S. Donnelly, for the appellant (defendant).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and David L. Zagaja, senior assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Randy Virgo, appeals from the judgment of conviction, following a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48, and assault in the first degree as an accessory in violation of General Statutes §§ 53a-59 (a) (1) and 53a-8. The defendant claims that (1) the trial court improperly joined two cases for trial and (2) the evidence does not support a finding of guilt as to either crime of which he stands convicted. We affirm the judgment of the trial court.

The defendant was charged with crimes under two separate docket numbers. Under docket number CR-14-595029 (New Britain Avenue case), the defendant was charged with crimes that allegedly occurred shortly before noon on May 16,2003, along New Britain Avenue in Hartford. Specifically, in that case, the defendant was charged with the two crimes of which he stands convicted as well as conspiracy to commit robbery in the first degree and attempt to commit robbery in the first degree. The jury returned a verdict of not guilty with regard to these latter two counts.

Concerning the charges brought in that case, the state presented evidence of the following facts. The defendant was driving an automobile in which Wayne Radney was a passenger. The defendant drove alongside Wilfredo Aponte and Louis Medina, who were walking near the intersection of Hillside Avenue and Sherbrooke Street in Hartford. The defendant and Radney conversed with Aponte and Medina about purchasing marijuana. Aponte told the defendant and Radney that he knew where they could purchase marijuana. Aponte thereafter got into the automobile with the two men; he sat in the backseat behind the defendant, who was driving. Medina stayed behind.

The defendant did not follow Aponte’s directions but drove the automobile to a parking lot located along nearby New Britain Avenue. Radney, sitting in the front passenger seat, turned to Aponte and pointed a small caliber handgun at him. The defendant, sitting in the driver’s seat, turned to Aponte and pointed a large caliber handgun at his face. While pointing their handguns at Aponte, both men smiled at Aponte but did not speak. Aponte quickly attempted to exit the automobile and flee the scene. Radney shot Aponte in the chest and in his back. The defendant shot Aponte in his right arm. Aponte survived the shooting but sustained serious physical injuries.

Under docket number CR-14-596133 (Albany Avenue case), the defendant was charged with crimes that allegedly occurred along Albany Avenue in Hartford, approximately one-half hour after the incident on New Britain Avenue. In the Albany Avenue case, the defendant was charged with murder as an accessory and conspiracy to commit murder. During the trial, the state filed an amended information also charging the defendant with manslaughter as a lesser offense included within murder as an accessory. The jury returned a verdict of not guilty as to all of these counts.

With regard to the Albany Avenue case, the state presented evidence that a shooting occurred along Albany Avenue at approximately 12:18 p.m. on May 16, 2003. The victim of that shooting died from small caliber gunshot wounds. The state argued that Radney was the shooter and that the defendant acted as a lookout during the crime. The state presented evidence that the same automobile was used in both incidents and that the police later arrested Radney, who was in possession of the small caliber handgun used in the Albany Avenue shooting. Additionally, an eyewitness to the Albany Avenue shooting gave police a written statement and, from photographic arrays, identified as the perpetrators of the crime both the defendant and Radney. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly joined the New Britain Avenue and Albany Avenue cases, thereby causing him substantial prejudice. We disagree.

The record reflects that prior to trial, the state filed a motion to consolidate the two cases pending against the defendant. After providing the court with information concerning the factual allegations and charges at issue in each case, the state argued that the cases involved discrete and easily distinguishable factual scenarios and that the crimes alleged in both cases were similar in terms of the nature of the conduct at issue. The state also argued that consolidating the cases for trial would not result in a lengthy trial or a trial that would consist of complex or confusing issues. Alternatively, the state argued that joinder was appropriate because evidence relevant to the issues of identity and intent would be admissible in both cases.

The defendant objected to the motion, arguing that there was a risk of prejudice in joining the cases for trial. The defendant’s attorney argued that the facts in each case were similar but “legally unrelated.” He argued that joinder was inappropriate because the conduct alleged in each case was materially distinct; in the New Britain Avenue case, the defendant was alleged to be a shooter, and, in the Albany Avenue case, the defendant was alleged to be a lookout for the shooter, Radney. The defendant’s attorney also argued that joinder was inappropriate because the alleged crimes occurred within a short time period on the same day. The defendant’s attorney also suggested that the handgun discovered in Radney’s possession, which the state alleged was used in both shootings, was irrelevant to the charges involving the defendant.

The court overruled the defendant’s objection and granted the state’s motion. The court noted its preference to join cases in the interest of judicial economy, provided that the defendant has not shown that substantial prejudice would be caused by such ruling. Relying on several considerations, the court reasoned that such prejudice had not been demonstrated. First, the allegations at issue in each case were not particularly brutal or shocking such that there was a risk that the evidence in one case would taint the jury’s view of the other case. Second, the cases involved easily distinguishable factual scenarios that readily could be separated during the trial. Third, neither case involved complex issues. The court ordered the state to “compartmentalize” the evidence in each case during its presentation of the evidence, such that the state should present all of the evidence relevant to the first case and then all of the evidence relevant to the second case.

“The principles that govern our review of a trial court’s ruling on a motion for joinder or a motion for severance are well established. Practice Book § 41-19 provides that, [t]he judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together. See also General Statutes § 54-57 ([wjhenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise). In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions. . . .

“Substantial prejudice does not necessarily result from a denial of severance even [if the] evidence of one offense would not have been admissible at a separate trial involving the second offense. . . . Consolidation under such circumstances, however, may expose the defendant to potential prejudice for three reasons: First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him .... Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . presents] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all. . . .

“Despite the existence of these risks, this court consistently has recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges. . . .

“The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Citation omitted; internal quotation marks omitted.) State v. Davis, 286 Conn. 17, 27-29, 942 A.2d 373 (2008). These three factors, often referred to as the Boscarino factors, were articulated in State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987).

The court’s decision reflects its careful consideration of these relevant factors. The defendant argues that the first factor weighed against joinder because the shootings occurred within a relatively short period of time on the very same day and because the state suggested that some of the same evidence was relevant with regard to both shootings. The court reasoned that the facts involved in each case could be readily and easily distinguished. We agree with that assessment.

The evidence reflects that each shooting incident involved a different victim. Each incident occurred at a different time and at a different location. The state relied on different theories of criminal liability with regard to each shooting. We are not persuaded that these cases were not easily distinguishable or that it was likely that the jury would have had difficulty evaluating the events underlying each case in a logical and separate manner. Furthermore, our review of the record reflects that the state complied with the court’s order to present the evidence with regard to each shooting and victim in-a separate manner such that there was little or no likelihood that the jury would confuse the evidence relevant to one shooting with the evidence relevant to the other. Throughout the trial, the parties dealt with the evidence as to each case in a similar manner. Finally, the court clearly distinguished between the two separate incidents and the law applicable to the charges related to each incident during its charge. These instructions reinforced similar instructions provided to the jury throughout the trial.

In its charge, the court unambiguously and directly instructed the jury that it must consider each incident separately. The defendant speculates, but does not in any way demonstrate, that the jury did not follow these instructions. Absent clear evidence to the contrary, we presume that the jury followed the court’s instructions. See State v. Anderson, 86 Conn. App. 854, 870, 864 A.2d 35, cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005). Additionally, we are mindful that the jury reached a verdict of not guilty with regard to all of the charges pending in the Albany Avenue case and two of the four charges pending in the New Britain Avenue case. Although these facts are not dispositive of the claim before us, they belie the defendant’s assertion that the jury was unable to, or did not, distinguish between the separate events and charges involved in each distinct case. All of these considerations lead us to conclude that the cases involved easily distinguishable factual scenarios.

The defendant does not argue that the second or third Boscarino factors were not satisfied in this case, and, therefore, we will address them only briefly. Although the crimes at issue were violent, we agree with the trial court’s assessment that they were not characterized by shocking or brutal conduct on the defendant’s part. Also, in considering this factor, we ask whether “there was a significant disparity in the degree of brutality that was reflected by the evidence in each case.” State v. Swain, 101 Conn. App. 253, 263, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007). Here, the defendant’s alleged conduct in both shootings was not significantly dissimilar in nature.

Finally, considering the duration and complexity of the trial, we agree with the court’s determination that neither case involved notably complex legal issues. Each of the state’s two cases focused on a different shooting incident, not a continuous course of criminal conduct that spanned a long duration of time. Also, joining the two cases did not result in a trial that was unreasonably long, as the presentation of the state’s evidence occurred over a period of three days and the defendant presented evidence during a portion of one day. See id., and cases cited therein. Additionally, we observe that the cases did not involve complex or an extraordinary number of criminal charges.

In light of all of these factors, we conclude that the defendant has not demonstrated that the court’s ruling caused him substantial prejudice. Accordingly, we conclude that the court’s ruling on the state’s motion to consolidate did not reflect an abuse of discretion.

II

The defendant next claims that the evidence did not support the jury’s verdict as to both of the crimes of which he stands convicted. We disagree.

Before we address separately the arguments raised with regard to each crime, we set forth our standard of review. “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . [T]he trier of fact may credit part of a witness’ testimony and reject other parts.” (Citation omitted; internal quotation marks omitted.) State v. Millan, 290 Conn. 816, 825, 966 A.2d 699 (2009).

A

Conspiracy to Commit Assault in the First Degree

To support a conviction of conspiracy to commit assault in the first degree, as charged, the state bore the burden of proving beyond a reasonable doubt (1) that the defendant intended that conduct constituting the crime of assault in the first degree be performed, (2) that the defendant agreed with another person to engage in or cause the performance of such conduct and (3) that either of them committed an overt act in pursuance of such conspiracy. See General Statutes § 53a-48. “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 . . . .” General Statutes § 53a-59 (a).

1

Evidence Identifying the Defendant as the Perpetrator of the Crime

The defendant first argues that the state failed to present sufficient evidence that he was at the scene of the New Britain Avenue shooting. The defendant correctly observes that during the trial, in February, 2007, the state presented identification evidence from Aponte. Aponte discussed the events leading to and including the shooting on New Britain Avenue on May 16,2003. He made an unequivocal in-court identification of the defendant as one of the persons he spoke with prior to entering the automobile, the driver of the automobile that he entered and one of two persons who pointed a gun at him immediately prior to the time that he sustained three gunshot wounds. With regard to this identification, Aponte testified that he had “no doubt at all.” Aponte testified that after the defendant drove the automobile into the parking lot, he brandished a .357 magnum handgun with a long barrel and pointed it in Aponte’s face. He recalled that when the defendant and the passenger of the automobile were pointing their guns at him, he observed the guns and looked directly into their eyes. The state also presented evidence that on August 16,2005, a detective from the Hartford police department showed Aponte a photographic array concerning this case. Aponte identified the defendant’s photograph from among the photographs presented to him, stating clearly that the defendant was involved in the shooting. Aponte similarly identified Radney’s photograph from a separate array.

Aponte testified that he was hospitalized for his injuries and that he underwent multiple surgeries. He recalled speaking to law enforcement personnel during his stay at the hospital but admitted that he was “very medicated at the time” and that his time in the hospital was a “blur” to him. A police detective testified that, while Aponte was in the hospital, he did not provide the police with a description of his assailants. The detective also testified that an officer showed Aponte photographs of possible suspects at the hospital but that he did not identify anyone in those photographs. When questioned during cross-examination as to why he did not provide a description of his assailants during his hospitalization following the shooting, Aponte testified that, at the time, he had been shot, was in shock and was “barely conscious.” He testified that, in light of his serious medical condition at that time, the questions posed to him by the police were irrelevant to him and that he was under the influence of several medications. He stated, however, that, if he had been shown a photograph of one of his assailants at the hospital, he would have recognized such assailant.

The defendant argues that Aponte’s identifications of him were insufficient to identify him as involved in the crime. The defendant relies heavily on the fact that Aponte did not identify him in the photographic array until twenty-seven months following the shooting. The defendant also argues that the state failed to present any other evidence that connected him to the shooting, noting that the state did not present Aponte’s companion, Medina, as a witness and that at least one other witness described the New Britain Avenue shooting suspects as Hispanic men. Further, the defendant argues that Aponte’s identification was unreliable because the police detective who showed the photographic arrays to Aponte failed to inform Aponte that a suspect may or may not have been in the arrays he was shown. He further argues that the out-of-court identification was so impermissibly suggestive that it rendered Aponte’s in-court identification unreliable.

As a preliminary matter, at trial, the defendant did not object to the admission of the identification evidence, and, in this appeal, he does not challenge the admissibility of such evidence. Although it was his right to do so, the defendant did not move to suppress the out-of-court identification that Aponte made by use of the photographic array. The claim that is before us is whether the evidence presented to the jury supported a finding that the defendant was present at the crime scene. We decline the defendant’s invitation to intermingle our evaluation of that issue with an analysis of the admissibility of the identification evidence. See State v. Carey, 228 Conn. 487, 496, 636 A.2d 840 (1994) (“[cjlaims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error”); State v. Smith, 73 Conn. App. 173, 180, 807 A.2d 500 (“a claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial”), cert. denied, 262 Conn. 923, 812 A.2d 865 (2002).

On the basis of Aponte’s unequivocal identifications of the defendant, we readily conclude that a finding that he was present at the shooting scene was amply supported by the evidence. The defendant essentially urges us to second-guess the jury’s reliance on Aponte’s identification evidence, something that we decline to do. The jury, as the arbiter of the facts, was free to draw whatever reasonable inferences that were permitted by the evidence. The defendant argues that Aponte was unable to identify him for twenty-seven months following the shooting. There is no evidence to support such an inference. There was evidence that on May 16, 2003, Aponte had several opportunities to, and did, observe the defendant. The jury reasonably could have concluded that Aponte, as he testified, was not able to effectively and thoroughly communicate with the police during his hospitalization. The state presented evidence that Aponte unambiguously identified the defendant’s photograph twenty-seven months after the shooting when it was presented to him in a photographic array. The jury was asked to evaluate the evidence concerning this identification and to observe the defendant’s in-court identification; this was a credibility issue for the jury to resolve. Drawing inferences consistent with the defendant’s guilt, there is no basis on which to conclude that the jury did not properly rely on Aponte’s identification of the defendant. Accordingly, we conclude that Aponte’s identifications of the defendant provided an ample basis in the evidence on which to find that the defendant was at the scene of the shooting.

2

Evidence of the Defendant’s Mental State

The defendant also argues that there was insufficient evidence to find that he acted with the requisite mental state required for the commission of the crime. “Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to agree or conspire and (b) the intent to commit the offense which is the object of the conspiracy. . . . Thus, [pjroof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Citation omitted; internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 167, 869 A.2d 192 (2005). The defendant asserts that the state failed to prove either element of intent in the present case.

“[W]hile the state must prove an agreement [to commit assault with a deadly weapon or a dangerous instrument], the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts. . . . Further, [conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.” (Internal quotation marks omitted). State v. Millan, supra, 290 Conn. 826.

Here, the state presented evidence that the defendant and Radney took part in a coordinated course of conduct on May 16, 2003. The defendant and Radney approached Aponte, spoke to him about purchasing marijuana and drove off with Aponte in the backseat of the automobile. According to Aponte’s testimony, shortly after the defendant drove away, he disregarded Aponte’s directions and drove to a parking lot. At that point, Radney brandished a small caliber handgun and pointed it at Aponte. The defendant then did the same thing, with a larger caliber handgun. Aponte testified that neither man said anything to him, but they both looked at him and smiled. Aponte stated that on the basis of this conduct, he implied that they were about to rob him. At that point, Aponte opened the door and attempted to flee. He sustained two gunshot wounds that were consistent with a small caliber handgun and another gunshot wound to his right arm that was consistent with a larger caliber handgun.

The evidence of the conduct of the defendant and Radney amply supports a reasonable inference that both of them had planned to act in unison to accomplish a criminal purpose and, thus, that they were acting as coconspirators at the time of the shooting. After Aponte accompanied the men, the defendant stopped his automobile in a parking lot. Both men turned to him, brandished their handguns in a similar manner and, upon doing so, exhibited similar facial expressions. The defendant relies on the fact that neither perpetrator said anything to Aponte, arguing that it somehow precludes a finding that they intended to conspire to bring about an assault. We reject the defendant’s claim that an intent to conspire to bring about the criminal result at issue need have been proven by evidence of spoken words between the coconspirators or between one or more coconspirators and their victim. We conclude that the evidence of their conduct, prior to and during the shooting, amply reflected that the defendant acted with an intent to conspire.

The activities of the defendant and Radney also support a finding that the defendant intended to commit the offense of assault in the first degree. “It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.” (Internal quotation marks omitted.) State v. Vasquez, 68 Conn. App. 194, 207, 792 A.2d 856 (2002). Here, there was evidence concerning the manner that the defendant and Radney pointed their handguns directly at Aponte. The defendant was brandishing a large caliber handgun, and certainly such a weapon is capable of inflicting serious physical injury. The manner in which these handguns were used, and not least of all the fact that Aponte sustained three gunshot wounds, reflects that the defendant and his coconspirator intended to inflict serious physical injury.

B

Assault in the First Degree as an Accessory

With regard to this conviction, the defendant raises the same claim concerning identity evidence that he raised in part II A 1, asserting that the state failed to prove beyond a reasonable doubt that he was at the scene of the New Britain Avenue shooting. Relying on our previous analysis of that issue, we reject the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court sentenced the defendant to a total term of incarceration of twenty years, suspended after twelve years, followed by five years of probation.

       The defendant asserts, in an abstract manner, that the court violated his right to due process afforded by article first, § 8, of the Connecticut constitution. Apart from referring to this provision of our state constitution, and setting forth the text of this provision in a footnote, the defendant does not specifically analyze his claim under our state constitution. He does not explain the rights afforded by this provision, let alone how such specific rights apply to his claim concerning joinder. To the contrary, several of the authorities on which the defendant relies in his brief address claims raised under our federal constitution. The defendant, however, did not state a claim under the federal constitution.
      To the extent that the defendant has raised a state constitutional issue, we deem it abandoned. “We . . . repeatedly [have] apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . .” (Internal quotation marks omitted.) State v. Sinvil, 270 Conn. 516, 518 n.l, 853 A.2d 105 (2004).

        Our thorough review of the defendant’s brief reflects that the defendant has analyzed his claim on the ground that the court abused its discretion by joining the cases for trial and that he was substantially and unfairly prejudiced by the court’s ruling. We analyze the claim solely on that basis.

       The court delivered the following instruction to the jury: “As I indicated earlier, the court has consolidated two entirely separate and distinct cases, involving two separate incidents, together for trial. Under Connecticut law, the court has authority to combine two separate cases as a matter of judicial economy.
      “That is what has occurred here. The state is permitted to try the defendant for two separate cases before a single jury, so long as the jury considers each incident separately. That is why we have two informations and why you have heard evidence of two distinct incidents which the state alleges occurred on May 16, 2003.
      “The state presented evidence about what it claims occurred on New Britain Avenue and presented evidence about what it claims occurred on Albany Avenue.
      “It is up to you to decide whether evidence pertaining to one incident has applicability or inapplicability to the other incident in making your separate factual findings as [to] what has been proven and what has not been proven relative to each of the charges in each information.
      “However, I again emphasize that during your deliberations, you must consider separately each case and the law applicable to each case, in accordance with the instructions I give you.
      “You must not allow the law relevant to one case to influence or to be used in your consideration of the other case, unless I instruct you, and I will, that a particular instruction may be applied in both cases.
      * ** *
      “You must deliberate carefully on each count in each of the two informations. You must not conclude that just because you find the defendant guilty or not guilty of one count in a particular information that he is automatically guilty or not guilty of one or more of the other counts in that information.
      “You also must not conclude that just because you find the defendant guilty or not guilty of an offense or charges in one information, that he is automatically guilty or not guilty of an offense or offenses charged in the other information.
      “It will be your duty to separately consider each information [and] each charge or count in each information separately. And, when you return to the courtroom, you will be asked whether or not the defendant is guilty or not guilty as charged in each of the separate counts of each information, and you will render your unanimous verdict accordingly.”
      We note that the defendant did not object to this instruction at trial and does not challenge the propriety of the court’s instruction in this appeal.

       The defendant implicitly argues that the fact that he was convicted of any of the charges pending against him reflects that he was prejudiced by the court’s ruling. As stated previously in this opinion, our Supreme Court has elaborated on the factors to consider in evaluating the risk of prejudice resulting from joinder. See State v. Boscarino, supra, 204 Conn. 722-24. Likewise, we have already stated that there is a preference in our law favoring joinder of cases where a risk of prejudice has not been demonstrated. See, e.g., State v. Johnson, 289 Conn. 437, 451, 958 A.2d 713 (2008); State v. Davis, supra, 286 Conn. 29. It is apparent from our examination of the defendant’s brief as well as his argument before this court that he disfavors this well established jurisprudence. As it is, however, axiomatic that we are bound by the decisions of our Supreme Court; State v. Colon, 71 Conn. App. 217, 245-46, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002); we are not persuaded by his arguments in this regard.

       As noted previously in this opinion, the state argued that joinder was appropriate under the Boscarino factors already discussed and, in the alternative, because evidence was cross admissible in both cases with regard to issues of intent and identity. See State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987) (“Where evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial.”).
      Although the defendant argues on appeal that joinder was not proper under Pollitt’s rationale, we need not address this issue. In granting the state’s motion, the court relied solely on the Boscarino factors, and we have already concluded that the court’s exercise of discretion was sound. See State v. Carty, 100 Conn. App. 40, 44, 45 n.5 and 48 n.7, 916 A.2d 852 (court could properly have joined cases under either application of Boscarino factors or under theory that evidence from each case cross admissible), cert. denied, 282 Conn. 917, 925 A.2d 1100 (2007).

       Those photographs were not presented in evidence, and the record does not reflect that the police showed Aponte a photograph of either the defendant or Radney.

       The evidence reflected that the defendant is a black male.

       The defendant’s arguments that “other witnesses failed to identify [him] as a perpetrator of the crime,” that “the state failed to produce a necessary-witness who could have either corroborated or contradicted Aponte’s testimony” and that the state did not present any physical evidence tying him to the crime scene merit little discussion. It is of no consequence to our analysis of the evidence that the state did not present the testimony of any other witness identifying the defendant as the perpetrator of the crime. Aponte’s testimony was sufficient. The defendant has not drawn our attention to any legal authority that required the state to present cumulative identity evidence from more than one source. Similarly, the defendant has not drawn our attention to any legal authority that required the state to present physical evidence tying the defendant to the New Britain Avenue crime scene to prove that he was present at that scene at the time of the shooting.

       It is not in dispute that the gunshot wounds suffered by Aponte were serious in nature, requiring surgeries and hospitalization.