author: FOTI, J.

text:
    STATE OF CONNECTICUT v. ROBIN ELLIOTT
    (14807)
    O’Connell, Foti and Heiman, Js.
    Argued September 14
    decision released December 12, 1995

      Vicki II. Hutchinson, for the appellant (defendant).

      Ronald G. Weller, deputy assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Patricia M. Gilbert, assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault of an. employee of the department of correction in violation of General Statutes § 53a-167c (a) (l), unlawful restraint in the first degree in violation of General Statutes § 53a-95, attempted escape in the first degree in violation of General Statutes §§ 53a-49 and 53a-169, possession of a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a, and assault in the second degree in violation of General Statutes § 53a-60 (a) (l). The jury thereafter convicted the defendant of being a persistent serious felony offender in violation of General Statutes § 53a-40 (b). The court sentenced the defendant to a total effective term of imprisonment of seventy years. The defendant claims that the trial court improperly (1) instructed the jury on the affirmative defense of mental disease or defect and (2) denied the defendant’s motion for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In June, 1993, the defendant was incarcerated at the community correctional center in Newtown and assigned as an inmate to the delta housing unit, cell D-116. The delta unit consists of upper and lower tiers of cells for the inmates. Cell D-116 is located on the lower tier. The lower tier also contains a dayroom with a table and chairs, a control station, a multipurpose room and a recreation yard. The delta unit is capable of housing a total of ninety-six inmates.

On June 5,1993, at approximately 9 p.m., the inmates on the upper tier were out of their cells for recreation, while those on the lower tier, including the defendant, remained in their cells. Correction Officers Eric Williams and Sheri Privott were on duty as housing officers in the delta unit. At approximately 9:30 p.m., while Pri-vott was engaged in a conversation outside of cell D-101 with the upper tier inmates, who were at recreation, Williams left to make a tour of the unit, leaving the control station unsupervised. At some point after Williams departed for his tour, but before he returned to the control station, someone opened the door of cell D-116, releasing the defendant.

When Williams completed his tour, he returned to the control station to record the unit tour in a logbook. At that time, the defendant approached Williams from behind, struck him over the head with a weight bar, and rendered him unconscious. The defendant then approached Privott, pushed her from behind into cell D-101 and locked the cell door. She then began to bang on the cell door, asking inmates to let her out. From the cell door window, Privott witnessed the defendant, wearing a clean prison uniform, pass cell D-101 holding prison keys and walk toward the recreation area. The defendant went into the recreation yard, removed a sewer manhole cover, and attempted to escape through the sewer. The pipe, however, was too small for the defendant to pass through and was filled with water.

Shortly thereafter, the defendant returned to open cell D-101 with the prison keys. Privott observed that the defendant’s prison uniform was wet and dirty. The defendant began yelling at Privott, backing her up to a chair in the cell and telling her to sit down. Privott complied and the defendant again left, locking the cell door. At approximately 10:30 p.m., the defendant dragged Williams, who remained unconscious, to cell D-l 16 and once more returned to cell D-101. The defendant opened the door to cell D-101, grabbed Privott by the collar and forced her to go to the control station where he seized a clipboard.

At that point, the defendant forced Privott up the stairs toward the upper tier. The defendant then broke the clipboard over the staircase railing and held a piece of metal from the broken clipboard to her throat. The defendant shouted to the correction officers who had gathered in the sally port to retreat, threatening to kill Privott if they did not. All of the correction officers who had entered the unit at this time complied with the defendant’s order.

Captain Dennis Shipman, however, remained in the sally port. The defendant stated to Shipman, “I tried to escape. I fucked up.” Thereafter, Lieutenant Sean Sullivan entered the sally port where the defendant was still holding Privott hostage, continuing to threaten her life with the piece of metal. The defendant opened the door to the delta unit and allowed Sullivan to enter the unit. He then told Sullivan that he had hit Williams over the head with the metal weight bar, locked Privott in a cell, and tried to escape through the sewer drain. While continuing to hold Privott, the defendant went with Sullivan to cell D-116 and gave up the cell keys. Sullivan unlocked the cell and assisted Williams, who was bleeding from the head, back to the sally port. Eventually, the defendant released Privott and surrendered. Williams suffered a concussion, and ear and scalp lacerations as a result of the assault.

On the third day of trial, after the state had presented four witnesses, the defendant filed his notice of defense of mental disease or defect, and notice of intent to introduce expert testimony. In its charge, the trial court instructed the jury on the affirmative defense of mental disease or defect. The defendant did not object to the charge, nor does he raise any issue concerning that charge on appeal. The defendant claims, however, that, because of an improper supplemental charge, he was deprived of a fair and impartial trial in violation of his rights under article first, § 8, of the Connecticut constitution, and the sixth and fourteenth amendments to the United States constitution.

The supplemental charge objected to by the defendant arose from a jury deadlock. During jury deliberations, the court received a note from the jury and responded as follows: “Record may note the presence of the jurors. I’ve received your note—the latest note which says, ‘Dear Sir, we are deadlocked on the affirmative defense for two of the charges. What should we do?’

“First of all, interpreting that note, I would assume that the—what you’ve done is there are five charges pending and including, actually, a lesser-included offense as to one of them, but there are basically five charges in the information. I would assume at this point you have found him not guilty on three charges and that you have found him guilty on two others because obviously he—the affirmative defense either applies to all or not. In other words, you either are incompetent to do—in this particular case, since they all arose out of the same event, it would be, in the court’s mind, rather impossible to say that at one minute, he was competent, the next minute, he was incompetent, so to speak, to perform these under the affirmative defense.

“So, I can only understand this note, and if I—this is incorrect, then you should resolve that among yourselves. I—I’m not suggesting that. But, basically, what I assume is that at this point, you found him—that the state has—has prevailed in proving him guilty beyond a reasonable doubt as to two of the charges and as—and that you found him not guilty on the remaining charges, whatever they may be.

“With that—if that is correct, I do have what is known as the Chip Smith charge which talks about—

“[First Juror]: Excuse me, sir, that’s not correct.

“[Second Juror]: That’s not correct.

“The Court: All right. Well, then ... I don’t want to get into this because you have to deliberate.

“[First Juror]: Right.

“The Court: But, my point is that you can’t—

“[First Juror]: Yeah.

“The Court:—you either are competent or incompetent—

“[First Juror]: Yeah.

“The Court:—at—at one time. You—you can’t—I can’t—I can’t conceive of any time within the short period of time that we are dealing with where you would sort of go in and out of—of being—of having a defect so that—that you would be—have an affirmative defense as to some and not have an affirmative defense to others, and I tried—I thought I had pointed that out to you at the beginning that—

“[Second Juror]: We—we sort of understood it to mean to take the affirmative defense for each charge, not as—clumped.

“The Court: Well, no, I mean, in other words, the process was to determine and find if the accused was or was not guilty of—of any of the charges that were charged. Obviously, if you found that the accused was not guilty of any particular charge, the verdict was not guilty. If you found that the person was guilty of any particular charge, you would find unanimously that he was guilty, but then you would go on to determine the affirmative defense, and if you found that the affirmative defense was proven by a preponderance of the evidence, then on those particular charges you would find him not guilty by reason of the—the affirmative defense because, at that point, I have to know which ones are not guilty pure and simple because the state failed to prove him guilty, and which ones the state was successful in proving him guilty beyond a reasonable doubt but you are discharging him on the basis of the affirmative defense.

“But, you can’t find him guilty on some charges and—and excuse him as—as not guilty by basis of the affirmative defense. You—it—it’s inconsistent because either he was capable or incapable, as I’ve described the defense, at that particular time of all the charges. So, that it’s—it’s—it’s in that situation.

“If you need further deliberations before I do the so-called Chip Smith charge which is basically an explanation of what thought process you should go through if you’re deadlocked, then I would suggest that you continue your deliberations. All right?

“[Second Juror]: Okey-doke.

“[First Juror]: May we continue them?

“The Court: OK.”

The defendant failed to object to this supplemental instruction. The jury was then sent back to continue its deliberations. Within minutes, the jury returned, finding the defendant guilty on all counts. The following day, the defendant filed a motion for a new trial alleging the jury was misled during deliberations by the trial court’s supplemental instructions. The court denied the defendant’s motion.

The defendant first claims that the trial court’s supplemental instructions on the affirmative defense of mental disease or defect misled the jury and deprived the defendant of his right to a fair and impartial trial. The defendant did not preserve this claim on the record. Moreover, the defendant does not seek review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or plain error review. Practice Book § 4185. Rather, the defendant has raised this issue through his second claim that the court “erred when it denied [his] motion for a new trial.” This motion was entirely predicated on the alleged improper supplemental instruction, hence, the defendant’s two claims on appeal are, in essence, identical.

Our review of this claim, under the particular circumstances of this case, leads us to conclude that the supplemental instruction given by the trial court was not improper. While we agree that such an instruction may be improper under some or even most circumstances, in the present case it was not.

The defendant relied on the affirmative defense of mental disease or defect. “As with other affirmative defenses, the defendant has the burden of proof by a fair preponderance of the evidence.” State v. Zdanis, 182 Conn. 388, 390, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). “ ‘[T]he ultimate determination . . . [is] one of fact for the trier, aided by the expert testimony . . . but left to its own factual determinations.’ ” State v. Steiger, 218 Conn. 349, 383, 590 A.2d 408 (1991). The jury, as trier of the facts, may accept or reject the evidence presented by the defendant and may choose to believe or disbelieve expert testimony even when uncontroverted. State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). On the basis of the facts as presented, and the jury’s right to reject any or all of the defendant’s evidence, we conclude that the trial court properly denied the defendant’s motion for a new trial.

There is no question that the trial court’s initial instructions were clear and sufficient to provide guid-anee to the jury in applying the law to the facts it found established. The jury was instructed that the affirmative defense of disease or mental defect is a complete defense to criminal liability, which if established by the defendant, results in a verdict of not guilty by reason of mental disease or defect. The defendant, however, claims that the court’s supplemental charge requires that he be found either competent or incompetent throughout the entire series of acts, comprising five separate charges, for conduct taking place over a period of approximately one hour. The defendant argues that it is “certainly conceivable that [he] was in control of his conduct during part of the evening and then lost control at a certain point.” While we agree that such is conceivable; see State v. Wood, 208 Conn. 125, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988), our review of the record does not disclose that the defendant sustained his burden of proof that he was either not in control at all times or, that he “lost control” at a certain point during the entire continuum of the event.

During his case-in-chief, the defendant presented a clinical psychologist as an expert witness to testily regarding the defendant’s mental state on the day of the crimes. The witness testified that, in his opinion based on his examination of the defendant, the defendant had not been suffering from a mental disease or defect at the time in “psychological nomenclature” but, probably had been from a legal standpoint. Two inmates also testified as to the defendant’s mental state. The theory of defense was that the defendant was not in his right state of mind throughout the one hour ordeal.

During closing argument, the defendant, through counsel, argued that “throughout the entire ordeal [the defendant] was acting in a totally irrational unpredictable manner . . . .” All of the questions asked of witnesses by the defense counsel were designed to elicit a response indicating that the defendant was acting under the influence of a mental disease or defect throughout the entire incident. It was the state’s claim that he was not suffering from a mental defect throughout the entire one hour incident, and it was the defendant’s position and claim that he was.

The defendant’s theory of defense was an all or nothing affirmative defense of mental disease or defect. There was no evidence presented by any witnesses, nor was any argument advanced, that the defendant’s mental state changed during the one hour incident or that something occurred to trigger a change in his mental state. Under the limited facts of this particular case, there was no evidence presented that would have allowed the jury to find that the defendant was lucid during part of the incident and under a mental defect at other times. There was evidence that he was under a mental defect throughout, and evidence that he was not. The jury chose to accept the latter and not the former as fact. Our Supreme Court has recognized that “a condition of mental disease is always a more or less continuous one . . . .” Taborsky v. State, 142 Conn. 619, 629, 116 A.2d 433 (1955). This concept is not inconsistent with the parties’ positions and the court’s subsequent charge.

Our review of the charge in its entirety demonstrates that the trial court’s instructions sufficiently guided the jury to a proper verdict. The supplemental charge, as part of the whole, was not misleading or improper under the particular circumstances of this case.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the land of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-169 (a) provides in relevant part: “A person is guilty of escape in the first degree (1) if he escapes from a correctional institution . . . .”

       General Statutes § 53a-174a (a) provides in relevant part: “A person is guilty of possession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly . . . has in his possession or under his control any . . . dangerous instrument . . . .”

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person

       The sally port is located on the upper tier and consists of two large steel doors, one to the housing unit, the other to an outside corridor. To enter the unit, a corridor officer opens the door to the corridor, allowing entrance to the sally port from the corridor. That door is then closed, and the corridor officer opens the door to the housing unit.

       Because the defendant failed to present separate and independent analysis of his state constitutional claim, or even to argue that his rights under the state constitution are different or greater than under the federal constitution, he is not entitled to review on that basis. State v. Steiger, 218 Conn. 349, 358 n.9, 590 A.2d 408 (1991); State v. Parsons, 28 Conn. App. 91, 97 n.3, 612 A.2d 73, cert. denied, 223 Conn. 920, 614 A.2d 829 (1992).

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . .”

        The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law . . .

       The defendant argues that within a very short time, perhaps a few minutes, after the jury was excused to continue deliberations, a verdict was announced, leaving little time to formulate an objection.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CHRISTIAN PORTER
    (13642)
    O’Connell, Landau and Hennessy, Js.
    Argued October 24
    decision released December 12, 1995

      M. Hatcher Norris, with whom, on the brief was Stacy M. Schneider, for the appellant (defendant).

      Kevin T. Kane, state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of arson in the first degree in violation of General Statutes § 53a-lll (a) (4). The defendant claims that the trial court improperly (1) refused to admit the favorable results of the defendant’s polygraph test, (2) refused to allow the defendant to make an offer of proof on the polygraph test results, and (3) denied his motion for judgment of acquittal or a new trial. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. At approximately 10:15 p.m. on July 20, 1992, the defendant and his wife smelled smoke in their house. The defendant’s wife and child went, to a neighbor’s house, and the defendant remained behind. The defendant arrived at the neighbor’s house five to ten minutes later, explaining that he had sprayed a smoking electrical box with a fire extinguisher. The defendant also set up fans to clear away the remaining smoke. The defendant then left the neighbor’s house, returning later with bloodshot eyes and a towel covering his mouth and nose. After drinking a glass of water, the defendant telephoned his brother-in-law, a licensed electrician, for advice about the electrical box. At some point during the conversation, the defendant looked out the window and shouted that his house was on fire.

The defendant did not testify at trial but sought to admit the results of a polygraph examination. The trial court denied the motion and the accompanying request for an evidentiary hearing. Other relevant facts are included in the analysis of the defendant’s claims.

I

The defendant first claims that the trial court improperly refused to admit the results of his polygraph test. The defendant correctly recognizes that our Supreme Court and this court have consistently held polygraph evidence to be per se inadmissible for both substantive and impeachment purposes. State v. Duntz, 223 Conn. 207, 238-39, 613 A.2d 224 (1992); State v. Miller, 202 Conn. 463, 484-86, 522 A.2d 249 (1987); State v. Barnes, 27 Conn. App. 713, 716, 610 A.2d 689, cert. denied, 223 Conn. 914, 614 A.2d 826 (1992); State v. Summerville, 13 Conn. App. 175, 181, 535 A.2d 818 (1988). Nonetheless, the defendant urges this court to reconsider the validity of this firmly established position in light of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), a decision based on rule 702 of the Federal Rules of Evidence.

The Connecticut rule that polygraph test results have only questionable accuracy was succinctly stated by our Supreme Court in State v. Mitchell, 169 Conn. 161, 170, 362 A.2d 808 (1975). “[T]he admission of the results of polygraph examinations, rather than serving as an aid to [determine credibility], would tend to cloud the issue with an aura of scientific conclusiveness of the examiner’s opinion that could foreclose a true consideration of the issue. We axe not convinced that the polygraph has progressed to a level of sophistication that would warrant the conclusiveness that would, in all probability, be appended to its results.” Id. The rule of Mitchell has not changed.

Whether a Supreme Court holding should be reevaluated and discarded is not for this court to decide. State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d (1994). We therefore conclude, on the basis of Connecticut precedent, that the trial court properly denied the defendant’s motion to admit the results of the defendant’s polygraph test.

II

The defendant’s second claim is that the trial court improperly denied him the constitutional right to present a defense by refusing to allow him the opportunity to make an offer of proof regarding the polygraph evidence. Relying on Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), and Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), the defendant contends that his constitutional right to present a defense includes the right to make an offer of proof of favorable polygraph results. We do not agree.

The trial court, like this court, is bound by the Connecticut precedent which bars the admission of polygraph results. State v. Mitchell, supra, 169 Conn. 170. Because an evidentiary hearing would have been a nugatory undertaking, the trial court was not required to grant the defendant’s motion for an evidentiary offer of proof.

Ill

The defendant’s final claim is that the evidence is insufficient to sustain his conviction of arson in the first degree. We disagree.

In reviewing a sufficiency of the evidence claim, we first review “the evidence presented at trial, construing it in the light most favorable to sustaining the facts found by the trial court or impliedly found by the jury.” (Internal quotation marks omitted.) States. Gomez, 225 Conn. 347, 350, 622 A.2d 1014 (1993). We then determine whether, on the facts established and the inferences drawn therefrom, the juiy could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993).

In order to be convicted of arson in the first degree in violation of General Statutes § 53a-lll (a) (4), the defendant must, with the intent to destroy or damage a building, start a fire or cause an explosion. Additionally, a peace officer or firefighter must be subjected to a substantial risk of bodily injury at the scene of the fire or explosion.

In this case, there was sufficient evidence for the jury to have determined that the defendant started a fire with the intent to damage or destroy a building and that firefighters were subjected to a substantial risk of bodily injury at the scene. The jury could have reasonably found that three separate fires started in the defendant’s house when the defendant was alone there. Tests of materials taken from the house revealed the presence of flammable liquids. The state’s fire expert concluded that the fires had been intentionally set and discounted the defendant’s theory that the fires started due to faulty electrical wiring. It is uncontested that firefighters who entered the house to suppress the fire were surrounded by flames and exposed to intense heat and falling pieces of burning debris.

The defendant argues that the state presented no credible evidence of motive. Because motive is not an element of arson in the first degree, the state is not required to present any evidence in support of the defendant’s motive. State v. Ruffin, 206 Conn. 678, 681, 539 A.2d 144 (1988). Although the state is not required to present any evidence in support of the defendant’s motive, it presented the following evidence in support of motive that could be considered by the jury. Id. Both the defendant and his wife had falsified the amount and source of their income on a mortgage application for the house that was destroyed. The defendant could not obtain credit, and had no savings at the time of the fire. The defendant’s wife had no source of income once she had received her complete disbursement of unemployment compensation. From these facts, the jury could have reasonably concluded that the defendant’s motive was not to collect the insurance proceeds resulting from the fire himself, but to benefit from the mortgage being paid off by the insurance company.

The defendant also contends that the state presented only circumstantial evidence in support of the elements of arson. When intent is an element of a crime, it is ordinarily proven by circumstantial evidence and must usually be inferred from the defendant’s conduct and the surrounding circumstances. State v. Smith, 35 Conn. App. 51, 63, 644 A.2d 923 (1994). Further, the fact that evidence is circumstantial rather than direct does not diminish its probative value. State v. Suaris, 227 Conn. 389, 395-96, 631 A.2d 238 (1993). Ajury may give circumstantial evidence the same weight as direct evidence. State v. John, 210 Conn. 652, 660, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

On the basis of the evidence and the inferences reasonably drawn therefrom, the jury reasonably could have concluded beyond a reasonable doubt that the defendant was guilty of arson in the first degree in violation of § 53a-lll (a) (4).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-lll (a) provides in pertinent part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in § 53a-100, he starts afire or causes an explosion, and ... (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”

       The defendant was also charged with one count of arson in the first degree for purposes of collecting insurance proceeds in violation of General Statutes § 53a-l.ll (a) (3), and was found not guilty of that charge.


author: SPEAR, J.

text:
    RICHARD W. BALLARD ET AL. v. ASSET RECOVERY MANAGEMENT COMPANY ET AL.
    (14148)
    Dupont, C. J., and O’Connell and Spear, Js.

      Submitted on briefs September 8
    decision released December 12, 1995

      Gregory J. Pepe, Michael D. Neubert and Maria A. Vanderlaan filed a brief for the appellants (defendants).

      Michael S. McKenna filed a brief for the appellees (plaintiffs).
   SPEAR, J.

The defendants appeal from a $22,500 judgment in favor of the plaintiffs. The trial court rendered judgment after granting the plaintiffs’ motion for summary enforcement of a settlement agreement. The defendants assert that such summary enforcement is improper because (1) the agreement does not comply with the statute of frauds, (2) the agreement is not the product of a “meeting of the minds,” (3) the dispute over the terms of the agreement required an evidentiary hearing, (4) the plaintiffs failed to satisfy a condition precedent to the defendants’ obligation to pay the agreed amount and (5) the plaintiffs made a material misrepresentation to induce the defendants to enter into the settlement agreement. We agree that summary enforcement was improper and, therefore, reverse the judgment of the trial court.

We glean the following facts from the record. The plaintiff buyers, Richard Ballard and Denise Ballard, entered into a contract with the defendant seller, Asset Recovery Management Company (ARMCO), to purchase certain real estate in the town of New Milford. After ARMCO refused to convey the property, the plaintiffs brought suit claiming, inter alia, specific performance and money damages. While the action was pending, the attorneys for the parties exchanged letters agreeing to a settlement. ARMCO and New Milford Savings Bank agreed to pay $22,500 to the plaintiffs in exchange for a withdrawal of the action, release of all the defendants, a release of lis pendens, and documentation of certain expenses incurred by the plaintiffs for extras in connection with construction on the property.

The clause at issue appears in the defendants’ letter to the plaintiffs’ attorney and states: “In addition, you have agreed to provide me with the receipts and copies of the cancelled checks for all of the extras your clients have paid for in connection with the subject property.”

The defendants claim that the plaintiffs represented that they had incurred $11,000 in expenses for extras and that ARMCO relied on that figure in agreeing to pay $22,500 to settle the dispute. After the plaintiffs delivered receipts and cancelled checks totaling only $4979.54, the defendants refused to pay. The plaintiffs filed a motion for judgment in accordance with the settlement agreement and the defendants objected, making the same claims that they now raise on appeal.

Because the trial court denied the defendants’ request for an evidentiary hearing, the hearing on the motion to enforce the settlement agreement was limited to brief oral argument. Upon finding that “the settlement agreement was clear and unambiguous and, therefore, enforceable,” the trial court rendered judgment for the plaintiffs in the amount of $22,500. This appeal followed.

We agree with the defendants that the dispute over the documentation of the extras precluded summary enforcement of the settlement agreement. “A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law [only] when the terms of the agreement are clear and unambiguous”; Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993); and when “the parties do not dispute the terms of the agreement.” Id., 812. In this case, the defendants challenge the trial court’s legal conclusion that the settlement contract was clear and unambiguous and, therefore, enforceable summarily. Such a legal challenge requires us to determine whether the trial court’s conclusions “ ‘are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .’” Bowman v. 1477 Central Apartments, Inc., 203 Conn. 246, 256, 524 A.2d 610 (1987).

We conclude that the language of the extras clause is not sufficiently definitive to support the trial court’s legal conclusion that the contract was clear, unambiguous and, therefore, enforceable summarily. Specifically, we can not ascertain what the parties intended by the clause “all the extras your clients have paid for.” “[A] determination of what the parties intended is normally a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion that it had reached.” Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 130, 523 A.2d 1266 (1987). “In the absence of definitive contract language, however, the determination of what the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.” (Internal quotation marks omitted.) Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987); see also Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956).

The defendants claim that the agreement required the plaintiffs to document $11,000 in costs for extras. The plaintiffs, who furnished documentation in the amount of $4979.54, claim, however, that the agreement did not require such documentation. The trial court did not discuss this disputed provision, but rather relied solely on language used earlier in a letter from the defendants’ attorney that states: “I am writing to confirm our settlement agreement in the above captioned case. As we discussed, your clients will receive $22,500 from New Milford Savings Bank and/or ARMCO in exchange for a withdrawal and a general release to all of the defendants.”

The trial court should have considered all of the language of the contract because “[p]arties generally do not insert meaningless provisions in their agreements and therefore every provision must be given effect if reasonably possible . . . .” (Citation omitted; internal quotation marks omitted.) Mack Financial Corp. v. Crossley, 209 Conn. 163, 168-69, 550 A.2d 303 (1988); Connecticut Co. v. Division 425, 147 Conn. 608, 617, 164 A.2d 413 (1960); Patron v. Konover, 35 Conn. App. 504, 509-10, 646 A.2d 901, cert. denied, 231 Conn. 929, 648 A.2d 879 (1994). A court cannot disregard terms in a contract. Slifkin v. Condec Corp., 13 Conn. App. 538, 545, 538 A.2d 231 (1988). Because the contract was unclear and ambiguous on its face and because a term was in dispute, we conclude that the trial court improperly rendered judgment enforcing the settlement agreement. This resolution renders discussion of the defendants’ other claims unnecessary.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs’ motion for summary enforcement of the settlement agreement.

In this opinion the other judges concurred.

       The defendants are Asset Recovery Management Company, New Milford Savings Bank and Vincent McCarthy.

       According to the defendants’ brief, extras include any costs incurred during the const ruction or installation of items not included in the specifications and not included in the purchase price.

       We decline to order an evidentiary hearing as requested by the defendants. They rely on federal precedent for the proposition that where the terms of a settlement agreement are disputed, the trial court should conduct an evidentiary hearing in lieu of summary enforcement. We are not persuaded that we should go beyond the boundaries of Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 811-12, and create a “limited dispute” hearing by judicial flat where the terms of a purported settlement agreement are disputed.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. ADRIAN STEVENSON
    (13203)
    Heiman, Spear and Freedman, Js.
    Argued October 2
    decision released December 12, 1995

      John T. Walkley, special public defender, with whom, on the brief, was Margaret G. H. Moreau, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger Dobris, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted robbeiy in the third degree in violation of General Statutes §§ 53a-49 and 53a-136, attempted larceny in the second degree in violation of General Statutes §§ 53a-49 and 53a-123, and assault in the third degree in violation of General Statutes § 53a-61. The defendant claims that it was improper for the trial court to give the jury a second “Chip Smith” charge. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of January 20, 1993, the victim walked home from his place of employment in New Haven. When the victim reached his driveway, the defendant pushed him down from behind, searched his pockets and demanded money. The victim responded that he did not have any money. The defendant punched the victim in the face two or three times. The victim cried out for help and the defendant fled. Later that evening, the police apprehended and arrested the defendant.

The defendant’s trial began on Wednesday, September 29, 1993. The jury commenced deliberations on Friday, October 1, at 2:05 p.m. At 4:25 p.m. on that day, the jury reported that they could not reach a verdict. At that time, the trial court brought the jury into the courtroom and delivered to the jury a Chip Smith charge. The defendant did not object to either the delivery of the charge or its content. The jury resumed deliberations at 4:30 p.m. At 5 p.m., the trial court excused the jury until Tuesday, October 5. On that morning, the trial court reminded the jury that, on the previous Friday afternoon, the trial court had given the jury additional instructions in response to the jury’s report that it was unable to reach a verdict. The defendant did not object to this reminder. At 10:16 a.m. on Tuesday, October 5, the jury resumed its deliberations. At 2:36 p.m., the jury again informed the trial court that it could not reach a unanimous verdict. The state’s attorney requested that the trial court repeat the Chip Smith charge. The defendant objected to a repetition of the Chip Smith charge. The trial court overruled the defendant’s objection and delivered a second Chip Smith charge. The defendant did not object to the content of the charge. The jury resumed deliberations at 3:15 p.m. At 4:52 p.m., the trial court excused the jury until the following morning. At approximately 10 a.m. on Wednesday, October 6, the jury resumed deliberations. The jury returned its verdict of guilty on all counts at 11:10 a.m.

The defendant claims that his state and federal constitutional rights were violated because the trial court gave the jury a second Chip Smith charge. We do not agree. The issue presented by the defendant is governed by this court’s decision in State v. Lyons, 36 Conn. App. 177, 649 A.2d 1046 (1994). In Lyons, the defendant sought Golding review of his unpreserved claim that it was improper for the trial court to repeat a Chip Smith charge. Id., 187. As does the defendant here, the defendant in Lyons claimed that the repetition of a Chip Smith charge violated his constitutional right to a jury that has not been coerced. Id. We declined to grant Golding review in Lyons, however, holding that “despite the defendant’s claims, repetition of an otherwise appropriate charge does not crea,te an atmosphere of coercion that may threaten a defendant’s constitutional right to a, fair trial.” (Emphasis added.) Id., 188-89. Thus, because we have already decided in Lyons that a trial court’s repetition of a Chip Smith charge does not threaten a defendant’s constitutional right to an uncoerced jury, the defendant’s constitutional claim here that the jury was coerced by the trial court’s repetition of a Chip Smith charge is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Chip Smith charge was developed in the case of State v. Smith, 49 Conn. 376, 386 (1881), to instruct the jury as to its duties in the event of deadlock. The jurors are charged, inter alia, to “pay proper respect to each other’s opinions, and listen with candor to each other’s arguments” in order to arrive at a unanimous verdict. Id. “This court and our Supreme Court have consistently upheld various forms of the Chip Smith charge designed to overcome possible jury deadlock. . . . Such a charge does not coerce a jury, but rather reminds jurors of their duties in the deliberative process.” (Citations omitted.) State v. Lyons, 36 Conn. App. 177, 188, 649 A.2d 1046 (1994). Because the defendant does not attack the content of the two Chip Smith charges given at trial, we will not set forth or review the content of those charges here. We will address the only issue presented on appeal: “Did the trial court err in giving two Chip Smith charges to the jury.”

       Because the defendant did not object to this reminder at trial, we will not set forth or review the text of the reminder here. We note, however, that in State v. Bradley, 134 Conn. 102, 112, 55 A.2d 114, cert. denied, 333 U.S. 827, 68 S. Ct. 453, 92 L. Ed. 112 (1948), our Supreme Court rejected the defendant’s claim that “the reading from and later reference to State v. Smith, supra, [49 Conn. 376] was an invasion by the court of the province of the jury.”

       See State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).


author: LANDAU, J.

text:
    DARNELL TATEM v. COMMISSIONER OF CORRECTION
    (14236)
    Poti, Landau and Spear, Js.

      Argued November 7
    decision released December 12, 1995

      Michael A. Rubino, Jr., special public defender, for the appellant (petitioner).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and Christopher A. Alexy, assistant state’s attorney, for the appellee (respondent).
   LANDAU, J.

The petitioner appeals from the judgment of the habeas court denying his petition for certification following the dismissal of his petition for a writ of habeas corpus. All of the petitioner’s claims are subsumed in his assertion that the habeas court failed to exercise its discretion properly.

The facts are not in dispute. On July 1, 1991, the petitioner was placed on supervised home release. As a condition of his release, he was required to report to a parole officer twice a week. After reporting as required through August 6, 1991, the petitioner failed to appear at his next fourteen appointments and failed to notify his parole officer of his whereabouts. The parole officer made several unsuccessful attempts to locate the petitioner by telephone, mail, and field visits to his residence.

The petitioner was arrested pursuant to an arrest warrant and was charged with escape in the first degree in violation of General Statutes § 53a-169 (a) (2). A public defender was appointed to represent him. The petitioner pleaded guilty to escape in the first degree and accepted a plea agreement under which he was sentenced to one year imprisonment, execution suspended after six months. In his writ of habeas corpus, the petitioner claimed ineffective assistance of counsel.

Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. Id. Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. Id.

To prove an abuse of discretion, the petitioner must demonstrate “ ‘that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” (Emphasis in original.) Id., 616, quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

Considering the record and legal principles before the habeas court, we are not persuaded that the petitioner has established a certifiable issue by the Lozada criteria. The court’s decision to dismiss the petitioner’s writ was based on a factual review of the petitioner’s claim and a finding that “counsel's conduct f [ell] within the wide range of reasonable professional assistance . . . .” Stafford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). Because the habeas court had sufficient evidence before it to find as it did, we conclude that it did not abuse its discretion in denying the petition for certification to appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       On July 3,1990, the petitioner was convicted of the last of several criminal charges and received a sentence of seven years and thirty days imprisonment.

       On September 6, 1991, the petitioner’s girlfriend and sponsor informed the parole officer that the petitioner had stolen her car three days earlier and had left town.

       General Statutes § 53a.-169 (a) provides in pertinent part: “A person is guilty of escape in the first degree . . . (2) if he escapes from any . . . community residence to which he was transferred . . . .”

       The petitioner claimed that his public defender failed to inform him that pursuant to State v. Lubus, 216 Conn. 402, 581 A.2d 1045 (1990), he may have had a possible defense to the escape violation. Lubus held that a single failure to report to a parole supervisor was insufficient to prove the crime of escape. Id., 409. The trial court found, however, that counsel was well aware of Lubus, and that counsel’s assessment that “Lubus afforded no benefit to the petitioner” under the facts of this case was justified.
      Although in State v. Jemison, 35 Conn. App. 1, 9, 643 A.2d 1287 (1994), we held that multiple failures to report did constitute the crime of escape, our Supreme Court recently held that a defendant cannot be convicted of escape solely upon such failures to report. State v. Woods, 234 Conn. 301, 311, 662 A.2d 732 (1995). Such failures may, however, “be evidence that the defendant has left his designated place of confinement . . . which is necessary for there to be an escape within the meaning of § 53a-169 (a) (2). Id.


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. KEITH LAWS
    (13166)
    Dupont, C. J., and Lavery and Spear, Js.

      Argued October 26
    decision released December 19, 1995

      G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard L. Palombo, Jr., assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of failure to appear in the first degree in violation of General Statutes § 53a-172 (a). The defendant claims that the trial court improperly (1) found that the evidence was sufficient to sustain his conviction of failure to appear- in the first degree, (2) charged the jury that it could infer the essential element of wilfulness from its conclusions relating to the other elements of the offense, and (3) charged the juiy on the definition of wilfulness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On Friday, April 24, 1992, the defendant pleaded not guilty to a charge of robbery in the first degree and elected to be tried by jury. Jury selection commenced immediately thereafter with the state’s attorney, the defense counsel, the trial judge and the defendant present. On Tuesday, April 28, 1992, jury selection resumed with those same individuals present. After the jury was selected, the court ordered the defendant to appear at 10 a.m. on Wednesday, April 29, 1992, to begin trial. The defendant did not appear in court on April 29. On April 30, the defendant again failed to appear and the court ordered that he be rearrested.

The defendant presented evidence that on April 29 he had a sore foot and sought treatment at the Southwest Community Health Clinic. The defendant’s mother testified that she saw the defendant at about 9 a.m. on April 29 before he left the house and that, at that time, the defendant had an injured foot. She did not see the defendant again until sometime after 5 or 6 p.m. that evening. The defendant also introduced into evidence a sign in sheet from the health clinic, which contained the defendant’s name with a 9:55 a.m. sign in time. Cathy Yacavone, chief operations officer at the clinic, testified that she checked the clinic’s medical records and found none for the defendant. Yacavone also testified that the sign in sheet served security purposes only and could not be relied on to determine whether a person was treated at the health clinic.

I

The defendant claims that the evidence was insufficient to sustain a conviction for failure to appear because the state did not prove that the failure to appear was wilful. We disagree. “When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a two-fold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. . . . We then determine whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 331, 662 A.2d 1199 (1995).

“In order to prove the ‘wilful’ element of General Statutes § 53a-172, the state must prove beyond a reasonable doubt either that the defendant received and deliberately ignored a notice to appear or that he intentionally embarked on a course of conduct designed to prevent him from receiving such notice.” State v. Candito, 4 Conn. App. 154, 157, 493 A.2d 250 (1985). In this case, the defendant’s mother testified that on the morning of April 29, 1992, the defendant had an injured foot and was walking with a limp. She stated that the defendant left her house on foot at about 9 a.m. without calling an ambulance or other transportation. She also testified that the defendant returned home at about 5 or 6 p.m. and was at home the following day. The jury reasonably could infer from the evidence presented that the defendant was well enough to travel to the courthouse, or to telephone the court, the prosecutor or his attorney to explain his need for medical care. See State v. Turmon, 34 Conn. App. 191, 195-96, 641 A.2d 138, cert. denied, 229 Conn. 922, 642 A.2d 1216 (1994). On the basis of these facts, we find that the jury reasonably could have concluded that the defendant deliberately ignored the trial court’s order to appear.

II

The defendant next claims that the trial court improperly instructed the jury that it could infer the element of wilfulness if it found that the defendant had notice of the time and date to appear in court and that he failed to appear. In State v. Turmon, supra, 34 Conn. App. 201, this court found that the language of an identical jury instruction “proposes an entirely permissive inference or presumption that suggests a possible conclusion to be drawn, but does not require the jury to draw that conclusion. ... In the context of the entire charge, the jury could not have misunderstood the court’s instruction to require a conclusion be drawn because the court’s use of the word ‘may’ contradicts such a possibility.” (Emphasis in original; internal quotation marks omitted.)

The jury is not barred from drawing inferences consistent with guilt when viewing evidence which could yield contrary inferences. “The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) States. Sivri, 231 Conn. 115, 132-33, 646 A.2d 169 (1994). We conclude that the trial court’s instruction allowed the jury to draw only those inferences supported by the evidence in this case.

Ill

The defendant also claims that the trial court improperly instructed the jury on the definition of “wilfulness.” The defendant claims that the definition used by the trial court was improper because it did not instruct the jury that the state was required to prove beyond a reasonable doubt that the defendant (1) received and deliberately ignored a notice to appear or (2) intentionally embarked on a course of conduct designed to prevent him from receiving such notice. See State v. Turmon, supra, 34 Conn. App. 199. At trial, the defendant neither submitted a written request to charge nor took an exception to the charge.

In cases where the defendant neither filed a request to charge nor excepted to the charge, our review of the jury instruction is limited to whether the trial court improperly denied the defendant his constitutional right to have the jury adequately instructed on each element of the offense. State v. Silano, 204 Conn. 769, 776-77, 529 A.2d 1283 (1987). “When we review jury instructions, we are obligated to view the charge itself in the context of the whole trial. . . . Where, as here, no requests to charge were filed nor exceptions to the charge taken, we do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation. . . . Rather, we examine the charge as a whole to determine whether the charge adequately guided the jury to a correct verdict. . . . Jury instructions need not be exhaustive, perfect or technically accurate. ... To pass constitutional muster, jury instructions must be correct in law, adapted to the issues in the case and sufficient to guide the jury in arriving at a verdict. . . . The test that we apply to any part of the charge is whether the charge as a whole presents the case to the jury in such a manner that no injustice is perpetrated.” (Citations omitted; internal quotation marks omitted.) State v. Patterson, 35 Conn. App. 405, 417, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). Where there is a constitutionally based challenge to the trial court’s instructions, “[a]n error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict.” State v. Turmon, supra, 34 Conn. App. 198.

The trial court’s instruction defining a wilful act was sufficient to guide the jury in arriving at its verdict. While the instruction was not exhaustive, we conclude that it was correct in law and there is no reasonable possibility that the jury was misled by the trial court’s definition.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-172 (a) provides: “A person is guilty of failure to appear in the first degree when, while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear.”

         The defendant asks us to abandon the rale that a defendant who elects to put on evidence after a denial of his motion for judgment of acquitt al at the end of the state’s evidence is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the end of the state's case.
      See State v. Battista, 31 Conn. App. 497, 502, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993). In this case, we need not discuss (he rale because the defendant did not move for judgment of acquittal at the end of the state’s case, but rather moved for judgment of acquittal after final argument.

       The trial court instructed the jury as follows: “The third element is that the defendant wilfully failed to appear as required. In this connection you are advised that an act is done wilfully if done knowingly, intentionally and deliberately. If you find beyond a reasonable doubt that the defendant received notice of the date on which he was to appear before the superior court and he failed to appear on that date, you may infer that his failure to appear was wilful.”

       We also note that the trial court instructed the jury concerning the permissible use of inferences as follows: “But if you find those certain facts to have been proved and if the only reasonable inference to be drawn from the existence of those facts is that the accused committed the crime charged, then it is your duty to draw that inference and to And him guilty.” (Emphasis added.)

       See footnote 3.


author: SCHALLER, J.

text:
    CITICORP MORTGAGE, INC. v. RAJNIKANT S. MEHTA ET AL.
    (14226)
    Foti, Schaller and Spear, Js.

      Argued September 12
    decision released December 19, 1995

      George M. Purtill, with whom, on the brief, was R. Richard Croce, for the appellant (named defendant).

      Edward P. Jurkiewics, for the appellee (plaintiff).
   SCHALLER, J.

The named defendant, Rajnikant S. Mehta, appeals from a deficiency judgment rendered against him. The sole issue is whether the trial court improperly determined that the plaintiff, Citicorp Mortgage, Inc., timely filed its motion for a deficiency judgment pursuant to General Statutes § 49-14 (a). We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. On January 25, 1993, the plaintiff obtained a judgment of strict foreclosure with respect to the defendant’s real estate. The trial court found the debt owed to the plaintiff to be $421,027.29. The court set a law day of June 21, 1993, for the owners of the equity of redemption, the defendant and his wife.

On June 18, 1993, three days before the law day, the defendant filed a petition in the United States Bankruptcy Court at Hartford, seeking relief under Chapter 7 of the United States Bankruptcy Code. The filing of the petition in Bankruptcy Court invoked an automatic stay that suspended the running of law days, as well as all other state judicial proceedings against the defendant and his property. See 11U.S.C. § 362. On June 23.1993, the plaintiff filed a motion with the Bankruptcy Court requesting relief from the automatic stay. On July 16, 1993, the Bankruptcy Court granted the plaintiffs motion and modified the stay to allow the plaintiff to “proceed with [its] state court foreclosure action against [the defendant’s] real property located at 23 Rocco Road, Bolton, Connecticut.”

The plaintiff then moved to open the judgment of strict foreclosure against the defendant. The trial court granted the motion and set a new law day of August 23.1993. When the defendant failed to redeem the property on or before August 23, 1993, title to the property vested in the plaintiff on August 25, 1993.

On September 17, 1993, the defendant filed a motion to dismiss his bankruptcy case, which the Bankruptcy Court granted on October 22, 1993. On November 5, 1993, the plaintiff filed a motion for a deficiency judgment against the defendant. On September 9, 1994, the trial court rejected the defendant’s objection that the plaintiffs motion was untimely. The trial court rendered a deficiency judgment in the amount of $161,611 against the defendant on November 14, 1994.

The defendant claims on appeal that the trial court improperly determined that the plaintiff timely filed the motion for a deficiency judgment pursuant to § 49-14 (a). The defendant initially challenges the trial court’s determination that the plaintiff was not clearly and unambiguously authorized to move for a deficiency judgment while the automatic stay from the Bankruptcy Court was in effect. The defendant argues that because the plaintiff had the authority to move for a deficiency judgment, the plaintiff should have done so within thirty days of the date title vested in the plaintiff, notwithstanding the fact that the automatic stay was still in effect. The defendant asserts that the thirty day time limit provided by the deficiency statute began to run on August 25,1993, the date on which title to the subject property vested in the plaintiff, and expired thirty days later on September 24, 1993. The defendant claims that the plaintiffs motion for a deficiency judgment should have been denied because it was not filed “within 30 days after the time limited for redemption has expired” pursuant to § 49-14 (a). According to the defendant, the plaintiffs failure to file within this time period should have precluded the plaintiff from obtaining a deficiency judgment.

The defendant’s argument is based on the premise that the plaintiff could have moved for a deficiency judgment while the automatic stay was in effect because the plaintiff had successfully obtained a modification of the automatic stay pursuant to 11 U.S.C. § 362 (c). The defendant argues that the modification of the stay, which allowed the plaintiff to continue with the strict foreclosure, also authorized the plaintiff to move for a deficiency judgment because both proceedings are part of the same judicial action under Connecticut law. The plaintiff responds that the modification of the automatic stay did not clearly and unambiguously authorize it to file a motion for a deficiency judgment and that doing so could have subjected it to sanctions from the Bankruptcy Court.

We must determine whether the Bankruptcy Court order modifying the automatic stay obtained by the plaintiff clearly and unambiguously authorized the plaintiff to move for a deficiency judgment. If the order clearly and unambiguously authorized the plaintiff to proceed with its motion, then the plaintiffs motion for a deficiency judgment was untimely. If the order did not clearly and unambiguously authorize the plaintiff to proceed with the deficiency judgment, however, then 11 U.S.C. § 108 (c) is implicated and tolls § 49-14 (a). Our analysis of this issue includes examination of the automatic stay provision under the Bankruptcy Code, as well as the nature of a deficiency judgment proceeding under state law.

The automatic stay is “ ‘one of the fundamental debtor protections provided by the bankruptcy laws.’ ” Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494, 503, 106 S. Ct. 755, 88 L. Ed. 2d 859 (1986). “When a bankruptcy petition is filed, § 362 (a) of the Bankruptcy Code provides an automatic stay of, among other things, actions taken to realize the value of collateral given by the debtor.” United Savings Assn. of Texas v. Timbers of Inwood Forrest Associates, Ltd., 484 U.S. 365, 369, 108 S. Ct. 626, 98 L. Ed. 2d (1988). The filing of a petition in bankruptcy operates as a stay of “the commencement or continuation ... of a judicial . . . action or proceeding against the debtor that was or could have been commenced before the commencement of the case.” 11 U.S.C. § 362 (a) (1).

A creditor, however, may obtain relief from a stay in bankruptcy under certain circumstances. Section 362 (d) authorizes the Bankruptcy Court, on request of a party in interest, to grant relief from the automatic stay “(1) for cause, including the lack of adequate protection of an interest in property of such [a] party in interest” or “(2) with respect to a stay of an act against property . . . (A) if the debtor does not have an equity in such property . . . .” 11 U.S.C. § 362 (d). Under § 362 (d), the Bankruptcy Court is authorized to grant relief from the stay for cause by terminating, annulling, modifying, or conditioning the stay.

In this case, the defendant filed a bankruptcy petition, which invoked the automatic stay. The plaintiffs subsequent motion for relief from the stay to proceed with its strict foreclosure action cited as bases for the proposed modification, inter alia, the defendant’s lack of equity in the subject property and the defendant’s failure to protect the plaintiffs interest in the property adequately. The Bankruptcy Court granted the motion, modifying the stay to allow the plaintiff to “proceed with [its] state court foreclosure action against [the defendant’s] real property located at 23 Rocco Road, Bolton, Connecticut.”

The terms of an order modifying an automatic stay must be strictly construed because a stay under § 362 “freezes in place” all proceedings against the debtor and his property. Casperone v. Landmark Oil & Gas Corp., 819 F.2d 112, 114 (5th Cir. 1987). In Casperone, the court held that “[b]ecause a section 362 stay freezes in place all proceedings against the debtor, and because only an order of the bankruptcy court can authorize any further progress in the stayed proceedings, it follows that the continuation of any proceeding can derive legitimacy only from the bankruptcy court order. The terms of an order modifying the automatic stay must therefore be strictly construed.” Id.

This interpretation of the automatic stay is consistent with and, indeed, facilitates the purposes and policy underlying the automatic stay. Our Supreme Court has stated that the automatic stay provides “a sanctuary from the jungle of creditors’ pursuit of their individualistic collection efforts in order to safeguard [t]he primary function of the bankruptcy system ... to continue the law-based orderliness of the open credit economy in the event of a debtor’s inability or unwillingness generally to pay his debts.” (Citations omitted; internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 185, 554 A.2d 728 (1989). It is manifest that the automatic stay is “one of the fundamental debtor protections provided by the bankruptcy laws.” H.R. Rep. No. 95-595 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6296-97; In re Virginia Hill Partners I, 110 B.R. 84, 86 (N.D. Ga. 1989).

In the present case, a strict construction of the order’s language yields only one conclusion. The order explicitly allowed the plaintiff to “proceed with [its] state court foreclosure action against [the defendant’s] real property.” The order neither addresses nor refers to a deficiency proceeding; it mentions only a foreclosure action against the real property of the debtor. W e cannot ignore the qualifying language used by the Bankruptcy Court, as the defendant suggests. The Bankruptcy Court clearly and unambiguously authorized the plaintiff to proceed only with its strict foreclosure action.

The defendant nevertheless argues that an action of strict foreclosure and a motion for a deficiency judgment are parts of the same judicial proceeding, and that it follows that the modification of the stay that authorized the debtor to proceed with its foreclosure action implicitly included authorization to move for a deficiency judgment. We believe that, for this purpose, the two proceedings are sufficiently separate.

The deficiency judgment motion, “although procedurally a part of the foreclosure action, serves the separate function of providing for recovery on the balance of the note which was not satisfied by the strict foreclosure.” Maresca v. DeMatteo, 6 Conn. App. 691, 696, 506 A.2d 1096 (1986). Moreover, a plaintiff in a foreclosure action who intends to seek a deficiency judgment under § 49-14 must allege facts that not only are sufficient to justify the decree of foreclosure on the mortgage, but to support “a judgment in personam against the particular defendant or defendants against whom a deficiency judgment will be sought.” Bank of Stamford v. Alaimo, 31 Conn. App. 1, 5, 622 A.2d 1057 (1993).

We stated in Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn. App. 80, 86, 623 A.2d 517 (1993), that “[t]he proceedings on a motion for a deficiency judgment ... do not implicate the integrity of the prior, final judgment of strict foreclosure.” Furthermore, as the trial court in the present case noted, strict foreclosure “is a common-law, non-statutory process upon which § 49-14 depends, but from which it is separate.” Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 568, 409 A.2d 1020 (1979); see also Federal Deposit Ins. Corp. v. Hillcrest Associates, 233 Conn. 153, 172, 659 A.2d 138 (1995). We conclude, therefore, that for the purposes of construing the Bankruptcy Court’s order, a motion for a deficiency judgment is separable from a strict foreclosure proceeding, and that the Bankruptcy Court order did not include implicit authorization for the plaintiff to proceed with a motion for a deficiency judgment.

The defendant contended at oral argument that, at the very least, the plaintiff should have filed its motion for deficiency judgment, even if the plaintiff could not have had that judgment enforced due to the bankruptcy proceedings. We disagree. Section 362 of the Bankruptcy Code stays any and all postpetition filing. Any filing constitutes a judicial act directed toward the disposition of the case in violation of the automatic stay. In re Carter, 131 B.R. 4, 5 (D. Conn. 1991). “The stay of section 362 is extremely broad in scope and . . . should apply to almost any type of formal or informal action against the debtor or the [debtor’s] property . . . .” 2 W. Collier, Bankruptcy (15th Ed. 1979) § 362.04. As we have stated, the Bankruptcy Court order did not clearly and unambiguously authorize the plaintiff to proceed with a deficiency judgment. If the plaintiff had elected, therefore, to pursue the deficiency judgment procedure under the statute and rules of practice then the defendant could have interposed and pursued a colorable claim that the automatic stay had thereby been violated.

Although we have concluded that the plaintiff did not have authority to move for a deficiency judgment, our analysis cannot end there. The issue still to be determined is whether the plaintiff timely filed pursuant to § 49-14 (a). Although without the bankruptcy petition the statute would have been violated because the plaintiff did not file the motion for a deficiency judgment within thirty days of the title’s vesting in the plaintiff, § 49-14 had been tolled pursuant to Bankruptcy Code § 108 (c) until thirty days following the termination of the bankruptcy proceeding on October 22,1993. Providing that its conditions are met, § 108 (c) extends statutory enforcement periods, including statutes of limitations, that are set forth in nonbankruptcy law, whatever that law may be. See, e.g., In re Hunters Run Ltd. Partnership, 875 F.2d 1425 (9th Cir. 1989).

The Bankruptcy Court dismissed the defendant’s bankruptcy case on October 22, 1993. The dismissal of the defendant’s case terminated the automatic stay. Section 362 (c) (2) provides that the stay under § 362 (a) of an action other than an action against property of the estate “continues until the earliest of (A) the time the case is closed; (B) the time the case is dismissed; or (C) if the case is a case under Chapter 7 . . . concerning an individual . . . the time a discharge is granted or denied.” The October 22, 1993 dismissal was the earliest of the three events prescribed by § 362 (c) (2). The plaintiff filed its motion for a deficiency judgment on November 5, 1993, well within the time allotted by the tolled statute. We conclude that the trial court properly determined that the motion for deficiency judgment was timely filed.

The judgment is affirmed.

In this opinion the other judges concurred.

       On September 1, 1993, Anjana Mehta, the named defendant’s wife, who was also a defendant, died. We refer in this opinion to Rajnikant Mehta as the defendant.

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any parly to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       11 U.S.C. § 108 (c) provides in pertinent part: “[I]f applicable nonbankruptcy law . . . fixes a period for commencing or continuing a civil action in a court other than a bankruptcy court on a claim against the debtor . . . and such period has not expired before the date of the filing of the petition, then such period does not expire until the later of (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay . . . .”

       See In re Virginia Hill Partners I, supra, 110 B.R. 87, which held, on similar facts, that “[ojrdinarily, stay relief to permit foreclosure, without more, carries no presumption that foreclosure confirmation proceedings or actions for a deficiency are also authorized. To the contrary, unless the stay relief order clearly provides otherwise, the determination and allowance of claims, deficiency or otherwise, against the debtor or its estate in the pending bankruptcy case remain within the exclusive jurisdiction of the bankruptcy court..”

       The defendant notes, in support of his position, that the plaintiff sought and obtained an execution of ejectment. The defendant reasons that, if the plaintiff was not entitled to move for a deficiency judgment, then the execution of ejectment was not properly granted. Because this argument, raised by analogy, was not before the trial court, we decline to address it. See State v. Zollo, 36 Conn. App. 718, 726, 654 A.2d 359 (1995).

       See footnote 3.


text:
    STATE OF CONNECTICUT v. FRANK KRZYWICKI
    (14025)
    Lavery, Landau and Schaller, Js.
    Argued September 14
    decision released December 19, 1995

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

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Sat ti, Jr., assistant state’s attorney, for the appellee (state).
   SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and assault in the third degree in violation of General Statutes § 53a-61 (a) (l). The defendant claims that the trial court (1) improperly denied his Practice Book § 902 motion for a new trial, (2) denied the defendant due process of law by permitting the state to cross-examine the defendant concerning prior misconduct, (3) improperly charged the jury regarding “consciousness of guilt” and (4) violated the defendant’s fifth amendment right of silence when it permitted the state to cross-examine him regarding his silence when questioned by police at his home. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 18, 1993, the victim was working as a dancer in a nightclub. After she finished work, the victim and the defendant decided to leave the nightclub together to eat. They went to a local bar where the victim consumed alcoholic beverages but no food. While in the bar, the defendant spoke of his marital difficulties and his attempts to reconcile with his wife. After they left the bar, they went to the defendant’s home to smoke marijuana.

At the defendant’s home, the victim became nauseated and vomited and lost consciousness in the defendant’s bathroom. She awoke when the defendant dragged her by the hair into his living room, where she again lost consciousness. She later awoke naked on the living room floor with the defendant on top of her, engaging in sexual intercourse. The victim screamed and attempted to push the defendant away. She was able to get up and ran naked to the house of a neighbor, who called the police.

Officer James Baraja of the Bridgeport police department arrived at the neighbor’s home and observed the victim in a hysterical state with bruises on her face and arms. She was taken to a hospital where she underwent an examination. Samples of fluids from the victim’s vagina indicated the presence of semen. Baraja went to the defendant’s house and woke him up. When Baraja asked the defendant several questions, the defendant replied that he had nothing to say. Baraja arrested the defendant.

I

The defendant claims that the trial court improperly denied his Practice Book § 902 motion for a new trial. The defendant argues that the motion for a new trial should have been granted because defense counsel was intoxicated during trial, thereby rendering any assistance of counsel ineffective and depriving the defendant of a fair trial. We decline to review this claim.

Practice Book § 4065 (d) (3) requires the defendant to include in either his brief or an appendix the pertinent ruling to which he objects. Neither the defendant’s brief nor his appendix contains the trial court’s ruling on his § 902 motion. It is the responsibility of the appellant to provide an adequate record for review pursuant to Practice Book § 4061. State v. Youdin, 38 Conn. App. 85, 95, 659 A.2d 728 (1995). Because the defendant has not satisfied his burden of providing an adequate record regarding his § 902 motion, we decline to review this claim.

II

The defendant next claims that the trial court denied him due process by permitting the state to cross-examine him regarding prior unrelated misconduct. The defendant did not raise this claim at trial but, rather, objected only to the relevance of the evidence. The defendant argues, however, that he is entitled to appellate review of the unpreserved constitutional claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and that the cross-examination constituted plain error. We disagree.

On appeal, the claim must meet all four prongs of the Golding analysis to be successful. Id., 239-40. We have stated previously that “[w]e are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993).

The defendant must show that his claim is of constitutional magnitude involving the violation of a fundamental constitutional right pursuant to the second prong of Golding. State v. Golding, supra, 213 Conn. 239. The defendant fails, however, to identify a fundamental constitutional right. The defendant’s sole basis for raising this claim relates to the inappropriateness of cross-examining him regarding prior misconduct. As demonstrated by an extensive list of cases cited in the defendant’s brief, his claim on appeal deals with an evidentiary issue, not the deprivation of a fundamental constitutional right. See, e.g., State v. Payne, 219 Conn. 93, 98, 591 A.2d 1246 (1991); State v. Sierra, 213 Conn. 422, 429, 568 A.2d 448 (1990); State v. Busque, 31 Conn. App. 120, 128, 623 A.2d 532 (1993), appeal dismissed, 229 Conn. 839, 643 A.2d 1281 (1994). “[0]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” State v. Golding, supra, 241.

The defendant’s claim also does not merit review under the plain error doctrine of Practice Book § 4185. Where a trial court’s action does not result in any manifest injustice, a defendant’s claim under the plain error doctrine does not warrant review. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Webb, 37 Conn. App. 722, 730-31, 657 A.2d 711 (1988). We conclude that the cross-examination of the defendant regarding prior misconduct did not result in manifest injustice and accordingly does not warrant review.

Ill

The defendant next claims that the trial court improperly instructed the jury regarding “consciousness of guilt.” The defendant argues that no adequate basis existed for giving the instruction. In addition, he challenges the constitutionality of the instruction. The defendant has not adequately preserved this claim.

At trial, the defendant objected to the jury instruction regarding “consciousness of guilt.” The defendant’s brief, however, does not comply with the appropriate procedure for raising this claim. Practice Book § 4065 (d) (2) requires that the defendant’s brief or appendix contain “a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge.” See State v. Alford, 37 Conn. App. 180, 186-87, 655 A.2d 782 (1995). The appellant is responsible for providing an adequate record for review. Practice Book § 4061. The defendant has failed to meet his burden of providing an adequate record for review in failing to include the jury charge in his brief or appendix.

The defendant also seeks to explore on appeal the constitutionality of the “consciousness of guilt” charge. The defendant neither preserved this issue at trial, nor sought review under Golding or the plain error doctrine. We decline to review this unpreserved claim.

IV

The defendant claims finally that the trial court violated his fifth amendment right of silence when it permitted the state to cross-examine him concerning his silence when questioned by police at his home. Although the defendant did not object to the cross-examination at trial, the defendant claims the issue is reviewable under Golding and the plain error doctrine. We disagree.

The defendant asserts that constitutional error occurred when the trial court permitted the state to cross-examine him regarding his failure to answer questions posed by police officers. The defendant replied to the questions by stating that he had nothing to say. The defendant claims that this cross-examination regarding his silence violated his fifth amendment right of silence.

To be successful under Golding, the defendant must meet all four prongs of the Golding analysis. State v. Golding, supra, 213 Conn. 239-40. As noted in part II of this opinion, “[w]e are free ... to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Andrews, supra, 29 Conn. App. 537.

The third prong of the Golding analysis requires that “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 213 Conn. 239-40. It is well established that questioning regarding a defendant’s postarrest silence is a constitutional violation if a Miranda) , warning preceded the silence. Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). The record presented by the defendant in this case does not indicate when police gave Miranda warnings to the defendant. When a defendant is cross-examined regarding his silence after being arrested, unless the record showed that the defendant’s silence is preceded by a Miranda warning, the cross-examination does not violate a constitutional right. State v. Leecan, 198 Conn. 517, 531, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

“The defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” State v. Golding, supra, 213 Conn. 240. “An adequate factual record is especially crucial when dealing with a claim that was not preserved at trial, since consideration is being sought for review of a claim for which we lack a trial court ruling.” Id., 240 n.10. Because the record presented by the defendant does not indicate when the defendant received his Miranda warnings, an adequate record for review of the claim does not exist. The defendant’s failure to provide an adequate record for review is fatal to his claim that a constitutional violation clearly exists.

The defendant also seeks review claiming that cross-examining him regarding his silence when he was placed in custody constituted plain error. The plain error doctrine is “reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Webb, supra, 37 Conn. 730-31. Because this claim has no merit, we decline review on this basis.

The judgment is affirmed.

In this opinion the other judges concurred.

       (Tenoral Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such olher person or a third person, or by the threat of the use of force against, such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       General Statutes § 53a-61 (a) provides in pertinent part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”

       Practice Book § 902 provides in pertinent: “Upon motion of the defendant, the judicial authority may grant him a new trial if it is required in the interests of justice. Unless the defendant’s noncompliance with these rules or with other requirements of law bars his asserting the error, the judicial authority shall grant the motion:
      “(1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or
      “(2) For any other error which the defendant can establish was materially injurious to him. . . .”

       The attorney representing the defendant on appeal did not represent him at trial.

       Practice Book § 4065 (d) (3) provides in pertinent part: “When error is claimed ... in a court or jury case, the brief or appendix shall include, where appropriate: the pertinent motion or pleading, if it does not appear in the record, as well as any other document which is a part of the file on appeal but is not proper for inclusion in the record; the question or offer of exhibit; 1he objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception. . . .”

       Practice Book § 4061 provides in pertinent part: “It is the responsibility of appellant to provide an adequate record for review.”

       We note that the record contains no indication of intoxication or ineffectiveness of the defendant’s trial counsel. Since the record is factually inadequate to support a claim of ineffective assistance of counsel, evidence would be needed in order to pursue this claim. “A motion for a new trial pursuant to Practice Book § 902 is limited to trial errors appearing on the record.” State v. Murdick, 23 Conn. App. 692, 704, 583 A.2d 1318, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991). When a party seeks to offer evidence, a petition for a new trial is directed under Practice Book § 904. State v. Jones, 205 Conn. 723, 730, 535 A.2d 808 (1988). Moreover, “[cjlaims of ineffective assistance of counsel should be brought in collateral proceedings, either by way of a [§ 904] petition for a new trial or a petition for a writ of habeas corpus.” State v. Murdick, supra, 705. This allows those claims supported by the record to be tried concurrently with those claims requiring an evidentiary hearing thereby avoiding piecemeal resolution of the ineffective assistance of counsel claim. State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

       “[A] defendant can prevail on a claim of constitutional error notpreserved 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. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

       At trial, the state cross-examined the defendant regarding the marital difficulties that resulted in the police being summoned to the defendant’s house. The trial court overruled the defendant’s objection on the grounds of relevancy.

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       Practice Book § 4065 (d) (2) provides: “When error is claimed in the charge to the jury, the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. Evidence relevant to the claimed error shall be recited in narrative form with appropriate references to the page or pages of the transcript.”

         Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).