author: Landau, J.

text:
    State of Connecticut v. Ruben Polanco
    (9219)
    Daly, Lavery and Landau, Js.

      Argued May 2
    decision released September 24, 1991

      Jon L. Schoenhom, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, was Patricia Swords, state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of larceny in the fourth degree by receiving stolen property in violation of General Statutes §§ 53a-125 and 53a-119 (8). On appeal, the defendant claims that the trial court improperly (1) permitted repeated references to a prior criminal trial, (2) allowed the introduction of evidence of an act of prior misconduct, (3) failed to instruct the jury on the unreliability of accomplice testimony, and (4) instructed the jury on the guilty knowledge element of the crime of receiving stolen property. The judgment of the trial court is affirmed.

The jury could reasonably have found the following facts. In 1988, numerous textbooks, typewriters and computers disappeared from the physics department at the University of Hartford. Affixed to each of the computers were both a University of Hartford identification label and a manufacturer identification label. Harold Aronson, a research assistant at the University of Hartford, initially approached the defendant while the defendant was working at A & S Auto Parts and offered to sell him an Apple II-E computer for $200. The defendant was employed part-time at A & S Auto Parts and full-time as a Hartford police officer. He agreed to purchase the computer for $100 and requested a receipt. Aronson gave the defendant a receipt, signing it with his correct name and address. The University of Hartford label, but not the manufacturer’s label, had been removed prior to the purchase.

Aronson approached the defendant a few days later and attempted to sell him a broken Smith Corona typewriter. The defendant declined. Aronson then gave the broken typewriter to the defendant at no charge. The defendant did not request a receipt. At some point during this encounter the defendant informed Aronson that he was a Hartford police officer.

In October, 1988, Aronson confessed to the thefts and led the West Hartford police to A & S Auto Parts. On the basis of Aronson’s confession, a search was ordered of the defendant’s residence. An Apple II-E computer and a Smith Corona typewriter, identified as having been stolen from the University of Hartford, were discovered. The defendant - was subsequently arrested and charged with receiving stolen property.

I

In his first claim, the defendant alleges that the trial court improperly permitted references to his prior conspiracy trial which arose from the same facts as this case and which resulted in a mistrial. The defendant asserts that the trial court improperly (1) determined that the defendant’s cross-examination of Aronson invited his reference to the defendant’s prior trial, (2) admitted into evidence a “face sheet” to the transcript of the defendant’s conspiracy trial, and (3) allowed the state’s attorney to refer to the prior trial in her closing argument. The defendant asserts that each of these references to his earlier trial were prejudicial. We conclude that the trial court properly admitted these references after it determined that the defendant had introduced the reference to the prior trial.

A

On direct examination, Aronson testified to details that he had failed to disclose to the police during his confession in 1988. After hearing this testimony and before his cross-examination of Aronson, the defendant announced to the court his intention to refer to the defendant’s prior conspiracy trial. The trial court acknowledged the defendant’s intention and advised him that it was his responsibility to phrase his questions appropriately.

The defendant then attempted to impeach Aronson with the details disclosed during direct examination that had not been disclosed to the police during Aron-son’s confession. In doing so, the defendant alluded to his own prior trial. Specifically, the defendant asked “Well, what flagged your memory yesterday that you could talk about the ones you talked about yesterday that you didn’t tell the police on October 5, 1988?” Aronson responded that his memory had been flagged by “the trial—Ruben’s last trial.” The defendant immediately moved for a mistrial. The court denied the motion on the ground that the defendant had “opened the door” by his open-ended question. The defendant took an exception.

The court also admonished Aronson not to refer to the prior trial in answering the defendant’s questions and advised the defendant, in Aronson’s presence, that it would caution Aronson not to discuss the prior trial only if the defendant avoided that line of questioning. After further questioning, the defendant again alluded to the prior trial. Before giving his response, Aronson asked the court if he was free to answer as he pleased. The court responded in the affirmative and Aronson again referred to the prior trial. The court then instructed the jury to disregard that portion of the answer that referred to the previous trial. Subsequent questioning again resulted in a reference to the defendant’s prior trial.

As long as an answer is clearly responsive to the question asked, a questioner may not later rely on the admission of evidence that he himself introduced as a basis for a reversal of his conviction. State v. Smith, 212 Conn. 593, 611, 563 A.2d 671 (1989); State v. Anderson, 20 Conn. App. 271, 279 n.3, 566 A.2d 436 (1989). The defendant’s question invited the witness’ response. Thus, although not phrased in language that the defendant would have preferred, Aronson’s answer was responsive to the question asked. See State v. Smith, supra. The trial court, therefore, properly admitted Aronson’s references to the defendant’s prior trial in his responses to the defendant’s cross-examination.

B

The defendant next asserts that the court improperly admitted into evidence the “face sheet” or title page to excerpts from a transcript of the defendant’s prior conspiracy trial. He asserts that this evidence was prejudicial. We disagree and conclude that the trial court correctly admitted the title page to explain the contents of the transcript.

The defendant initially objected to the introduction of the entire transcript, including the title page. After the trial court approved this admission, the defendant repeated his objection to the admission of the title page because it referred to “some other proceeding.” The trial court admitted the title page, explaining that “it’s fair for the jury to understand what they’re reading and where this comes from. . . . The issue of the fact that there was a prior trial is now clearly before the jury and has been for many days now so that they’re entitled to know that.”

It is within the trial court’s discretion to admit or exclude evidence that is cumulative. State v. Mason, 186 Conn. 574, 581, 442 A.2d 1335 (1982); see State v. Jones, 132 Conn. 682, 683, 47 A.2d 185 (1946). At the time that the title page was introduced, the fact that there had been a prior trial was clearly before the jury, due to repeated references by both parties during Aronson’s cross-examination. We conclude, therefore, that the trial court did not abuse its discretion after determining that the evidence was cumulative and the admission of this evidence was not prejudicial.

C

The defendant also asserts that the trial court improperly allowed the state’s attorney in her closing argument to use the term “prior trial” rather than “prior proceeding” and to refer to the transcript of that prior trial. The defendant concedes that this claim was not properly preserved and seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or as plain error under Practice Book § 4185. In general, “the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” State v. Periere, 186 Conn. 589, 611, 442 A.2d 1345 (1982); State v. Walker, 215 Conn. 1, 5, 574 A.2d 188 (1990). We conclude that the defendant’s claim fails to implicate a constitutional right, thus it does not merit Golding review. The defendant’s claim also does not rise to the level of plain error. 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” ’ ”; State v. Ralph, 17 Conn. App. 247, 249, 551 A.2d 774 (1989), quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); and results in an unreliable verdict or miscarriage of justice. Barca v. Barca, 15 Conn. App. 604, 606, 546 A.2d 887, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988). Because the defendant’s claim fails to raise such an issue, plain error review is not warranted.

II

The defendant’s second claim is that the trial court improperly permitted the introduction of evidence concerning a 1985 Hartford police department internal affairs investigation and his subsequent ten day suspension. This evidence was contained in one of the excerpts from the transcript of the defendant’s prior trial. Although we agree that the admission of this evidence was improper, we conclude that it was harmless.

In 1985, the defendant was the subject of an internal affairs investigation by the Hartford police department for allegedly receiving a stolen camera from an individual considered to be a “known criminal.” Although the investigation yielded no evidence that the camera was in fact stolen, the defendant was suspended for ten days for “associating with a known criminal.” Three years later, and after his arrest in this case, the defendant filed a complaint with the Federal Bureau of Investigation (FBI) alleging that he had been set up by the Hartford police department.

At trial the defendant objected to the introduction of this portion of the transcript, arguing that it was collateral and prejudicial. The state, however, asserted that the transcript constituted a statement of the defendant, and the court admitted it as such. During cross-examination of the defendant, the state specifically referred to the 1985 investigation. The defendant objected on the basis of remoteness, irrelevancy and prejudice. The state contended that the investigation and complaint to the FBI were relevant in explaining why the defendant requested a receipt for the computer. The trial court admitted the reference as relevant because the defendant did not lodge his complaint with the FBI until after his arrest in this case.

“The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court.” State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167 (1982); see State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). Because of its prejudicial impact, evidence of prior misconduct is inadmissible to show a defendant’s bad character or tendency to commit criminal acts. Spencer v. Texas, 385 U.S. 554, 560-601, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1967); State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1980); State v. Johnson, 190 Conn. 541, 548, 461 A.2d 981 (1983); State v. Howard, supra. Such evidence is admissible, however, where it is relevant and material to an element of the crime, identity, malice, motive or shows a pattern of criminal activity, and its probative value outweighs its prejudical impact. State v. Howard, supra, 685, citing State v. Falby, 187 Conn. 6, 23-24, 444 A.2d 213 (1982). The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. State v. O’Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986).

The trial court’s decision will be reversed only where an abuse of discretion is manifest or where an injustice appears to have been done. State v. Johnson, supra, 548-49; State v. Howard, supra. “ ‘ “ ‘Discretion means “a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . .” ’ ” State v. Battle, [170 Conn. 469, 476, 365 A.2d 1100 (1976)]; see Hammerberg v. Leinert, 132 Conn. 596, 604-605, 46 A.2d 420 [1946].’ . . .’’ State v. Sierra, 213 Conn. 422, 435, 568 A.2d 448 (1990). A trial court is faced with the problem of balancing the actual relevancy of the acts of misconduct “in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Citations omitted.) State v. Sierra, supra; State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979).

The central issue at trial was the defendant’s knowledge of whether the property was stolen. The 1985 investigation was introduced to establish that the defendant was motivated to request a receipt for the computer as protection in the event that he was being set up by the Hartford police department. The trial court abused its discretion in this case because evidence of his request for a receipt was only slightly probative of the issue of the defendant’s knowledge while the prejudice of a prior investigation involving his receiving stolen goods was great. See State v. Onofrio, supra, 29-30.

Although we find that the trial court improperly admitted the reference to the police department’s investigation and the defendant’s subsequent complaint, we conclude that it was harmless. In general, the admissibility of evidence does not constitute a constitutional issue. State v. Walker, supra; State v. Smith, 198 Conn. 147, 156, 502 A.2d 874 (1985). “ ‘ “When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. . . . The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” ’ ” (Citations omitted.) State v. Sierra, supra, 436. In light of the evidence presented at trial and the fact that the investigation failed to conclude that the defendant had received stolen property, the defendant has failed to sustain his burden, and we conclude that the admission of the evidence was harmless.

Ill

The defendant next claims that the trial court improperly refused to instruct the jury on the inherent unreliability of Aronson’s accomplice testimony. We disagree with the defendant because Aronson cannot properly be classified as an accomplice to the defendant’s actions.

An accomplice is one who, acting with the mental state required for the commission of an offense, solicits, requests, commands, importunes or intentionally aids another person to engage in conduct that constitutes an offense. General Statutes § 53a-8. In addition to criminal intent, an accomplice must also possess community of unlawful purpose or “a sort of partnership in purpose and conduct.” State v. Enanno, 96 Conn. 420, 425, 114 A. 386 (1921); State v. McCalpine, 190 Conn. 822, 832, 463 A.2d 545 (1983).

The defendant was charged with receiving stolen property. General Statutes § 53a-119 (8). The elements of this offense are: “ ‘1. The property must have been stolen. 2. It must have been received by the accused with the knowledge that it was stolen. 3. It must have been concealed within the meaning of the law. 4. It must have been received and concealed by the accused with a felonious intent.’ ” State v. Huot, 170 Conn. 463, 467, 365 A.2d 1144 (1976). The seller and the purchaser of stolen goods each approach the sale from different directions and with different intents. State v. Teahan, 50 Conn. 92 (1882). A seller, therefore, is not an accomplice to the purchaser because an accomplice must “stand in the same relation to the crime as the criminal-approach it from the same direction, touch it at the same point.” Id., 101. Because the seller of stolen goods cannot be an accomplice to a receiver of stolen goods, the trial court was not required to instruct on accomplice testimony.

IY

The defendant finally claims that the trial court improperly instructed the jury on the burden of proof in its instruction on circumstantial evidence. The defendant directs our attention to the following portion of the jury instruction: “Ordinarily, guilty knowledge can be established only through an inference from other proven facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intention in the situation of the defendant would have concluded that the computer or the typewriter were stolen.”

It is axiomatic that a jury charge must be read as a whole. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1985). An attempt to assert reversible error by culling a single phrase or inaccurate statement must fail unless it is reasonably possible that the jury was misled. Id.

A review of the charge in its entirety reveals that the defendant is challenging an element of the crime charged rather than the court’s instruction regarding the use of circumstantial evidence. The defendant was charged with receiving stolen property. General Statutes § 53a-119 (8). In order to convict a person under this statute, the jury must be convinced, beyond a reasonable doubt, that the defendant knew that the property “ha[d] probably been stolen or believ[ed] that it ha[d] probably been stolen.” It is well established that whether the defendant possesses such knowledge may be inferred if the circumstances are such “that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen.” State v. Simino, 200 Conn. 113, 119, 509 A.2d 1039 (1986), quoting State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961). The trial court, therefore, properly instructed the jury and there is no reasonable possibility that the jury was misled.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-119 (8) provides in pertinent part: “A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen . . . .”
      General Statutes § 53a-125 provides in pertinent part: “larceny in the fourth degree: class A misdemeanor, (a) A person is guilty of larceny in the fourth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds five hundred dollars.”

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

       The present claim is distinguishable from the claim raised in State v. Moore, 23 Conn. App. 479, 581 A.2d 1071, cert. denied, 217 Conn. 802, 583 A.2d 132 (1990). In Moore, the trial court denied the defendant access to a prosecution witness’ personnel and internal affairs file sought pursuant to a claim of privilege. Although the defendant in this case objected at trial to the introduction of the internal affairs investigation, he did not then advance as a ground for exclusion that this evidence was privileged. Because appellate review of evidentiary rulings of the trial court is limited to the specific issues raised by trial counsel’s objection; Practice Book §§ 3063 and 288; we limit our review to the issues expressly raised by defense counsel. See State v. Rothenberg, 195 Conn. 253, 262-63, 487 A.2d 545 (1985).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Charles Winthal v. John Fabrizi et al.
    (9393)
    Argued April 25
    decision released September 19, 1991

      Robert G. Golger, for the appellant (plaintiff).

      Thomas K. Jackson, associate city attorney, for the appellees (defendants).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court denying his request for a mandatory injunction to restore his name to a civil service eligibility list for the position of police officer for the city of Bridgeport. We dismiss the appeal as moot.

The plaintiff was placed on a civil service eligibility list as a candidate for employment as a police officer after passing the written portion of the examination. He was subsequently given a battery of tests, including a polygraph, a physical agility test and a medical examination. The personnel director of the city of Bridgeport disqualified the plaintiff pursuant to § 10 of the civil service provisions of the city charter on November 13, 1989, and removed his name from the eligibility list. On November 16, 1989, the plaintiff appealed his disqualification to the civil service commission which denied his appeal on December 6,1989.

The eligibility list expired on December 31,1989. On February 5,1990, the plaintiff filed this action seeking temporary and permanent injunctive relief to reinstate his name on the eligibility list and to prevent the commission from interfering with his candidacy. After a hearing, the parties closed the pleadings and agreed that the court’s ruling would be on the plaintiff’s request for permanent injunctive relief. The trial court rendered judgment for the defendants and denied the relief requested.

On appeal, the plaintiff claims that the commission and its personnel director acted illegally, arbitrarily and in abuse of its discretion. Because we conclude that this action is moot, we are without jurisdiction to consider this claim.

We initially observe that the proceeding before the trial court was not an administrative appeal from the commission’s actions but an action for a mandatory injunction instituted after the eligibility list had expired.

“A limitation upon the time during which an eligibility list remains effective is in the public interest. That interest is fostered by requiring those remaining upon a list to resubmit themselves after a lapse of time to demonstrate anew their fitness for original or promotional appointment.” State ex rel. Chernesky v. Civil Service Commission, 141 Conn. 465, 470, 106 A.2d 713 (1954). An individual does not acquire “permanency of eligibility merely because he passed an examination held to obtain a list of those capable of qualifying for . . . appointment.” Id., 469. Courts are powerless to alter the composition of an eligibility list when a party who seeks to challenge its fairness fails to assert his claim before the list expires. State ex rel. Gaski v. Basile, 174 Conn. 36, 41, 381 A.2d 547 (1977); Honis v. Cohen, 18 Conn. App. 80, 84, 556 A.2d 1028 (1989).

The list from which the plaintiff was disqualified had expired before the plaintiff filed his action, and there is no provision in the civil service commission rules for revivification of the list once it has been terminated. The plaintiff seeks to have us fashion injunctive relief by directing the commission to recompile the list and include his name. We do not have the power to order such a remedy. State ex rel. Chernesky v. Civil Service Commission, supra, 470-71.

“ ‘[I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.’ ” Patterson v. Council on Probate Judicial Conduct, 215 Conn. 553, 561, 577 A.2d 701 (1990), quoting Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). We, therefore, do not have jurisdiction to decide this appeal.

The appeal is dismissed.

       Section 10 of the civil service provision of the Bridgeport city charter provides: “The personnel director may reject the application of any person for admission to a test or refuse to test any applicant or refuse to certify the name of an eligible for employment who is found to lack any of the established qualification requirements for the position for which he applies or for which he has been tested, or who is physically unfit to effectively perform the duties of the position, or who is addicted to the habitual use of drugs or intoxicating liquors, or who has been guilty of any crime or infamous or notoriously disgraceful conduct, or who has been dismissed from the public service for delinquency, or who has made a false statement of any material fact or practiced or attempted to practice deception or fraud in his application or in his tests, or in securing eligibility or appointment. Any such person may appeal to the civil service commission from the action of the personnel director in accordance with the rules established hereunder.”

       The defendants are the five members of the Bridgeport civil service commission, and Alan Cohen, personnel director of that commission.

       The complaint contained a request for damages and, although couched as an administrative appeal, is an action for injunction. The plaintiff admitted during oral argument that this is not an appeal pursuant to General Statutes § 7-422. See Danzinger v. Demolition Board, 18 Conn. App. 40, 556 A.2d 625, cert. denied, 211 Conn. 805, 559 A.2d 1139 (1989), wherein we concluded that the trial court lacked subject matter jurisdiction to consider the appeal because neither the Uniform Administrative Procedure Act nor any other statute authorized the bringing of an administrative appeal from a municipal board decision.


author: O’Connell, J.

text:
    Patrick Buster v. Commissioner of Correction David Pesquera v. Commissioner of Correction
    (9450)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued May 1
    decision released October 1, 1991

      Joyce Antila Phipps, for the appellants (petitioners).

      Steven R. Strom, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   O’Connell, J.

The petitioners, who are both sentenced prisoners in the defendant’s custody, appeal from the dismissal of their habeas corpus petitions. The dispositive issue is whether the habeas court properly dismissed the petitioners’ third amended petitions when they had failed to pursue an appeal from an earlier judgment in the same case. We affirm the decision of the habeas court.

The following facts are relevant to this appeal. The petitions question the retroactive effect of Public Acts 1989, No. 89-383, §§ 1 and 13, which prohibit supervised home release for specified categories of prisoners. Original petitions filed on December 8, 1989, were amended on February 15,1990, and again on March 1, 1990. The commissioner moved to quash the second amended petitions on the ground that they did not state claims for relief that could be granted in a habeas corpus proceeding. Practice Book § 532.

On April 5, 1990, the habeas court granted the motions to quash. The petitioners applied for certification to appeal, which was granted on April 30,1990. General Statutes § 52-470 (b). Instead of pursuing their appeals, however, the petitioners chose to obtain permission to file the third amended petitions. The April 5, 1990 judgments quashing the second petitions were never opened, vacated or set aside.

Next, the commissioner filed motions to dismiss the third amended petitions on the ground that each was a successive petition brought on the same grounds as a previous petition that had been denied. Practice Book § 531. The court granted the motions and dismissed the petitions whereupon the petitioners again obtained certification to appeal, and this time followed through with the appeal that is now before this court. We affirm the decision of the habeas court.

The commissioner argues that the court’s decision on the second amended petitions resulted in final judgments and that the petitioners’ remedy was to pursue their appeals from those final judgments. The habeas court’s thorough memorandum of decision concludes as follows: “[The] petitioners’ claims for relief cannot be raised by a petition in support of a writ of habeas corpus. Accordingly, the motion to quash is granted as to each petition.” It is from this decision that the petitioners obtained permission to appeal indicating that at that time they considered the decision a final judgment from which an appeal could properly be taken.

It is well established that a court’s judgment is final and thus appealable in two circumstances: “(1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). The April 5,1990 decision in the present case clearly met both criteria.

Accordingly, because the April 5 judgments were not opened, vacated or set aside, they remained valid judgments of the habeas court. The proper route for appellate review of that decision was via the appeal for which the petitioners had obtained certification. The petitioners’ attempt to bypass an appeal from the prior judgments by filing subsequent petitions under the same docket numbers does not affect the final judgment status of the April 5 judgments.

It is important to note that we are not passing on the validity of the dismissal of the second amended petitions. The petitioners’ decision to abandon their appeal of the dismissal of the second amended petitions precludes our review of the merits of that decision. They cannot use the present appeal as a vehicle to restore their appellate rights as to the previously denied petitions. Nor may the habeas court’s granting of permission to file the third amended petitions provide this court with jurisdiction to review the merits of the dismissal of the second petitions.

Unless a judgment is opened and set aside or vacated, it remains the final resolution of the parties’ dispute. Crozier v. Zaboori, 14 Conn. App. 457, 461, 541 A.2d 531 (1988). The petitioners did not move to open the April 5 judgments, but moved instead for permission to file amended petitions. The habeas court could not construe this pleading as meeting any of the requirements for a motion to open a judgment. The criteria for a court to open a judgment is analogous to the conditions needed for a petition for a new trial on grounds of newly discovered evidence. Shelton Sewer Authority v. DeFilippo, 2 Conn. App. 355, 361, 478 A.2d 623 (1984). “ ‘A party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result. . . . This rule is necessary, for without it there might never be an end to litigation. . . .’ ” Id. In the present case, the petitioners’ third amended petitions did not satisfy any of these conditions, and thus their motions to amend those petitions had no legal impact on the finality of the judgments dismissing the second amended petitions.

Although we concur with the trial court’s dismissal of these petitions, they should have been dismissed for the reason that the petitioners’ remedy was an appeal of the April 5 judgments. This court may, however, affirm a trial court’s decision even though it is based on improper grounds if the same result is required by law. Brunswick v. Inland Wetlands Commission, 25 Conn. App. 543, 554, 596 A.2d 463 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioners filed separate petitions in the habeas court, but because these cases involve an identical issue they have been consolidated on appeal.

       “[Practice Book] Sec. 532.—motion to quash
      “The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash. On such a motion the allegations of the petition are deemed admitted. The motion to quash is not a means by which to test the legal sufficiency of the facts alleged in a return or the answer to the return.”

       “[Practice Book] Sec. 531.—previous application; dismissal
      “If the petitioner has filed a previous application, it and the action taken thereon shall be summarily described in the pending application. If a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing.”


author: Heiman, J.

text:
    Terrence Biggs v. Warden, State Prison
    (9729)
    Foti, Landau and Heiman, Js.
    Argued September 12
    decision released October 15, 1991

      Denise Dishongh, with whom was Louis S. Avitabile, for the appellant (petitioner).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Donald B. Caldwell, state’s attorney, and Christopher Alexy, deputy assistant state’s attorney, for the appellee (respondent).
   Heiman, J.

The petitioner appeals from the habeas court’s determination that his confinement is legal and its dismissal of his petition for a writ of habeas corpus. The petitioner claims that this judgment is fatally flawed because the habeas court (1) improperly concluded that the petitioner failed to prove that the trial court impermissibly restricted his voir dire examination with reference to the credibility of police officers, (2) improperly excluded an out-of-court statement on hearsay grounds, (3) incorrectly concluded that the restrictive voir dire was not harmful to the petitioner at trial, and (4) wrongfully concluded that the petitioner had not been denied the effective assistance of counsel. We affirm the judgment dismissing the petition.

The facts necessary to the resolution of this appeal may be briefly summarized as follows. The petitioner was charged with the crimes of attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1) and larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123 (a) (1). After a jury trial, he was convicted of the crimes charged.

The jury voir dire commenced on October 3, 1984. During the voir dire, neither counsel addressed any questions to venirepersons as to whether they would give greater weight or credit to a police officer’s testimony than to that of any other witness. Counsel did, however, direct questions to venirepersons as to whether they had relatives or friends who were law enforcement officers and whether they had had any experiences with police officers that would influence their feelings about their testimony. Counsel also inquired as to the ability of the venirepersons to follow the law as given to the jury in the jury instructions.

In his petition for a writ of habeas corpus, the petitioner alleged that the trial judge, in an off the record conference in chambers, indicated that he would not permit either counsel to ask any prospective juror whether that person would, as a juror, weigh or credit a police officer’s testimony differently from that of any other witness. The trial judge testified that he had no recollection of any discussion with counsel in this case concerning the voir dire. The assistant state’s attorney who tried the criminal case testified that he could not recall any specific restriction on counsel’s voir dire examination, and the attorney who represented the petitioner at his criminal trial testified that he understood from a conversation with the trial judge that this was an area of inquiry that should not be pursued. Nothing, however, appears on the record of the trial court to support this claim.

The habeas court found that the petitioner had failed to prove by a fair preponderance of the evidence that the trial court had unduly restricted the voir dire examination. It further found that the petitioner had not been denied the effective assistance of counsel. Accordingly, it dismissed the petition for a writ of habeas corpus.

I

The petitioner first asserts that the habeas court improperly found that he failed to prove that the trial court had impermissibly restricted his conduct of the jury voir dire. We disagree.

The habeas court held a full evidentiary hearing. It heard testimony from the trial judge, the trial attorney and the trial prosecutor. On the basis of the testimony, the habeas court concluded that the petitioner had failed to meet his burden of proving that the trial judge had impermissibly restricted the voir dire.

The habeas court correctly concluded that the burden of establishing grounds for relief in a habeas corpus proceeding rested with the petitioner. Finley v. Manson, 1 Conn. App. 260, 264, 470 A.2d 1234 (1984). “The petitioner, as the plaintiff in a habeas corpus proceeding, bears a heavy burden of proof.” Lubesky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989). The issue of whether the trial court restricted the scope of the defendant’s voir dire examination is fact bound. Where the issue that is to be reviewed is one of fact, the habeas court’s findings of fact are subject to reversal only if they are clearly erroneous. Id.; see also Kleinman v. Marshall, 192 Conn. 479, 483, 472 A.2d 772 (1984).

“Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d 641 (1952); Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 621, 495 A.2d 1006 (1985). The trier’s determination of fact will be disturbed only in the clearest of circumstances, where it could not have reasonably reached such a conclusion. D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 180, 455 A.2d 833 (1983).

Where the factual basis of the trial court’s decision is attacked, we are called upon to “ ‘ "determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” . . .’ ” Duksa v. Middletown, 192 Conn. 191, 205, 472 A.2d 1 (1984). It is not our function, however, to examine the record to see if the trier of fact could have reached a contrary conclusion. Rodriguez v. New Haven, 183 Conn. 473, 477, 439 A.2d 421 (1981). In short, we are not permitted to reject a factual finding on appeal merely because we, as a reviewing court, might disagree with the conclusion or would have reached a different result had we been sitting as the factfinders. Lupien v. Lupien, 192 Conn. 443, 446, 472 A.2d 18 (1984).

Upon review of the transcript of the habeas proceedings and of the whole record, we cannot say that the conclusion by the trial court that the petitioner failed to meet his burden of proof was clearly erroneous.

The petitioner also attacks the alternative conclusion reached by the habeas court that, even if the trial court restricted the voir dire as alleged, such restriction was harmless. In view of our conclusion that the habeas court’s factual finding was not clearly erroneous, we need not address the issue of harmlessness.

II

The petitioner next asserts that the habeas court improperly excluded an out-of-court statement on the ground that the statement was hearsay. Specifically, the petitioner sought to elicit from trial defense counsel the content of the alleged conversation in chambers among counsel and the trial judge concerning the scope of voir dire examination.

Our review of the record discloses that the question that the petitioner claims was improperly excluded by the habeas court was withdrawn by counsel. Thus, this issue was not properly preserved for appellate review.

It is a long standing rule that absent certain exceptional circumstances, not applicable here, claims not distinctly raised at trial will not be reviewed on appeal. Saradjian v. Saradjian, 25 Conn. App. 411, 419, 595 A.2d 890 (1991); Goold v. Goold, 11 Conn. App. 268, 282, 527 A.2d 696, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987); Hanson v. Department of Income Maintenance, 10 Conn. App. 14, 18, 521 A.2d 208 (1987). “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . .” (Citations omitted.) Keating v. Glass Container Corpo ration, 197 Conn. 428, 431, 497 A.2d 763 (1985); Saradjian v. Saradjian, supra.

We decline to review this claim because it was not properly raised or preserved before the trial court.

Ill

The petitioner further asserts that the habeas court improperly concluded that the restriction on voir dire questioning on the credibility of police officers was not harmful and that it incorrectly found that he was not deprived of the effective assistance of counsel.

Because of our resolution of the first issue, that the finding of the trial court that the petitioner failed to establish an improper restriction of the voir dire examination was not clearly erroneous, we need not address the remaining issues further because the factual predicate upon which these claims must stand has been properly resolved against the petitioner.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner appealed from the judgment of conviction, which was affirmed. State v. Biggs, 13 Conn. App. 12, 13-17, 534 A.2d 1217 (1987), cert. denied, 207 Conn. 801, 540 A.2d 73 (1988).

       The question and subsequent colloquy were as follows: Direct Examination Continued by Mr. Avitabile:
      “Q. Did Judge Higgins tell you that as a matter of practice he would simply preclude certain areas of inquiry?
      “Mr. Alexy: Objection. That calls for hearsay.
      “The Court: Do you know what he told you?
      “A. I have a recollection of the conversation, Your Honor.
      “The Court: I thought we were going to proceed along the line that as a result of your conversation with Judge Higgins whether you did or didn’t ask questions. That’s the way we were going to proceed, Mr. Avitabile.
      “Mr. Avitabile: May I have an exception, Your Honor?
      “The Court: I’m saying I thought you said that this was something that you could live with too that—
      “Mr. Avitabile: Well, I can, Your Honor, but I think that this particular question is obviously allowable in reference to—I can withdraw that question, Your Honor—
      “The Court: All right, and let me—
      “Mr. Avitabile: Why don’t we do that, and I’ll try the reverse.”


author: Daly, J.

text:
    In re Joshua Z.

    (9863)
    Daly, O’Connell and Norcott, Js.

      Argued September 11
    decision released October 15, 1991

      William Bingham, for the appellant (respondent mother).

      Benjamin Zivyon, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Dennis Antonacci, assistant attorney general, for the appellee (petitioner).

      Marc S. Mandell filed a brief for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2025, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Daly, J.

At issue in this case is the termination of the parental rights of the respondent mother pursuant to General Statutes § 17a-112 (b) (2) and (4). The respondent mother claims (1) that the trial court improperly terminated her parental rights because there was no finding by that court that her child, Joshua Z., would be in immediate physical danger if returned to her, and (2) that the trial court’s decision was not supported by clear and convincing evidence as required by § 17a-112. We disagree.

The evidence presented to the trial court revealed that Joshua was born on April 3, 1988. He has been in foster care since the age of three months. Approximately three months after the child’s birth, the respondent mother experienced suicidal ideation as well as homicidal ideation concerning her child. She was diagnosed at the time of the child’s birth as having a borderline personality disorder as well as other possible forms of mental illness. The respondent voluntarily placed him in foster care. After placing Joshua in foster care, she maintained minimal contact with him. The respondent failed to cooperate with the department of children and youth services (DCYS) and at times refused to disclose her address or location to DCYS. The child was adjudicated to be a neglected child on April 18, 1989, and committed to the care and custody of DCYS for a period not to exceed eighteen months.

In April, 1989, the respondent entered into a treatment program for her psychological problems. The respondent also gave birth to a second son on April 21, 1989. She decided to discontinue her treatment in July, 1989, against the advice of her therapist. In October, 1989, the respondent was told by DCYS that she would have to participate in counseling before Joshua could be returned to her. The respondent refused further treatment for her psychological problems.

In March, 1990, the respondent was arrested for disorderly conduct and assault on a police officer. She failed to appear for her scheduled visitation with Joshua in March, 1990. The respondent was allowed to visit with Joshua twice each month, yet she visited only four times between April and August, 1990. Even when the respondent visited with her two children, who were both under DCYS care, she virtually ignored Joshua. In fact, Joshua referred to the respondent as “that other lady.” Joshua has been in the care of his current foster mother since December, 1988. Testimony revealed that Joshua appears to be a happy, outgoing and well adjusted child.

I

The respondent claims that the trial court improperly terminated her parental rights because there was no showing that Joshua would be in “immediate physical danger” should he be returned to her. The respondent’s claim is based on the reasoning of In re Juvenile Appeal (83-CD), 189 Conn. 276, 287-89, 455 A.2d 1313 (1983), which upheld the constitutionality of General Statutes § 46b-129 (b). Section 46b-129 governs the assumption of temporary custody by the state. The statute allows the state to take temporary custody where “there is reasonable cause to find that the child’s or youth’s condition or the circumstances surrounding his care require that his custody be immediately assumed to safeguard his welfare . . . .” General Statutes § 46b-129 (b). Our Supreme Court decided that the criteria used in determining if emergency removal of a child pursuant to General Statutes § 17a-101 (e) should be allowed must also be applied when deciding if the state can take temporary custody of a child pursuant to § 46b-129 (b). In re Juvenile Appeal (83-CD), supra, 289. The respondent asserts that § 17a-101 (e) criteria should also be applied to the termination of parental rights pursuant to § 17a-112. The respondent also asserts that because termination of parental rights is a more invasive action by the state than a temporary custody order, termination should not be allowed unless there has been evidence that the parental relationship constitutes a serious threat to the child’s welfare.

The procedure for termination of parental rights is controlled by General Statutes § 17a-112. The termination of parental rights is “a most serious and sensitive judicial action.” Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). Thus, there must be “ ‘strict compliance with the statutory criteria [of § 17a-112] before termination of parental rights and subsequent adoption proceedings can occur. . . .’ ” (Citations omitted.) In re Juvenile Appeal (84-BC), 194 Conn. 252, 257 n.9, 479 A.2d 1204 (1984). There is no requirement in § 17a-112 that there must be a finding of immediate physical danger to the child before parental rights can be terminated. We decline an invitation to add an additional requirement to the established statutory framework of § 17a-112.

The termination of parental rights pursuant to § 17a-112 is different from a temporary custody determination pursuant to General Statutes § 46b-129. Section 17a-112 (b) sets forth specific situations that permit the state to terminate parental rights. There is no need to apply the criteria for emergency removal pursuant to General Statutes §§ 17a-101 through 17a-112. For example, the standard of proof for each procedure is different. Termination of parental rights, because of its finality, requires clear and convincing evidence while temporary custody is governed by the lesser fair preponderance of the evidence standard. In re Juvenile Appeal (83-CD), supra, 299-300. The higher standard of proof recognizes the seriousness of termination of parental rights by the state. Thus, it is unnecessary to add an additional element of proof not required by § 17a-112.

In this case, the trial court correctly applied General Statutes § 17a-112. The court found by clear and convincing evidence that for at least one year there was an absence of an “ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child . . . .” General Statutes § 17a-112 (b) (4).

Before the absence of an ongoing parent-child relationship can be the basis for terminating parental rights, the trial court must also find that “to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.” Id. Such a finding was made by the trial court, which based its decision on expert testimony as to the necessity for placing Joshua in a permanent home instead of continuing foster care. There could be no final placement of Joshua if the respondent were allowed to maintain her parental rights. Therefore, it was in Joshua’s best interest to terminate the respondent’s parental rights.

The second ground found by the trial court concerns the respondent’s inability to rehabilitate herself in order to care properly for Joshua. General Statutes § 17a-112 (b) (2) provides for termination of parental rights where “the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child . . . .” “ ‘ “Personal rehabilitation” . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent.’ ” In re Rayna M., 13 Conn. App. 23, 32, 534 A.2d 897 (1987), quoting In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533 (1986). The trial court must “analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, [determine] that such rehabilitation must be foreseeable ‘within a reasonable time.’ ” In re Luis C., 210 Conn. 157, 167, 554 A.2d 722 (1989). The trial court correctly followed this analysis in reaching its decision.

II

The respondent next claims that there was insufficient evidence to support the termination of her parental rights. This court’s duty is to ensure that “the trial court’s conclusion was legally correct and factually supported.” In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991). “ ‘It is not our function to retry the case or to pass on the credibility of witnesses . . . and we will not.’ ” (Citations omitted.) In re Christine F., 6 Conn. App. 360, 366-367, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986), quoting Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).

There was ample evidence to support the termination of the respondent’s parental rights. Joshua has been under foster care for all but three months of his life. The respondent during this period has failed to make any sustained attempt to address her psychological problems. The respondent also has failed to maintain regular visits and contact with Joshua during this period. She has refused to follow DCYS proposals aimed at reuniting her with her son. See In re Shavoughn K., 13 Conn. App. 91, 534 A.2d 1243 (1987), cert. denied, 207 Conn. 805, 540 A.2d 374 (1988).

On the basis of this record, the trial court’s well reasoned decision was legally correct and factually supported. The trial court properly followed § 17a-112 in determining that there was clear and convincing evidence justifying the termination of the respondent’s parental rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17a-112 provides in pertinent part: “(b) The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year ... (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child .... or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.”

       Only the respondent mother has appealed. In this opinion, she will be referred to as the respondent.

       General Statutes § 17a-101 (e) provides in pertinent part: “If the commissioner of children and youth services or his designee, after such investigation, has probable cause to believe that the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger from his surroundings, and that immediate removal from such surroundings is necessary to insure the child’s safety, the commissioner, or his designee, may authorize any employee of his department or any law enforcement officer to remove the child from such surroundings without the consent of the child’s parent or guardian.”


author: Lavery, J.

text:
    State of Connecticut v. David Suckley
    (9108)
    Spallone, Daly and Lavery, Js.

      Argued September 12
    decision released October 8, 1991

      William R. Schipul, assistant public defender, with whom, on the brief, were William Holden, public defender, and Barbara Binford, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Patrick J. Clifford, senior assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from a judgment of conviction of attempted murder in violation of General Statutes §§ 53a-49 (a) and 53a-54 (a) and of carrying a pistol or a revolver without a permit in violation of General Statutes § 29-35. The defendant claims that the trial court should not have admitted into evidence a photograph of weapons, seized in a separate proceeding involving the defendant, to bolster the credibility of a police officer’s testimony. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On January 1,1989, the victim and his wife were driving on Route 66 in Southington when they approached a traffic light. The defendant and his girl friend were in a white Pinto in front of the victim’s car stopped at the traffic light. When the traffic light turned green and the defendant’s car failed to move, the victim sounded his horn. The defendant responded by gesturing at the victim with his middle finger. The victim responded in kind. The victim drove around the defendant’s car and entered Interstate 691 eastbound. While on the highway, the victim observed the defendant following him closely. The victim pulled over to the shoulder to let the defendant pass him. As he did so, the defendant made a quick right turn and parked alongside the victim. Both the victim and the defendant exited their cars and an argument ensued. The victim grabbed the defendant and dragged him to the side of the road by an overpass. The victim said to the defendant, “I’d like to throw you off of this bridge.” The defendant said to his girl friend, “Shoot this guy.” The defendant was not armed at this point. The defendant’s girl friend and the victim’s wife exited their respective vehicles. Because of the gun threat, the victim told his wife to return to the car. He released the defendant and returned to his car. After he was released, the defendant went to his car and got a handgun for which he had neither a state nor a town permit. As the victim was seated in his car and preparing to shut the door in order to leave, the defendant said, “This is for you,” and held the handgun inside the victim’s car and shot him. The bullet entered the victim's upper left chest in the area below his collar bone. The defendant returned to his car and fled from the scene. Although the victim and his wife could not read the license plate number, they did observe that the vehicle had a temporary Florida plate.

The victim drove to the Meriden-Wallingford hospital and the police were called. The victim and his wife gave the police a description of the defendant, his girl friend and their car with the temporary Florida plate. A composite sketch of the defendant was made by a police artist and released to newspapers. Officer William Gordon of the Middlebury police department saw an article about the incident in the Waterbury paper. Approximately a week before the shooting, the officer had stopped the defendant and his girl friend in a white Pinto and cited the defendant for driving an unregistered motor vehicle. The defendant’s car had been towed to a motel. Gordon passed this information on to the state police. Through this and other information, the state police located the girl friend. With her permission, the state police searched the motel room and found six rounds of .22 pistol ammunition, the motor vehicle summons issued by Gordon and a photograph of the defendant. The victim and his wife identified the defendant from a photograph array and an arrest warrant was issued for the defendánt. After the incident, the defendant had poured kerosene into his car, lit it on fire and threw his gun into Lake Quassapaug. Also, he testified that he did not stay with his girl friend after the shooting because he knew that he had done something wrong and he wanted to avoid the police.

At the trial, Gordon testified as follows without objection to the details of the earlier stop where he had cited the defendant for driving an unregistered motor vehicle and misuse of license plates. “Well, as I approached the car, I noticed that there was a white male in it about twenty-five years old wearing a black leather jacket. I also noticed on the back seat of the car there were a number of items. There was either on the floor or on the back seat, there was a baseball bat, there was a club which said helter skelter on it and I believe there was also several knives and a small hatchet.”

He further testified without objection as follows:

“[Prosecutor]: And did you take the articles out that you described in the car? First of all, did you arrest him for any of those articles?

“[Gordon]: No, I didn’t at that time.

“[Prosecutor]: Did you take them from the car?

“[Gordon]: Yes.

“[Prosecutor]: And did you also find in the car any type of .22 caliber bullets?

“[Gordon]: Yes, there was approximately ten bullets which I noticed were lying around the front center console of the car.

“[Prosecutor]: And were these shell casings; were they live bullets?

“[Gordon]: They were live bullets.

“[Prosecutor]: So what items did you actually remove from the car and not give back to him?

“[Gordon]: It would have been the baseball bat, two knives and a long stick or club which was painted red and it said helter skelter on it.

“[Prosecutor]: Did you also take the bullets from the car?

“[Gordon]: No, I didn’t.

“[Prosecutor]: You left the bullets in the car?

“[Gordon]: Right.

“[Prosecutor]: Why did you do that?

“[Gordon]: I had no reason to seize them.

“[Prosecutor]: Is there any crime against people having bullets?

“[Gordon]: No.

“[Prosecutor]: Did you find a gun in the car?

“[Gordon]: No.

“[Prosecutor]: Did you find a gun on Mr. Suckley?

“[Gordon]: No, I did find a holster in the back seat though.

“[Prosecutor]: What type of holster?

“[Gordon]: That would carry a small caliber revolver.”

Gordon testified also that he had seized a Missouri license plate that was on the car and a metal Florida license plate that was in the car. He did not take an expired temporary Florida license plate that was on the floor of the car. The state then attempted to introduce the summons and a photograph of the articles that Gordon removed from the car. The following colloquy occurred which is the crux of the defendant’s appeal.

“[Prosecutor]: Thank you. I’d offer these as full exhibits.

“[Court]: What is [exhibit] U, a photo of the items that were removed?

“[Prosecutor]: It’s a photo of the items that were removed from the car.

“[Court]: Is there an objection?

“[Defense Counsel]: To the photo, yes. To this document, the summons, no, Your Honor.

“[Court]: And the reason for the objection of the photo?

“[Defense Counsel]: I see no relevance to this particular case. It would maybe have relevance to the identification of the car he was being charged in the G.A.

“[Court]: Want to be heard, Mr. Clifford?

“[Prosecutor]: No, I’ll just show Your Honor the picture.

“[Court]: What’s the purpose of the offer?

“[Prosecutor]: I guess it’s more for the license plates than anything else but I’ll leave that up to Your Honor whether I should do it through the testimony.

“[Defense Counsel]: I will stipulate the metal license plates were in the car when Mr. Suekley was using the Bush license.

“[Court]: The court will allow it not because it’s any relation to the crimes alleged here but for the credibility of this officer the court will allow the exhibit. [Emphasis added.]

“[Defense Counsel]: May an exception be noted?

“[Court]: Exception may be noted.

“(The before mentioned document was marked as state’s exhibit T as a full exhibit. The before mentioned photograph was marked as state’s exhibit U as a full exhibit.)

“[Prosecutor]: Before I pass these, the other item I think you indicated that you saw in the car but you didn’t seize were the ten .22 caliber live bullets and the holster?

“[Gordon]: That’s right.

“[Prosecutor]: Anything you seized, you took this picture of. Is that right?

“[Gordon]: Yes.

“[Court]: The exhibit is allowed on the photo, ladies and gentlemen of the jury, not because any of the items shown in that photo are alleged to in any way have been involved in this crime but simply to indicate these are items that the officer took in his arrest procedure and for that purpose only. And the license plate is to indicate that they were found in the car and removed from the car. You may proceed.”

The sole claim of the defendant is that the trial court improperly allowed the photograph that depicted two knives, a baseball bat, a club with the words “helter skelter” on it, and two license plates as a full exhibit. The defendant claims that this put before the jury evidence of violent objects allegedly possessed by the defendant just prior to the date of the offense in this case, and that the graphic presentation of these weapons created an atmosphere of violence that predisposed the jury to believe that the defendant was a bad, violent person.

The trial court admitted the photograph not because it was relevant, but rather to bolster the credibility of Gordon. When the photograph was admitted, however, Gordon’s credibility had not been challenged. The trial court improperly admitted the photograph. Connecticut follows the federal rules of evidence in that the credibility of a witness cannot be supported until after it has been attacked. See Fed. R. Evid. 608 (a) and advisory committee note; Connecticut Rules of Court pp. 640-41 (West 1990); State v. Palm, 123 Conn. 666, 677, 195 A. 195 (1938); State v. Ward, 49 Conn. 429, 442 (1879); 81 Am. Jur. 2d Witnesses § 643 (1976). “Where a witness has not been impeached, it is not in general permissible to support his testimony by other evidence, corroborative in its nature, which bears on the credibility of the witness rather than on the issues in the cause . . . .” 98 C.J.S. Witnesses § 472; State v. Brown, 187 Conn. 602, 607-608, 447 A.2d 734 (1982); State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979).

Although everything depicted in the photograph was twice put into evidence orally without objection and the jury could consider it, the defendant did not waive his right to object to the introduction of the same evidence through the photograph. The trial court improperly allowed it in. Our inquiry does not end, however, with this conclusion that the admission of the photograph was improper.

It is a “fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153 (1960); State v. Kwaak, 21 Conn. App. 138, 150-51, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990). We now consider whether the admission of the photograph was so prejudicial to the rights of the defendant as to deprive him of a fair trial. State v. Magano, 204 Conn. 259, 285, 528 A.2d 760 (1987); State v. Kwaak, supra, 151. “The ultimate question is whether the claimed erroneous action of the court would have been likely to affect the result.” State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976); State v. Kwaak, supra. We hold that it is not likely that the erroneous admission of the photograph affected the result in this case. “An erroneous ruling should not be considered reversible error if the evidence admitted thereby has already properly entered the case.” State v. Jeustiniano, 172 Conn. 275, 283, 374 A.2d 209 (1977); State v. Boyd, 178 Conn. 600, 604, 424 A.2d 279 (1979). The photograph was little more than a pictorial depiction of testimony given twice by Gordon which was unobjected to and was properly before the jury. “Testimony admitted without objection enters the case as part of the evidence and may be considered by the jury.” State v. Hickey, 23 Conn. App. 712, 718, 584 A.2d 473 (1991). The photograph was cumulative of Gordon’s verbal description and the error in the admission of the photograph was harmless. State v. Fiocchi, 17 Conn. App. 326, 338, 553 A.2d 181, cert. denied, 210 Conn. 812, 556 A.2d 609 (1989). In addition, the court gave limiting instructions which seemed to insure that the jury would not use the evidence depicted in the photograph for improper purposes. The court told the jury that the items in the photograph were not alleged, in any way, to have been involved in the crime for which the defendant was on trial. The evidence against the defendant was overwhelming not only by the testimony of the victim and the victim’s wife but also by the defendant’s own testimony which weakened his self-defense claim in that he fled the scene, threw the gun in a lake, set fire to the car and did not stay with his girl friend because in his own words he said he knew that he had done something wrong.

We conclude that the admission of the photograph was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    Gloria Gagne, Administratrix (Estate of Michelle Gagne) v. National Railroad Passenger Corporation et al.
    (9508)
    Spallone, Daly and La very, Js.

      Argued September 12
    decision released October 8, 1991

      Lester Katz, with whom was William J. McLeod, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom, on the brief, was Maureen Sullivan Dinnan, for the appellee (defendant commissioner of transportation).
   Daly, J.

The issue presented in this appeal is whether the defendant J. William Burns, the commissioner of transportation for the state of Connecticut, can be held liable under the highway defect statute, General Statutes § 13a-144. The trial court granted the commissioner’s motion for summary judgment and the plaintiff appealed. We affirm the decision of the trial court.

There is no dispute as to the facts in this case. On November 18,1985, a motor vehicle and a Conrail train collided at the intersection of Toelles Road and South Colony Street in the town of Wallingford. The plaintiffs decedent, Michelle Gagne, was a passenger in the motor vehicle and died as a result of the accident. Her administratrix brought suit on her behalf against the National Railroad Passenger Corporation, Consolidated Rail Corporation, the town of Wallingford and Burns. This appeal concerns only the fourth count of the amended complaint which asserts a cause of action against Bums based on General Statutes § 13a-144.

The trial court granted the commissioner’s motion for summary judgment. The plaintiff then appealed that ruling. The dispositive issue raised by this appeal is whether the commissioner was obligated to keep Toelles Road in repair, thus giving rise to liability under § 13a-144. We find that in this case as a matter of law the commissioner did not have a duty to repair Toelles Road. Thus, we affirm the decision of the trial court granting summary judgment in favor of the commissioner.

At common law, the state could not be sued without its permission. Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977); Kuchinski v. Burns, 23 Conn. App. 198, 199, 579 A.2d 585, cert. denied, 216 Conn. 826, 582 A.2d 204 (1990). The highway defect statute, General Statutes § 13a-144, created a cause of action “wholly unauthorized by the common law.” Wethersfield v. National Fire Ins. Co., 145 Conn. 368, 371, 143 A.2d 454 (1958); Kuchinski v. Burns, supra, 200. Thus, “because there was no right of action against the sovereign state at common law, a plaintiff, in order to recover, must bring himself within § 13a-144.” White v. Burns, 213 Conn. 307, 321, 567 A.2d 1195 (1990); Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). Section 13a-144 must be “strictly construed in favor of the state.” White v. Burns, supra; Kuchinski v. Burns, supra.

In this case, the commissioner sought the following admissions from the plaintiff: (1) Toelles Road was not a state highway within the framework of General Statutes § 13a-144; (2) at all times relevant in this complaint, the state of Connecticut had no statutory duty to keep and repair Toelles Road; (3) at all times relevant in this complaint, Toelles Road was a town road, which the town of Wallingford had the duty to maintain and repair. The plaintiffs failure to respond to the commissioner’s requests for admission resulted in the requests being deemed to have been admitted. Practice Book § 239. The plaintiff did not attempt to withdraw or amend her admissions pursuant to Practice Book § 240. Thus, the facts recited in the requests for admission are “conclusively established.” Practice Book § 240. The granting of summary judgment can be based on admissions resulting from a party’s failure to respond to requests for admissions. Orenstein v. Old Buckingham Corporation, 205 Conn. 572, 575-77, 534 A.2d 1172 (1987).

Due to the plaintiff’s admissions, she fails to satisfy the statutory requirements of § 13a-144. The plaintiff admitted that Toelles Road was not a state highway and that Toelles Road is a public road of the town of Wallingford. To prevail under § 13a-144, the plaintiff must establish that “the commissioner had the statutory duty to maintain the portion of the roadway where the defect was located.” Merola v. Burns, 21 Conn. App. 633, 639, 575 A.2d 1025 (1990). The commissioner does not have a duty to maintain a town road.

The plaintiff, relying on Cairns v. Shugrue, 186 Conn. 300, 441 A.2d 185 (1982), argues that the requests for admissions were not relevant to her cause of action against this defendant. She argues that the various duties imposed on the commissioner by General Statutes § 13b-200 et seq. establish a cause of action under § 13a-144.

Cairns v. Shugrue, supra, involved a plaintiff who fell because of an accumulation of ice on Whitney Road, located on the campus of the University of Connecticut. The trial court granted summary judgment for the commissioner concluding that Whitney Road was not part of the “state highway system.” Id., 302. Our Supreme Court reversed, holding that where the commissioner has “a legal duty to maintain a particular highway,” he can be sued pursuant to § 13a-144 for injuries resulting from negligent performance of that duty. Id., 310. General Statutes § 13b-30 required that the commissioner remove ice and snow from Whitney Road where the accident occurred. Id.

Cairns v. Shugrue, supra, does not control this case because the commissioner is under no statutory duty to repair the Toelles Road intersection. The plaintiff’s complaint refers to eight statutory provisions involving railroads and railways. Of these eight statutory provisions, only one statute imposes an affirmative duty on the commissioner to take action regarding a railroad crossing. General Statutes § 13b-345 provides that “where the tracks cross at grade on state highways,” the commissioner is obligated to provide “traffic control measures.” The plaintiff has admitted that Toelles Road is not a state highway, so § 13b-345 does not apply to create a duty on the commissioner. The other statutes in the plaintiff’s complaint require the commissioner only to investigate or to make recommendations. Thus, Cairns v. Shugrue, supra, is distinguishable because in that case § 13b-30 imposed a duty to repair on the commissioner. Id., 303. The statutes raised in the present complaint fail to impose a duty on the defendant to repair that would enable the plaintiff to assert a cause of action under § 13a-144.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-144 provides in pertinent part: “damages FOB INJURIES SUSTAINED ON STATE HIGHWAYS OR SIDEWALKS. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair . . . may bring a civil action . . . against the commissioner in the superior court. No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . . The commissioner and the state shall not be liable in damages for injury to person or property when such injury occurred on any highway or part thereof abandoned by the state or on any portion of a highway not a state highway but connecting with or crossing a state highway, which portion is not within the traveled portion of such state highway.”

       Practice Book § 239 provides in pertinent part: “Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 238 (b), or within such shorter or longer time as the court may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.”

       Practice Book § 240 provides in pertinent part: “Any matter admitted under this section is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”

       “[General Statutes] Sec. 13b-30. maintenance of roads on state property. From funds appropriated to the department of transportation for general operations, the commissioner of transportation shall, on request of the state agency having jurisdiction over the property involved, maintain and improve the roads and drives on the grounds of state institutions, state parks, state forests and other state agencies, including the Connecticut Marketing Authority, such maintenance to include the removal of snow.”

       General Statutes § 13b-345 provides in pertinent part: “(a) The commissioner of transportation shall investigate conditions surrounding all railroad crossings with public highways at grade and determine at which of such crossings public safety reasonably requires that any person traveling upon the highway shall come to a stop or proceed with caution before passing over the tracks at such crossing. The commissioner may require the railroad company at each of such crossings so determined to erect and maintain on the highway and within the limits of its right-of-way a ‘stop,’ ‘caution’ or other sign of a type approved by the commissioner, and may require the company at any grade crossing to erect and maintain stop, caution, warnings or other signs of a type approved by the commissioner, but where the tracks cross at grade on state highways, the state traffic commission shall prescribe the nature of traffic control devices and traffic control measures to be installed at such grade crossings. When traffic control measures are to be installed on state highways, they shall be furnished and installed by the commissioner of transportation.”


text:
    Essex Savings Bank v. Martin Frimberger et al.
    (9912)
    Norcott, Heiman and Cretella, Js.
    Argued September 24
    decision released October 22, 1991

      John T. O’Reilly, pro se, the appellant (defendant).

      John S. Bennett, for the appellee (plaintiff).
   Per Curiam.

The defendant John T. O’Reilly appeals following the trial court’s entry of a summary judgment against him on the plaintiff’s complaint and on his special defenses.

In its complaint, the plaintiff sought foreclosure of a real estate mortgage and other relief, including a deficiency judgment. In its judgment, the trial court decreed that the “case may proceed on the other issues as provided by law.” The trial court has yet to determine the amount of the debt, the attorney’s fees-, or even whether the foreclosure shall be strict or by sale.

The record before us gives no indication as to why the proceedings were not completed by resolving the issues of the debt, the attorney’s fees, the type of foreclosure, and the amount of any deficiency judgment. The plaintiff still presses its claim for foreclosure. This situation is analogous to one in which a judgment has been rendered only on the issue of liability, without resolving the issue of damages. Such a judgment is interlocutory in nature and is not a final judgment from which an appeal lies. Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980). Furthermore, the interlocutory judgment in this case does not fall within either of the narrowly defined exceptions to the general rule that prohibits appeals from judgments that are not final. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

The lack of a final judgment is a jurisdictional defect that requires that we dismiss the appeal. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985); Gores v. Rosenthal, 148 Conn. 218, 221, 169 A.2d 639 (1961). Even an express agreement by the parties cannot confer jurisdiction on this court. State v. Curcio, supra, 30. Therefore, even though the appellee failed to bring the issue of finality to our attention, either by motion or in its brief or at oral argument, we must, nonetheless, act sua sponte.

The appeal is dismissed, sua sponte, for lack of a final judgment.


text:
    State of Connecticut v. James L.

    (9549)
    O’Connell, Foti and Landau, Js.
    Argued September 19
    decision released October 29, 1991

      Kenneth A. Leary, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and JohnPannone, assistant state’s attorney, for the appellee (state).

       Thus entitled in accordance with the spirit and intent of General Statutes § 54-86e.

   Landau, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and two counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims the trial court violated his right of confrontation when it improperly limited cross-examination of a state’s witness regarding her possible bias toward him. We disagree and affirm the judgment of the trial court.

The jury could reasonably have found the following facts. During the months of November and December, 1989, the victims, a five year old girl and a three year old boy, spent weekends visiting with their father at the home of the defendant, their paternal grandfather. Upon returning to their mother’s home after one of their weekend visits, the five year old complained to her mother that her grandfather had forced her to perform various sexual acts with both him and her younger brother. The police were contacted and the children were interviewed by Detective Robert Drozynski of the Norwich police department at which time the five year old gave the detective a detailed description of the “bad things” the defendant had done to her. The defendant was subsequently arrested and charged with two counts each of sexual assault in the first degree and risk of injury to a child.

The defendant claims the trial court improperly interfered with his right to cross-examine witnesses. It is undisputed that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Maldonado, 193 Conn. 350, 356, 478 A.2d 581 (1984); State v. Hackett, 182 Conn. 511, 517, 438 A.2d 726 (1980). Neither constitution, however, requires that the defendant be permitted to present every piece of evidence he wishes. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Kelly, 208 Conn. 365, 376, 545 A.2d 1048 (1988). If the proffered evidence is not relevant, the defendant’s right of confrontation is not affected and the evidence should be excluded. State v. Kelly, supra.

As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. State v. Cassidy, 3 Conn. App. 374, 383, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985); see also State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978) and State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36 (1972).

On cross-examination, the defendant attempted to demonstrate bias on the part of the victims’ mother, and to impeach her credibility by introducing evidence that the defendant had previously threatened to initiate a criminal action against her for the theft of various tools from behind his house. The state’s attorney objected to each attempt on the ground of relevancy. The defendant failed to make an offer of proof as to the relevance of this testimony, and the court sustained each objection.

It is the appellant’s burden to ensure that we are provided with an adequate appellate record to support his claim. Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). The defendant in the present case has not met this burden. If he wanted to provide this court with an adequate appellate record, he should have presented an offer of proof. “ ‘An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.’ ” State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986), citing Mad River Orchard, Inc. v. Krack Corporation, 89 Wash. 2d 535, 537, 573 P.2d 796 (1978).

The defendant concedes that no offer of proof was made. He asserts, however, that the record reveals sufficient indicia of the legal theory, i.e., transferred bias, under which the evidence was offered, to warrant introduction of the evidence in the absence of a formal offer of proof. We find no facts that warrant importing the proffered evidence into the case. All that the record reveals is that the defendant attempted to offer evidence of the defendant’s accusation of theft against the mother of the children and an objection was sustained as to relevancy. This fact standing alone, as it must without an offer of proof, does not have any bearing on any material fact in this case. The defendant introduced no evidence to corroborate his theory that any bias on the part of the children’s mother was in fact transferred to her five year old daughter. Defense counsel was free to inquire of the daughter whether she was influenced in any way by her mother. He failed to do so.

“The significant gap in the record . . . limits our review and presents obstacles to reviewing the defendant’s claim of error on this appeal.” Barra v. Ridgefield Card & Gift Gallery, Ltd., supra. In the absence of an appropriate offer of proof, this court cannot speculate as to what line of questioning defense counsel intended to follow. A claim on appeal cannot be based on an assumption that the trial court acted improperly. Id., 407-408. Without an adequate record on which to review the rulings of the trial court, this court must assume that the trial court acted properly. Jacobson v. Jacobson, 177 Conn. 259, 267, 413 A.2d 854 (1979); Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971). Thus, we find no violation of the defendant’s right of confrontation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The victims’ parents had recently separated. Their father was residing on a temporary basis with his parents, the defendant and his wife, during the time period in question.

       The questions and subsequent colloquys were as follows:
      “Q. In November of 1989 did my client accuse you [the victims’ mother] of stealing tools that were located behind—
      “A. No.
      “Mr. Pannone: I will object to the question on the grounds of relevance. I don’t see where it is relevant at all. It is beyond the scope of direct examination.
      “The Court: You said November of ’89. That is after this.
      “Mr. Perry: Actually, Your Honor, it is at the very beginning of when these alleged events occurred.
      “The Court: I will sustain the objection.
      “Mr. Perry: Exception please, Your Honor.
      “The Court: Exception noted.”
      [Cross-examination by Mr. Perry continuing]:
      “Q. Did you [the victims’ father] ever have occasion to hear your father mention to you about a theft of tools from behind the house?
      “Mr. Pannone: Again, Your Honor, I am going to object as to the relevance to that question. It is attempting to raise a collateral issue.
      “The Court: Sustained.
      “Mr. Perry: Exception.
      “The Court: Exception noted.”

       This failure, whether through inadvertence or for tactical reasons, is the sole basis on which the importance of the mother’s testimony is premised.