text:
    STATE OF CONNECTICUT v. ALAN M. NOKES
    (14355)
    Dupont, C. J., and O’Connell and Spear, Js.
    Argued October 28
    officially released December 31, 1996

      Stephen F. Cashman, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were James E. Th,ornas, state’s attorney, and Mary Rose Flaherty, deputy assistant state’s attorney, for the appellee (state).
   DUPONT, C. J.

This appeal returns to this court on remand from our Supreme Court; State v. Nokes, 239 Conn. 926, 685 A.2d 22 (1996); so that we may reconsider our decision affirming the judgment of the trial court in light of the Supreme Court’s recent decision in State v. Gerardi, 237 Conn. 348, 677 A.2d 937 (1996).

The facts of the present case are set forth in State v. Nokes, 42 Conn. App. 10, 11-13, 678 A.2d 510 (1996), and do not warrant repetition here. The dispositive question was “whether the trial court’s instruction on the rebuttable presumption in General Statutes (Rev. to 1995) § 14-227a (c) impermissibly shifted the burden of proof on an essential element of the offense of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 1995) § 14-227a (a).” Id., 10-11. We held that although § 14-227a (c) specifically creates a rebuttable presumption, the jury charge “allowed the jury to make a permissive inference in that it could consider the [chemical analysis] test results and attach whatever weight it chose to them. The charge did not impermissibly allow the state to use an evidentiary presumption to relieve itself of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” Id., 12.

State v. Gerardi, supra, 237 Conn. 348, concerned the rebuttable presumptions contained in General Statutes § 53-202 (e) and (g). Subsection (e) provides: “The presence of a machine gun in any room, boat or vehicle shall be presumptive evidence of the possession or use of the machine gun by each person occupying such room, boat or vehicle.” Subsection (g) provides in relevant part: “Any person who fails to register any gun as required hereby shall be presumed to possess the same for an offensive or aggressive purpose. ...” Gerardi was charged with possession of a machine gun for an offensive or aggressive purpose in violation of § 53-202. He was sitting in the front passenger seat of a car that was seen leaving the scene after the sound of several rapidly fired gunshots. Police officers found shell casings behind the defendant’s seat and his window was open. Police later found, at the side of the road, a machine gun and magazine from which the casings found in the vehicle had been fired. The trial court had instructed the jury that, “pursuant to § 53-202, the presence of a machine gun in any vehicle shall be presumptive evidence of possession or use of the gun, and that the failure to register the gun or the presence of any empty or loaded projectiles of any caliber, which have been or are susceptible of use in the machine gun, is presumptive evidence that the gun was possessed for an offensive or aggressive purpose. . . . ‘[Presumptive evidence is defined as evidence which must be received and treated as true and sufficient until rebutted by other testimony.’ ” Id., 355. The Supreme Court held that the instructions did violate the due process clause and that they were not harmless beyond a reasonable doubt.

The only difference between the Gerardi charge and the Nokes charge is that the Gerardi charge used the term “presumptive evidence” and defined the term as evidence that must be treated as true and sufficient to prove the element of the crime to which it pertains until the presumptive evidence is rebutted by other testimony. Although the Gerardi charge did not specifically instruct the jury that it was the defendant’s burden to rebut the presumptive evidence, that was clearly the implication of the words used. The Nokes charge did not inform the juiy that a presumption was to be taken as sufficient proof by itself of an element of the crime, but it did require the presumptions to be “overcome by the defendant through the introduction of other evidence” and allowed the jury to decide whether the defendant’s evidence “successfully rebutted the presumptions.”

The state has asked us to clarify our original opinion and state that the trial court’s jury charge on the presumption in § 14-227a (c) was tantamount to an instruction that the presumption was a permissive inference. We cannot do this because we cannot change the words of the trial court. The trial court cast its instruction in terms of rebuttable presumptions. Pursuant to Gerardi, we must conclude that the trial court’s instructions to the jury in the present case were improper. The question remains, however, whether the instruction was harmless beyond a reasonable doubt.

To pass constitutional muster, a presumption must be cast as a “permissive inference [that] suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion. . . .A permissive inference does not reheve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved.” Francis v. Franklin, 471 U.S. 307, 314, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).

Instructions relating to § 14-227a (c) should fulfill the legislature’s intent that a jury may infer a defendant’s blood alcohol content at the time of the offense under appropriate factual circumstances. “Accordingly, we construe . . . statutory inferences as permissive inferences that a jury may draw under appropriate circumstances in which such an inference is rational or reasonable.” State v. Gerardi, supra, 237 Conn. 360.

“If . . . other facts or circumstances are introduced and the totality of the evidence could reasonably and logically support the inference, then the jury may be instructed that it may draw such a permissive inference. . . . [T]he jury must be instructed that it may infer facts only upon finding sufficient predicate statutory and nonstatutory facts and circumstances that are rationally connected with the ultimate facts inferred.” Id., 361. Here, the ultimate fact to be proven is that the defendant’s blood alcohol content at the time of the offense was 0.10 percent or greater. According to the statute, this fact may be “presumed” if the jury finds that after testing according to statutory requirements, the test results show that the defendant’s blood alcohol content was 0.10 percent or greater. To find this ultimate fact, the jury must first determine if the statutory guidelines were followed. The test must have been performed by a proper person, the device used must be shown to have been working properly, and the test must have been performed within the proper time frame.

If a “permissive presumption,” namely, a finding of a blood alcohol content greater than 0.10 percent, “leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the beyond a reasonable doubt standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. . . . [I]n that situation [the] risk [is] that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Internal quotation marks omitted.) State v. Gerardi, supra, 237 Conn. 358, quoting Ulster County Court v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979).

In Gerardi, the court concluded that the legislature could not have intended that the jury be required to infer that a defendant possessed a machine gun for an offensive or aggressive purpose from the mere fact that the gun was unregistered or that the jury was required to infer that all the occupants of a vehicle possess a machine gun simply because it is located in that car. The legislature could have intended only that a jury may infer possession under appropriate factual circumstances.

In the present case, unlike in Gerardi, there is a rational connection between the subsidiary facts and the ultimate fact. The conclusion that the ultimate fact that the blood alcohol content was 0.10 percent can be inferred by the proof of the subsidiary facts. Unlike in Gerardi, there is no other charge in Nokes of which the defendant was found not guilty that would cast doubt on the finding of guilty of the first charge. The charge of which Gerardi was found not guilty implicated possession, an element of the crime for which he was found guilty, thereby casting doubt on the ultimate finding by the jury of the defendant’s guilt of the fust charge of possession. The jury, therefore, could have used the presumption of possession to find the defendant guilty.

The trial court in the present case charged the jury that to find the defendant guilty it must find that the state proved beyond a reasonable doubt that the defendant’s blood alcohol content was 0.10 percent or more at the time of the incident. The trial court went on to explain that “ [i]f you find that the results of the chemical analysis test are above twelve hundredths of one percent, and that the test was commenced within two hours of the time of operation, then you can find that the ratio of alcohol in the defendant’s blood was in excess of the legal limit of ten hundredths of one percent at the time of operation.”

The officer who arrested Nokes had testified that he was certified to operate the testing equipment, and he also produced the log book that showed that the equipment was working properly at the time. The jury could have concluded from the evidence before it that the test was performed properly by a qualified person, that the device was working properly, and that the test was performed within the proper time frame. From these subsidiary facts, it ultimately could have concluded, beyond a reasonable doubt, that the defendant’s blood alcohol content exceeded the statutory requirement of 0.10 percent at the time of testing.

The fact that the trial court instructed the jury that the “presumptions can be overcome by the defendant through the introduction of other evidence,” does not necessarily mean that the jury instructions could not be proved harmless beyond a reasonable doubt. The defendant introduced evidence, through an expert, that the testing for blood alcohol content by a breath test is not conclusive evidence of a person’s earlier blood alcohol content. This evidence was not offered to rebut the “presumption” of § 14-227a, but rather to cast doubt on the reliability of the testing procedure and results. The jury opted to believe in the reliability of the testing results to infer that an element of the crime was proved beyond a reasonable doubt.

We conclude that the state has proved that the court’s instruction was harmless beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       The relevant part of the charge to the jury was as follows: “In any criminal prosecution for driving a vehicle while under the influence of, or affected by the use of, intoxicating liquor, the amount of alcohol in the defendant’s blood at the time alleged is shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance, shall give rise to the following presumptions: If there was at that time ten hundredths of one percent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor. If you find that the result s of the chemical analysis test are above twelve hundredths of one percent, and that the test was commenced within two hours of the time of operation, then you can find that the ratio of alcohol in the defendant’s blood was in excess of the legal limit of ten hundredths of one percent at the time of operation. These presumptions are rebuttable presumptions. These presumptions can be overcome by the defendant through the introduction of other evidence. You will recall that the defense introduced the testimony of [Brian] Pape, an expert in the field of toxicology. It is for you to decide whether or not to believe all or any part of his testimony, and whether or not his testimony successfully rebutted the presumptions.” (Emphasis added.) See State v. Nokes, supra, 42 Conn. App. 11-12.

       General Statutes (Rev. to 1995) § 14-227a (c) provides in pertinent part: “Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided ... (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the department of public health and addiction services and was performed by aperson certified or recertified for such purpose by said department or recertified by persons certified as instructors by the commissioner of public health and addiction services.
      . . . (4) the device used for such test was checked for accuracy immediately before and after such test was performed by a person certified by the department of public health and addiction services; (5) an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed, provided however the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented that the test was commenced within two hours of operation. In any prosecution under this section it shall be a rebuttable presumption that the results of such chemical analysis establish the ratio of alcohol in the blood of the defendant at the time of the alleged offense . . . .” (Emphasis added.)


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    JEANNETTE RIVERA v. ALLSTATE INSURANCE COMPANY
    (14897)
    Landau, Schaller and Spear, Js.

      Argued November 1
    officially released December 31, 1996

      Alice M. Gray, with whom, on the brief, was Jon L. Schoenhom, for the appellant (plaintiff).

      Constance L. Epstein, with whom, on the brief, was Jack G. Steigelfest, for the appellee (defendant).
   SPEAR, J.

The dispositive issue in this appeal is whether the trial court properly granted summary judgment in favor of the defendant insurer in the plaintiffs underinsured motorist action, where the plaintiff presented her claim for benefits beyond the two year time limit specified in the insurance policy for submitting such claims. The plaintiff asserts that her action is preserved by § 3 of Public Acts 1993, No. 93-77 (P.A. 93-77), which saves certain underinsured motorist claims that were pending on December 8, 1992, or brought after that date and before May 20, 1993, from failure because of late submissions. This is so, she claims, because the mere possibility of an underinsured motorist claim arising out of an accident satisfies the pending claim requirement of the statute as effectively as an actual submission of the claim to the insurer. We disagree and affirm the judgment of the trial court.

The following facts are relevant to this appeal. On January 12,1989, the plaintiff was injured in an automobile accident. She obtained a judgment against the tortfeasor that exceeded the tortfeasor’s insurance policy limit of $20,000. At the time of the accident, the plaintiff had an automobile insurance contract with the defendant that provided underinsured motorist benefits. A provision of the policy, authorized by General Statutes (Rev. to 1991) § 38a-290 (d), required the plaintiff to submit any underinsured motorist claim to arbitration within two years from the date of the accident. Our Supreme Court held that such a time limitation was valid and enforceable in McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992), and Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 617 A.2d 451 (1992). Our Supreme Court had previously held that § 38-175c (b) “obligates insurance companies to pay on a policy’s uninsured motorist coverage only after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements . . . .” (Emphasis added; internal quotation marks omitted.) Continental Ins. Co. v. Cebe-Habersky, 214 Conn. 209, 212, 571 A.2d 104 (1990).

In response to the holdings in McGlinchey and Hotkowski, the General Assembly enacted P.A. 93-77, effective May 20, 1993. Public Act 93-77 was designed to aid insureds who were in the position of having to exhaust the tortfeasor’s policy, a process that could take several years, before being entitled to underinsured motorist benefits under their own policies. At the same time, the insureds were required, pursuant to McGlinchey and Hotkowski, to submit such claims to their insurers within the time period specified in the policy, typically two years. Section 3 of the act applied retroactively to “claimfs] or action[s] pending on December 8, 1992, or brought after said date and prior to [May 20, 1993].”

On June 29, 1993, four and one-half years after the accident, the plaintiff sent the defendant written notice of her intent to claim underinsured motorist benefits pursuant to her policy. The defendant denied liability, and in March, 1994, the plaintiff filed this action. The trial court granted the defendant’s motion for summary judgment and rendered judgment for the defendant, and this appeal followed.

The plaintiff argues that her case falls within the retroactive provisions of P.A. 93-77 and is thus subject to only a six year- contract statute of limitations because the phrase “a claim or action pending” means the “occurrence of an accident which could give rise to a cause of action.” (Emphasis added.) We are unpersuaded.

It is axiomatic that “[i]n interpreting the language of a statute, the words must be given their plain and ordinary meaning .... When the language [of a statute] is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. . . . Indeed, [a] basic tenet of statutory construction is that when a statute ... is clear and unambiguous, there is no room for construction.” (Citations omitted; internal quotation marks omitted.) Oller v. Oller-Chiang, 230 Conn. 828, 848, 646 A.2d 822 (1994).

The plain and ordinary meaning of the phrase “claim or action pending” militates against the plaintiffs interpretation. “Claim” is defined as “a demand for compensation, benefits or payment”; “action” is defined as “a legal proceeding by which one demands enforcement of one’s right in a court of justice”; and “pending” is defined as “not yet decided. ” Webster’s Third New International Dictionary. Accordingly, we conclude that in order for a claimant to benefit from the retroactive provisions of P.A. 93-77, an underinsured motorist action or claim must have been initiated by December 8.1992, and remain pending on that date, or such claim must have been initiated after December 8, 1992, and prior to May 20, 1993. Because the plaintiff neither had an underinsured motorist claim pending on December 8, 1992, nor initiated such a claim until June 29, 1993, P.A. 93-77 does not apply to her claim. The act, though clearly remedial, was designed to benefit a limited class of insureds who had taken some action to protect their rights. The beneficiaries were those who had filed underinsured motorist claims with their carrier, even if untimely, that had not been resolved as of December 8.1992, the date that McGlinchey was released, or those who initiated such a claim or action within the approximately five and one-half months after the release of McGlinchey, as provided in the act. The plaintiff does not fall into either category.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff appeals from the judgment of the trial court rendered following the granting of the defendant’s motion for summary judgment. The plaintiff challenges the denial of her motion to open and set aside the judgment and claims that she alleged sufficient facts to sustain a cause of action pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes (Rev. to 1995) § 42-110a et seq.

       Public Acts 1993, No. 93-77, provides in pertinent part: “Sec. 2. . . . (e) No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim be made on the uninsured or underinsured motorist provisions of a motor vehicle policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (1) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (2) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.
      “Sec. 3. ... No uninsured or underinsured motorist claim or action pending on December 8, 1992, or brought after said date and prior to the effective date of this act [May 20, 1993], in which a, settlement has not been reached or a final judgment has not been rendered prior to the effective date of this act, shall fail by reason of any contractual limitation in a motor vehicle insurance policy which limits the time within which such claim shall be submitted, to arbitration or such action shall be commenced to a period of time less than t,ha,t, allowed under section 38a-336 of the general statutes, as amended by section 2 of this act. ...” (Emphasis added.)

       The plaintiff alleged breach of contract and a violation of the Connecticut Unfair Insurance Practices Act, General Statutes (Rev. to 1995) § 38a-815 et seq., and the Connecticut Unfair Trade Practices Act, General Statutes (Rev. to 1995) § 42-110a et seq.

       On June 30, 1995, the plaintiff made a motion to open and set aside the judgment in light of our Supreme Court’s holdings in Serrano v. Aetna Ins. Co., 233 Conn. 437, 664 A.2d 279 (1995) (holding that retroactive provisions of P.A. 93-77 do not violate United States or Connecticut constitutions); Stevens v. Aetna Life & Casualty Co., 233 Conn. 460, 659 A.2d 707 (1995) (holding that judgment not final under § 3 of P.A. 93-77 until action reaches final resolution on timely appeal); and Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 659 A.2d 1188 (1995) (holding that claim filed pursuant to P.A. 93-77 subject only to six year statute of limitations). The trial court denied the plaintiffs motion, and the plaintiff amended her appeal.

       The plaintiff relies on Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 659 A.2d 1188 (1995), to argue that her claim is subject only to a six year statute of limitations. The plaintiffs reliance on this case, however, is misplaced. In Bayusik, our Supreme Court held that “policies governed by § 3 of P.A. 93-77 are subject ... to the six year statute of limitations applicable to contract actions generally.” Id., 484. The plaintiff in this case cannot receive the benefit of the six year contract statute of limitations because her claim is not within the purview of § 3 of P.A. 93-77, as discussed previously.


author: HEIMAN, J.

text:
    BRIAN N. BUDRIS v. ALLSTATE INSURANCE COMPANY
    (15246)
    Landau, Heiman and Hennessy, Js.
    Argued October 28
    officially released December 31, 1996

      Roy W. Moss, for the appellant (plaintiff).

      Anita M. Varunes, for the appellee (defendant).
   HEIMAN, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion for summary judgment. On appeal, the plaintiff claims that the trial court’s action in granting summary judgment was improper because it incorrectly determined that the plaintiff was precluded from recovery under an insurance policy provision that barred recovery for injuries sustained while in an uninsured vehicle owned by the insured. He posits that the trial court’s determination, made as a matter of law, that the plaintiff was the owner of the truck in which he was injured was improper. We reverse the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. In September, 1990, Hilding Parson gave the plaintiff his 1985 Dodge truck to hold as collateral to secure a $5000 loan the plaintiff had made to Parson. The understanding was that the plaintiff would maintain possession of the truck as collateral until Parson repaid the loan. If Parson failed to repay the loan, Parson would then transfer ownership of the truck to the plaintiff on demand. Neither the plaintiff nor Parson insured the truck.

On March 29, 1991, the plaintiff was a passenger in the truck, which was being operated by Michele Vitilie. Vitilie lost control of the truck and was involved in a single vehicle accident that caused the plaintiff to sustain injuries. The plaintiff claimed entitlement to uninsured motorist benefits under his insurance policy with Allstate Insurance Company. Allstate denied the plaintiff uninsured motorist coverage on the basis of a policy limitation that excludes from coverage any accidents that occur in an uninsured motor vehicle owned by the insured.

On March 21, 1993, the plaintiff brought an action against the defendant, claiming entitlement to uninsured motorist benefits for the March 29,1991 accident. On September 16, 1994, the defendant moved for summary judgment on the ground that there was no material issue of fact as to the ownership of the uninsured motor vehicle in question. In support of the motion for summary judgment, the defendant submitted an assignment of title dated September 19, 1990, which assigned title of the truck from Parson to the plaintiff. The defendant subsequently submitted to the trial court a letter from the department of motor vehicles dated October 13, 1994, which stated that, according to a review of the department’s records, title to the truck was issued to Parson on May 22, 1990. The letter further stated that, according to the department’s records, on September 19, 1990, Parson transferred the truck to the plaintiff, but the plaintiff was never issued title to the truck. Finally, the letter stated that on June 2, 1992, title to the truck was returned to the department of motor vehicles as a record that the truck had been junked.

On May 18, 1995, the plaintiff submitted an affidavit in opposition to the defendant’s motion for summary judgment. In the affidavit, the plaintiff claimed that the September 19, 1990 date on the assignment of title was incorrect because Parson did not assign or transfer title to the truck to the plaintiff until April, 1991. The plaintiff further explained in the affidavit that in April, 1991, as Parson had failed to repay his loan, the plaintiff demanded that Parson transfer ownership of the damaged truck to the plaintiff, which Parson did. The plaintiff then transferred the vehicle as salvage and applied the amount received as a partial payment against Parson’s debt. Finally, the plaintiff asserted in the affidavit that, while he had registered and insured both of the automobiles he owns, he never registered or insured the truck. Attached to the affidavit was a copy of the police accident report taken at the scene of the March 29,1991 accident, which listed Parson as the registered owner of the truck.

On July 18, 1995, the trial court granted the defendant’s motion for summary judgment. The trial court determined that the undisputed facts showed that the plaintiff had been in possession of the truck for the seven months prior to the accident and that the agreement between the plaintiff and Parson was a type of common law bailment granting the plaintiff a special ownership interest in the truck as a bailee. Thus, the trial court determined, as a matter of law, that the plaintiff owned the uninsured vehicle at the time of the accident, and that there was no genuine issue of material fact. This appeal follows.

“We initially note the standard of review of a trial court decision granting a motion for summary judgment. Practice Book § 384 mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citation omitted; internal quotation marks omitted.) Sylvestre v. United Services Automobile Assn. Casualty Ins. Co., 42 Conn. App. 219, 222, 678 A.2d 1005 (1996), aff'd 240 Conn. 544, 692 A.2d 1254 (1997).

The plaintiff asserts that whether the plaintiff owned the truck at the time of the accident is a genuine issue of material fact, and thus the trial court improperly granted summary judgment. We agree.

Neither the insurance policy issued by the defendant nor General Statutes (Rev. to 1995) § 38a-336 (a) (1), the uninsured motorist statute, defines the term “owned” as used therein. “Under our law, the terms of an insurance policy are to be construed according to the general rules of contract construction. ... If the terms of an insurance policy are plain . . . courts cannot indulge in a forced construction that distorts the meaning of a term so as to accord a meaning other than that evidently intended by the parties. . . . Policy language must be interpreted reasonably; words are to be given their ordinary meaning in order to deduce the intent of the parties.” (Citations omitted; internal quotation marks omitted.) Id., 223-24.

We look to Connecticut case law and dictionary definitions to ascertain the ordinary meaning of the term “owner.” Black’s Law Dictionary (6th Ed. 1990) defines “ownership” as the “[cjollection of rights to use and enjoy property, including [the] right to transmit it to others. . . . The complete dominion, title, or proprietary right in a thing or claim. The entirety of the powers of use and disposal allowed by law.” (Emphasis added.) Black’s Law Dictionary defines “own” as to “have a good legal title” or “to possess.” Barron’s Law Dictionary (3d Ed. 1991) notes that “[t]he term [ownership] has been given a wide range of meanings, but is often said to comprehend both the concept of possession and, further, that of title and thus to be broader than either.”

Connecticut courts have had numerous occasions to construe the word “owner” as related to cases involving motor vehicles. Our courts have “defined ‘owner’ as any person holding title to a motor vehicle. ... In the case of a privately owned car, this definition has been applied through the certificate of registration. The certificate, in a particular person’s name and identifying a particular vehicle, warrants [although it does not compel] a finding of ownership of that vehicle by the person in whose name the car is registered.” (Citation omitted.) Cook v. Nye, 9 Conn. App. 221, 226, 518 A.2d 77 (1986). Registration of a car constitutes “ ‘a public declaration of ownership.’ . . . [H]owever . . . this declaration is [not] conclusive as to title. It is merely evidence of ownership, to be considered in connection with other evidence in the case upon that issue.” (Citations omitted.) Burakowski v. Grustas, 134 Conn. 205, 208-209, 56 A.2d 461 (1947); Cleeland v. Carter, 126 Conn. 704, 706, 14 A.2d 36 (1940); Kaplenski v. Horwitz, 114 Conn. 523, 526, 159 A. 351 (1932). In Hope v. Cavallo, 163 Conn. 576, 580-81, 316 A.2d 407 (1972), our Supreme Court stated that “[t]he word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right.” Therefore, “the word ‘owner’ . . . has no commonly approved usage or fixed meaning, ‘but must be interpreted in its context and according to the circumstances in which it is used.’ ” Id., 580; Warren v. Borawski, 130 Conn. 676, 679, 37 A.2d 364 (1944); Brown v. New Haven Taxicab Co., 92 Conn. 252, 254, 102 A. 573 (1917).

Here, the September, 1990 understanding between the plaintiff and Parson was that the plaintiff would temporarily possess the truck as collateral for the $5000 loan that the plaintiff had given Parson, and the plaintiffs right of possession would expire when Parson repaid the loan. At that time, Parson would be entitled to possession of the truck. Further, according to the police accident report, Parson was the registered owner of the truck at the time of the accident. According to the October 13, 1994 letter from the department of motor vehicles, however, it is unclear to whom the truck was registered to at the time of the accident. Moreover, Parson claims that he assigned title of the truck to the plaintiff on September 19, 1990, six months before the accident. The plaintiff claims, however, that Parson did not transfer title of the truck to him until April, 1991, one month after the accident. All of these issues, legal title to the track, registration of the truck, possession of the truck and control over the track, represent evidence to be taken into consideration in determining the issue of ownership. Thus, because title, registration, control and future possession of the truck all represent disputed factual issues, we conclude that whether the plaintiff owned the track at the time of the accident is a genuine issue of material fact. Therefore, the trial court improperly granted the defendant’s motion for summary judgment.

Furthermore, by interpreting the unwritten understanding between the plaintiff and Parson as a common law bailment granting the plaintiff “a special ownership interest in the track as a bailee,” the trial court failed to give the insurance policy’s term “owner” its ordinary and common meaning in order to deduce the intent of the parties. Instead, the trial court indulged in a forced construction of the term “owner,” distorting the meaning to accord a meaning other than that evidently intended by the parties. Sylvestre v. United Services Automobile Assn. Casualty Ins. Co., supra, 42 Conn. App. 223-24.

Finally, both the trial court and the defendant rely on Hope v. Cavallo, supra, 163 Conn. 576. Hope represents a “unique and unusual” case in which the federal government issued a vehicle to the state of Connecticut, which then insured the automobile as its own. Id., 584-85. The Connecticut Supreme Court concluded that as there was no indication that the federal government intended to retain possession or control of the vehicle and, as the state had insured the issued vehicle and thus bore the risk of loss or damage to the vehicle, “ ‘in common parlance and legal acceptation,’ ” the state “owned” the car. Id., 582-85. This case is clearly distinguishable from Hope in that there were a number of indications that Parson intended to retain control over the car and regain possession of it. Further, the plaintiff was not issued the vehicle by a governmental agency, nor did he register or insure the car, and thus the plaintiff did not bear the risk of loss or damage to the vehicle. Therefore, we conclude that the defendant’s reliance on Hope is misplaced.

The judgment is reversed and the case remanded with direction to deny the motion for summary judgment and for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The Allstate policy provides in pertinent part: “We will pay those damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto because of bodily injury sustained by an insured person. Bodily injury must be caused by accident and arise out of ownership, maintenance, or use of an insured auto. . . .” The policy provides further: “Allstate will not pay any damages an insured person is legally entitled to recover because of . . . bodily injury sustained while in, on, getting into or out of or when struck by an uninsured motor vehicle which is owned by you or a resident relative. ...”
      The uninsured motorist statute, General Statutes (Rev. to 1995) § 38a-336 (a) (1), expressly authorizes insurers to limit uninsured motorist coverage under certain conditions. General Statutes § 38a-336 (a) (1) provides in pertinent part: “No insurer shall be required to provide uninsured or underinsured motorist coverage to . . . any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.”


author: DALY, J.

text:
    EASTERN METAL PRODUCTS, INC. v. BRIAN DEPERRY ET AL.
    (15432)
    O’Connell, Landau and Daly, Js.
    Argued November 5, 1996
    officially released January 7, 1997

      William A. Leone, for the appellant (plaintiff).

      David W. Schoolcraft, for the appellee (defendant Judi Caruso).
   DALY, J.

In this unjust enrichment action, the plaintiff appeals from the judgment rendered on the defendant tenant’s motion to dismiss.

The plaintiff alleged that it had supplied materials to a contractor hired by the tenant to construct improvements on premises leased by her. The plaintiff further alleged that the contractor installed the materials on the premises, that the plaintiff had not been paid and that the materials were being used by and in possession of the tenant.

On the day of trial, no factual hearing was held, and the lease was not entered into evidence. Nevertheless, the trial court, sua motu, requested the tenant to make an oral motion to dismiss the action, which the court granted. The trial court based its ruling on its determination that the materials were affixed to the real estate and conferred no benefit on the tenant because she did not own the premises.

“Unjust enrichment is a very broad and flexible equitable doctrine; Cecio Bros., Inc. v. Greenwich, [156 Conn. 561, 564, 244 A.2d 404 (1968)]; which has as its basis that it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff. National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). Its three basic requirements are (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, arid (3) that the failure of payment was to the plaintiffs’ detriment. Montanaro Bros. Builders, Inc. v. Snow, [4 Conn. App. 46, 53, 492 A.2d 223 (1985)]. All the facts of each case must be examined to determine whether the circumstances render it just or unjust, equitable or inequitable, conscionable or unconscionable, to apply the doctrine. Cecio Bros., Inc. v. Greenwich, supra, 565.” (Internal quotation marks omitted.) Bolmer v. Kocet, 6 Conn. App. 595, 612-13, 507 A.2d 129 (1986). The relevant facts in the present case could not have been determined without an evidentiary hearing and an examination of the terms and conditions of the lease.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. BENJAMIN PEARSALL
    (14801)
    Foti, Schaller and Shea, Js.

      Argued October 2, 1996
    officially released January 7, 1997

      Lawrence S. Dressier, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, David P. Gold, supervisory assistant state’s attorney, and Dennis O’Connell, legal intern, for the appellee (state).
   SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of first degree manslaughter in violation of General Statutes § 53a-55. He claims that the trial court improperly (1) instructed the jury on the duty to retreat in defense of person, (2) instructed the jury on defense of premises and (3) failed to instruct the jury that the defendant need not retreat from the curtilage of his dwelling. We affirm the judgment of conviction.

The following facts are relevant to this appeal. On the afternoon of July 16,1992, the defendant and Martha Moore drove toward an apartment located at 117C Brookside Avenue in New Haven. As the defendant and Martha Moore approached 117C Brookside Avenue, they saw the victim, Luther Moore, Martha Moore’s brother, and three of his Mends. In order to avoid conflict, the defendant turned the car around in the parking lot and pulled back out onto Brookside Avenue. The victim and his Mends got into their car and followed at a close distance. After driving a short way, the defendant decided to return to the apartment. Upon arriving at 117C Brookside Avenue, the defendant ran into the apartment! On her way into the apartment, Martha Moore walked past the victim’s car, which was pulling into the driveway. The victim got out of his car, walked toward the front door of the apartment and asked the defendant to come outside and talk.

Subsequently, the defendant agreed to carry on a brief conversation through the locked screen door of the apartment. Martha Moore remained on the first floor, with the defendant, during the conversation. Throughout the discussion, the victim continued to ask the defendant to come out of the apartment and talk, but the defendant refused. When the conversation ended, Martha Moore went to an upper floor of the apartment. The defendant then closed the large inside door and telephoned his brother, Donald Woodson, and asked him to come to 117C Brookside Avenue.

The versions presented by the state and the defendant, of the events that followed, differed substantially. The defendant testified that his brother arrived at 117C Brookside Avenue shortly after receiving the telephone call. Upon seeing his brother pull into the driveway, the defendant unlocked the screen door, turned toward the stairwell and called up to ask Martha Moore to come downstairs. When the defendant turned back toward the screen door, the victim opened the unlocked screen door with his right hand and reached inside the open door to grab the defendant with his left hand. The victim stepped into the doorway so that the screen door closed behind him or rested on his back. The victim and the defendant wrestled briefly inside the foyer of the apartment. During the scuffle, the victim pulled out a gun. Upon seeing the gun, the defendant grabbed the inside door and slammed it against the victim’s arm. The knob of the door hit the victim in the wrist, causing him to drop the weapon. The defendant picked up the gun, and the victim held on to the defendant’s arm. The victim grabbed for the gun, and the defendant shot him three times. The defendant testified at trial that he and the victim were inside the apartment at the time of the shooting.

The state presented a different version of the shooting through the testimony of a disinterested witness, Vivian Pittman-Latham. At the time of the incident, Latham resided at 115B Brookside Avenue, across the parking lot from 117C Brookside Avenue. While Latham was inside her apartment, she heard loud voices and went to her doorway to observe the commotion. Latham testified that she saw a man, later identified as the victim, standing on the cement stoop of 117C Brookside Avenue. She observed the defendant come to the screen door and remain inside the apartment. Latham could see that the screen door of 117C Brookside Avenue was ajar, and, at one point, she saw the victim reach inside. Latham saw the defendant leave the doorway briefly, then reappear and put his arm out through the screen door. The witness saw flashes and then observed the victim as he “stepped back off the porch, and then fell forward.” According to Latham, no struggle or grabbing preceded the shooting.

The defendant claims that the trial court improperly instructed the jury on self-defense. He asserts that the trial court’s instructions misrepresented his duty to retreat and misled the jury regarding the defendant’s right, as a visitor or guest, to defend the premises. In addition, he claims that the instructions were incomplete because they failed to take into account the curtilage of his dwelling.

The defendant raises this claim for the first time on appeal. To preserve a challenge to the jury charge, the defendant must make a written request to charge, or take exception to the jury instructions when they are given by the trial court. State v. Miller, 186 Conn. 654, 657, 443 A.2d 906 (1982). This court is not bound to review claims of instructional error if the party raising the claim neither submitted a written request to charge, nor excepted to the charge given by the trial court. Practice Book § 852. “The purpose of the rule [§ 852] is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” State v. Packard, 184 Conn. 258, 281, 439 A.2d 983 (1981).

Acknowledging that his claim is unpreserved, the defendant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “[B]ecause jury instructions that misstate the statutoiy defense of self-defense violate a defendant’s fourteenth amendment right to establish a defense”; State v. Jones, 39 Conn. App. 563, 567, 665 A.2d 910, cert. denied, 235 Conn. 931, 667 A.2d 800 (1995); the defendant’s claim is reviewable under the precepts of State v. Golding, supra, 239-40.

At the outset, we note that under the third prong of Golding, “a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.” (Internal quotation marks omitted.) State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993). “In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.” (Internal quotation marks omitted.) State v. Jones, supra, 39 Conn. App. 569. “The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Ash, 231 Conn. 484, 494, 651 A.2d 247 (1994). Furthermore, “[a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords, them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Lemoine, 233 Conn. 502, 509, 659 A.2d 1194 (1995); see State v. Usry, 205 Conn. 298, 316, 533 A.2d 212 (1987).

In the present case, the trial court clearly explained each element of self-defense, when the use of deadly force is warranted, and the duty to retreat in lieu of using physical force. In addition, the court informed the juiy of the defendant’s right to defend the premises, as a resident and as a visitor or guest, and explained the use of deadly physical force in defense of premises. Upon our review of the entire charge, we conclude, therefore, that the trial court’s instruction is constitutionally adequate.

The defendant also contends that the trial court improperly failed to instruct the jury that the defendant need not retreat from the curtilage of his dwelling. Indeed, the trial court did not provide such an instruction. We need not consider whether such an instruction was appropriate, however, because both the state’s and the defendant’s versions of the facts place the defendant inside the dwelling at the time of the shooting. Therefore, even if we were to determine that a curtilage exception exists, it would not apply in this case.

We conclude that because the defendant cannot satisfy the third prong of Golding, that an alleged constitutional violation clearly exists and clearly deprived him of a fair trial, he cannot prevail on his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant and his brother claim that he resided at the apartment, while Martha Moore claims that the defendant lived with his mother. The state conceded, however, that the defendant was at least a guest at 117C Brookside Avenue.

       The following colloquy between the assistant state’s attorney and the defendant occurred during cross-examination:
      ‘'[Assistant State’s Attorney:] Luther turned around with you standing there with a gun?
      ‘'[The Defendant:] His neck. He said, Tyrone. He was trying to fake me to look or something, and he reached for Ihe gun and at that point I started firing.
      “[Assistant State’s Attorney:] He was still holding you, right, with his left hand?
      “[The Defendant:] Yes. I think that’s how the bullet got into the floor because I just blanked and I started firing.
      “[Assistant State’s Attorney:] So you and Luther were both standing kind of close in that little—when I say, foyer, do you know what I mean by that? I don’t want—
      “[The Defendant:] No.
      “[Assistant State’s Attorney:] The little area kind of at the base of the stairs inside. Do you have those pictures there so you know what I am talking about?
      “[The Defendant:] I can show you.
      “[Assistant State’s Attorney:] Pull out the one that has the photo of the door.
      “[The Defendant:] This is the inside. We were inside.”

       The court instructed the juiy that “ ‘[a] person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety by retreating, except that the actor shall not be required to retreat if he is in his dwelling.’
      * ** *
      “Now you know there are two questions of fact for you to decide in considering these instructions of law. The first is whether the victim . . . was a trespasser. You will recall the testimony of Ms. Pittman-Latham that [the victim] was outside and the [defendant’s] hand came out the door. [The victim] was out on the stoop, as opposed to the testimony of the defendant, that the [victim] came inside. So there is a question of fact and a question of credibility which you will have to resolve in terms of whether [the victim] was a trespasser, and also there is a question as to whether this was the defendant’s dwelling. ... As you have heard the testimony of Ms. Martha Moore that it was not. Of course, you heard the testimony from the defendant and from his brother . . . that it was [the defendant’s] dwelling. So those are questions of fact for you to resolve in terms of self-defense.”

       Practice Book § 852 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”

      ’ “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional fnagnitude 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. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 631-32 n.5, 685 A.2d 336 (1996).

       The trial court charged as follows: “ ‘A person is justified in using reasonable force upon another person to defend himself from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose. Except that deadly physical force may not be used unless the actor reasonably believes that such other person is using or about to use deadly physical force, or inflicting or about to inflict great bodily harm.’ ”

       The trial court gave the following charge: “Deadly physical force may not be used unless the actor, meaning the defendant, reasonably believes that such other person, meaning the victim in this case, Luther Moore, is using or about to use deadly physical force or inflicting or about to inflict great bodily harm on him.”

       The trial court properly instructed the jury on duty to retreat in defense of person because an issue in the case was whether 117C Brookside was the defendant’s “dwelling” for purposes of General Statutes § 53a-19 (b).

       We note that neither party has provided the court with any authority, nor have we found any, to support the defendant’s contention that the curtilage doctrine exists with respect to General Statutes §§ 53a-19 and 53a-100.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. DIEGO VAS
    (15782)
    Foti, Heiman and Heimessy, Js.
    Argued October 29, 1996
    officially released January 7, 1997

      Neal Cone, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, was Mark Solak, state’s attorney, for the appellee (state).

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

   HENNESSY, J.

The defendant, Diego Vas, appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a and two counts of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a. On appeal, the defendant claims that the trial court improperly (1) instructed the jury on the relationship between the evidence presented on the affirmative defense of mental disease or defect and the element of an intent to kill, (2) instructed the jury on extreme emotional disturbance, (3) denied the defendant’s motion for mistrial, and (4) accepted unclear verdicts. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and Joann Daigle-Moylan were the unmarried parents of a six year old child, Ayla. Ayla resided with Daigle-Moylan, and the defendant had supervised parenting time with Ayla at the child protection council (CPC) offices in Danielson. On November 2, 1992, Daigle-Moylan brought Ayla to the CPC offices for parenting time with the defendant, supervised by CPC worker, Joyce Lannan. During the session, the defendant became visibly upset and accused the child of not telling him of Daigle-Moylan’s impending marriage. Daigle-Moylan returned to the CPC offices to pick up Ayla and an argument ensued between Daigle-Moylan and the defendant. The session ended, and, as Lannan, Daigle-Moylan and Ayla walked toward the back door, the defendant pointed a gun at them. Daigle-Moylan barricaded herself in an office. Lannan initially approached the defendant to take the gun away, but then changed her mind and turned away from him. As she turned, the defendant fired several shots and ran from the building. After the defendant left the building, Daigle-Moylan came out of the office to find that Lannan and Ayla had been shot. Lannan was severely wounded but recovered from her wounds. Ayla died as a result of wounds to the head. The defendant was arrested in New York City the next day.

I

The defendant first claims that the trial court’s instructions to the jury on the relationship between the evidence presented on the affirmative defense of mental disease or defect and the element of intent to kill were inadequate and misleading.

The defendant is charged with a violation of General Statutes § 53a-54a, which provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .” (Emphasis added.) Subsection (b) of § 53a-54a provides: “Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.” (Emphasis added.) In other words, because intent is an element of the offense of murder and if evidence is introduced that the defendant suffered from a mental disease, mental defect, or other mental abnormality, that evidence must be considered by the fact finder in determining whether the state has proven beyond a reasonable doubt that the defendant had the requisite intent to commit murder.

General Statutes § 53a-13 (a) provides: “In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.” This affirmative defense statute differs from § 53a-54a (b) in that it “shifts to the defendant the burden of establishing his or her mental status only with respect to the affirmative defense of insanity. The statute does not purport to relieve the state of its continuing burden of proof with respect to mental status when mental status is implicated in the state’s proof of an element of the crime, such as the defendant’s specific intent to commit the crime with which he or she is charged.” State v. Joyner, 225 Conn. 450, 461, 625 A.2d 791 (1993).

The defendant avers that the evidence adduced on the affirmative defense of mental disease or defect related to the question of whether the defendant knew he was killing or trying to kill another person and this evidence pertained to the question of intent. He claims that the court did not clearly instruct the jury that the evidence introduced in connection with the affirmative defense should be used to determine whether the state has proven beyond a reasonable doubt that the defendant possessed the requisite intent to commit murder under § 53a-54a. The defendant maintains that this failure specifically to instruct the jury is a violation of his due process rights. The defendant also contends that the court’s instructions led the jury to believe that it should not consider the evidence concerning his affirmative defense in determining whether the state had proven beyond a reasonable doubt that he had the specific intent to commit murder. Furthermore, he argues that the court’s other instructions resulted in shifting the burden of proof to require him to negate the evidence of an intent to commit murder.

Because these issues were not preserved in the trial court, the defendant seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine. See Practice Book § 4061 (formerly § 4185). The defendant cannot prevail under either argument. First, plain error review is inappropriate because the claimed error is not so obvious “that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); see also State v. Jeffrey, 220 Conn. 698, 710-11, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992). Second, the defendant’s claim fails to satisfy the third prong of Golding. The third prong of Golding requires the defendant to demonstrate that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 239-40. The defendant has failed to demonstrate that the trial court’s instructions were improper. We conclude, therefore, that the defendant’s constitutional right to due process was not violated.

On the element of specific intent, the court instructed the jury: “In the crime of murder, the state must prove beyond a reasonable doubt that the defendant in causing the death of the victim, did so with the specific intent to cause death.” The court told the jury to consider all the facts and circumstances in evidence in order to determine what the defendant’s intentions were. In its instruction to the jury that evidence of the defendant’s previous bad acts was not to be used to determine guilt, the court explained that the evidence was offered because several expert witnesses had used it in giving their opinions as to the defendant’s state of mind. The court stated: “You should consider this evidence when you decide whether the state has proven the mental state required for murder, criminal attempt to commit murder, or the lesser included offenses beyond a reasonable doubt. And also, you may consider it when you decide whether the defenses of mental disease or defect and [extreme emotional disturbance] have been proven by a preponderance of the evidence. ” (Emphasis added.)

As to the affirmative defense of mental disease or defect, the court instructed the jury: “If, considering all of the evidence including the defense evidence, you find that the state has proven all of the elements of the crimes charged, your task will not be over. You must then go on to decide whether the defendant is entitled under the evidence and the rules of law, which I will define for you, to the affirmative defense of mental disease or defect. If you find that the state has not proven all of the elements of the crime charged, you need not consider this affirmative defense and your verdicts will be not guilty . . . .”

“A defendant is entitled to have the jury adequately and correctly instructed. State v. Hines, 187 Conn. 199, [206] 445 A.2d 314 (1982). The trial court’s jury instructions must therefore be clear, accurate, complete and comprehensible. State v. Kurvin, [186 Conn. 555, 561, 442 A.2d 1327 (1982)]. We do not, however, view instructions in artificial isolation from the overall charge. State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). In reviewing the charge as a whole, the instructions ‘need not be perfect, as long as they are legally correct, adapted to the issues and sufficient for the jury’s guidance.’ State v. Parent, 8 Conn. App. 469, 476, 513 A.2d 725 (1986). The test to be applied to any part of a charge is whether the charge, considered in its entirety, presents the case to the jury so that no injustice will result. State v. Mullings, 166 Conn. 268, 275, 348 A.2d 645 (1974); State v. Parent, supra [476]. In applying this test, the substance rather than the form of what is said is considered. State v. Kurvin, supra, 565.”State v. Thurman, 10 Conn. App. 302, 324, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

We conclude that the charge given by the trial court was legally correct and sufficient in presenting the case to the jury. The jury was repeatedly instructed on the requirements of finding specific intent as an element of the crime and that the state had the burden of proving that element beyond a reasonable doubt. The jury was instructed to consider all of the evidence presented in the case, which included several expert witnesses who testified as to their opinion of the defendant’s state of mind at the time of the shooting. The instructions, viewed in their entirety, gave the jury the proper guidance required under the law.

The defendant further claims that the instructions invited the jury to believe that, by raising the affirmative defense of lack of substantial capacity and extreme emotional disturbance, the defendant had assumed an exception to the general rule that the state had the burden of proving each element of the offense beyond a reasonable doubt. Referring to the statutory basis for the defendant’s affirmative defense, the trial court charged: “As I told you before, generally, in a criminal case, the burden of proof is on the state to prove the defendant guilty beyond a reasonable doubt. This statute involves, however, an exception to that general rule, because the statute involves what is known as an affirmative defense. The burden of proof on this issue is on the defendant.” The defendant contends that the court’s instruction could have led the jury to believe that the state’s burden to prove the defendant guilty beyond a reasonable doubt was qualified by the “exception to that general rule” when the affirmative defense of mental disease or defect had been raised. Furthermore, the defendant contends that if the jury is told that the prosecution has the burden of proving all the elements of a crime, but then is also instructed that the defendant has the burden of disproving one of those same elements, there is a danger that the jurors will resolve the inconsistency in a way that lessens the presumption of innocence.

We conclude that the court adequately instructed the jury that the state had the burden of proving all of the elements of the offense beyond a reasonable doubt. The court charged: “It is not necessary for the state to prove that the defendant is not entitled to the affirmative defense. It is necessary for the defendant to prove he is entitled to the affirmative defense. The defendant’s burden of proof on this issue, however, is different from and less than the state’s burden of proof on the elements of the crime charged. The defendant does not have to establish this affirmative defense beyond a reasonable doubt. His burden of proof on this affirmative defense is by the standard known as a preponderance of the evidence. This is a lesser or a less demanding burden of proof than the state’s burden of proof of beyond a reasonable doubt.” The distinction between the elements of the offense and the use of the affirmative defenses, including who had the burden of proof and the standard of proof required, was clearly explained to the jury. Furthermore, the court’s use of the word “generally” in the instruction, when viewed in its context and as part of the instruction in its entirety, did not result in lessening the presumption of the defendant’s innocence.

II

The defendant next claims that the instruction given the jury on extreme emotional disturbance was improper. The defendant properly preserved this claim by filing an exception to the instruction before and after the trial court had charged the jury.

The court instructed the jury as follows: “There are three elements to this affirmative defense. One, the defendant’s emotional disturbance was not a mental disease or defect that rises to the level of the affirmative defense of mental disease or defect as that has been defined to you. Two, the defendant was exposed to an extremely unusual and overwhelming state that is more than mere annoyance or unhappiness and three, the defendant had an extreme emotional reaction to that state as a result of which there was a loss of self-control and his reason was overborne by intense feelings such as passion, anger, distress, grief, excessive agitation or other similar emotions. ... As used in this affirmative defense, the word extreme means the greatest degree of intensity away from the norm, away from the normal or usual state for the defendant.”

The defendant contends that the use of the words “the greatest degree of intensity away from the norm” requires a finding of a state of mind more characteristic of a mental illness. The instructions to the jury on the affirmative defense of extreme emotional disturbance given in this case are the same as those approved in State v. Elliott, 177 Conn. 1, 10, 411 A.2d 3 (1979), in which our Supreme Court stated that “[i]n its charge, the trial court should explain that the term ‘extreme’ refers to the greatest degree of intensity away from the norm for that individual.” The defendant requests that we find that the Elliott formulation is misleading. It is not, however, within our province to overrule or discard the decisions of our Supreme Court. State v. Reis, 33 Conn. App. 521, 527, 636 A.2d 872, cert. denied, 229 Conn. 901, 640 A.2d 118 (1994). We therefore conclude, on the basis of Supreme Court precedent, that the instruction was proper.

III

The defendant next claims that the trial court improperly failed to declare a mistrial after the state asked a witness whether he knew that Ayla had had dreams of the defendant killing her.

The facts relevant to this issue are as follows. At trial, Thomas Juko testified of the defendant’s loving relationship with Ayla, describing how he had regularly observed the defendant and Ayla interacting at an eating establishment that he frequented. The state’s attorney then asked Juko, “were you aware that the child—near the time of her death—was dreaming that her father was killing her?” The court sustained the defendant’s objection and instructed the jury to disregard the answer and question. The defendant moved for a mistrial the next day before the trial proceeded.

“[A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... On appeal, the defendant bears the burden of establishing that the occurrence was so prejudicial, in the context of the trial as a whole, that it denied him a fair trial. . . . The decision to grant or deny a motion for a mistrial is within the sound discretion of the trial court. . . . State v. Traficonda, 223 Conn. 273, 282, 612 A.2d 45 (1992). The trial court also has broad discretion in determining whether the defendant was prejudiced. See Speed v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990); State v. Leonard, 31 Conn. App. 178, 195, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993).” (Internal quotation marks omitted.) State v. Pettway, 39 Conn. App. 63, 72-73, 664 A.2d 1125, cert. denied, 235 Conn. 921, 665 A.2d 908 (1995).

We conclude that the trial court correctly denied the defendant’s motion for a mistrial. The court told the jury to disregard the question and the answer not only at the time it was initially introduced but also in its charge to the jury at the end of the trial. The court instructed the jury that it was confined to a consideration of the evidence in the case, not to evidence that was stricken. The court also reminded the jury that questions are not evidence. Moreover, we presume, absent a fair indication to the contrary, that the jury followed the instruction of the court as to the law. State v. Just, 185 Conn. 339, 357, 441 A.2d 98 (1981). The defendant has failed to show that the state’s question to Juko was so prejudicial that it deprived him of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       This issue was withdrawn at oral argument.

       The trial court instructed the jury as follows: “The terms mental disease or defect do not include an abnormality manifested only by repeated or otherwise antisocial conduct.”

       The trial court instructed the jury as follows: “In this case, evidence has been introduced bearing on the issue of whether the defendant is entitled to the affirmative defense of mental disease or defect. Our law does not use the colloquial term insanity. That term which you may have heard in popular use is not the proper term and I request that you put it and any connotations it may carry with it out of your mind.”

       “The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).


author: PER CURIAM.

text:
    IN RE MAXIMINA V.

    (15569)
    Spear, Hennessy and Shea, Js.
    Argued December 6, 1996
    officially released January 7, 1997

      Maureen A. Chmielecki, with whom, on the brief, was Jonathan D. Chomick, for the appellant (respondent father).

      Mary-Anne Ziewacz Mulholland, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (Jb) and Practice Book § 4166B.2, 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.

   PER CURIAM.

A hearing on a petition to terminate parental rights involves two phases: adjudication and disposition. See Practice Book § 1042.1 et seq. During the adjudicatory phase, the trial court determines whether one or more of the statutory grounds for termination of parental rights exists by clear and convincing evidence. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase, where the court then determines whether the termination of parental rights is in the best interests of the child. Id.

In this case, the trial court concluded that three statutory grounds for termination were proved by clear and convincing evidence during the adjudicatory phase: abandonment;1 ** failure to rehabilitate; and lack of an ongoing parent-child relationship. See footnote 2. In reaching these conclusions, the court in its memorandum of decision considered the factors set forth in § 17a-112 (d) and made detailed findings on each, as the statute requires. Consequently, the court ordered termination of parental rights. The respondent argues that the evidence adduced at trial does not support the trial court’s findings. We are unpersuaded.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Christina V., 38 Conn. App. 214, 220, 660 A.2d 863 (1995); see also In re Felicia D., 35 Conn. App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994). “[W]e will disturb the findings of the trial court in both the adjudication and disposition phases only if they are clearly erroneous.” In re Tabitha, P., supra, 39 Conn. App. 362.

Upon thorough review of the evidence contained in the record and the trial court’s detailed decision, we conclude that the trial court’s findings are not clearly erroneous.

The judgment is affirmed.

       The child’s mother and father were both respondents at trial, but only her father appealed from the judgment of the trial court. We refer in this opinion to the respondent father as the respondent.

       General Statutes § 17a-U2 (b) provides in pertinent part: “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 1he termination is in the best interest of the child and that . . . over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has 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, such parent could assume a responsible position in die life of the child; or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; 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. If the court denies a petition for consent termination of parental rights, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving, and the plan of the parent for the child.”

       General Statutes § 17a-l 12 (d) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the department of children and families has made reasonable efforts to reunite the family pursuant to the federal Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       Statutory abandonment occurs “[w]here a parent fails to visit a child, fails to display any love or affection for the child, has no personal interaction with the child, and no concern for the child’s welfare . . . In re Migdalia M., 6 Conn. App. 194, 209, 504 A.2d 532, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). “Abandonment focuses on the parent’s conduct. It is a question of fact for the trial court. . . .” (Internal quotation marks omitted.) In re Rayna M., 13 Conn. App. 23, 36, 534 A.2d 897 (1987).

       “ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 532, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

       This “statutory definition is inherently ambiguous when applied to noncustodial parents who must maintain their relationships with their children through visitation. . . . [T]he ultimate question is whether the child has no present memories or feelings for the natural parent.” (Citations omitted; emphasis in original; internal quotation marks omitted.) In re Valerie D., 223 Conn. 492, 531, 613 A.2d 748 (1992).