author: Spallone, J. Lavery, J.,

text:
    State of Connecticut v. Michael Curley
    (8874)
    Spallone, Foti and Lavery, Js.
    Argued December 12, 1990
    decision released July 23, 1991

      Andrew B. Bowman, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant was convicted, after a jury trial, of intentionally aiding another in the sale of cocaine, in violation of General Statutes §§ 53a-8 and 21a-278 (b), and conspiracy to sell cocaine in violation of General Statutes §§ 53a-48 (a) and 21a-277. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress his postarraignment statements thereby violating his right to counsel under the sixth and fourteenth amendments, (2) instructed the jury on consciousness of guilt, (3) allowed the prosecution to refer to “organized crime” and to inject evidence of an armed robbery involving a state’s witness, and (4) denied his motion for a new trial in which he alleged that a critical and exculpatory witness was kept from testifying from fear that the prosecution would withdraw a favorable plea agreement. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 17,1988, officers of the statewide narcotics task force undertook an undercover operation. Among the participants were Sergeant John Petrowski, Trooper John Ramik, and Trooper Donald Kinahan of the state police, and Officer Karla Massina of the Westport police department. Petrowski served as a cover officer and ran the recording equipment. Massina was equipped with hidden audio devices and, with Kinahan, attempted to purchase drugs. Ramik staked out a building in Bridgeport where a drug operation was believed to be controlled.

When the officers arrived in Bridgeport, Massina called a pager number from a pay phone. Shortly thereafter a party called back whom Massina identified as Louis Rodriquez. Massina told Rodriquez that she wanted to buy one-half ounce of cocaine. Rodriquez told her to wait where she was and “his boy” would bring the drugs to her. Soon after Massina had talked to Rodriquez, Ramik observed four males leave 2992 Main Street in Bridgeport, get into a white Buick Century and head in the direction from which Massina had made her call. Ten to fifteen minutes after Massina’s call a white Buick Century containing four males drove slowly past the undercover officers.

The driver, whom Massina and Kinahan identified in court as the defendant, Michael Curley, then made a U-turn, drove back and told the officers to follow him. The officers proceeded in their own vehicle and followed the Buick to a side street. Massina and Kinahan exited their vehicle, and Massina approached the defendant and Rodriquez who were standing next to the Buick. Rodriquez introduced the defendant as Michael. He then put his arm around Massina, she handed Rodriquez the money, and he gave her the cocaine. As Rodriquez counted the money, the defendant told Massina that he had come along to check things out and to be sure that she was not a cop or that she had not been followed by cops. The sale was completed and the parties returned to their vehicles. On November 22, 1988, the defendant was arrested. The defendant was initially charged with conspiracy to commit a robbery in addition to the other charges. Although the trial court eventually refused to submit this charge to the jury, a portion of the trial concerned the facts surrounding this allegation. A review of some of these facts is relevant to our discussion of the defendant’s claims on appeal.

Officer Brian McElligott of the Stamford police department testified that on November 18,1988, while working as an undercover agent, he went to the Auto Connection, a business owned by the defendant, and was introduced to him. He also testified that during the course of a brief conversation, the defendant indicated that he could supply McElligott with cocaine, and that McElligott should come back later in the day. McElligott testified that he returned two hours later but was rebuffed by Harry Riccio who was highly agitated and told him that “Mike’s [the defendant] busy now; he can’t talk to you. There’s no drugs around here. Go back to your friends if you want drugs.” Thereupon, because Riccio was adamant, McElligott left the premises at approximately 5 p.m.

McElligott further testified that he telephoned the defendant on Monday, November 21,1988, just before 5 p.m. and asked him, if he could “do something.” The defendant responded by advising McElligott to come down. McElligott returned to the Auto Connection with Ramik. The officers parked on the street. The defendant came over to them and they asked him if he could do something. The defendant replied: “My friend Bill, he’s my boy, he’ll take care of it for you.” Francisco Cotto was standing two to three feet away and, after the defendant went back inside, McElligott drove down the street to talk to Cotto about buying cocaine. McElligott was advised by Cotto that the price was $800 an ounce and that he should return later alone. At 7 p.m. the same evening, McElligott returned and met Cotto. They were both alone. Cotto told McElligott to leave his vehicle and to get into Cotto’s car. McElligott stated that during the ride Cotto took a gun from underneath his leg and pointed it at McElligott’s left ear. In response to Cotto’s order, McElligott placed $800 on the floor, exited the vehicle and backed away with his hands raised. After a chase through the streets of Bridgeport and Stamford, Cotto was apprehended and the loaded gun was seized.

The defendant made four separate statements to the police regarding these incidents. The first statement was given immediately after his arrest on November 22, in response to a question as to the whereabouts of Rodriquez. At the suppression hearing, the defendant withdrew his objection to this statement. The second statement was made at the Westport police barracks. The defendant conceded that this statement was given after he was properly advised of his Miranda warnings and had signed an advisement of rights form. In this interview, the defendant told State Trooper John O’Leary that he did not know why he had been arrested and, upon being told that it was for the robbery of McElligott, he responded that he had thought McElligott was a cop and that he had introduced him to Cotto just to get rid of him.

The third statement, which raises an issue on appeal, was given in the context of the following facts. After the defendant’s arraignment and at the police station, O’Leary, whom the defendant had known for over twenty-five years, gave the defendant a telephone number and told the defendant that he could call to talk to O’Leary anytime he wanted. After posting bond, the defendant went home and discussed the occurrences of the past few days with his family. At some point thereafter, he called O’Leary.

O’Leary testified that he received a telephone call from the defendant who stated that he wanted to speak to him. They agreed to meet at the Trumbull Shopping Park and talk in O’Leary’s car. At the shopping park, the defendant told O’Leary that he wanted to talk about the robbery. He explained that he had nothing to do with the robbery of McElligott and that he had only introduced McElligott to Cotto in order to get rid of him. He further related that he was present at a meeting in his office where Cotto said he was planning to rob McElligott. The defendant said that he told Cotto to leave McElligott alone because McElligott was a cop and that he then left the meeting. He also told O’Leary that Rodriquez was a drug dealer, handling one and one-half kilograms of cocaine a week.

The final statement was made at the Westport police barracks on December 2,1988. The defendant was with his attorney at this interview. O’Leary testified that the only difference between the conversation at the Trumbull Shopping Park and this fourth statement was that the defendant named an additional person as having been present when Cotto announced his intention to rob McElligott.

I

The defendant’s first claim is that his right to counsel under the sixth amendment to the United States constitution as applied to the states through the fourteenth amendment was violated when he gave his third statement to O’Leary after the initiation of adversary judicial criminal proceedings and in the absence of his attorney.

The sixth amendment to the United States constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” A defendant’s right to counsel under the sixth amendment arises “at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); State v. Falcon, 196 Conn. 557, 560, 494 A.2d 1190 (1985). In this case, the defendant’s right to counsel under the sixth amendment attached at his arraignment on November 22, 1988. From that point in time, the defendant was entitled to the presence of counsel at “critical stages” of the proceedings against him, including interrogation. Brewer v. Williams, 430 U.S. 387, 401, 97 S. Ct. 1232, 51 L. Ed. 2d 424; State v. Falcon, supra, 561. The attachment of this right also prohibited the state from “initiating interrogation or intentionally creating a situation likely to induce the defendant to make incriminating statements without the assistance of his counsel. Michigan v. Jackson, 475 U.S. 625, 635, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986); see Henry v. United States, 447 U.S. 264, 275, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980).” State v. Jones, 205 Conn. 638, 648, 534 A.2d 1199 (1987).

Although the fifth amendment to the United States constitution is not directly in issue on appeal, it also guarantees a criminal suspect subject to custodial interrogation a right to counsel. See Miranda v. Arizona, 384 U.S. 436, 469-70, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The fifth amendment protection against self-incrimination requires the police to notify a suspect of the right to counsel and to cease interrogation once the suspect invokes the right. Id., 471-74. Absent counsel, further interrogation may not occur unless the accused initiates the subsequent conversation. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). If the police initiate subsequent interrogation without having made counsel available to the accused, there can be no valid waiver even though the accused is advised of his constitutional rights and acquiesces in the questioning. Id., 484.

In Michigan v. Jackson, supra, 636, the Supreme Court extended this fifth amendment protection provided by Edwards to postarraignment sixth amendment claims holding that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” In Minnick v. Mississippi, 498 U.S. , 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990), the United States Supreme Court reversed the Mississippi Supreme Court which had held that the Edwards protection ceases once the suspect has consulted with an attorney. The Mississippi holding relied on language in Edwards indicating that the bar on interrogating the accused after a request for counsel applies “ ‘ “until counsel has been made available to him” ’ ”; Minnick v. State, 551 So. 2d 77, 83 (Miss. 1988), quoting Edwards v. Arizona, supra; and it concluded that, because counsel was made available to Min-nick, his fifth amendment right to counsel was satisfied. The Mississippi court’s ruling had the curious result of allowing the police to initiate further interrogation of an accused after he had consulted with his attorney. Admittedly, the language in Edwards, “until counsel has been made available to him” is somewhat ambiguous and may be viewed as permitting police initiated interrogation after the accused has consulted with counsel. Minnick eliminated such ambiguity, however, when it expressly held, that “when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.” Minnick v. Mississippi, supra. The Supreme Court went on to say that “Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussion with the authorities . . . .” Id.

The resolution of the defendant’s claim thus depends on whether the defendant “initiated” the questioned communication when he called O’Leary and asked to speak with him, or whether the state deliberately “initiated” the communication when O’Leary gave the defendant his telephone number and informed the defendant that he could call him anytime. The evidence elicited at the hearing on the defendant’s motion to suppress the statements fully supports the conclusion, implicit in the court’s denial of the motion, that the postarraignment interview with the police was initiated by the defendant. Of his own volition the defendant initiated the conversation by telephoning O’Leary from his home some time after his release from custody and in the company of his family. The defendant voluntarily left his home and met O’Leary at a neutral location. He told O’Leary that he wanted to talk and then gave a statement. The defendant was an adult and understood the Miranda warnings given him earlier at the police station. Accordingly, the statement arising from that interview was properly admitted by the trial court.

II

The defendant next claims that the trial court improperly instructed the jury that a consciousness of guilt could be inferred if it found that the defendant’s trial testimony, which conflicted with that of O’Leary, was false. The defendant did not take exception to this charge and is seeking review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). The guidelines governing such review were recently enunciated in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), where the court held that an unpreserved claim of an alleged constitutional violation will not be reviewed on the merits if such violation is subject to harmless error analysis and would be harmless beyond a reasonable doubt. “ ‘[Hjarmless error’ in this context focuses, not on whether the charge was misleading to the jury, but on whether, notwithstanding the misleading nature of the charge, the evidence on the issue was so strong that the reviewing court concludes beyond a reasonable doubt . . . that the error did not contribute to the guilty verdict.” (Citations omitted.) State v. Perez, 10 Conn. App. 279, 285, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987).

Here, Massina testified that, on the night of the buy, the defendant was driving a car, told them to follow him, exited the vehicle, stood two to three feet from her during the sale and stated that he was there to check things out and to make sure that she was not a cop. McElligott testified that the defendant indicated on at least three occasions, either by phone or in person, that he could supply McElligott with drugs. The defendant told O’Leary that he knew Rodriquez was a drug dealer, where he could be found and the names of his suppliers. On the basis of this evidence, we conclude that the trial court’s instruction on consciousness of guilt, even if erroneous, was harmless beyond a reasonable doubt and did not contribute to the verdict. See id., 290.

Ill

The defendant also claims that the prosecution’s deliberate injection of references to “organized crime” and to evidence pertaining to the armed robbery of McElligott by Cotto prejudiced the defendant and denied him a fair trial.

During the trial, McElligott explained why he backed off from a smaller, older man. “Well he was highly agitated and yelling and I know he’s an organized crime figure, he’s involved in drugs and potential for buying . . . .” The defendant objected and during argument on the objection the prosecution stated that the reason for asking the question was to explain why McElligott backed off from an older and smaller person. The court stated: “You are not offering it for the truth of the matters asserted, only to show why he backed off.” To which the state responded, “Yes, Your Honor.”

The trial court then gave a cautionary instruction to the jurors limiting their consideration of the statement to why McElligott backed off from a confrontation with Riccio and admonished them that they may not consider the statement for the truth of the matters contained therein. There was no further mention of Riccio or of McElligott’s belief that he was connected to organized crime.

Our Supreme Court has consistently held that an instruction limiting the jury’s consideration to the specific purpose for which it was admitted, as illustrated in this case, is the most important method for reducing the prejudicial impact the evidence may have. See, e.g., State v. Jones, 205 Conn. 638, 663-64, 534 A.2d 1199 (1987); State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); State v. Howard, 187 Conn. 681, 688, 447 A.2d 1167 (1982). We hold that the trial court’s limiting instructions were an adequate and proper response to the defendant’s exception.

In his second evidentiary claim, the defendant faults the trial court for not giving a limiting instruction as to the evidence concerning the robbery of McElligott. The defendant never requested such an instruction, does not cite any relevant legal authority to support his claim and does not refer to any standard by which the court’s action should be tested. He briefs an unsupported contention that the trial court erred. The bare assertion of error without citation to legal authority may be considered by us to be no claim at all and need not be reviewed. Accordingly, we decline to review this claim. See, e.g., State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987); Rodriquez v. Mallory Battery Co., 188 Conn. 145, 148-49, 448 A.2d 829 (1982); State v. Smith, 10 Conn. App. 624, 635, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987); State v. Knighton, 7 Conn. App. 223, 226, 508 A.2d 772 (1986).

IV

The defendant in his final claim avers that the prosecution violated his sixth and fourteenth amendment rights to present a critical and exculpatory defense witness by threatening the witness with the withdrawal of a favorable plea agreement if the witness testified at his trial.

The defendant claims that a plea bargain offer made by the state to Rodriquez caused Rodriquez not to testify for the defendant. He claimed that, although Rodriquez’ testimony was exculpatory as to the defendant, he would not testify because of the state’s threat to revoke a plea agreement favorable to him. Rodriquez was called by the defendant as a witness and appeared accompanied by his attorney. At the time, Rodriquez was charged with various crimes that were still pending against him. Through his attorney, Rodriquez invoked his fifth amendment right not to answer any questions concerning this incident or his relationship with any of the parties.

Defense counsel then asked Rodriquez if at any time during the prior four months a plea bargain had been offered conditioned on his not testifying for the defendant at his trial. The trial court then asked if there was an offer outstanding at that time that contained such a promise. Rodriquez’ attorney told the trial court there was not and that Rodriquez was so informed. Defense counsel and the state entered into a stipulation, which was presented to the jury, that Rodriquez was called as a witness but that he refused to testify on the basis of his fifth amendment right.

After the jury verdict, but prior to sentencing, the defendant filed a timely motion for a new trial pursuant to Practice Book § 902. A memorandum filed in support of the motion contained two letters and an affidavit all dated subsequent to the jury verdict. The trial court ruled that the defendant’s motion was actually a petition for a new trial and therefore should have been brought under Practice Book § 904 and accordingly denied the motion. We agree with the trial court.

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

It is clear that a motion for a new trial must be premised upon the trial court having committed error prior to the motion for a new trial. The error claimed to support a motion for a new trial must have occurred during the trial. The factual allegations put forward by the defendant in his motion for a new trial were not before the court prior to the verdict. The state and the defendant entered into a stipulation that Rodriquez had refused to waive his fifth amendment right. Rodriquez denied any agreement requiring him not to testify against the defendant in return for a favorable plea bargain. Section 902 contemplates court error of such magnitude as to deprive the defendant of a fair trial and in the use of the term “shall grant the motion” mandates a new trial if such error exists. The trial court was never asked to rule on the factual allegations asserted by the defendant in his postverdict motion for a new trial and therefore could not have committed an error based on the defendant’s postverdict § 902 motion.

The trial court correctly concluded that Practice Book § 904, which provides in part: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with Gen. Stat. § 52-270,” was the appropriate vehicle for the defendant to raise his allegations.

The petition for a new trial would put before the court the postverdict allegations of newly discovered evidence, here of prosecutorial misconduct, and allow for a full hearing on the merits of the petition as to whether the newly discovered evidence exists and is in fact new and credible. In contrast, the hearing on a § 902 motion for a new trial is to determine whether the court, in the course of the trial, committed error thus depriving the defendant of a fair trial. Thus, the trial court correctly concluded that the proper vehicle for the defendant to pursue was a petition for a new trial under General Statutes § 52-270.

The judgment is affirmed.

In this opinion Foti, J., concurred.

Lavery, J.,

dissenting. I disagree with the majority’s conclusion because the state, in the person of Officer John O’Leary, “intentionally creat[ed] a situation likely to induce the defendant to make incriminating statements without the assistance of counsel. Michigan v. Jackson, 475 U.S. 625, 635, 106 S. Ct. 1404, 89 L. Ed. 2d 63 (1986) . . . .” State v. Jones, 205 Conn. 638, 648, 534 A.2d 1199 (1987).

During the suppression hearing, evidence was adduced that it was the police and not the defendant who “initiated” the postarraignment contact for the purpose of gathering additional inculpatory information against the defendant. This initiation took place when Officer John O’Leary, who had been a friend of the defendant for twenty-five years, handed the defendant a telephone number and invited him to call after being released on bond. The sole purpose of this maneuver was to elicit a confession by trading on a twenty-five year friendship between the defendant and O’Leary.

In Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959), the United States Supreme Court found that trading on close past relationships for the purpose of lulling the defendant into making inculpatory statements was a constitutionally violative method of extracting information from criminal defendants.

In general, a determination of whether the police have unlawfully initiated communications with a criminal defendant after his sixth amendment right to counsel has attached presents a factual issue for the trial court. Nevertheless, the constitutional implications of such issues require us to make “ ‘a scrupulous examination of the record to ascertain whether such a finding is supported by substantial evidence.’ ” State v. Weidenhof 205 Conn. 262, 268, 533 A.2d 545 (1987); State v. Toste, 198 Conn. 573, 580, 504 A.2d 1036 (1986); cf. State v. Jones, supra. Our review is, therefore, not limited to the evidence before the trial court during the suppression hearing. We must, instead, review the record in its entirety to determine if there has been a violation of the defendant’s constitutional rights. State v. Toste, supra, 576. In this case, such an examination reveals that the defendant’s decision to waive his sixth amendment right to deal with the state through counsel was not voluntary or informed.

In State v. Jones, supra, 651, our Supreme Court found that a criminal defendant had validly waived his sixth amendment right by initiating communications with the police. In reaching that conclusion, the Jones court accorded great weight to the facts that the defendant had waived his Miranda rights more than once prior to his arraignment, that he had received special advisement by the arraignment court of his fifth and sixth amendment rights to counsel, and that, immediately prior to the postarraignment questioning, the state’s investigator again advised the defendant of his rights and made scrupulous efforts to ensure that the subsequent waiver of those rights was voluntary and knowing.

By contrast, the case before us does not disclose that the defendant initiated the postarraignment contact. When the defendant contacted O’Leary, he was under the impression that O’Leary could help him and that any comments he made would be off the record. The contact made between the defendant and O’Leary took place in a police cruiser parked at a shopping center with another police officer in attendance. The defendant’s Miranda warnings were not reiterated and he was not apprised of the nature of the right he was abandoning, nor was he advised of the consequences of his decision to waive that right. Id., 653.

Finally, despite the fact that the defendant reiterated his inculpatory statements during a third interrogation at which his attorney was present, the statements made at that time were no more than a corroboration of information obtained by O’Leary during the earlier unconstitutional interrogation. Our Supreme Court has held that where the prosecution relies on a confession uttered after an earlier involuntary confession, it must first prove, by a preponderence of the evidence, that the second confession was not a direct product of the earlier confession. State v. Schroff, 206 Conn. 182, 197, 536 A.2d 952 (1988).

Here, virtually all of the information obtained at the later interrogation was merely a corroboration of information obtained during the earlier unconstitutional interrogation by O’Leary. It is, therefore, the direct fruit of that interrogation and is tainted by the unconstitutionality of the first confession. Id.; see also United States v. Bayer, 331 U.S. 532, 540, 67 S. Ct. 1394, 91 L. Ed. 2d 1654 (1947).

I would reverse the judgment and remand the case for a new trial with the two postarraignment statements suppressed.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Frederick N. Lucci, Jr.
    (8394)
    Dupont, C. J., Landau and Heiman, Js.
    Argued May 3
    decision released July 23, 1991

      Richard Emanuel, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, and Susan Hankins, assistant public defender, for the appellant (defendant).

      C. Robert Satti, Sr., state’s attorney, with whom was John P. Pannone, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant 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, two counts of injury or risk of injury to, or impairing the morals of, a child in violation of General Statutes § 53-21, one count of attempted sexual assault in the first degree in violation of General Statutes § 53a-49 and 53a-70, and one count of threatening in violation of General Statutes § 53a-62. The defendant claims that (1) the court deprived him of a fair trial by its failure to declare a mistrial sua sponte following the admission, and later striking, of prejudicial evidence, (2) the court incorrectly permitted the state to recall the complainant when the recall resulted from a violation of a sequestration order, (3) the court improperly permitted the state to argue concerning a missing witness and mistakenly charged the jury on the missing witness rule, (4) the state’s closing arguments were improper and deprived the defendant of a fair trial. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant and his family lived next door to the minor victim and her family. At the time of the occurrences in April, 1988, the minor victim was thirteen years of age. In January, 1988, the victim began babysitting for the defendant’s children after school and on alternate weekends.

On Saturday, April 16, 1988, the victim went to the defendant’s home to babysit for his children. Despite the fact that he was not scheduled to return until about 4 p.m., the defendant arrived home between noon and 12:30 p.m. He made advances toward the victim who resisted him. The defendant picked up the victim, placed her over his shoulder and carried her screaming and protesting upstairs to a bedroom where he threw her on the bed. When she attempted to leave, the defendant prevented her from doing so, threw her back on the bed, pulled off her shirt, pulled down her pants and sexually assaulted her. The defendant told the victim not to tell either of her parents what had occurred.

On or about April 20,1988, the victim picked up the defendant’s children from their daycare provider and returned to the defendant’s home with them at about 3:30 p.m. The defendant came home at about 3:45 p.m., approached the victim, who was seated on a couch, pinned down her shoulders, and tried to remove her shirt telling her that he wanted to have sexual intercourse with her again. The defendant held the victim down but was unable to remove her shirt. He picked up a knife from a coffee table and scratched her cheek with it. He then let her go, telling her he would kill her if she told anyone.

Sometime after the incident with the knife, a friend of the victim noticed a scratch on the victim’s cheek. When asked about its origin, the victim told her friend that the defendant had attempted to “make a move on me” while she was babysitting for his children, that she had resisted, that he had scratched her with a knife, and that he had thrown a chair at her when she attempted to get away.

After the second occurrence, the victim received notes from the defendant in which he threatened to kill her if she told anyone what he had done. She showed the notes to the friend she had already confided in, and her friend showed one of the notes to her older brother. The brother counseled the victim to tell her parents about what had happened. Toward the end of April, 1988, the victim received a telephone call from the defendant in which he threatened to kill her.

The victim went on a school trip to Washington, D.C., from May 10 to May 13,1988. Her friends noticed that she was very upset, that she cried and talked about killing herself. One friend asked her why she was so upset, and she replied that while she was babysitting for a neighbor’s children, he had tried to rape her. The victim said that she was frightened of her neighbor, and that she did not want to tell her parents because he had said he would kill her if she told anyone. She also told her friend about how the defendant had used a knife on her, and had thrown a chair at her.

The friends in whom the victim had confided contacted the school guidance counselor who then contacted the victim’s parents. Her parents contacted the police. Two police officers talked with the victim and her parents. At this time, the victim related only the incident involving the knife on April 20, 1988, to the police. No formal statement or report was made at that time. The victim denied that she had been raped, or that other incidents had occurred when she was questioned by the police and her parents.

The victim came under the care of a clinical therapist sometime after May 24,1988. On July 7,1988, she told the therapist that she had been raped by the defendant and subsequently told her parents that he had raped her. On July 28, 1988, the victim gave a statement to the police describing both incidents.

A physical examination performed on the victim disclosed that her hymen was not intact, that the condition could have been the result of penetration by a penis, and that this condition was consistent with sexual intercourse.

I

The defendant first claims that he was deprived of a fair trial by the trial court’s failure to sua sponte declare a mistrial following admission into evidence, and then the later striking, of testimony that he claims was of a highly prejudicial nature.

We first note that despite repeated invitations from both the state’s attorney and the trial court, the defendant declined to move for a mistrial at this point in the proceedings. In fact, on at least two occasions, the defendant clearly stated that he would not move for a mistrial. Later, the defendant moved to strike certain portions of the testimony in question and that motion was granted by the court.

Our review of the record indicates that the jury was clearly instructed as to the testimony that was stricken, and the trial court emphasized that the stricken testimony could not be used for any purpose, including determining the credibility of the witness or the complainant. The defendant took no exception to the court’s striking of portions of the testimony or to the court’s curative instruction. Upon completing the curative instruction the trial court again excused the jury and the defendant was again invited to comment. Counsel responded that “[tjhere is no motion pending, and I have nothing to address to the court.” Whereupon the trial court found that what had occurred had not deprived the defendant of a fair trial, that the jurors would be able to follow the curative instruction, and that the stricken testimony, in large measure, was repetitive of the victim’s earlier, properly admitted testimony. Based on these factors the court held that there was no need to declare a mistrial on its own motion. Again, the defendant offered no objection, and took no exception, to the trial court’s findings or its decision not to act sua sponte.

As a threshold issue we must first determine whether this claim is reviewable, not having been raised in the trial court. The defendant asserts that the claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We are mindful of the fact that the defendant has not asserted the reviewability of this issue under State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989), which expanded and reformulated Evans. Our review of the record, however, convinces us that the issue is reviewable under the Golding standards. See State v. Fleming, 198 Conn. 255, 265, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). The defendant further posits that because this issue revolves around the trial court’s inaction when it was legally required to act, no motion or objection and exception are required for review. Because we conclude that this issue is reviewable under Golding, we do not reach this secondary claim of reviewability.

The decision as to whether to grant a motion for a mistrial, or to grant a mistrial on the court’s own motion, is one that requires the trial court to exercise its judicial discretion. See State v. Maldonado, 193 Conn. 350, 356, 478 A.2d 581 (1984). “ ‘[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion . . . there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion . . . .’ ” Gori v. United States, 367 U.S. 364, 368-69, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961). Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. State v. Angelo, 25 Conn. App. 235, 241, 594 A.2d 24 (1991); see Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985).

It is axiomatic that a mistrial should be granted only if something occurs in the course of the trial that makes it apparent to the court that a party cannot have a fair trial and the whole proceedings are vitiated. State v. Peary, 176 Conn. 170, 172-73, 405 A.2d 626 (1978), cert. denied, 441 U.S 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979).

A trial judge is given great latitude in ensuring that a criminal trial be conducted in a manner that approaches, as nearly as possible, an “ ‘atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.’ ” State v. Brigandi, 186 Conn. 521, 543, 442 A.2d 927 (1982). Given the fact that the trial judge is not simply a referee presiding over a forensic contest, but is a minister of justice, he is, for that purpose, vested with the authority to exercise a reasonable discretion in the conduct of a trial. Id. A trial court’s evaluation as to events occurring before the jury is to be accorded the highest deference. United States v. Grasso, 600 F.2d 342, 343 (2d Cir. 1979). Every reasonable presumption will be given in favor of the trial court’s ruling. State v. Rodriguez, 10 Conn. App. 176, 179, 522 A.2d 299 (1987).

It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. State v. Angelo, supra; State v. Devanney, 12 Conn. App. 288, 292, 530 A.2d 650 (1987); see Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 192, 510 A.2d 972 (1986).

Our review of the record satisfies us that the trial court did not abuse its discretion in not ordering a mistrial on its own motion. We are satisfied that the stricken testimony was cumulative in nature, that the trial court’s curative instructions were very thorough, and that the trial court’s actions in this regard followed the defendant’s request. Thus, the defendant’s right to a fair trial was more than adequately protected and his claim to the contrary must fail. See State v. Autorino, 207 Conn. 403, 411-12, 541 A.2d 110, cert. denied, 488 U.S. 855, 109 S. Ct. 144, 102 L. Ed. 2d 116 (1988); State v. Van Sant, 198 Conn. 369, 384, 503 A.2d 557 (1986).

II

The defendant next claims that the trial court improperly permitted the state to recall the complainant to the witness stand and denied his motion to strike her testimony on recall, where the recall resulted from the violation of a sequestration order. We do not agree.

Certain additional facts are necessary to a resolution of this issue. The complainant completed her testimony before the jury on June 15,1989. Thereafter, the court did not sit until June 20. When the trial court reconvened, the state requested permission to recall the vietim. The state’s attorney indicated that information had been brought to his attention indicating that one of the events may have occurred on April 21,1988, as opposed to April 20,1988. Over the objection and exception of the defendant, the victim was permitted to testify.

It appears to be the universal rule that the matter of recalling a witness after she has testified rests completely within the sound judicial discretion of the trial court, and the exercise of that discretion will not be interfered with absent a clear showing that there was an abuse of that discretion. State v. Brigandi, supra, 546.

Here, the state had information that indicated that one of the offenses might have occurred on April 21, 1988, rather than on April 20, 1988, as the testimony of the victim had originally indicated. Because time is not an essential element of the crimes charged against the defendant, the evidence was not crucial. “ ‘[Wjhere time is not of the essence or gist of the offense, the precise time at which it is charged to have been committed is not material.’ ” State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). Although eschewing the claim of the defense of alibi, the defendant argues that it was unfair to permit the additional testimony because there was evidence that, contrary to the victim’s assertion, she did not pick up one of the defendant’s children at daycare on April 20, 1988. Under our law, even if the defendant intended to present a defense of alibi, there is no per se requirement that the state limit the times in the information more narrowly than the evidence that is available warrants. State v. Stepney, 191 Conn. 233, 241 n.4, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 722 (1984). Because time is not an element of the offenses charged, the trial court did not abuse its discretion in permitting the state to recall the victim.

The defendant further claims that the trial court improperly denied his motion to strike the testimony of the victim. Our review of the record fails to disclose any defense motion to strike the victim’s testimony. We decline to engage in speculation as to whether the failure to move to strike was inadvertent or a trial tactic. Because the record does not reveal a motion to strike the victim’s testimony, this issue is not reviewable. See State v. Hickey, 23 Conn. App. 712, 717-18, 584 A.2d 473, (1991).

We also decline to review the claimed violation of the sequestration order because the record is devoid of any factual claim that the testimony of any witness had been improperly divulged to another witness. It is the appellant’s burden to furnish an adequate record to raise a claimed error. State v. Laracuente, supra, 520.

The claim of the defendant is without merit.

Ill

The defendant next claims that the trial court acted improperly in the giving of a so-called Secondino or missing witness charge. He claims that the giving of such a charge in a criminal case is unconstitutional. In the alternative, he argues that if the charge is not unconstitutional, its use should be rejected because of our Supreme Court’s elimination of the voucher rule. As a third alternative argument he posits that there was an insufficient factual predicate for the giving of the charge. Finally, he argues that as given, the charge was improperly formulated. We are unpersuaded by any of these arguments.

A

The claim of the alleged constitutional infirmity of the missing witness charge has been dealt with in a consistent fashion by a long line of cases holding that such a charge does not, in any way, violate a defendant’s constitutional rights. See, e.g., State v. Peary, supra, 182; State v. Annunziato, 169 Conn. 517, 536-37, 363 A.2d 1011 (1975); State v. Hudson, 14 Conn. App. 463, 471, 541 A.2d 534 (1988). We adhere to the view previously expressed, i.e., that this charge in no way violates a defendant’s constitutional rights.

B

The defendant next argues that if we are unpersuaded by the constitutional argument, we should abandon the missing witness rule because of the Supreme Court’s previous abandonment of the common law voucher rule that prohibits a party from impeaching or discrediting his own witness except under limited circumstances. State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986) . Despite the defendant’s argument that the missing witness rule “fit like a glove on the hand of the voucher rule,” we are not persuaded that one follows the other. The defendant’s argument ignores the basis of the missing witness rule. “[T]he evidentiary basis for the Secondino inference derives from the maxim that ‘ “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.” ’ ” State v. Shashaty, 205 Conn. 39, 44, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988). Because the elimination of the voucher rule has not materially affected the viability of Secondino, we decline to accept the defendant’s invitation to abandon the missing witness charge.

C

The defendant next claims that there was an insufficient factual predicate on which to base the giving of the Secondino charge. We do not agree.

Before a missing witness charge may be given, two requirements must be met: (1) the witness must be available; and (2) he must be a witness whom the party would naturally produce. State v. Anderson, 212 Conn. 31, 41, 561 A.2d 897 (1989). When those two conditions exist, an inference may be drawn that the testimony of that witness would be unfavorable to the party’s cause. Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928).

Our review of the record leads us to conclude that the trial court correctly found that the state had met the factual predicate so as to entitle it to the charge.

D

The defendant further claims that the instruction of the trial court was improper in that it instructed the jury that “[t]he failure of a party to call as a witness a person who is available to both parties and who does not stand in such a relationship to the party in question, or to the issues, so that party would naturally be expected to produce him if his testimony was favorable, affords the basis for an unfavorable inference.” (Emphasis added.) The state concedes that the portion of the instruction was an incorrect statement of the law. This, however, does not end our inquiry.

The erroneous instruction engenders a claim arising under state law and does not involve any constitutional right; State v. Shashaty, supra; therefore, “the defendant bears the burden of proving harmful error.” Id.

In order to meet his burden, the defendant must show that the misstatement that was contained in the charge and concerned one aspect of Secondino, was likely to have affected the verdict. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982). This he has not done. The case against the defendant was a strong one. See generally State v. Gonzalez, 197 Conn. 677, 682-83, 500 A.2d 1330 (1985). The victim was consistent in her claim that it was the defendant who had sexually assaulted her, in her description of where these assaults had occurred, and in her detail of the methods used by the defendant. Taken as a whole, the charge fairly presented the issues to the jury so that no injustice was done. State v. Piskorski, 177 Conn. 677, 746, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); State v. Turner, 24 Conn. App. 264, 275, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991). Thus, because the defendant has failed to sustain his burden of showing that the single misstatement regarding Secondino affected the verdict, he cannot prevail.

IY

The defendant’s final claim is that certain remarks that were made by the state’s attorney during his jury arguments deprived the defendant of his right to a fair trial under article first § 8, of the Connecticut constitution and under the fourteenth amendment to the federal constitution. The defendant concedes that he took no action on these claims in the trial court, but claims reviewability under the doctrine of State v. Evans, supra, and State v. Golding, supra. We disagree.

We have read the arguments of both counsel in their entirety in order to determine whether the remarks of the state’s attorney rise to the level of egregious misconduct that would implicate the defendant’s right to a fair trial. Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990). We conclude that they do not.

Although we do not approve of some of the arguments advanced by the state’s attorney in final argument; see, e.g., 1 ABA Standards for Criminal Justice (2d Ed.) § 3-5.8 (b); in particular those portions set forth below, we conclude that the cumulative effects of the remarks did not violate the defendant’s right to a fair trial; but see Floyd v. Meachum, supra; and therefore, do not raise a question of constitutional magnitude. See State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987).

The alleged prosecutorial misconduct was not severe. Trial counsel for the defendant, who had been assiduous in his protection of the rights of the defendant throughout the trial, was so unimpressed by the alleged prosecutorial misconduct that he neither objected to the remarks nor asked for a curative instruction. Finally, the case against the defendant was a strong one. See United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982). Thus, this case is clearly distinguishable from Floyd v. Meachum, supra, where, not only was the misconduct pervasive, but the principal witness against the defendant had, according to the defendant’s theory of the case, the alleged motive, opportunity and means to commit the acts with which Floyd had been charged. Floyd v. Meachum, supra.

Our reading of the totality of the trial transcripts and arguments leads us to conclude that the remarks now challenged by the defendant represent isolated instances of alleged misconduct that are unrepresentative of any pattern of conduct that was repeated throughout the trial. We, therefore, decline to review the propriety of these remarks. State v. Castonguay, 218 Conn. 486, 507-508, 590 A.2d 901 (1991); State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990); State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990); State v. Russell, 25 Conn. App. 243, 594 A.2d 1000 (1991); State v. Peruta, 24 Conn. App. 598, 609, 591 A.2d 140 (1991).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides: “sexual assault in the first degree: CLASS B felony: One year not suspendable. (a) 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 injury to such person or a third person, or (2) engages in sexual intercourse with a person under thirteen years of age.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53-21 provides: “injury or risk of INJURY to, OR impairing MORALS of, children. 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 injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-49 provides: “criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a), it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 53a-62 provides: “threatening: class a misdemeanor. (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience.
      “(b) Threatening is a class A misdemeanor.”

        Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).

       The defendant also claims that the remarks made by the state’s attorney concerning the Secondino instruction were improper. We need not address this claim in light of our conclusion that the instruction was properly given. See State v. Hudson, 14 Conn. App. 463, 471 n.4, 541 A.2d 534 (1988).

       We disapprove of the following excerpts of arguments made by the state’s attorney to the jury: “I submit she has told you nothing but the truth. And I suggest to you, ladies and gentlemen, the issue of guilt or innocence and the nonguilt of the defendant, but you are sitting in judgment that not only on this defendant, you are sitting in judgment on this thirteen year old [victim]. There is only one issue here. If you stop and think about it, there is only one issue in this case, is [the victim] a liar. That is the only issue. She didn’t have forgetfulness, except maybe this much [indicating]. The only issue here is, is the victim a liar.”
      In the course of his closing argument, the defendant made the following statement that prompted the response about which he now complains.
      “Ladies and gentlemen, what you have heard during this case from the state of Connecticut, the evidence that you have heard during this case from the state of Connecticut, the evidence that you have heard is a pyramid. It is not the traditional kind of pyramid that you think of; it is inverted; it stands on a point. And I think you know what that point is, two words are the point upon which this pyramid stands. Those words are ‘[the victim] says.’
      “Ladies and gentlemen, there is an exception to that in the state’s proof, which I will get to, something that is not based just on what [the victim] said, but I submit to you that 99 percent of what you have heard [is] based on what [the victim] said. What I just told you was volume one of the state’s case. On June twentieth, you heard volume two of the state’s case. You may recall the state was permitted to bring [the victim] back to the stand. She gave a new version of the events of April twentieth. Mr. Satti had met with [the victim] the day before, on the nineteenth at 1:15 or something in his office, I don’t recall exactly when. Now, volume three occurred this morning, and I was a bit surprised. You will recall Mr. Satti introduced evidence of assemblies and school functions and so forth trying to bolster the theory that it occurred on Thursday, the twenty-first, but he argued before you today it was the twentieth, but that you could find it on the twenty-first, if you wanted to.”
      In his rebuttal the state’s attorney replied as follows: “And if in the course of his argument, Mr. Guernsey suggested to you about the state writing volume one and two and this is volume three, I want to suggest to you, and I mean this as sincerely as I can, I am the representative of the state of Connecticut in this matter, and I don’t care what you think about me. Don’t misunderstand me, I, like anyone, want people to like me. That is human nature. But what I am saying is this, that if you think that I, as a representative of the state of Connecticut, the state’s attorney, [am] trying to put a phony story in front of you, the jurors, just to hang Fred Lucci, then I don’t even deserve a half-a-minute. Please go in and elect your foreman and foreperson and come out here right away and say you, sir, should not do this to this man. But that is what Mr. Guernsey is telling you. We are switching our stories as we go along.”


author: Dupont, C. J.

text:
    James Shira v. National Business Systems, Inc., et al.
    (9589)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued May 1
    decision released July 30, 1991

      Jeffrey G. Schwartz, with whom was William Horan, legal intern, for the appellants (defendants).

      C. Thomas Furniss, for the appellee (plaintiff).
   Dupont, C. J.

This is the defendants’ appeal from a decision by the workers’ compensation review division, affirming a decision by the workers’ compensation commissioner granting the plaintiff’s motion to preclude defenses. The defendants claim that the motion to preclude was improperly granted because (1) there was no employee-employer relationship at the time the plaintiff’s injury occurred, (2) the plaintiffs written notice of claim was technically defective, and (3) there was no prima facie evidence of any injury.

A claimant must first prove an employee-employer relationship before the Connecticut Workers’ Compensation Act, General Statutes § 31-275 et seq., may be invoked because the existence of that relationship involves subject matter jurisdiction. Castro v. Viera, 207 Conn. 420, 422, 541 A.2d 1216 (1988). The first question to be resolved, therefore, is whether there was subject matter jurisdiction, namely an employee-employer relationship. We agree with the commissioner and the compensation review division that there was such a relationship. Although such a relationship existed, we conclude that we nevertheless have no jurisdiction over this appeal because of the lack of a final judgment. Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990).

The plaintiff who was employed as a salesman by the named defendant sustained a loss of vision, allegedly due to work related stress, on June 3,1985. The plaintiff received a letter of termination of employment dated June 7, 1985. The plaintiff did not notify the named defendant of his injury until he sent it a copy of a standard workers’ compensation claim form dated April 10,1986. The named defendant’s notice of intent to contest liability was not received at the commissioner’s office until August 1, 1986, far beyond the twenty day statutory time limit imposed by General Statutes § 31-297 (b). Thereafter, the plaintiff filed the motion to preclude the defendants from contesting liability, which is the basis of this appeal.

The burden rests on the plaintiff to prove that he was an employee. Castro v. Viera, supra, 426. Here, the plaintiff alleged that his injury occurred on June 3, 1985. At the hearing before the commissioner, the president of the named defendant testified that he had terminated the employment of the plaintiff at the end of May or the beginning of June, 1985. In rebuttal, the plaintiff produced the termination letter dated June 7, 1986, and signed by the named defendant’s president. The commissioner concluded on the basis of this evidence that an employer-employee relationship existed at the time of plaintiff’s injury.

The power and duty of determining the facts rest on the commissioner as the trier of facts. Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979). “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Id., 118. Applying these principles, we conclude that the commissioner’s finding that there was an employee-employer relationship between the plaintiff and the named defendant should not be disturbed. See Castro v. Viera, supra, 435.

In spite of this conclusion, we must remand the case for further proceedings because we conclude that the granting of the motion to preclude does not here constitute a final judgment. The test for determining when the affirmation of a motion to preclude or other decision of the review board constitutes a final judgment was articulated in Szudora v. Fairfield, supra. “[Wjhether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” Id. See also Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 186, 588 A.2d 194 (1991); Guinan v. Direct Marketing Assn., Inc., 22 Conn. App. 515, 578 A.2d 129 (1990).

The actual benefits the plaintiff can receive are determined by statutory formulas. General Statutes §§ 31-307 and 31-308. The determination, however, of the extent of the plaintiffs incapacity governs which particular statutory formula applies and that determination requires the taking of additional evidence. The plaintiff has the burden of proving the extent of his incapacity. Nagyfy v. Miller’s Stratford Provision Co., 145 Conn. 726, 139 A.2d 604 (1958). Here, the plaintiff conceded at oral argument that there had to be further proceedings before the commissioner to present medical evidence demonstrating the extent of the plaintiffs incapacity. This case, therefore, is unlike that of Szudora v. Fairfield, supra, 557, in which the parties agreed that the further proceedings involved only a “ministerial, noncontroversial compilation of salary information retrievable from an existing computer data bank.” Id.

Here, the granting of the motion to preclude did not terminate the proceeding because the commissioner has yet to determine the plaintiff’s compensation and that involves more than the utilization of a pure mathematical calculation of compensation.

The appeal is dismissed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The other defendant is the named defendant’s workers’ compensation insurance carrier.

       The motion to preclude was made pursuant to General Statutes § 31-297 (b). That section provides in relevant part: “[W]henever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners .... If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or extent of his disability . . . .”


author: Daly, J.

text:
    State of Connecticut v. Everton Lewis
    (9297)
    Spallone, Daly and Cretella, Js.
    Argued June 5
    decision released July 30, 1991

      Neal Cone, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Jennifer Sanders, deputy assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). Although the jury found the defendant guilty of possession of narcotics in violation of General Statutes § 21a-279 (a), the trial court dismissed that charge. The defendant claims that the trial court improperly restricted his cross-examination of the state’s expert witness on narcotics trafficking. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On June 30,1989, at approximately 2 p.m., officers of the Hartford police department executed a search warrant for 112 Stonington Street, apartment D, in Hartford. The police entered through the open door of the apartment, where they encountered the defendant making a phone call. Upon seeing the police, the defendant turned his back toward the officers and appeared to place something in his waistband. Officer Michael Perodeau thought the defendant was reaching for a weapon and grabbed the defendant. Perodeau then removed a brown paper bag from the defendant’s person. It was later determined that the bag contained twenty glassine packets of heroin and six plastic bags containing cocaine. A farther search of the defendant’s clothing produced six more glassine packets of heroin and another plastic bag containing cocaine. The defendant was also carrying $245 in denominations of five, ten and twenty dollar bills. Upon searching the kitchen, the police discovered two strainers that were covered with a white residue.

In the week before executing the search warrant, Detective Gregory Merit of the Hartford police department witnessed the defendant on several occasions leave apartment D on 112 Stonington Street after persons knocked on the apartment door or hailed the defendant from outside. Merit saw persons give money to the defendant who would then enter the apartment and return to hand something to the person who would then leave. Merit believed these exchanges involved the sale of narcotics.

The defendant claims that the trial court improperly restricted his cross-examination of the state’s expert witness concerning the defendant’s narcotics consumption. The defendant argues that such consumption may have affected the expert’s opinion as to whether this defendant intended to sell narcotics or possessed them for his own use. The following facts are pertinent to this claim.

The trial court recognized Detective Michael Manzi of the Hartford police as an expert witness on narcotics trafficking. Manzi testified that the type of packaging and the amount of narcotics found on the defendant were factors indicating that the defendant was selling narcotics. Manzi also opined that the presence of strainers in the apartment and the denominations of money in small bills found in the defendant’s pocket were further evidence that the defendant was selling narcotics.

During the cross-examination of Manzi, defense counsel asked, “So, anytime somebody has ten bags, in your opinion, they are in the sale scenario?” Manzi answered, “It would lead me to believe that they were involved with the sale.” Defense counsel then inquired: “[If] that person did ten bags a day, would [that] change your opinion?” Manzi replied, “It could, yes, it could.” Manzi was then asked how that fact would alter his opinion. At that point, the state objected, claiming that the question was beyond the scope of direct examination. The trial court sustained the objection and defense counsel took an exception.

Although, the trial court should have allowed Manzi to answer this question and, therefore, improperly restricted the defendant’s right to confront and cross-examine the state’s expert witness in this case, we find that the restriction was harmless beyond a reasonable doubt. The confrontation clauses of both the federal and state constitutions grant a criminal defendant the right to confront all witnesses who testify on behalf of the state. State v. Alvarez, 216 Conn. 301, 315, 579 A.2d 515 (1990). The defendant’s right to cross-examine witnesses is secured by the confrontation clause. State v. Roma, 199 Conn. 110, 114, 505 A.2d 717 (1986), citing Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). The right to cross-examine adverse witnesses is not absolute, however, and limitations on the scope of cross-examination are within the sound discretion of the trial court, as long as the defendant has been allowed sufficient cross-examination to meet the requirements of the confrontation clause. State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980).

If the defendant is inquiring about motive, interest, bias and prejudice, cross-examination “is a matter of right and may not be unduly restricted.” State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985); State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979). The cross-examination in this case did not involve the defendant’s attempt to inquire into one of these topics. The defendant was testing Manzi’s credibility and the basis for his determination that a sale of narcotics had occurred instead of personal possession of narcotics. In order to satisfy the constitutional requirement for confrontation, defense counsel must be allowed to bring to the jury’s attention “facts from which the jurors, as the sole triers of the facts and credibility, can appropriately draw inferences relating to the reliability of the witness.” State v. Vitale, supra, citing United States v. Vasilios, 598 F.2d 387, 389 (5th Cir. 1979).

The defendant’s question, to which the state objected, was within the scope of the direct examination. The direct examination covered both the amount of narcotics found on the defendant and his consumption of narcotics as factors considered by Manzi to determine whether the defendant was selling narcotics. The question asked on cross-examination that the trial court would not permit related to the defendant’s intent to sell narcotics, that must be proved for a conviction under General Statutes § 21a-277 (a). Because this was an essential element of the crime, the defendant should have been allowed a more extensive inquiry into the basis of Manzi’s opinion “to expose to the fact-finder any weaknesses” from his testimony on direct examination. State v. Girolamo, 197 Conn. 201, 216, 496 A.2d 948 (1985).

Although the question on cross-examination was within the scope of direct examination, we must determine whether the improper restriction of the defendant’s cross-examination was harmless beyond a reasonable doubt. State v. Coleman, 14 Conn. App. 657, 679, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988), citing Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986). After reviewing the record, we find that the improper restriction of the defendant’s cross-examination was harmless beyond a reasonable doubt. The defendant was given ample opportunity to cross-examine Manzi on the other factors that formed his opinion. One factor that Manzi relied on was the presence in the defendant’s apartment of strainers containing a residue of white powder. Manzi testified that these strainers are used to prepare narcotics for sale. The presence of drug paraphernalia can be relevant to establish the defendant’s intent to sell. State v. Ober, 24 Conn. App. 347, 352, 588 A.2d 1080 (1991). The defendant also cross-examined Manzi about the denominations of the bills of the $245 found on the defendant’s person. This was another factor Manzi used to infer that the defendant was selling narcotics. This factor has been recognized as circumstantial evidence allowing a jury to infer that a defendant was intending to sell narcotics. State v. Uribe, 14 Conn. App. 388, 394, 540 A.2d 1081 (1988). Manzi further focused on the presence of packaging materials employed in the narcotics trade, as well as the amount of narcotics found, to form the opinion that the defendant intended to sell these narcotics. Id., 393.

By allowing the defendant to inquire into all of these other factors that supported Manzi’s opinion, the exclusion of one hypothetical question was harmless beyond a reasonable doubt. We also note that the defendant could have called Manzi as his own witness to explore the subject. Thus, the defendant was able to expose the jury to sufficient facts in order to assess the credibility and reliability of Manzi’s opinion that the defendant intended to sell narcotics, as required by State v. Vitale, supra.

We must further determine if the restriction of the defendant’s cross-examination constituted an abuse of discretion by the trial court. State v. Johnson, 21 Conn. App. 291, 296, 573 A.2d 1218 (1990), citing State v. Castro, 196 Conn. 421, 425, 493 A.2d 223 (1985). “Reversal is required only where an injustice appears to have occurred. ... To establish an abuse of discretion, it must be shown that restrictions imposed on cross-examination were clearly prejudicial.” (Citations omitted.) State v. Johnson, supra, 297. Because the trial court’s restriction on the defendant’s cross-examination was harmless beyond a reasonable doubt and, applying the same reasoning, we also conclude that it was not clearly prejudicial to the defendant. We conclude that the defendant has not demonstrated any prejudice resulted and, therefore, that no abuse of discretion occurred in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       The trial court dismissed the second conviction because the defendant “could not commit the greater offense of possession of a narcotic substance with intent to sell without, likewise, having committed the lesser offense of simple possession.” State v. Williams, 12 Conn. App. 225, 231, 530 A.2d 627 (1987). Thus, the prohibition against double jeopardy prevents the defendant from being convicted on both counts. Id., 232.


text:
    Sophie Protter v. Brown Thompson and Company et al.
    (9907)
    Daly, Foti and Heiman, Js.

      Argued May 30
    decision released July 30, 1991

      David J. Scully, for the appellant (third party defendant Clarence Butler).

      Kenneth E. Lenz, with whom, on the brief, was Paul Ruszczyk, for the appellee (fourth party defendant Dalene Hardwood Flooring, Inc.).
   Heiman, J.

The fourth party plaintiff in this personal injury action appeals from a decision of the trial court granting a fourth party defendant’s motion to strike the first count of the fourth party complaint on the ground that the cause of action is barred by the applicable statute of limitations as set forth in General Statutes § 52-577. Thus, the sole issue presented is whether the trial court properly found that, in a fourth party action for indemnification, the limitations period of § 52-577 begins to run on the date of the negligent conduct underlying the original cause of action rather than on the date that a judgment for which the fourth party plaintiff seeks indemnification is rendered. We affirm the judgment of the trial court.

The plaintiff brought the underlying action against the defendants, Brown Thompson and Company, Metropolitan Properties, Inc., and the Richardson Associates (Brown Thompson) in April, 1988, based on injuries she allegedly sustained as the result of a slip and fall on the premises of a restaurant owned by Brown Thompson.

On December 28,1988, Brown Thompson impleaded Clarence Butler, doing business as Clarence Butler and Sons (Butler), as a third party defendant by a third party complaint seeking indemnification against Butler for his alleged negligence in cleaning and maintaining the floor in question.

On January 2,1990, Butler filed a fourth party complaint seeking indemnification from Dalene Hardwood Floor Company, Inc. (Dalene), Minwax Company and Leese Flooring Supplies, Inc., as fourth party defendants. The first count of the fourth party complaint claimed a right of indemnification based on Dalene’s allegedly negligent instructions regarding the type of wax to use and the application of that wax to the floor in question.

On March 22, 1990, Dalene filed a motion to strike the first count of the fourth party complaint on the ground that the cause of action alleged was barred by the three year statute of limitations set forth in General Statutes § 52-577. On November 15,1990, the trial court granted Dalene’s motion to strike, reasoning that the three year limitations period began to run on or before May 13,1986, the day the plaintiff allegedly fell.

On appeal, Butler claims that the trial court improperly granted Dalene’s motion to strike because it incorrectly concluded that the statute of limitations set forth in § 52-577 began to run on the date of the negligent act or omission on which the underlying cause of action is based. Rather, Butler contends, because the fourth party complaint claimed a right of indemnification, the event that would trigger the limitations period contained in § 52-577 was the potential future judgment and resulting demand for payment of said judgment on which the right to indemnification was founded.

Our analysis of Butler’s claim begins with the pertinent statutory language. General Statutes § 52-102a (b), Connecticut’s impleader statute, provides in pertinent part: “the third-party defendant, shall have available to him all remedies available to an original defendant . . . .” The “all remedies” clause contained in General Statutes § 52-102a (b) preserves the statute of limitations defense for third party defendants. See Vincent v. Litchfield Farms, Inc., 21 Conn. App. 524, 528, 574 A.2d 834, cert. denied, 215 Conn. 815, 576 A.2d 544 (1990). The term “third-party defendant” as used in § 52-102a clearly includes any party impleaded by operation of that statute. Thus, Dalene may properly raise the statute of limitations to bar Butler’s action for indemnification.

The applicable statute of limitations provides that “[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.” General Statutes § 52-577. “The exact wording of the statute, barring the bringing of any action founded upon a tort ‘but within three years from the date of the act or omission complained of, ’ pinpoints the basic question here as being just what actually constituted ‘the act or omission complained of . . .” in Butler’s claim for indemnification. (Emphasis in original.) Prokolkin v. General Motors Corporation, 170 Conn. 289, 294, 365 A.2d 1180 (1976).

At common law, statutes of limitations did not begin to run until the accrual of an action, and an action for indemnification did not accrue until the entry of final judgment against the party seeking indemnification. McEvoy v. Waterbury, 92 Conn. 664, 667, 104 A. 164 (1918). However, “[i]n adopting [the ‘act or omission complained of’] language, our legislature distinguished Connecticut’s statutes of limitations for torts from those of other jurisdictions, the majority of which begin to run only ‘after the cause of action has accrued.’ ” Prokolkin v. General Motors Corporation, supra, 294-95. “ ‘The date of the act or omission complained of is the date when the negligent conduct of the defendant occurs and is not the date when the plaintiff first sustains damage’ . . . .” Id., 297, quoting Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 173, 127 A.2d 814 (1956). “Because of the distinction created in the Connecticut limitation statute between the injury and the tortious conduct that caused it, it is, indeed, possible, on occasions, to bar an action even before the cause of action accrues.” Prokolkin v. General Motors Corporation, supra, 296; see also Vilcinskas v. Sears, Roebuck & Co., supra, 174.

As Prokolkin makes clear, the aforementioned principles control actions based on a right of indemnification as well as direct causes of action. See Prokolkin v. General Motors Corporation, supra, 302-303. The “act or omission complained of” for the purposes of Butler’s indemnification claim against Dalene is the alleged negligence of Dalene in instructing on the type of wax to use and the application of the wax to Brown Thompson’s floor. These acts necessarily occurred, if at all, before May 13,1986, the date of the alleged fall. Because Butler’s fourth party action for indemnification against Dalene was not brought until January 2, 1990, the trial court properly concluded that the action was barred by General Statutes § 52-577 as not brought “within three years from the date of the act or omission complained of.” See General Statutes § 52-577.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       In its reply brief, Butler argues for the first time that General Statutes § 52-577 is not the controlling statute of limitations. This claim was not raised at trial, however, and was not included in the “statement of issues” section of Butler’s brief. See Practice Book § 4065 (a).
      It is a rule of long standing that claims of error not distinctly raised at trial will not be reviewed on appeal. Goold v. Goold, 11 Conn. App. 268, 282, 527 A.2d 696 (1987); Hanson v. Department of Income Maintenance, 10 Conn. App. 14, 18, 521 A.2d 208 (1987). “We have repeatedly held that this court -will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim . . . . ” (Citations omitted.) Keating v. Glass Container Corporation, 197 Conn. 428, 431, 497 A.2d 763 (1985). Furthermore, we will not review a claim raised for the first time in the reply brief. L. F. Pace & Sons, Inc. v. Traveler’s Indemnity Co., 9 Conn. App. 30, 45 n.8, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 866 (1986). Accordingly, we decline to review this claim.


author: Foti, J.

text:
    Marjorie W. Tabackman v. Leonard Tabackman
    (9465)
    Daly, Poti and Heiman, Js.
    Argued May 30
    decision released July 30, 1991

      Hugh F. Keefe, with whom, on the brief, were Mary Beattie Schairer, John J. Keefe, Jr., Charles Tiernan and Richard Lynch, for the appellant (defendant).

      Gary I. Cohen, with whom was Lee Marlow, for the appellee (plaintiff).

      Roberta S. Friedman, for the minor children.
   Foti, J.

The defendant appeals from the judgment of dissolution and the attendant orders determining child custody and financial awards. The defendant challenges the trial court’s orders providing (1) joint custody of the parties’ two minor children, (2) various financial orders, (3) certain postjudgment financial awards that are retroactive to the date of judgment, and (4) counsel fees for the minor children. Because our decision regarding the first claim is dispositive, we do not address the defendant’s other claims.

The facts relevant to our resolution of this matter may be briefly summarized as follows. The parties were married on July 4, 1976, and, at the time of judgment there were two minor sons, ages nine and seven, that were issue of the marriage. The court, F. Freedman, J., dissolved the marriage after finding that it had broken down irretrievably. After noting that one of the major issues was the custody of the minor children, the court awarded joint custody but gave the plaintiff the final decision making authority regarding the children. The primary residence of the children was with the plaintiff and certain delineated visitation rights were granted to the defendant. The defendant was ordered to pay $150 per week for the support of each child, and certain provisions were made to ensure that health insurance was maintained. No alimony was awarded. The marital home was awarded to the plaintiff subject to the existing first mortgage that became her sole obligation. The contents of the marital home were also awarded to the plaintiff. The defendant was ordered to pay certain medical expenses and witness fees, and the counsel fees for the minor children.

A postjudgment hearing was held on November 20, 1990, during which the court, Mihalakos, J., entered further orders regarding the payment of psychotherapy costs for the two minor children and the payment of attorney’s fees for the children.

As a preliminary matter, we must determine whether the court, under the circumstances of this case, was authorized to award joint custody.

“A court may award joint legal custody, with or without joint physical custody, if the parties agree to joint custody or if one party seeks joint custody”; Emerick v. Emerick, 5 Conn. App. 649, 657, 502 A.2d 933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d 192 (1986); or by a motion for conciliation after a party has made a motion seeking joint custody. Id. “When one of the parties has sought joint custody in the pleadings, it is not error for the court, in the exercise of its discretion, to award joint custody.” Giordano v. Giordano, 9 Conn. App. 641, 645, 520 A.2d 1290 (1987).

In this case, there is no pleading requesting joint custody. There is neither an agreement to joint custody nor a motion for conciliation by one of the parties following a motion for joint custody. Cf. Cabrera v. Cabrera, 23 Conn. App. 330, 344-47, 580 A.2d 1227, cert. denied, 216 Conn. 828, 582 A.2d 205 (1990).

We might determine that the award of custody in this case is the functional equivalent of an award of sole custody because it grants the plaintiff ultimate authority in all decisions regarding the children’s welfare. We reject this argument, however, because joint custody is the trial court’s own determination of the meaning of its order. We, therefore, determine that some form of joint custody was awarded, and, because that award was made without agreement of the parties pursuant to General Statutes § 46b-56a, or after motion by one of the parties, it was improperly granted.

Having so concluded, we are required to remand this action for a new trial with respect to custody and to all financial issues. The issues involving custody of the minor children and division of property and financial orders are so interwoven as to require that they be decided as part of one integrated resolution. See Sunbury v. Sunbury, 210 Conn. 170, 174-75, 553 A.2d 612 (1989); Trella v. Trella, 24 Conn. App. 219, 223, 587 A.2d 162, cert. denied, 219 Conn. 902, 593 A.2d 132 (1991).

The judgment of the trial court is reversed and the case is remanded for a new trial as to custody and all financial orders.

In this opinion the other judges concurred.

       General Statutes § 46b-56a (a) provides: “For the purposes of this section, ‘joint custody’ means an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents. The court may award joint legal custody without awarding joint physical custody where the parents have agreed to merely joint legal custody.”

       General Statutes § 46b-56a (b) provides: “There shall be a presumption, affecting the burden of proof, that joint custody is in the best interests of a minor child where the parents have agreed to an award of joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child or children of the marriage. If the court declines to enter an order awarding joint custody pursuant to this subsection, the court shall state in its decision the reasons for denial of an award of joint custody.”

       General Statutes § 46b-56a (c) provides: “If only one parent seeks an order of joint custody upon a motion duly made, the court may order both parties to submit to conciliation at their own expense with the costs of such conciliation to be borne by the parties as the court directs according to each party’s ability to pay.”

        See Emerick v. Emerick, 5 Conn. App. 649, 657 n.9, 502 A.2d 933 (1985).