text:
    ROBERT PINEAU v. HOME DEPOT, INC.
    (AC 14900)
    Dupont, C. J., and Lavery and Downey, Js.

      Argued March 5
    officially released May 20, 1997

      Max F. Brunswick, for the appellant (plaintiff).

      Frederick J. Trotta, Sr., with whom, on the brief, was Cynthia K. Sammarco, for the appellee (defendant).
   Opinion

DUPONT, C. J.

The plaintiff appeals from the judgment rendered following a jury’s verdict for the defendant. We affirm the judgment of the trial court.

The relevant facts are those that follow. The plaintiff alleged in his complaint that on December 3, 1990, at approximately 8:45 p.m., he was shopping with a friend at the Home Depot in North Haven and was struck on his knee by a box of tiles that fell from a shelf approximately fourteen feet high, causing permanent and disabling injuries. The plaintiffs cause of action is in negligence and alleges that the defendant’s employees, who were stocking shelves with a forklift in the adjacent aisle, negligently caused the box to fall on the plaintiff who was on the other side of the shelves.

Several witnesses in addition to the plaintiff testified at trial. The witnesses were Edward Wilczynski and Antone Grimshaw, the Home Depot employees who were working in the aisle adjacent to the one in which the plaintiff was standing, John Leary, the plaintiffs friend who was with him in the aisle when the box fell, Harold Tabrys, the Home Depot manager who was on duty on the evening of the incident, and Herbert Hermele, an orthopedic surgeon who treated the plaintiff.

The plaintiff raises four issues on appeal. He claims that the trial court improperly (1) denied a motion in limine, (2) admitted into evidence a letter of a physician who did not testify, (3) refused to charge the jury on the doctrine of res ipsa loquitur, and (4) denied a postverdict motion in arrest of judgment and for new trial without an evidentiary hearing to determine whether experiments were done by the jury in the deliberation room.

I

The plaintiffs first claim is that the trial court improperly denied his motion in limine and allowed evidence to be introduced of his prior arrest for forgery in 1984. The plaintiff claims that the introduction of this evidence prejudiced him, because it raised questions about his credibility. At trial, however, it was the plaintiff, not the defendant, who brought out the forgery incident.

Because the plaintiff introduced the forgery evidence himself, we decline to review his claim. This court need not review a party’s objection to evidence that he introduced himself. See Rudewicz v. Rudewicz, 3 Conn. App. 704, 706, 491 A.2d 1123, cert. denied, 196 Conn. 813, 494 A.2d 907 (1985). “A party may not secure a reversal on the basis of any invited error.” E. Udolf, Inc. v. Aetna Casualty & Surety Co., 214 Conn. 741, 752, 573 A.2d 1211 (1990).

II

The plaintiffs second claim is that the trial court improperly admitted into evidence a letter of a physician who did not testify. The plaintiff claims that the letter was hearsay because the physician was not a treating physician, and that its introduction prejudiced him unfairly. Some additional facts are necessary for our resolution of this claim.

Hermele testified for the plaintiff and opined that the blow caused by the impact of the tile box had permanently damaged the plaintiffs knee. Hermele testified that he referred the plaintiff to another physician, Peter Jokl, for a second opinion, particularly regarding innovative surgical procedures. Jokl submitted a report to Hermele. Hermele testified that he did not incorporate Jokl’s findings into his report because they were identical with his own. On cross-examination of Hermele, defense counsel introduced, under the business entry exception to the hearsay rule, a cover letter written by Jokl to Hermele that accompanied Jokl’s report.

The plaintiffs counsel objected on the grounds that the letter was hearsay and did not fall within the business entry exception. The trial court overruled the objection, stating that Hermele’s practice of putting cover letters in patients’ files with the corresponding reports makes the letters business entries.

The admissibility of reports made by expert witnesses is governed by General Statutes § 52-174 (b). The plaintiff claims that Jokl was not a treating physician, and so his letter cannot be introduced into evidence as a business entry under the statute. We are unpersuaded. Hermele referred the plaintiff to Jokl as part of the plaintiffs treatment, and for the specific purpose of determining whether he needed surgery. Specialists to whom patients are referred by primary physicians are treating physicians for the purposes of the business entry rule in § 52-174 (b). See Cronin v. Blaisdell, 12 Conn. App. 632, 635, 533 A.2d 884 (1987).

We are also unconvinced that the introduction of the letter, without the testimony of Jokl, caused the plaintiff undue prejudice. The plaintiff argues that the letter implied to the jury that the plaintiff fabricated his injuries. The plaintiff had the opportunity to subpoena Jokl, but he did not. We agree with the trial court’s articulation that the plaintiff could not have been prejudiced by the introduction of the letter because the letter concerned damages and the jury did not reach that issue because it found that the defendant was not hable for any injury sustained by the plaintiff. In addition, the transcript indicates that on both cross and redirect examination, Hermele testified that he did not believe that Jokl suspected the plaintiff of faking his injuries and that, in fact, he was certain that Jokl’s opinion was that the stress of the litigation was contributing to the plaintiffs injuries. We conclude that the plaintiffs claims as to the introduction of the letter must fail.

Ill

We next address the plaintiffs claim that the trial court improperly refused to charge the jury on the doctrine of res ipsa loquitur. Certain additional facts are necessary for a discussion of this claim.

On direct examination by the plaintiffs counsel, the defendant’s employee Wilczynski testified that he and another employee, Grimshaw, were using a forklift in the aisle adjacent to the one in which the plaintiff was standing. Wilczynski testified that on the evening of the incident, they were raising pallets of tiles from the floor to the high shelves. Wilczynski did not check the shelf to see if there were any boxes already on the shelf before he started loading. During the process of moving tiles, he and Grimshaw heard a box fall over the edge of the shelf. After they heard the noise, they ran around to the next aisle to see what had happened. Wilczynski spoke to the plaintiff and then called the manager, Tabrys. Wilczynski testified on redirect examination that this was not the first time that merchandise had fallen off shelves while Home Depot employees were using the forklift,. He also testified that customers cannot reach the high shelves because the only ladders in the store’s aisles are about one and one-half feet high.

In his deposition testimony, Grimshaw stated that, at the time of the incident, he was using the forklift to remove boxes of tiles from the shelf. He heard the box fall at the same time that he was unloading a box on his side of the aisle. Grimshaw also stated that the ordinary time to load and unload shelves is early in the morning and late in the evening, and that at the time the plaintiff was in the adjacent aisle, the store was open to the public. He testified that Wilczynski was “spotting” him from the ground to be sure no one was in the aisle in the way of the forklift, but no one was standing guard in the adjacent aisle.

Tabrys, the store manager on duty on the evening of the incident, testified that Wilczynski had notified him that the forklift had nudged the rack and had caused a box of tiles to fall.

During closing argument, the plaintiffs counsel alleged “clear cut negligence.” He argued: “[T]he evidence is clear from two or three employees that the box, or boxes, were knocked over into the next aisle. The evidence is clear from two of the three employees that the box or boxes fell in the aisle and that Mr. Pineau was struck in the left leg and that it hurt him.”

The leading case in Connecticut on the doctrine of res ipsa loquitur is Giles v. New Haven, 228 Conn. 441, 636 A.2d 1335 (1994). The Giles court articulated the test for res ipsa loquitur as follows. “The doctrine of res ipsa loquitur applies when three conditions are satisfied: (1) [t]he situation, condition, or apparatus causing the injury must be such that in the ordinary course of events no injury would result unless from a careless construction, inspection, or user ... (2) [b]oth inspection and user must have been at the time of the injury in the control of the party charged with neglect ... (3) [t]he injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured. ...” (Citations omitted; internal quotation marks omitted.) Id., 446.

The plaintiff in Giles was injured while operating an elevator. A compensation chain became hooked onto a rail bracket located on the wall of the elevator shaft, causing the chain to disconnect from the bolts securing it to the underside of the elevator’s cab. As a result, the chain fell to the bottom of the elevator shaft with a loud crash. The plaintiff directed the elevator to the nearest floor and jumped from the cab, sustaining injuries.

At the Giles trial, a maintenance supervisor for the defendant testified that the elevator had been installed by the defendant approximately sixty-one years before, that the building owner had a longstanding contract with the defendant for maintenance of the elevator, that the compensation chain hooking onto the rail bracket was the cause of the incident, and that the elevators were regularly inspected by defendant but that the compensation chain was not regularly included in the inspection.

The plaintiffs complaint in Giles alleged that the defendant had been negligent in its failure to inspect, maintain, and repair the compensation chain. She presented no direct evidence of negligence, however, and relied on the doctrine of res ipsa loquitur to infer negligence.

The Giles court found that the three conditions for res ipsa loquitur had been met. It noted that res ipsa loquitur is appropriate when the plaintiff does not submit direct evidence, but instead asks the jury to infer negligence from circumstantial evidence. “[T]he doctrine of res ipsa loquitur . . . when properly invoked, allows the jury to infer negligence based on the circumstances of the incident even though no direct evidence has been introduced.” Id.

Giles is distinguishable from the present case because, here, the plaintiff introduced direct evidence of the defendant’s negligence. Res ipsa loquitur instructions are appropriate when a plaintiff cannot prove with direct evidence the proximate cause of an injury, and has shown that the only reasonable explanation for the incident is that the injury must be attributable to the defendant’s negligence. “A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant’s relation to it.” 2 Restatement (Second), Torts § 328D, comment b.

“Where there is evidence of specific negligence on the part of the defendant which would support a finding by the jury that such negligence was a proximate cause of the plaintiffs injury, the jury should not be instructed on the doctrine of res ipsa loquitur.” Queen v. Gagliola, 162 Conn. 164, 170, 292 A.2d 890 (1972). We conclude that a res ipsa loquitur instruction is not appropriate where the plaintiff is not relying solely on circumstantial evidence, but instead alleges and introduces into evidence specific acts of negligence by the defendant.

This is consistent with our holding in Barretta v. Otis Elevator Co., 41 Conn. App. 856, 677 A.2d 979, cert. granted, 239 Conn. 909, 682 A.2d 997 (1996), where we concluded that the trial court should have instructed on res ipsa loquitur when the plaintiff presented no direct evidence of the defendant’s negligence.

The plaintiff in Barretta brought suit in strict liability and negligence when the escalator she was riding at Milford Jai Alai came to a sudden halt and she fell, sustaining injuries. Her complaint alleged negligent design, manufacture, installation, maintenance, and repair of the escalator in that the defendant failed to inspect it or warn of defects. At trial, there was no evidence offered on what caused the accident. The plaintiffs expert testified that the cause of the plaintiffs fall was “unfound and untraceable.” The plaintiffs other witnesses testified only about the nature and extent of her injuries. We held that the plaintiffs case met the Giles three-prong test, and that a res ipsa loquitur instruction was appropriate.

The case before us is similar to Queen v. Gagliola, supra, 162 Conn. 164, where the plaintiff was not entitled to a res ipsa loquitur instruction because she alleged and introduced specific acts of negligence by the defendant. The plaintiff in Queen suffered a burned scalp and balding after the defendant gave her a permanent wave. Evidence of negligence was that a beauty school student administered the permanent without adequate supervision and that the manufacturer’s instructions for the use of the permanent wave solution were not followed. The court stated that “we believe it is essential to observe that the case should not have been submitted to the jury on the doctrine of res ipsa loquitur.” Id., 169. The specific acts of negligence presented by the plaintiff in Queen made res ipsa loquitur inappropriate. Id., 170.

Similarly, the plaintiff in this case presented specific acts of negligence by the defendant that eliminate the right to receive a res ipsa loquitur instruction. Three witnesses acknowledged that the employees’ action of stocking the shelves with the forklift caused the box of tiles to fall onto the plaintiffs side of the aisle. These witnesses, if the jury believed them, indicated that (1) the forklift, struck the steel rack that the tiles boxes were resting on, (2) the employees loading the shelves failed to check if boxes were on the shelves before they started manipulating other boxes, (3) the shelves were being stocked while patrons were in the store, contrary to the normal policy, and (4) the employees did not yell any warning to customers once they realized a box was falling. Because neither the plaintiffs pleadings nor his proof are consistent with a res ipsa loquitur theory, we conclude that the trial court properly denied his request for a res ipsa loquitur instruction.

IV

The plaintiffs final claim is that the trial court improperly denied his motion for arrest of judgment and for an evidentiary hearing. The plaintiff claims that he should have been granted an evidentiary hearing to discover more information about what he believed to be improper experiments conducted by the jury. We disagree.

At trial, a box of tiles of the same type and weight as the box that allegedly fell on the plaintiffs knee was introduced into evidence without objection. At some point during the deliberations, a sheriff mentioned to the plaintiffs counsel that he heard noises coming from the jury room. The plaintiffs counsel did not make any objection. Only after the defendant’s verdict was rendered did the plaintiffs counsel make motions in arrest of judgment and for evidentiary hearing arguing that the noise could possibly be the result of an improper experiment.

The plaintiff is precluded from making this claim because he did not object as soon as the sheriff alerted him to the noise. “We do not allow parties to await the outcome of a matter before deciding whether to make an objection but require parties to raise the objection, if possible, when there is still an opportunity for the court to correct the proposed error.” Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 57 n.10, 634 A.2d 870 (1993).

The plaintiffs claim is substantively flawed as well. The plaintiff has cited many cases that hold that the use of extraneous evidence by jurors requires, by necessity, an evidentiary hearing. All of these cases concern items brought into the jury room that were not admitted into evidence or ex parte communications. Indeed, in cases where there is suspicion of such juror misconduct, an evidentiary hearing to investigate the matter is required. See generally State v. Brown, 232 Conn. 431, 656 A.2d 997 (1995). None of these circumstances is present here. The tile box was not extraneous evidence; it was admitted at trial and properly taken to the jury room. We conclude that the trial court was correct in denying the motion for arrest of judgment and for an evidentiary hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the plaintiffs complaint alleged in relevant part: “Said incident was caused by the carelessness and negligence of the defendant in one or more of the following respects: (a) it failed to keep its store reasonably safe for patrons from the danger of falling objects being stocked by its employees on shelves at least 14 feet above the floor; (b) it failed to warn patrons by means of barriers or otherwise, to keep away from areas in which such high shelves were being stocked with heavy merchandise; (c) it constructed and maintained said shelves in a dangerous condition, when it knew or in the exercise of due care should have known that stocking shelves with heavy merchandise at such heights was incompetent, inappropriate, unsafe and dangerous, while said store was open to patrons and members of the public; (d) it knew or in the exercise of due care should have known that such conditions in said store were likely to cause ipjuiies to persons lawfully using said premises; (e) its employees failed to warn the plaintiff of said defective and dangerous condition; (f) it knew or should have known that one person on a fork-lift was inadequate to load 50-pound boxes onto a shelf approximately 14 feet above the floor, where patrons were walking underneath; and (g) it failed to use reasonable care to keep said premises safe for persons lawfully using the same.”

       Grimshaw’s and Tabrys’ testimonies were read aloud in deposition question and answer format because they were both unavailable at the time of trial.

       The plaintiff also filed a motion to set aside the verdict, which was denied. He then filed a motion for review of the denial. This court granted review and relief. The trial court subsequently articulated the reasons for its decision.

       The colloquy was as follows:
      “[Plaintiffs Counsel]: [W]as there a time when you had some kind of difficulty with the law?
      “The Plaintiff: Yes, there was.
      “[Plaintiffs Counsel]: And when did that occur?
      “The Plaintiff: In—I believe it was in 1984.
      “[Plaintiffs Counsel]: Okay. And did that have something to do with a driver’s license?
      “The Plaintiff: Yes, it did.
      “[Plaintiffs Counsel]: Okay, and were you charged with something at that time?
      “The Plaintiff: Yes I was.
      “[Plaintiffs Counsel]: Did that have to do with altering or tampering with a driver’s license?
      “The Plaintiff: Yes, it did.
      “[Plaintiffs Counsel]: And did you do that?
      “The Plaintiff: Yes, I did.”
      The direct examination continued and related to the specifics of the charge. Defendant’s counsel made a relevancy objection when the plaintiff was asked about the disposition of the charge. The trial court sustained the objection. Direct examination then turned to the plaintiffs deposition testimony concerning the incident.
      “[Plaintiffs Counsel]: “Do you remember being deposed or giving a deposition on April 3, 1992, in this case?

        “The Plaintiff: Yes, I do.
      “[Plaintiffs Counsel]: With Mr. Trotta?
      “The Plaintiff: Yes.
      “[Plaintiffs Counsel]: And do you remember him asking you a question, were you ever arrested for a felony?
      “The Plaintiff: Yes.
      “[Plaintiffs Counsel]: And what was your answer to that question?
      “The Plaintiff: No.
      “[Plaintiffs Counsel]: Did you know—Did you ever know that the charge of altering a driver’s license was a felony?
      “The Plaintiff: At that time, I did not.
      “[Plaintiff’s Counsel]: Did you know when you got arrested that it was a felony?
      “The Plaintiff: No, I did not.”

       The text of the letter reads: “Please find a copy of my note on Robert Pineau. I think all in all honesty, at this stage, I would not go forward with any operative procedures such as a Maquet at 1his time. I think further conservative treatment would be well indicated and probably resolution of his legal problems may also contribute to successful outcome of this problem."

       General Statutes § 52-174 (b) provides in relevant part: “In all actions for the recovery of damages for personal injuries . . . any party offering in evidence a signed report and bill for treatment of any treating physician . . . may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician. . . and that the report and bill were made in the ordinary course of business. . . .”
      We recognize that only Jokl’s letter, and not his report, was introduced into evidence. After defense counsel sought to introduce the letter, the plaintiffs counsel voir dired Hermele on the letter. Hermele testified that the letter was not part of the report, and that Jokl’s report contained findings identical to his. The plaintiff did not attempt to introduce Jokl’s report into evidence. We conclude that, under the circumstances of this case, the letter falls within § 52-174 (b).

       At the time of publication, a more recent case on the doctrine was pending in our Supreme Court, Barretta v. Otis Elevator Co., 41 Conn. App. 856, 677 A.2d 979, cert. granted, 239 Conn. 909, 682 A.2d 997 (1996).

       The Restatement (Second) of Torts describes the appropriate conditions for res ipsa loquitur.
      “(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
      “(a) the event is a land which ordinarily does not occur in the absence of negligence;
      “(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
      “(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
      “(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
      “(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.” 2 Restatement (Second), Torts § 328D (1965).

       The box introduced into evidence was similar to the box that fell on the evening of the incident. It was not the box that fell.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JESSIE J. PUGH
    (AC 16347)
    O’Connell, Foti and Hennessy, Js.
    Argued February 26
    officially released May 27, 1997

      Glenn W. Falk, special public defender, with whom, on the brief, were Donald D. Dakers, special public defender, and Ezra C. Levy, law student intern, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, burglary in the first degree in violation of General Statutes § 53a-101 (a) (l), carrying a pistol without a permit in violation of General Statutes § 29-35, and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. The defendant claims that the trial court improperly (1) admitted statements made by the defendant to a police detective and (2) permitted the state to introduce into evidence the transcript of a witness’ testimony at. the probable cause hearing. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 17,1993, the victim, Curtis Meyers, was in the third floor apartment of Sheila White at 555 Winchester Avenue in New Haven. At some point during the day, White went out on a second floor porch and took part in a conversation with the defendant and others about fake narcotics that had been sold to one of the defendant’s friends. The defendant, upon discovering through this conversation that the person who was selling bags of fake narcotics might have been Meyers, stormed into White’s apartment. Meyers was in the bedroom with White’s eighteen month old son. Meyers, using White as a shield, pushed her and the defendant out of the bedroom, managing to slam the door shut. The defendant fired three shots through the door, killing Meyers.

I

The defendant claims that the trial court improperly refused to suppress the oral statement he had made to Detective Leroy Dease of the New Haven police department. The defendant argues that that statement was the product of custodial interrogation. He contends that he did not knowingly and intelligently waive his Miranda rights before speaking because he did not understand the consequences of his stated intention to speak with Dease “off the record.”

The defendant was apprehended in North Carolina on October 28, 1993, and returned to Connecticut on November 15, 1993. Upon the defendant’s return to Connecticut, Dease visited the defendant in the lockup at the New Haven police department. The defendant agreed to leave the lock-up and go with Dease to the investigative services unit. Upon arriving at the investigative services unit, the defendant stated that he had an attorney who had told him not to talk to the police, but that he wanted to talk “off the record.” The officer read the defendant the Miranda warnings from a standard advisement of rights form. The defendant read the warnings on this form, apprised the officer that he understood these warnings, but refused to sign the form. Dease initialed each paragraph and signed and dated the form. The defendant then indicated that he still wanted to talk “off the record.” Dease responded, “Tell me.” The defendant admitted that after the shooting of the victim, he panicked and fled by motorcycle to North Carolina. Additionally, he admitted that while in North Carolina, he made several telephone calls to the New Haven police department to ascertain whether a warrant for his arrest had been issued.

The trial court did not suppress the statement because it determined that, although there was a custodial interrogation, the defendant had waived his Miranda rights when he asked Dease if he could speak to him “off the record.” The trial court determined that “off the record” meant that the statement not be recorded or written. It allowed Dease to testify before the jury concerning the oral statements made by the defendant.

We conclude that the defendant’s statement was made in the course of a custodial interrogation. “Two conditions . . . give rise to the requirement of advice of rights under Miranda: (1) the suspect must be in the custody of law enforcement officials; and (2) the suspect must be subjected to interrogation.” State v. Medina, 227 Conn. 456, 463, 636 A.2d 351 (1993). “The term interrogation under Miranda is not limited to questioning explicitly designed to elicit an incriminating response but extends to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from a suspect.” (Internal quotation marks omitted.) Id., 463-64.

The defendant was clearly subject to custodial interrogation. Dease took the defendant from the lock-up to the investigative services unit. When they arrived at the unit, Dease read him the Miranda warnings. Dease brought the defendant up to investigative services for the purposes of questioning him. When the defendant expressed that he wanted to speak “off the record,” Dease responded, “Tell me.” The circumstances of the conversation and Dease’s encouragement demonstrate that there was more than a mere willingness to listen.

We next address the waiver issue. “[C]ourts indulge every reasonable presumption against waiver . . . and do not presume acquiescence in the loss of fundamental rights.” (Internal quotation marks omitted.) State v. Guess, 39 Conn. App. 224, 231, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995). “The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. . . . [T]he question of waiver must be determined on the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. . . . The issue of waiver is factual, but our usual deference to the finding of the trial court on questions of this nature is qualified by the necessity for a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence. . . .” (Citations omitted; internal quotation marks omitted.) State v. Toste, 198 Conn. 573, 580, 504 A.2d 1036 (1986).

“For a waiver to be valid, it must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege.” (Internal quotation marks omitted.) State v. Mercer, 208 Conn. 52, 70, 544 A.2d 611 (1988). We conclude that, although the defendant understood his Miranda rights, he did not understand the consequences of his stated intention to speak with Dease “off the record.” The defendant’s ignorance of the fact that even off the record statements could be used against him demonstrates an invalid waiver of his Miranda rights.

In State v. Mercer, supra, 208 Conn. 52, our Supreme Court addressed whether a waiver was valid under similar factual circumstances. After the defendant in that case requested to speak “off the record,” the police officer responded that he was a police officer “twenty-four hours a day” and that anything the defendant said he could report. The court determined that the defendant’s waiver was knowing and intelligent. In the present case, the defendant refused to sign the form acknowledging that he had been read the Miranda warnings. He requested that his statement be off the record even after Dease read him the Miranda warnings. Dease did not clarify the warnings to the defendant as the police officer in Mercer did. The state claims that the Miranda advisement was sufficient clarification because the defendant’s intelligence was uncontested, he had had previous dealings with the police and he had received advice from his attorney not to speak to the police. The defendant still maintained his misconceptions that he was not relinquishing his Miranda rights.

Although we conclude that the defendant did not intelligently waive his Miranda rights, we find the admission of the statement into evidence to be harmless error. The test of whether a constitutional violation is harmless error depends on whether it appears “ ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ” State v. Gerardi, 237 Conn. 348, 362, 677 A.2d 937 (1996). “In other words, we review the record to determine whether there is a reasonable possibility that the evidence . . . complained of might have contributed to the conviction . . . .” (Internal quotation marks omitted.) Id. “[W]hen there is independent overwhelming evidence of guilt, a constitutional error would be rendered harmless beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Hoeplinger, 206 Conn. 278, 295, 537 A.2d 1010 (1988).

The state’s case was based on White’s account of the homicide and the police investigation, which corroborated her testimony. The defendant’s statement only added evidence of consciousness of guilt to the state’s case. The trial court referred to the statement in charging the jury on evidence tending to show a consciousness of guilt. The trial court had sufficient evidence, other than the statement, to justify the charge on flight.

Moreover, the defendant’s statements were merely cumulative of other testimony. The fact that the defendant had fled to North Carolina would have been introduced to the jury through the testimony of the police officer who went to North Carolina to extradite the defendant. Additionally, the defendant’s employer testified that the defendant fled to North Carolina because of rumors that he had killed Meyers. The defendant’s statements to Dease, therefore, were not instrumental to the jury’s finding of guilt. We conclude that the admission of the defendant’s statements was harmless error.

II

The defendant claims that the trial court improperly permitted the state to introduce into evidence the transcript of Sheila White’s testimony at the probable cause hearing. He argues that the state did not make a good faith effort to locate White and her testimony at the hearing on probable cause lacked the requisite “indicia of reliability.”

At the probable cause hearing, White testified to the facts leading up to the murder. Her eyewitness testimony established a possible motive and presented a factual background. In addition, she stated that she saw the defendant shoot the victim. She did not testify at trial, however, because the state was unable to locate her.

Prior testimony of an unavailable witness is admissible in a subsequent trial as long as it satisfies a two part test. State v. Lapointe, 237 Conn. 694, 737, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996). “First . . . [t]he prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. . . . [Second] [e]ven after the declarant is satisfactorily shown to be unavailable, his statement is admissible only if it bears adequate indicia of reliability .. . which serve to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” (Citations omitted; internal quotation marks omitted.) Id.

The trial court admitted the probable cause transcript into evidence. The court stated: “All right. I am satisfied that the state has met the efforts they should have made in this case to find her. I don’t know that a [United Illuminating] bill would produce more results, although certainly there’s nothing to stop them from continuing to do this. And indeed, they obviously ought to continue. I will permit the use of the prior testimony at the [hearing in probable cause]; hearing in probable cause testimony is accompanied by the right to cross-examine. I presume there was cross-examination in this particular case, but [nevertheless] it was available to the defense counsel and that is what is required.”

“[T]he question of whether an effort to locate a missing witness has been sufficiently diligent to declare that person unavailable is one that is inherently fact specific and always vulnerable to criticism, due to the fact that one, in hindsight, may always think of other things.” (Internal quotation marks omitted.) State v. Rivera, 221 Conn. 58, 67, 602 A.2d 571 (1992).

Evidence presented demonstrates that James Harris, an inspector for the state, had searched for White. Harris began his search for White on September 28, 1995, at her last known address, 555 Winchester Avenue. He checked the addresses of White’s mother and another relative in New Haven, but found no one to be at either address. The inspector called the victim’s mother because she lived near the location of the murder and because the police reports indicated that White had been the victim’s girlfriend. He checked with the department of motor vehicles, the department of correction, the telephone company, the post office, the New Haven police department, the office of adult probation and the welfare office in New Haven, but was not successful in locating White.

“[T]he testimony given at a probable cause hearing has the identical safeguards to insure reliability and trustworthiness as the testimony given at the trial.” (Internal quotation marks omitted.) Id., 68. The state utilized White’s testimony to establish motive. White admitted to being a drug user, but contended that she had not used drugs on the day the murder took place. She admitted to having consumed alcohol on the day in question. She also admitted to being a convicted felon. The defendant proffered testimony that White’s testimony was not credible. The jury was in a position to evaluate this testimony as a basis for impeaching White’s probable cause testimony. White’s testimony, however, was corroborated by police investigation. The testimony of the police officers supported the reliability of White’s probable cause testimony.

The state sufficiently satisfied the two part test for the admissibility of the unavailable witness testimony. The state demonstrated that it made a good faith effort to locate White and the testimony had the requisite indicia of reliability. We conclude that the admission of White’s testimony from the probable cause hearing was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-54a provides in relevant 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 . . . .”

       General Statutes § 53a-101 provides in relevant part: “(a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .”

       General Statutes § 29-35 provides in relevant part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes (Rev. to 1993) § 53-21 provides in relevant part: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be impaired . . . shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Specifically, the defendant contends that his right to counsel and his right to remain silent were violated by the admission of his statements. Nevertheless, the defendant combines the violations of the two rights in his brief because his claim on appeal concerns whether the waiver of these rights was knowing and intelligent.

       At the crime scene, the police found a bill in White’s son’s name. The defendant contends that the state should have investigated to see if other bills were addressed to White’s son at a different address.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. ALEXANDER KETCHUM
    (AC 12472)
    Dupont, C. J., and Landau and Hennessy, Js.

      Argued February 24
    officially released May 27, 1997

      Elizabeth A. Gallagher, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom -were Michael Pepper, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Alexander Ketchum, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (1), robbery in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-134 (a) (3), and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (3). On appeal, the defendant claims that the trial court improperly (1) refused to allow a photograph of a third party lookalike into evidence, (2) denied access to the psychiatric records of the victim, (3) denied the motion to dismiss one of two conspiracy counts, and (4) denied the defendant’s motions for acquittal and for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 31, 1989, the victim, Billy McClain, while walking on Kensington Street in New Haven, was approached from behind by approximately seven males who ranged in age from seventeen to twenty years. One of the men asked the victim if he wanted to buy “ghostbusters,” which the victim understood to refer to cocaine. The victim declined the offer and continued walking. Shortly thereafter, the same group of men ran up behind the victim and began beating him with a two by four. One of the men in the group said, “Let’s take his money.” The men continued to beat the victim with the two by four, a plastic garbage can, a piece of iron bed frame and their fists. The man hitting the victim with the garbage can was standing very close to the victim. The victim thought he heard one of the men address the man with the garbage can and say, “It’s your turn, Chauncey.” During the attack, after someone in the group demanded money, the victim handed over the $2 he had in his pocket. The men then attempted to remove the victim’s clothes but were unsuccessful. They also put a powdery substance in the victim’s mouth, which was later identified as cocaine.

After the assault, the victim went home. A family member called an ambulance and he was subsequently taken to a hospital. A police officer was dispatched to the hospital but a report was not filed at that time because the victim did not give a statement. During the months following the attack, the victim saw the person who he thought was named Chauncey on three occasions. He did not formally file a complaint until approximately eight months after the incident because he feared retaliation. On June 20, 1990, the victim went to the police station, looked through several trays of photographs and identified the defendant as one of his assailants.

I

The defendant first claims that the trial court improperly refused to admit into evidence a photograph to show that a third party look-alike might have committed the crime. He argues that the identity of the assailant was essentially the sole issue at trial and that, as part of his defense, it was critical that he be allowed to introduce evidence that indicated that a third patty committed the crime with which he was charged.

In his offer of proof, the defendant argued that the victim testified that the person he identified as the defendant had been called “Chauncey” by other people involved in the assault, that Chauncey Evans, known to be a violent person involved in gang related shootings, was in the neighborhood during the days surrounding the time of the assault, and that the defendant and Chauncey Evans were of similar height, hair styles and facial features. Given the unusualness of the name Chauncey and the look-alike photograph, the defendant maintains that the court should have allowed the photograph into evidence.

The state argues that although the victim heard one of the attackers say, “Chauncey, it’s your turn” and thought that the person was referring to the defendant, the victim did not know the defendant and was not certain that the defendant was named Chauncey. The state further contends that the defendant and Chauncey Evans do not look alike: Evans appears older than the defendant, has a lighter complexion and a large scar on his forehead, and, while Evans’ chin is pointed, the defendant’s chin is square.

A defendant may introduce evidence that indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. State v. Burge, 195 Conn. 232, 252, 487 A.2d 532 (1985). The defendant, however, must show some evidence that directly connects a third party to the crime with which the defendant is charged. Siemon v. Stoughton, 184 Conn. 547, 555, 440 A.2d 210 (1981); State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981).

“The presentation and admissibility of such evidence is governed by the rules of relevancy. . . . We have often stated that [e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. . . . 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. . . . Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. . . . Although the trial court has wide discretion in its rulings on the relevancy of evidence ... its rulings will be reversed if the court has abused its discretion or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Echols, 203 Conn. 385, 393, 524 A.2d 1143 (1987).

In the present case, it does not appear that the court abused its discretion or that injustice has been done. The victim was face to face with a man while being beaten with a garbage can. Several other men, not necessarily the defendant, were present who could have been named “Chauncey.” The victim saw his attacker several times in the neighborhood during the months following the assault. He also identified the defendant as his attacker from a police department book of photographs. There was no evidence before the court that the third party, Evans, was anywhere near the scene of this crime on the day it took place. Furthermore, there was no evidence before the court that Evans was connected at all with the beating of the victim and the taking of his money. There also was no evidence before the court that the name “Chauncey” yelled out by one of the attackers referred to Chauncey Evans. Without evidence that directly connects the third party with the crime, the defendant could not introduce other evidence, including a photograph of a look-alike that indicates a third party committed the crime. The trial court did not abuse its discretion in excluding the photograph.

II

The defendant next claims that the trial court improperly denied him access to the victim’s psychiatric records. He argues that he was deprived of his right to cross-examination by the trial court’s refusal to allow him to question the victim’s ability to comprehend, to know and to relate the truth correctly.

The facts surrounding this claim are as follows. After several jurors had been chosen, the state disclosed that a laboratory report pertaining to the victim’s medical treatment on the night he suffered his injuries indicated that the victim was taking Prolixin, an antipsychotic drug. The defendant moved for a mistrial on the ground that the untimely disclosure of this information prevented the defendant from questioning prospective jurors on the subjects of mental illness and Prolixin. The motion was granted. During the new trial, the defendant, who had subpoenaed the victim’s psychiatric records, moved to have those records disclosed. The victim consented to a review of his medical and psychiatric records, and the trial court conducted an in camera review.

Both the defendant and the state agree that the court reviewed the medical and psychiatric file and that the information was not made available to the defendant. There is no transcript or record, however, of the court’s finding or conclusion. The defendant claims that the court’s failure to place its findings on the record deprived him of the opportunity effectively to cross-examine the victim. We disagree.

“It is the appellant’s duty to take the necessary steps to provide us with an adequate record for appellate review. Practice Book § 4061; Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); State v. Rios, [30 Conn. App. 712, 715, 622 A.2d 618 (1993)]; State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). . . . When our rules of practice are not followed, and the record is not rectified, we are left to guess or speculate as to the existence of a factual predicate. See Holmes v. Holmes, supra, 319; State v. Rios, supra, 719-20 (O’Connell, J., concurring).’’ State v. Rosedom, 34 Conn. App. 141, 144-46, 640 A.2d 634 (1994). Because it is not our function to find facts, we decline to review this claim.

Ill

The defendant next claims that his constitutional right not to be placed in double jeopardy was violated by his conviction and sentencing for conspiracy to commit robbery in the first degree and conspiracy to commit assault in the first degree. He argues that there was only one conspiracy: to assault the victim as part of the robbery. He also contends that there was double punishment because he was sentenced to a term of incarceration of fifteen years on each of the conspiracy counts. The defendant maintains that the convictions and concurrent sentences, although not adding to any more jail time, resulted in potential adverse collateral consequences such as a delay of his eligibility for parole, a possibility of an increased sentence under a recidivist statute for a further offense or the use of his second conviction to impeach his credibility. The result, he claims, is an impermissible punishment in violation of the double jeopardy clause of the fifth amendment to the United States constitution.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” “This clause prohibits not only multiple trials for the same offense but also multiple punishment for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).” State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. . . .” (Citations omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 290-91, 579 A.2d 84 (1990).

“Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute .... For such a violation, only the single penalty prescribed by the statute can be imposed. Braverman v. United States, 317 U.S. 49, 53-54, 63 S. Ct. 99, 87 L. Ed. 23 (1942); see also State v. Hayes, 127 Conn. 543, 18 A.2d 895 (1941); State v. Kitt, 8 Conn. App. 478, 489-90, 513 A.2d 731 (1986), cert. denied, 202 Conn. 801, 518 A.2d 648 (1987).” (Internal quotation marks omitted.) State v. Howard, 221 Conn. 447, 462, 604 A.2d 1294 (1992). “A single agreement to commit several crimes constitutes one conspiracy. . . . [MJultiple agreements to commit separate crimes constitute multiple conspiracies.” United States v. Broce, 488 U.S. 563, 570-71, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989).

In the present case, the state alleged in count three that the defendant agreed with others to beat the victim with dangerous instruments in violation of §§ 53a-48 (a) and 53a-59 (a) (l). The state additionally alleged in count five that the defendant agreed with others to beat the victim and demand his money in violation of §§ 53a-48 (a) and 53a-134 (a) (3). The state claims that the defendant actively beat the victim with a dangerous instrument, thereby committing an overt act in pursuance of the conspiracy to assault in the first degree. Moreover, the state argues that one of the attackers took money from the victim, thereby committing an overt act in pursuance of the conspiracy to commit robbery in the first degree.

The evidence produced at trial established that the victim, shortly after declining to purchase cocaine from a group of young men, was attacked by the men. Members of the group, including the defendant, beat the victim with various instruments. During the assault, the defendant hit the victim with a garbage can and while punching the victim in the face with his fists said, “Why don’t you go out,” meaning lose consciousness. The defendant heard another member of the group say, “Let’s take his money.” The victim handed $2 to the attackers after they demanded money. From this evidence, a jury could reasonably find that there were two separate conspiracies. In the first conspiracy, the group of attackers initially agreed to beat the victim with dangerous instruments and did so. After the assault was under way, the group then conspired to rob the victim and took $2 from the victim.

IV

In his final claim, the defendant argues that the court improperly denied his motion for judgment of acquittal. He contends that as a matter of law the state failed to prove him guilty beyond a reasonable doubt. The defendant bases his claim solely on the fact that the victim, who was the only witness to the assault and robbery, was confused about the location and time of the attack and made inconsistent statements about his ability to identify his assailant. He argues that the state failed to prove his guilt beyond a reasonable doubt because the victim’s testimony, which was the only evidence connecting the defendant to the alleged crimes, was insufficient and unreliable.

“When we are called on to review a sufficiency of the evidence claim, we impose a two part analysis. We first construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993); State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt. State v. Salz, supra [31]; State v. Rivera, supra [200-201].” State v. Reddick, 33 Conn. App. 311, 332, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).

“It is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist. . . . It is also the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Thus, the issue of the identification of the defendant as the perpetrator of the crime is peculiarly an issue of fact to be resolved by the jury. . . . The test for determining whether the evidence is sufficient to sustain a verdict is thus whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. ...” (Citations omitted; internal quotation marks omitted.) Id., 332-33.

Here, the jury had before it the victim’s testimony, which contained inconsistencies and demonstrated that the victim was confused at the time of the assault. The jury heard testimony, however, that the victim was face to face with his assailant while he was being attacked. It also heard the victim’s decisive identification of the defendant as the assailant. The jury also had before it testimony that the victim had seen his assailant several times between the time of the assault and the photographic identification. Thus, the jury had the opportunity to weigh the inconsistencies and confusion in the victim’s testimony with the factual basis for his identification. See State v. Fullwood, 193 Conn. 238, 254, 476 A.2d 550 (1984). “[W]e rely on the good sense and judgment of American juries to weigh evidence with some element of untrustworthiness since such evidence is ‘customary grist for the jury mill.’ ” Id. The trial court properly concluded that the cumulative effect of the testimony would allow a jury to conclude beyond a reasonable doubt that the defendant was guilty of the crimes as charged.

The judgment is affirmed.

In this opinion the other judges concurred .

      The defendant did question the victim about his use of Prozac and Prolixin and the effects these drugs had on him. The victim denied that he used Prolixin. The defendant elicited a physician’s testimony that Prolixin was found in the victim’s mine and that it is used to treat psychosis. It is clear that despite the lack of access to the victim’s psychiatric records, the defendant presented evidence to the jury from which it could draw an adverse inference regarding the victim’s credibility.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

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

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . .

       General Statutes § 53a-3 (7) provides in relevant part: “ ‘Dangerous instrument’ means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .”
      General Statutes § 53a-3 (4) provides: “ ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”


author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. RAPHAEL MENDEZ
    (AC 15063)
    O’Connell, Foti and Freedman, Js.
    Argued February 26
    officially released May 27, 1997

      Richard S. Cramer, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Victor Carlucci, Jr., assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the trial court’s judgment revoking his probation. He claims that the trial court’s denial of his motion for a continuance of his probation revocation hearing was an abuse of discretion. We affirm the judgment of the trial court.

The following facts are necessary for the resolution of this appeal. On January 8, 1995, while the defendant was on probation, he was arrested for conspiracy to possess narcotics with intent to sell in violation of General Statutes §§ 21a-277 and 53a-48. At the same time and place, Nancy Santiago and William Santiago were arrested on similar charges. On January 13, 1995, the defendant was charged with violation of probation as a result of his January 8, 1995 conduct.

On June 6, 1995, the defendant moved to continue the probation revocation proceeding “until such time as the codefendants, Nancy and William Santiago, are sentenced.” In support of the motion for continuance, the defendant represented that (1) the Santiagos would each invoke the privilege against self-incrimination if called to testify at the defendant’s probation revocation hearing, (2) William Santiago had given a sworn, written statement that was exculpatory of the defendant and (3) Nancy Santiago had stated orally that the defendant was not involved in the sale of narcotics at the time in question.

The trial court advised the defendant that, although it would consider a continuance of specific duration to allow him to present witnesses, it denied the requested continuance because it would delay the proceeding indefinitely.

On the basis of the evidence adduced at the probation revocation hearing, the trial court could have concluded as follows. On January 8,1995, Detectives Anthony Martinez and Henry Martin of the Hartford police department received an anonymous report that Nancy Santiago and a male were selling narcotics from an apartment at 93 Hampton Street. The detectives observed several sales of narcotics at that address, and each time, after the door was opened, the detectives heard a woman call out, “Ralphy, get me a bag” or “two bags” depending on the quantity requested by the purchaser. The defendant’s nickname is Ralphy. While the detectives were attempting to purchase narcotics from William Santiago, the defendant entered the room from the rear of the apartment and warned William Santiago that Martinez was a police officer. The police arrested the Santiagos and the defendant, and seized the contraband on the persons of the Santiagos. In addition, the police seized seven glassine bags of heroin and $794, which were in plain view.

The trial court found, on the basis of the defendant’s possession of narcotics with intent to sell, that he had violated his probation. Accordingly, the trial court revoked the defendant’s probation and ordered him to serve the remainder of his term of incarceration.

The defendant claims that the trial court abused its discretion by denying his request for a continuance and thereby violated his right to due process pursuant to the United States and Connecticut constitutions. Although the defendant has a right to present witnesses in his defense, it does not follow that he has a right to have the proceedings against him continued indefinitely in anticipation of an unavailable witness’ becoming available. State v. Gordon, 197 Conn. 413, 424B-24C, 504 A.2d 1020 (1985). The trial court must consider countervailing interests, such as the reasonableness of the request, whether it might be dilatory, the relevance of the witness’ anticipated testimony, the diligence of counsel’s efforts to produce the witness or ascertain when the witness may be available, judicial economy and the court’s need to control its docket. State v. Williams, 200 Conn. 310, 320-21, 511 A.2d 1000 (1986). The defendant must demonstrate that the denial of his request for a continuance was both arbitrary and prejudicial to his defense. State v. Aillon, 202 Conn. 385, 395, 521 A.2d 555 (1987).

The defendant relies on State v. Williams, supra, 200 Conn. 310, in which the defendant was accused of being a coconspirator in a robbery. Elbert Roberson, his coconspirator, told the police that he did not have an accomplice in the robbery and did not even know Williams. Because of this exculpatory statement of his codefendant, Williams’ trial was severed from Roberson’s. Williams moved for a continuance of his trial because he wanted to call Roberson as a witness and presented a letter from Roberson’s attorney that if called prior to sentencing, Roberson would invoke his fifth amendment privilege against self-incrimination. The Supreme Court held that the trial court abused its discretion by refusing to grant the continuance. Id., 321. The court concluded that the request was reasonable because it would have given Williams the opportunity to confront Roberson at a time when he could no longer validly invoke his privilege against self-incrimination. Id.

The Williams case is distinguishable from the present case because the sentencing of Roberson, the proposed defense witness, was scheduled to take place on a date certain, approximately one month from the date of the defendant’s motion for continuance. Id., 316. By contrast, in the present case, a continuance until after the conclusion of the proceedings against Nancy Santiago and William Santiago could be lengthy and of indefinite duration. Both Santiagos had several cases pending and the defendant provided no information as to the likelihood that the cases would go to trial and, if so, when. The trial court pointed out that the Santiagos’ cases were only two cases in a court with 400 firm jury criminal cases pending.

Furthermore, the testimony of the Santiagos was not the defendant’s only source of evidence that, although he was present, he was not involved in the sale of narcotics. Raul Santiago was also present in the apartment at the time of the defendant’s arrest, but was not arrested. The defendant offered no reason why Raul could not be called as an exculpatory witness in lieu of William Santiago and Nancy Santiago. Additionally, under the circumstances, William Santiago’s sworn written statement might have been admissible in lieu of his testimony.

Our Supreme Court has upheld the denial of requests for continuances of indefinite duration, particularly where counsel has taken no steps to ascertain when the defendant would be ready to proceed. State v. Beckenbach, 198 Conn. 43, 48, 501 A.2d 752 (1985); State v. Gordon, supra, 197 Conn. 424A-24C; State v. Maldonado, 193 Conn. 350, 361, 478 A.2d 581 (1984). The defendant failed to establish that his need for William Santiago’s and Nancy Santiago’s testimony was sufficiently compelling and outweighed the trial court’s need to dispose of the case without undue delay. State v. Williams, supra, 200 Conn. 320-21. Accordingly, we conclude that the defendant has failed to demonstrate that the denial of his request for a continuance was arbitrary and prejudicial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record is unclear concerning the defendant’s criminal record. The state’s brief, however, contains the following statement, which the defendant does not appear to dispute: “The defendant’s probation related back to an April 2,1991 judgment of conviction of (1) carrying a pistol without a permit and (2) possession of a narcotic substance. General Statutes §§ 29-35, 21a-279. At that time the defendant was sentenced to a suspended five year term of imprisonment and three years of probation. The defendant subsequently violated the terms of his probation, but, after a hearing, his probationary status was continued. However, on January 28,1994, probation was revoked as a result of the defendant’s February 2, 1993 conviction of assault in the third degree. General Statutes § 53a-61. As a result of the probation revocation, the defendant was sentenced to three years’ incarceration. On November 22, 1994, the latter sentence was modified so as to reinstate the defendant’s probation with special conditions requiring that he (1) reside at Cheney House, a halfway house, for six months, (2) perform 100 hours of community service, (3) complete his GED and prepare lor full-time employment, and (4) submit to substance abuse testing and treatment as deemed necessary by the Department of Adult Probation.”

       The trial court has discretion to allow hearsay evidence at a probation revocation hearing if it is relevant, reliable and probative. State v. Scott, 31 Conn. App. 660, 666 n.3, 626 A.2d 817 (1993).


author: PER CURIAM.

text:
    MARK GODERRE v. COMMISSIONER OF CORRECTION
    (AC 16172)
    Heiman, Spear and Hennessy, Js.
    Argued April 21
    officially released May 27, 1997

      Paul A. Catalano, for the appellant (petitioner).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, was James E. Thomas, state’s attorney, and John Dropick, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 179, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 99-100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petitioner’s writ was predicated on a factual review of the petitioner’s claim that he had been misinformed by counsel as to his earliest eligibility date for parole and that, had he known that he would not be eligible for parole until he had completed one half of the sentence imposed, he would not have entered into the plea agreement that resulted in his conviction and present confinement.

The petitioner testified that he had been advised by counsel that he would be eligible for parole after he had served eight years on the thirty-two year sentence to which he had agreed. The petitioner further testified that had he been properly advised that he would be required to serve sixteen years before becoming eligible, he would not have entered into the plea agreement. The court did not credit his testimony and specifically found that the petitioner had failed to meet his burden of proving that counsel’s performance was deficient and that he was prejudiced by the ineffective performance. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Clarke v. Commissioner of Correction, 43 Conn. App. 374, 385, 682 A.2d 618, cert. granted on other grounds, 239 Conn. 945, 686 A.2d 123 (1996). “This court does not retry the case or evaluate the credibility of the witnesses. . . . Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475 (1997), quoting State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). “In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.” (Internal quotation marks omitted.) Clarke v. Commissioner of Correction, supra, 386.

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. THOMAS HUGHES
    (AC 14572)
    Dupont, C. J., and Heiman and Freedman, Js.
    Argued January 17
    officially released May 27, 1997

      Robert Sullivan, for the appellant (defendant).

      Richard F. Jacobson, senior assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen Sedensky, assistant state’s attorney, for the appellee (state).
   Opinion

HEIMAN, J.

The defendant, Thomas Hughes, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). The defendant was found not guilty of one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (2) and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (B). On appeal, the defendant claims that the trial court improperly (1) found the victim competent to serve as a witness, (2) admitted a witness’ prior consistent statement under the Dolphin doctrine, (3) denied his motion to sever count one from counts two and three, (4) allowed his silence and demeanor to be used against him in violation of Doyle, and (5) permitted the prosecution to withhold exculpatory information from the defendant in violation of Brady. We reverse the judgment of the trial court.

The jury could reasonably have found the following facts. The victim, a twenty year old man with pervasive developmental disorder, took guitar lessons from the defendant. In November, 1991, during a guitar lesson, the defendant threatened the victim with a kitchen knife and forced him to perform fellatio on the defendant. The defendant and the victim maintained a sexual relationship for the next year. In November, 1992, the victim told his mother about his sexual relationship with the defendant, explaining that it began with the November, 1991 knife incident. The victim’s mother became angry, ended the guitar lessons and contacted the police.

The defendant was charged with three counts of sexual assault. In June, 1994, the defendant was tried before a jury. He was convicted of one count of sexual assault in the first degree and was acquitted of one count of sexual assault in the second degree and one count of sexual assault in the fourth degree. On September 30, 1994, the defendant was sentenced to serve a term of ten years, suspended after five years, with five years probation. This appeal follows.

The defendant claims that the trial court improperly admitted evidence of his post-Miranda silence and allowed it to be used against him, in violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). We agree.

Certain additional facts are necessary to an understanding of our resolution of this claim. On January 13, 1993, at the Westport police station, Detectives Anthony Giunta and Bruce Peterson interviewed the defendant. First, the detectives read the defendant a standard advisement of rights form. The defendant initialed each right, acknowledging that he had been advised of and fully understood each right. Two of the enumerated rights were the right to remain silent and the right to refuse to answer questions or to stop answering questions at any time.

Next, the detectives asked the defendant general background questions about where he lived and worked. Then, the detectives told the defendant about the victim’s complaint and his accusations against the defendant. The defendant “wrenched” his face, dropped his face into his hands and said that he did not want to talk about it, that he did not think it would be in his best interest to talk about the accusations. The defendant became silent. Soon thereafter, the detectives asked the defendant to leave. In response to a motion to suppress, the trial court held an extensive pretrial hearing and found that the defendant was not in custody while being questioned.

At trial, Giunta testified no less than eight different times as to the defendant’s request not to talk about the accusations, and his subsequent silence. At one point, Giunta testified that, upon hearing the victim’s knife allegation, the defendant said he did not want to talk about it, wrenched his face and brought his hands up to his face. The state’s attorney asked, “What did you observe that to be?” Giunta responded, “I took that as a form of guilt.”

Later, Giunta again testified that, upon hearing the accusations against him, the defendant wrenched his face, dropped his face into his hands, stated that he did not want to talk about the accusations and became silent. The state’s attorney then asked Giunta twice, “He didn’t come out and say that’s not true?” Giunta replied that the defendant never denied the accusations, and, when pressed, the defendant stated that it would not be in his best interest to discuss the accusations. During closing argument, the state’s attorney again equated the defendant’s post -Miranda silence with guilt and consciousness of guilt.

“In Doyle v. Ohio, supra, 426 U.S. 619, the United States Supreme Court held that ‘evidence of a defendant’s . . . post-Miranda silence is constitutionally impermissible under the due process clause of the fourteenth amendment.’ ” State v. Ricketts, 37 Conn. App. 749, 758-59, 659 A.2d 188, cert. denied, 234 Conn. 913, 660 A.2d 355, cert. denied, 516 U.S. 977, 116 S. Ct. 481, 133 L. Ed. 2d 409 (1995). “The court based its holding on two considerations: First, it noted that silence in the wake of Miranda warnings is ‘insolubly ambiguous’ and consequently of little probative value. Second and more important, it observed that ‘while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.’ ” State v. Plourde, 208 Conn. 455, 465-66, 545 A.2d 1071, cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1988).

“With respect to post-Miranda warnings silence . . . silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted.” (Internal quotation marks omitted.) State v. Daugaard, 231 Conn. 195, 219-20, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). “Such evidence [of the defendant’s post-Miranda silence] may not be used to . . . imply guilt or to indicate a consciousness of guilt . . . .” (Citations omitted.) State v. Ricketts, supra, 37 Conn. App. 759-60.

“The unfairness of using a defendant’s silence following Miranda warnings is not mitigated by the absence of custody. Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . . . Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. . . . Custody is therefore not a prerequisite to a Doyle violation.” (Citations omitted; internal quotation marks omitted.) State v. Plourde, supra, 208 Conn. 467.

Here, the defendant was clearly given his Miranda rights. The state argues, however, that the defendant’s speaking with the police casually after he was read his Miranda rights, but before the police informed him of the complaint against him, constituted a waiver of his right to remain silent, or an example of impermissible “selective silence.” We disagree.

“While a defendant may invoke his right to remain silent at any time, even after he initially waived his right to remain silent, it does not necessarily follow that he may remain selectively silent. . . . [T]here must be some indication that the defendant has invoked the right to remain silent.” (Citations omitted; internal quotation marks omitted.) State v. Taft, 25 Conn. App. 149, 152-53, 593 A.2d 973, cert. denied, 220 Conn. 918, 597 A.2d 343 (1991).

Here, the defendant spoke casually with the detectives after he was read his Miranda rights. As soon as he was informed of the complaints made against him, however, the defendant clearly invoked his right to remain silent and refused to speak to the detectives about the alleged crimes. Thus, we conclude that the defendant neither waived his right to remain silent, nor was selectively silent. Cf. State v. Casey, 201 Conn. 174, 185-86, 513 A.2d 1183 (1986); State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985); State v. Taft, supra, 25 Conn. App. 152-53.

We conclude, therefore, that the detective’s testimony at trial, in conjunction with the state’s attorney’s closing argument, improperly used evidence of the defendant’s post-Miranda silence to imply the defendant’s guilt and consciousness of guilt, and thus were “ ‘fundamentally unfair and a deprivation of due process ....”’ State v. Plourde, supra, 208 Conn. 468, quoting Doyle v. Ohio, supra, 426 U.S. 618.

Having concluded that the trial court’s admission of evidence of the defendant’s post-Miranda silence was improper, we next consider whether it was harmful. “When an error is of constitutional dimension, the state has the burden of proving it harmless beyond a reasonable doubt.” State v. Plourde, supra, 208 Conn. 468.

“The cases wherein the error has been found to be prejudicial disclose repetitive references to the defendant’s silence, reemphasis of the fact on closing argument, and extensive, strongly-worded argument suggesting a connection between the defendant’s silence and his guilt.” (Internal quotation marks omitted.) State v. Daugaard, supra, 231 Conn. 213. Here, evidence of the defendant’s post-Miranda silence was brought up repeatedly during the examination of Giunta and was then referred to during closing argument. The defendant’s post-Miranda silence was consistently equated with his guilt. Moreover, as the defendant did not testify at trial, there was a “reasonable possibility” that the repeated use of evidence of the defendant’s post-Miranda silence as affirmative proof of his guilt and consciousness of guilt contributed to his conviction. See State v. Plourde, supra, 208 Conn. 469. We conclude, therefore, that the trial court’s improper admission of the evidence of the defendant’s post-Miranda silence was not harmless beyond a reasonable doubt and thus a new trial is necessary.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

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

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and ... (2) such other person is mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse . . . .”

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is . . . (B) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual contact

        State v. Dolphin, 178 Conn. 564, 424 A.2d 266 (1979).

        Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).

         Brady v.Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

       In view of our disposition ol' the Doyle issue, it is unnecessary to review the other claims.

       At trial, the detectives testified that upon hearing the accusations against him, the defendant “wrenched” his face.

       Giunta testified that he related the nature of the victim’s complaint to the defendant. The state’s attorney then asked, “Did he say that wasn’t true?” Giunta responded, “No he didn’t deny anything.” The state’s attorney asked, “What did he say about it?” Giunta explained that the defendant “didn’t want to talk about it. He didn’t think it was going to be in his best interest.” At which point, the state’s attorney clapped his hands together and yelled, “He didn’t come out and say that’s not true?” The defense attorney then objected, arguing that this last question was “totally inappropriate.” The state’s attorney offered to rephrase the question. The state’s attorney then asked Giunta, “What did [the defendant] do when you told him what [the victim] had said he had done with the knife?” Giunta responded, “He put his hands on his face like this and wrenched his face. Then he dropped his hands. Then he was quiet and he never, never gave a denial about what [the victim] had said and he—when pressed, he just said that he did not think that answering it would be in his better interest.” The state’s attorney asked, “That was the extent of his comment about that?” Giunta answered, “Yeah. Yes it was.”

       During his closing argument, the state’s attorney said, “[Finally, [Giunta] says . . . this is what [the victim] is saying about you. Hey, I don’t know what the kid is talking about—you know—but it’s not in my best interest to answer that question. . . . Well, you’re darn right if you’re doing that and holding a knife to [the victim], it certainly isn’t in your best interest and you can point the finger at Detective Giunta but he’s not the one who held the knife on [the victim]. He’s not the one that was having sex with [the victim]. He was the officer that went out and did a good job and talked to everybody that was involved.”


text:
    STATE OF CONNECTICUT v. CHARLIE SANTIAGO
    (AC 15914)
    O’Connell, Foti and Landau, Js.
    Argued March 21
    officially released May 27, 1997

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

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

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that (1) the evidence was insufficient to prove that he possessed the intent to cause the death of the victim, (2) the state failed to disprove that he was acting in self-defense, and (3) he was deprived of a fair trial by remarks made by the prosecutor in his closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 12, 1993, at approximately 12:30 p.m., the defendant was washing his car in a housing complex in Bridgeport known as the P.T. Bamum apartments when he was approached by the victim, John Barnes, who was wearing a mask. The victim was accompanied by at least one other person and possibly as many as three others. As they approached the defendant, they said, “Run it” or “Run it up,” meaning that they wanted the defendant to give up what he had. The victim was displaying a gun. The defendant clenched his fist and yelled something in Spanish to a woman who was looking out of a third floor window of building five. The defendant surrendered his car keys from his pocket and left the scene. The victim entered the defendant’s car and prepared to drive away. The defendant went behind building five, where a young Hispanic female, who had exited that building, threw him an AK-47 rifle. The defendant then ran back with this weapon and began firing at his automobile as the victim drove it away. The defendant fired twenty-two armor piercing bullets in an automatic manner, and nineteen entered the car. The car struck a utility pole and the victim died from multiple gunshot wounds, all of which went from the back to the front of his body except for wounds to his lower legs, which went across his legs from right to left.

I

The defendant first claims that the evidence presented was insufficient to prove that he had the requisite intent to cause the death of the victim. We disagree.

“In reviewing the sufficiency [of the evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). The specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11) .... State v. Raguseo, 225 Conn. 114, 120, 622 A.2d 519 (1993). Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. State v. Greenfield, supra, 77. Therefore, intent is often inferred from conduct; id., 76; and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. State v. Raguseo, supra, 119. This does not require that each subordinate conclusion established by or inferred from evidence, or even from other inferences, be proved beyond a reasonable doubt; State v. Crafts, 226 Conn. 237, 244, 627 A.2d 877 (1993); because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. Id. Nevertheless, because intent to cause the death of a person is an element of the crime; State v. Raguseo, supra, 120; that intent must be proven beyond a reasonable doubt. Pat terson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Furthermore, [i]ntent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death. . . . State v. Raguseo, supra, 120.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126-27, 646 A.2d 169 (1994).

After a careful review of the evidence adduced at trial, we conclude that the evidence presented and the reasonable inferences drawn therefrom are sufficient to support the jury’s finding that the defendant had the intent to kill the victim. The jury could reasonably have inferred the requisite intent from the facts that the defendant left the area to retrieve his weapon and returned to shoot the victim. See State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996). The defendant made preparation for the shooting when he called something in Spanish to a woman in the third floor apartment of building five, and was shortly thereafter handed an AK-47 by a Hispanic female who came out of that same building. The jury also had evidence before it of the specific type of weapon used, that it was used in its automatic rather than semi-automatic mode, the type of bullets used, the number of shots fired, and the type of wounds inflicted on the victim. See State v. Raguseo, supra, 225 Conn. 120. The jury was also free to infer an intent to kill from the defendant’s failure to assist the victim after the shooting; see State v. Tomasko, supra, 259; or from his failure to summon medical assistance. See State v. Sivri, supra, 231 Conn. 129. The defendant did not call for medical assistance for the victim, or even check the victim’s condition in his car, but rather went to his aunt’s apartment on the third floor in building five to call his attorney. We conclude that the cumulative effect of the evidence construed in the light most favorable to sustaining the verdict was sufficient to allow the jury to find beyond a reasonable doubt that the defendant intended to kill the victim.

II

The defendant next contends that the state failed to disprove beyond a reasonable doubt that, at the time he fired the weapon, he was acting in self-defense. The defendant argues that “[g]iven that the state was not disputing that the defendant was the victim of an armed robbery preceding the shooting, the only reasonable and logical theory upon which the jury could have rejected the defense of justification, was if they found that the defendant had safely retreated but then returned with a weapon.” The defendant concedes that the state presented two witnesses who observed the defendant leave the area, run around building five, and return again to the area, armed with the AK-47, where he had been confronted by the victim. The defendant, however, questions their credibility, because he claims that there were inconsistencies in the state’s case. The defendant’s argument implicitly admits that the evidence would be sufficient if it were credible. While the defendant is free to argue, as he does, that the “[witnesses’] testimony can easily be dismissed as incredible,” it is neither his function, nor ours, to assess the credibility of the witnesses or the weight to be given their testimony. See State v. Fullard, 5 Conn. App. 338, 342, 497 A.2d 1041 (1985).

We do not agree that the state failed to present credible evidence that affirmatively established that the defendant successfully retreated. The evidence was sufficient to prove beyond a reasonable doubt that the defendant was not acting in self-defense.

III

The defendant also claims that the prosecutor’s comments during closing argument were improper, and thereby violated his rights to a fair trial, to present a defense and to due process of law. We are unpersuaded.

During his closing argument, the prosecutor misstated that a defense witness had reviewed the defendant’s notes prior to testifying. The witness had actually testified that he had spoken to the defendant’s attorney two weeks after the shooting, and, that, before testifying, he had reviewed the notes made at that meeting. The defendant objected to this comment. After the jury returned its verdict, but prior to the imposition of sentence, the defendant filed written motions for a new trial and judgment of acquittal claiming this alleged improper comment as ground for his request. The court denied these motions.

Our review of the record discloses that the misstatement was not repeated and was a relatively brief part of the state’s total argument. There is no claim that this single misstatement was made in bad faith. Further, the trial court in its final instructions reminded the members of the jury that it was their recollection of the evidence that should have weight in their deliberations and not what counsel said in final argument, which differed from that recollection.

While it is possible for prosecutorial misconduct to occur in the course of closing argument; State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987); such alleged conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process in order to deprive the defendant of his constitutional right to a fair trial. State v. Atkinson, 235 Conn. 748, 768, 670 A.2d 276 (1996). The fairness of the trial and not the culpability of the prosecutor is our standard. We look to the propriety of the challenged remark and, if the statement was improper, to whether it caused substantial prejudice to the defendant. State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989).

Our review of the record discloses that the misstatement did not cause substantial prejudice to the defendant. It was neither egregious nor intentional. If the defendant suffered any prejudice it was minimal, and the sanction of reversal is inappropriate.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       The defendant, through counsel, asked that the jury be excused at this point during the state’s rebuttal argument, but the trial court denied the request and instructed the prosecutor to complete his argument.

       The prosecutor apologized for his error based on his misunderstanding of the witness’ testimony.