author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. LLOYD F. MCCARTHY II
    (AC 19738)
    Foti, Schaller and Stoughton, Js.
    Argued January 10
    officially released May 15, 2001

      Lori Welch-Rubin, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Mark Brodsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Lloyd F. McCarthy II, appeals from the judgment of conviction rendered after a jury trial. The jury found the defendant guilty of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d and of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes (Rev. to 1997) § 14-227a (a) (l). The defendant claims that the trial court improperly (1) failed to instruct the jury fully in accordance with the statutory directive of § 14-227a (f), (2) failed to limit the applicability of any negative inference that might have been drawn by the jury pursuant to § 14-227a (f) and (3) abused its discretion in failing to permit him to present the testimony of two expert witnesses, thereby depriving him of his constitutional right to present a defense. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On the evening of October 10, 1998, the defendant was driving his automobile on Route 4 approaching Route 167 in Farmington. The traffic signal that controlled that intersection was red for eastbound traffic as the defendant approached. In the eastbound lane, there were two automobiles, one behind the other, waiting for the signal to change. The defendant struck from behind the first of those vehicles, which was operated by Stephen Griswold, and pushed Griswold’s vehicle into the rear of the next vehicle, which was operated by Michael Taylor. Griswold was temporarily paralyzed as a result of the collision. On December 15,1998, Gris-wold underwent surgery to repair the damage caused by the injuries he had sustained in the collision.

Shortly after the collision, the defendant told Officer Gregory Blackington of the Farmington police department, who came to the scene of the accident, that he did not remember how fast he was driving or whether he had applied his brakes prior to the collision. Black-ington observed that the defendant appeared to be “very disoriented” and that there were no skid marks on the roadway behind the defendant’s automobile.

The defendant also spoke with Marshall Porter, another Farmington police officer who came to the accident scene. The defendant told Porter that he had reached down in his vehicle to pick up a cigar that he had dropped and did not recall whether he had seen the Griswold car in front of him before he struck it. Porter smelled alcohol on the defendant’s breath and, when asked if he had been drinking, the defendant admitted that he had had “a couple.” Furthermore, Porter noticed that the defendant slurred his speech, stared blankly and told him different versions of where he had been.

Porter then asked the defendant to perform field sobriety tests because he suspected that the defendant was intoxicated. After the defendant failed several of those tests, Porter concluded that he was under the influence of alcohol and arrested him. At the police station, Porter read to the defendant from an implied consent advisory form and explained that he would be asked to submit to a breath test. He also informed him of the consequences of his refusal to take the test. The defendant declined an opportunity to call an attorney and instead decided to call his brother for advice. Thereafter, the defendant refused to submit to the breath test.

Three other witnesses at the accident scene also observed that the defendant appeared to be intoxicated. The two occupants of the vehicle that was in front of Griswold’s vehicle observed the defendant immediately after the collision and concluded that he was intoxicated. Another witness who observed the collision saw the defendant attempting to perform the field sobriety tests and also believed that he was under the influence of alcohol.

I

The defendant first claims that the court improperly failed to instruct the jury fully in accordance with the statutoiy directive of § 14-227a (f). Specifically, he claims that the court failed to instruct the jury in the exact language of § 14-227a (f) that it “may or may not” draw a negative inference from the fact that he had refused to submit to the requested breath test. Further, he claims that the charge diluted the state’s burden of proof as to a statutory element of the offense.

Section 14-227a (f) provides in relevant part that “[i]n any criminal prosecution for a violation of [operation while under the influence or operation while impaired], evidence that the defendant refused to submit to a blood, breath or urine test requested in accordance with section 14-227b shall be admissible [under certain conditions]. ... If a case ... is tried to a jury, the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.” In that statute, the legislature has provided for a permissive inference that the jury may draw, as it deems fit, from evidence of the fact that the defendant refused to submit to a breath test.

In this case, the court charged the jury as follows. “In order to draw an inference, however, you must find that the state . . . proved the fact from which you are to draw the inference beyond a reasonable doubt. That is, the fact upon which the inference is to be drawn must be proven to your satisfaction beyond a reasonable doubt. Now, if you find that the state has sustained its burden, you may well pass on to the question of whether or not you will draw the inference, and you must also make a determination whether or not the inference is logical, reasonable and satisfies you beyond a reasonable doubt of the existence of facts which you are asked to infer.

* * *

“Now ... [it has] been mentioned that the defendant was invited to take — asked to take a test — on an intoximeter .... And now, again, it’s clear that the statute says that if you conclude from the evidence that the defendant refused to take this test . . . that’s for you to determine whether or not the defendant refused to take the test. Now, if you come to that conclusion that he did refuse to take the test, then you can also conclude that the test would have been unfavorable to his position. ... Or you could draw that inference— getting back to that inference that I had told before. But you first have to conclude whether or not he refused. If you find he didn’t refuse, then you don’t go on to that. Then there’s nothing there for you to decide. But if you find that he did refuse the test, then you can draw this inference wherever it fits into your discussions or deliberations in the case.”

After the charge, the defendant took an exception, stating that “the jury may be confused as to the inference that they may or may not draw from the alleged refusal. Respectfully, Your Honor, I believe that you stated that they conclude that it would have been unfavorable to his position and then, later on, you used the word inference. I would ask Your Honor to issue an additional charge on that and just highlight that it’s really an inference and, in itself, legally, cannot lead to a conclusion of guilt.”

The defendant’s exception, whatever its intent, could not have alerted the court to the claim that the charge did not repeat the statutory language of § 14-227a (f). Nevertheless, we are able to consider the claim because a request to charge was made by the defendant in the statutory language.

The standard of review of jury instructions is well settled. “[A]n error in instructions in a criminal case is reversible error when it is shown that it is . . . reasonably probable for nonconstitutional errors that the jury [was] misled.” (Emphasis in original; internal quotation marks omitted.) State v. Stevenson, 53 Conn. App. 551, 574, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999). A jury charge should not be critically dissected but, rather, should be considered as to its probable effect on the jurors in guiding them to a correct verdict and should be read as a whole. State v. Rodriguez, 60 Conn. App. 398, 406, 759 A.2d 123 (2000), cert. denied, 255 Conn. 928, 767 A.2d 103 (2001).

The court’s instructions identified a permissive inference, which is a nonconstitutional claim. See State v. Gerardi, 237 Conn. 348, 360, 677 A.2d 937 (1996). The jurors were instructed that if they were satisfied beyond a reasonable doubt that the defendant had refused to take the breath test, only then could they draw an unfavorable inference. We conclude that the trial judge’s instructions substantially complied with the statutory language and that it is not reasonably possible that the jury was misled.

II

The defendant next claims that the court improperly failed to limit the applicability of the possible negative inference that might have been drawn pursuant to § 14-227a (1) to the claimed violation of § 14-227a (a) (1) when it instructed the jury: “But if you find that he did refuse the test, then you can draw this inference wherever it fits into your discussions or deliberations in the case.”

The defendant concedes that he did not raise his claim before the trial court by excepting to the charge. He argues, however, that he is entitled to plain error review and cites State v. Cooper, 38 Conn. App. 661, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996). In Cooper, the trial court permitted the jury to consider the results of a blood test to determine whether the defendant was guilty of operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a) (1) and (2). Id., 662-63. Section 14-227a (d) specifically provides that the test result is admissible in a prosecution for a violation of § 14-227a (a) (1) “only at the request of the defendant,” and it was conceded in Cooper that the defendant had not made such a request. Id., 672. This court granted review in that case because noncompliance with a mandatory statutory provision constitutes plain error, and this court concluded that the trial court’s instruction constituted an extraordinary situation in which the error was so obvious that the fairness, integrity of and public confidence in the judicial process would be impaired were this court to fail to address the issue. Id., 673.

In this case, the court allowed the jury to draw whatever inference it chose to draw from the defendant’s refusal to take the breath test “wherever it [fit] into [the jury’s] discussions or deliberations.” We find nothing in § 14-227a that prohibits evidence of consciousness of guilt, based on a defendant’s refusal to take a breath test, from being considered in a prosecution for assault in the second degree with a motor vehicle in violation of § 53a-60d. That kind of evidentiary claim is not the type of extraordinary situation that permits plain error review. See State v. Lacks, 58 Conn. App. 412, 425, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000). We therefore decline to review the defendant’s claim.

Ill

The defendant claims finally that the court abused its discretion by failing to permit him to present the testimony of two expert witnesses, thereby depriving him of his constitutional right to present a defense. He argues, specifically, that he was deprived of his constitutional right to present a defense when the court refused to permit Jeffrey Muttart, an accident recon-structionist, and James O’Brien, a physician, to testify concerning the effect a deployed air bag might have had if it had struck the defendant.

Outside the presence of the jury, Muttart testified that an air bag deploys at a speed of 190 to 200 miles per hour. The court refused to permit the defendant to proffer that testimony to the jury because, although there was evidence that the air bag in the defendant’s vehicle had deployed, there was no evidence that it actually had struck the defendant. O’Brien also testified outside the presence of the jury. He, in fact, testified that as a result of experiencing or participating in an accident, a person could experience confusion. The court later allowed him to offer that testimony before the jury. During cross-examination outside the presence of the juiy by the assistant state’s attorney, O’Brien testified that he assumed that the air bag had deployed and struck the defendant, and that if he was asked if that could cause confusion, he would testily that it could. The defendant, however, did not seek to elicit that testimony from O’Brien at any time. The defendant now argues that the court prevented him from offering exculpatory evidence to explain the confusion he exhibited at the accident scene because he was not allowed to offer any testimony from Muttart and more detailed testimony from O’Brien.

A court’s exercise of discretion in admitting expert testimony will not be disturbed on appeal unless its discretion has been abused or the error is clear and involves a misconception of the law. Hines v. Davis, 53 Conn. App. 836, 840, 731 A.2d 325 (1999). “Whether a proper foundation has been laid to support a hypothetical question is an issue of fact for the trial court. . . . [WJhere the admissibihty of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error. (Citation omitted; internal quotation marks omitted.) States. Leroy, 38 Conn. App. 282, 287, 661 A.2d 106, cert. denied, 235 Conn. 904, 665 A.2d 904 (1995). Furthermore, it is well settled that the confrontation clause and a defendant’s constitutional right to present a defense do not give the defendant the right to unlimited cross-examination. See State v. Valentine, 255 Conn. 61, 71, 762 A.2d 1278 (2000).

In the present case, because there was no evidence that the air bag actually had struck the defendant, we cannot find that the court abused its discretion when it excluded evidence of the speed at which the air bag deployed. In any event, the defendant was permitted to offer evidence that merely being involved in an accident might cause confusion. The defendant, therefore, was allowed to present exculpatory evidence to the jury to explain his confusion at the accident scene and was not denied his constitutional right to present a defense. We conclude, therefore, that the court did not abuse its discretion when it limited the testimony of the defendant’s two expert witnesses.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60d (a) provides: “A person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes serious physical injury to another person as a consequence of the effect of such liquor or drug.”

       General Statutes (Rev. to 1997) § 14-227a (a) provides: “Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. Aperson commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-227a (f) provides: “Evidence of refusal to submit to test. In any criminal prosecution for a violation of subsection (a) or (b) of this section, evidence that the defendant refused to submit to a blood, breath or urine test requested in accordance with section 14-227b shall be admissible provided the requirements of subsection (b) of said section have been satisfied. If a case involving a violation of subsection (a) of this section is tried to a jury, the court shall instruct the jury as to any inference that may or may not be drawn from the defendant’s refusal to submit to a blood, breath or urine test.”


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LEE RELLIFORD
    (AC 21244)
    Landau, Dranginis and Dupont, Js.

      Argued January 18
    officially released May 15, 2001

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Lee Relliford, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92, risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). On appeal, the defendant claims that the trial court improperly denied his (1) motion for a mistrial and (2) motion for a presen-tence psychiatric examination. We affirm the judgment of the court.

The jury reasonably could have found the following facts. On February 23, 1998, the defendant resided in New London with C and C’s fourteen year old daughter A. The defendant had known C for one year and had lived with her for three months. Shortly after 8 p.m. on February 23, 1998, the defendant came home and ordered C to get out of bed to go look at anew apartment with him. The defendant instead took C to a nearby coffee shop, accused her of having an affair and punched her in the face. The defendant then took a belt and wrapped it tightly around C’s neck, continuing to accuse her of having an affair and claiming that he had proof because he had been tape-recording C for a week. The defendant forced C to listen to the tapes. C testified that “there wasn’t anything on them [the tapes] except for noises. . . . The only thing I heard on it was the rustling of bags, nothing really .... With the rustling of the bags, he told me I was screwing somebody in the closet and then he told me I was screwing him on the bed and that’s what he was making out of the sounds on the tapes.”

The defendant continued to claim that the tapes proved C’s unfaithfulness. When C denied that she was having an affair, the defendant called her a liar and punched her repeatedly, insisting that he was going to “find out who it was that [C] was screwing” and that he would beat the information out of her. The defendant and C left the coffee shop and for the rest of the night the defendant drove around New London, continually striking and choking C. At one point during the night, the defendant locked C in the trunk while he fueled the car. After letting C out of the trunk, the defendant continued to beat her and accuse her of lying. The defendant then put C in the trunk for a second time. The defendant removed a crowbar and, as he did so, remarked that he could kill C with it. To stop the defendant from assaulting her, C claimed that her lover was her daughter’s gym teacher. The defendant then agreed to take C home to her daughter.

On the morning of February 24, 1998, A was awakened by her mother’s alarm clock, which went off at 6 a.m. When A went to her mother’s room to shut the alarm off, no one was there. A then took a shower to get ready for school. While she was doing so, A heard the defendant and her mother come home. The defendant came into A’s room and told her that her mother wanted her to stay home from school. The defendant also told A that he loved her and wanted her. When A went to check with her mother about school, she found C in bed crying, with the covers pulled completely over her. A asked her mother what was going on, and the defendant told C to “show her your face.” The defendant, who now had a knife in his hand, commented that C “got what she deserved” for cheating on him.

The defendant then asked A, “Do you want it here or in there.” He then told A to remove her clothes and that he would kill her if she did not do what he said. A then went to her room and removed her clothes. The defendant came in and told her to lay on her back. He then rubbed A’s vagina with Vaseline and digitally penetrated her. The defendant told A to let her hair down and to get on her knees. He removed his pants, made A touch his penis and then asked her whether she wanted it “in the pussy or in the butt.” He then anally raped A. When the defendant was through, he told A to take a shower because she was “dirty.” He also told C not to worry, that her daughter was “still a virgin.” The defendant then took C and A to the hospital.

Following his arrest, the defendant was charged in a four count information with kidnapping in the first degree, assault in the first degree, sexual assault in the first degree and risk of injury to a child. The defendant was found guilty as charged on the first, third and fourth counts. On count two, the defendant was found guilty of the lesser included offense of assault in the second degree. On February 3, 2000, the court sentenced the defendant to a total effective term of sixty years. This appeal followed.

I

The defendant’s first claim is that the court improperly denied his motion for a mistrial, which was based on C’s testimony that the defendant had previously choked and raped her. During redirect examination, the prosecutor inquired how frequently the defendant had accused C of being unfaithful. C responded, “He on occasion would start a big fight, we’d have a big argument. One time he choked me and he raped me.” The defendant immediately moved to strike the statement, and the court promptly ordered the jury to disregard the answer. After the completion of redirect examination, with the jury excused, the defendant moved for a mistrial, claiming that the prejudicial impact of the improper testimony could not be obviated by the court’s curative instruction.

The court, in its oral decision on the oral motion for a mistrial, stated: “First, at least in the court’s mind, it’s eviden[t] that whatever statement [C] made was unintentional. I think it’s agreed by everyone that there certainly was no attempt here for any misconduct on behalf of the state’s attorney to attempt to elicit the information that [C] indicated. . . . There are occasions when a court’s curative instruction is not sufficient, and our appellate courts have made that clear. However, I don’t think this is that case. The court promptly sustained the objection of the defense and in my mind anyway told the jury as emphatically as I could have told them that they were to disregard the testimony from the witness and disregard the answer that was given. . . . The issue for the court is whether it rises to the level that the jury believes that it can not now having been told to disregard it, whether [the defendant] can get a fair trial.”

“The decision as to whether to grant a motion for a mistrial ... is one that requires the trial court to exercise its judicial discretion. . . . 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. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... 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.” (Citations omitted.) State v. Lucci, 25 Conn. App. 334, 341-42, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991).

“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 350, 696 A.2d 944 (1997). “The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. . . . The trial court enjoys wide discretion in deciding whether a mistrial is warranted . . . and its evaluation as to events occurring before the jury is to be accorded the highest deference. . . . Every reasonable presumption will be given in favor of the trial court’s ruling . . . because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure has prejudiced a defendant. ... 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.” (Internal quotation marks omitted.) State v. Cruz, 40 Conn. App. 515, 524, 672 A.2d 502, cert. denied, 237 Conn. 909, 675 A.2d 457 (1996). A reviewing court gives “great weight” to curative instructions in assessing error. State v. McIntyre, 250 Conn. 526, 534, 737 A.2d 392 (1999).

We conclude that the court did not abuse its discretion by denying the defendant’s motion for a mistrial. Our review of the record reveals that the court’s curative instruction adequately remedied any prejudicial impact C’s statement may have had on the jury.

The statement by C in this case was isolated and made in response to a proper inquiry by the state as to how frequently the defendant had accused C of being unfaithful. The court found that the state attempted no misconduct in eliciting the statement. The court also reiterated, during the charge to the jury, that it must not consider any testimony that was excluded or stricken and told the jury to disregard testimony by C about alleged past conduct by the defendant. The court’s remedy of instructing the jury to disregard C’s answer and not to consider it a part of the evidence was adequate. The remedy was given immediately after the statement was made and established that the remark should not be considered in any way. See State v. Young, 56 Conn. App. 831, 838-41, 746 A.2d 795, cert. denied, 253 Conn. 904, 753 A.2d 939 (2000). We therefore conclude that no injustice occurred and the court did not abuse its discretion.

II

The defendant’s second claim is that the court improperly denied his motion for a presentence psychiatric examination pursuant to General Statutes § 17a-566 (a). Specifically, the defendant argues that the court abused its discretion in denying the motion because the defendant’s bizarre and delusional behavior of insisting that the unintelligible tapes he made contained evidence of C’s infidelity demonstrated psychiatric disabilities.

On December 15,1999, after the jury found the defendant guilty but prior to sentencing, the defendant filed a motion requesting that the court order a psychiatric examination of him pursuant to § 17a-566 (a). The court denied the defendant’s motion, concluding that while aspects of the defendant’s behavior during the crimes were bizarre, the evidence failed to establish that the defendant was operating under any type of mental disease or defect.

“A court may order a psychiatric evaluation of a defendant only if it appears to the court that such person has a psychiatric disability and is a danger to himself or others. General Statutes § 17a-566. The trial court, acting on a motion pursuant to General Statutes § 17a-566, may rely on evidence such as psychiatric reports, the defendant’s personal history and background, as well as the defendant’s testimony and demeanor at trial. See State v. Chance, 236 Conn. 31, 62, 671 A.2d 323 (1996). It is within the discretion of the trial court to grant or deny such a motion. State v. DeAngelis, 200 Conn. 224, 241, 511 A.2d 310 (1986).” State v. Maldonado, 51 Conn. App. 702, 706, 725 A.2d 962, cert. denied, 249 Conn. 904, 733 A.2d 224 (1999).

“The purpose of an examination under [§ 17a-566] is not to determine competency to be sentenced. That section presumes that a convicted defendant will be sentenced. The purpose of an examination under [§ 17a-566] is to allow the commissioner of mental health to make recommendations as to certain offenders concerning the sentence to be imposed and the place of confinement.” (Internal quotation marks omitted.) Id. Nevertheless, “[w]here the court has adequate psychiatric documentation of the defendant’s mental condition, there is no need for it to utilize the statutory provisions concerning further examinations. . . . The presence of some degree of mental illness does not prevent or avoid the imposition of sentence by the court nor does it necessarily require that the court ‘blindly and automatically implement the statutory machinery’ providing for psychiatric examinations.” (Citation omitted.) State v. Gates, 198 Conn. 397, 405, 503 A.2d 163 (1986).

The court stated in its ruling on the motion: “I don’t believe it would assist the court to have this type of an examination at this point because I think that the dearth of evidence is such that in the court’s mind [it] would be speculative at best to believe that the actions of the defendant were such that they come within the parameters of [§] 17a-566 (a) to the extent that the court believes it needs the type of examination that [the defendant] seeks.” As indicated by the trial court, the evidence failed to establish that the defendant’s actions necessarily required an examination under § 17a-566 (a). There was no expert testimony of any mental disease or defect, no evidence of any prior or subsequent psychiatric disabilities, and no evidence in the record that the defendant would be dangerous to himself or to others in prison. Under these circumstances, the court did not abuse its discretion in denying the defendant’s motion pursuant to § 17a-566 (a).

The judgment is affirmed.

In this opinion the other judges concurred.

       To comply with the provisions of General Statutes § 54-86e, the victims C and A were identified at trial by their first names only. Due to the distinctiveness of the names, this court will refer to them only by the first letter of those names.

       General Statutes § 17a-5G6 (a) provides: “Except as provided in section 17a-574 any court prior to sentencing a person convicted of an offense for which the penalty may be imprisonment in the Connecticut Correctional Institution at Somers, or of a sex offense involving (1) physical force or violence, (2) disparity of age between an adult and a minor or (3) a sexual act of a compulsive or repetitive nature, may if it appears to the court that such person has psychiatric disabilities and is dangerous to himself or others, upon its own motion or upon request of any of the persons enumerated in subsection (b) of this section and a subsequent finding that such request is justified, order the commissioner to conduct an examination of the convicted defendant by qualified personnel of the division. Upon completion of such examination the examiner shall report in writing to the court. Such report shall indicate whether the convicted defendant should be committed to the diagnostic unit of the division for additional examination or should be sentenced in accordance with the conviction. Such examination shall be conducted and the report made to the court not later than fifteen days after the order for the examination. Such examination may be conducted at a correctional facility if the defendant is confined or it may be conducted on an outpatient basis at the division or other appropriate location. If the report recommends additional examination at the diagnostic unit, the court may, after a hearing, order the convicted defendant committed to the diagnostic unit of the division for a period not to exceed sixty days, except as provided in section 17a-567 provided the hearing may be waived by the defendant. Such commitment shall not be effective until the director certifies to the court that space is available at the diagnostic unit. While confined in said diagnostic unit, the defendant shall be given a complete physical and psychiatric examination by the staff of the unit and may receive medication and treatment without his consent. The director shall have authority to procure all court records, institutional records and probation or other reports which provide information about the defendant.”


author: PETERS, J.

text:
    WALFRID LUNDBORG v. GEORGE V. LAWLER ET AL.
    (AC 19426)
    Foti, Flynn and Peters, Js.

      Argued February 22
    officially released May 15, 2001

      Christopher M. Reeves, for the appellant (plaintiff).

      Patty G. Swan, for the appellee (defendant Jeffrey L. Crown).
   Opinion

PETERS, J.

Pursuant to General Statutes § 51-164s, the Superior Court is authorized to hear all cases except those over which the probate courts have original jurisdiction. The principal issue in this case is whether claims of fraudulent misrepresentation were sufficiently raised in the Probate Court to preclude their relitigation in the Superior Court sitting as a court of general jurisdiction. The trial court, concluding that it lacked subject matter jurisdiction to proceed, granted a motion to dismiss and rendered judgment in favor of the party resisting relitigation. We agree.

PROCEDURAL HISTORY

This case had its origin in a decree of the Probate Court for the district of Farmington with respect to the estate of Helen L. Lundborg. That decree overruled the objection of the plaintiff, Walfrid Lundborg, to certain distributions proposed in the final accounting for the estate. The plaintiff participated in the probate proceedings as an heir at law, a designated beneficiary and the residual beneficiary of the will of Helen L. Lundborg.

The plaintiff sought and was granted the right to pursue a probate appeal from the probate decree. In that appeal, he invoked the jurisdiction of the Superior Court sitting as a Probate Court. “An appeal from probate is not so much an ‘appeal’ as a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court’s jurisdictional limitations. . . . Although the Superior Court may not consider events transpiring after the Probate Court hearing ... it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered.” (Citations omitted.) Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991).

In the probate appeal, the plaintiff alleged that the defendant George V. Lawler, the executor under the will, and the defendant Jeffrey L. Crown, attorney for the executor, were fiduciaries who had made fraudulent misrepresentations to the Probate Court and to the Connecticut department of revenue services in connection with the Probate Court’s administration of the Helen L. Lundborg estate. The plaintiff further alleged that, as a result of the defendants’ misrepresentations, the Probate Court had distributed assets improperly and had permitted the wrongful sale of residential assets of the estate. The plaintiff sought pecuniary compensation as well as rectification of the probate decree. The probate appeal was dismissed, without a hearing on its merits, because of a procedural omission that the plaintiff concededly did not correct.

Thereafter, the plaintiff again invoked the jurisdiction of the Superior Court, sitting as a court of general jurisdiction, by filing the complaint that is presently before us. Alleging that the probate decree was invalid because its findings derived from misrepresentations made by the defendants to that court, the plaintiff sought to recover both compensatory and punitive damages. Crown filed a motion to dismiss the complaint for lack of subject matter jurisdiction. According to Crown, the court lacked such jurisdiction because the complaint’s allegations of misconduct had been finally adjudicated in the prior probate proceedings. Agreeing with Crown, the court granted this motion and rendered judgment in his favor.

In the plaintiffs appeal from this judgment, he has raised two issues. First, he maintains that he is entitled to proceed in a court of general jurisdiction because the present action is not essentially identical to the prior probate proceedings. Second, he maintains that the court was obligated to permit a collateral attack on a probate decree that raised an issue of fraud on the Probate Court.

There is no disagreement about the scope of appellate review of a trial court’s judgment granting a motion to dismiss. “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). Because an issue concerning a trial court’s subject matter jurisdiction is a question of law, our review is plenary. Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999); Tooley v. Metro-North Commuter Railroad Co., 58 Conn. App. 485, 491, 755 A.2d 270 (2000). Our plenary review of the arguments proffered by the plaintiff persuades us that he cannot prevail.

I

The plaintiff maintains that the court’s decision to grant Crown’s motion to dismiss was improper because the court improperly concluded that the claims made in the probate appeal proceedings were essentially identical to those made in the judicial appeal proceedings. The plaintiff argues that (1) the substantive issues raised are not identical, (2) inclusion of Crown as an additional defendant demonstrates a lack of identity and (3) remedial relief by way of damages, which he sought in this case, could not have been awarded in the probate proceedings. The court ruled to the contrary with respect to the first two issues.

The court compared the substantive issues raised in the judicial complaint and in the probate appeal. The court concluded that they addressed the same alleged misconduct by the same individuals with respect to the same estate. We agree.

Examination of the relevant documents confirms the court’s conclusion because, in each forum, the plaintiff has alleged that the defendants made fraudulent misrepresentations to the Probate Court and the Connecticut department of revenue services in connection with the Probate Court’s administration of the Helen L. Lund-borg estate. The plaintiff has not identified any significant substantive discrepancies between the issues in the two proceedings.

The court also concluded that the addition of Crown as a party defendant did not destroy the essential identity between the two proceedings. We agree.

Crown was not a stranger to the probate proceedings. The record discloses, and the plaintiff does not contest, that Crown played an active role in the probate litigation. Indeed, the Probate Court expressly ruled that Crown had acted in good faith. In the plaintiffs probate appeal, he challenged the conduct of Lawler, as executor, for allegedly having made untruthful statements “through his attorney,” Crown.

Our Supreme Court has analyzed claims of lack of identity with respect to issue preclusion, or collateral estoppel, by reference to the concept of privity. “In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that collateral estoppel should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 814, 695 A.2d 1010 (1997).

On the present record, we agree with the court’s conclusion that there was the requisite identity between the parties. On appeal, the plaintiff has not briefed any basis for his assertion that, on their face, the probate appeal and the judicial appeal raised substantively distinct claims of error in the probate decree. He asserts that reargument of these claims is warranted because “Crown was not a party to the probate appeal.” He cites no authority for this proposition. He does not discuss why a lawyer representing a client automatically should be held to have an independent interest in the litigation. Without adequate briefing by the plaintiff, we need go no further. See Practice Book § 61-10; State v. Ramos, 36 Conn. App. 831, 839, 661 A.2d 606, cert. denied, 235 Conn. 902, 665 A.2d 905 (1995).

The plaintiff further argues that the probate proceedings are not essentially identical to the judicial proceedings because he now claims a right to recover damages. It is true, as a general matter, that a “court of probate is unable to award damages.” Palmer v. Hartford National Bank & Trust Co., 160 Conn. 415, 430, 279 A.2d 726 (1971); Phillips v. Moeller, 147 Conn. 482, 488-89, 163 A.2d 95 (1960). We decline to address this argument, however, because it was riot properly preserved at trial. See Santopietro v. New Haven, 239 Conn. 207, 219-20, 682 A.2d 106 (1996). It was not raised in the plaintiffs memorandum in opposition to the motion to dismiss. It was not raised, as far as we can tell, anywhere else in the court record. It was not discussed in the court’s memorandum of decision, and the plaintiff filed no motion for articulation. See Practice Book § 66-5.

We conclude that the plaintiff has failed to demonstrate any legally significant distinction between the arguments that he proffered in his probate appeal and those that he now offers in his judicial appeal. In both fora, he has challenged the propriety of allegedly false representations made by the defendants during the administration of the estate of Helen L. Lundborg. There is, therefore, the essential identity between his prior and present claims that warrants dismissal of the present claim on the ground of collateral estoppel. Unless he can succeed on his alternate claim of fraud, General Statutes § 51-164s; see footnote 1; is both applicable and dispositive.

II

The plaintiffs claim of fraud, as argued in this court, relies heavily on General Statutes § 45a-24, a statute that the trial court did not address in its memorandum of decision. Indeed, the complaint contains no reference to the statute. The record suggests that the plaintiff never cited the statute to the court. The record equally suggests that the plaintiff never raised, at trial, a separate claim focusing on the jurisdictional implications of a claim of fraud apart from its relevance to a determination of essential identity between probate and judicial proceedings. In any event, there was again no motion for articulation to clarify the record.

As we understand it, the plaintiff argues that any allegation of fraud in Probate Court proceedings confers jurisdiction on the Superior Court sitting as a court of general jurisdiction. He claims that such jurisdictional authority exists no matter how thoroughly the fraud was explored, or could have been explored, in prior probate proceedings. In other words, any allegation of fraud acts as an “open sesame” to permit the reopening of any probate decree. If that were an accurate statement of law, any litigant disappointed by an adverse Probate Court ruling disallowing a claim of fraudulent misrepresentation would automatically have two independent rights of appeal, one to the Superior Court sitting in probate and one to the Superior Court exercising its normal judicial role. The merits of the plaintiffs position are far from self-evident.

We need not resolve, however, the plaintiffs claim on the merits because the plaintiff has not explained why this claim is appropriate for appellate review. He does not address the well established rule that, in the absence of exceptional circumstances, our appellate courts do not consider issues of law that were not presented first to the trial court. See Practice Book § 60-5; see, e.g., Lopiano v. Lopiano, 247 Conn. 356, 372-73, 752 A.2d 1000 (1998). We can discern no exceptional circumstances in this case. The sole case on which the plaintiff relies for his claim of subject matter jurisdiction on the ground of fraud on the Probate Court is Conti v. Murphy, 23 Conn. App. 174, 177, 579 A.2d 576 (1990). That case is distinguishable. We therefore decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 51-164s provides: “Superior Court sole trial court. Jurisdiction transferred from Court of Common Pleas and Juvenile Court. The Superior Court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. All jurisdiction heretofore conferred upon and exercised by the Court of Common Pleas and the Juvenile Court prior to July 1, 1978 shall be transferred to the Superior Court on July 1, 1978.”

       The plaintiff failed to provide a return date in his motion for appeal from the Probate Court. Pursuant to General Statutes § 45a-189, he had ninety days to correct this defect.

       The record does not reveal the current status of the plaintiffs action against Lawler.

       We shall, hereafter, refer to the probate appeal, which was dismissed for failure to provide a return date, simply as the probate appeal and to the appeal from the court’s granting of Crown’s motion to dismiss as the judicial appeal.

       Although the plaintiff complains that the Probate Court’s decree refers only indirectly, by dint of the final accounting, to his claims of fiduciary misconduct, each of the issues now contested by the plaintiff was fully described in the probate appeal, which the plaintiff permitted to lapse.

       In Ms reply brief, the plaintiff contends that there is a lack of identity between the probate proceeding and the judicial proceeding because he did not have a full opportunity to present evidence in the Probate Court. He does not explain, however, why a claim of evidentiary error could not have been presented in the probate appeal.

       General Statutes § 45a-24 provides: “Every order, judgment or decree of a court of probate made by a judge who is disqualified shall be valid unless an appeal is taken as hereinafter specified. All orders, judgments and decrees of courts of probate, rendered after notice and from which no appeal is taken, shall be conclusive and shall be entitled to full faith, credit and validity and shall not be subject to collateral attack, except for fraud.”

       The plaintiff has not sought plain error review.

       In Conti, judicial proceedings were initiated by plaintiffs who had not participated in the underlying probate proceedings. Those proceedings had no jurisdictional flaw. The claim of fraud was raised by way of a counterclaim, which this court permitted to go forward, to challenge probate proceedings that had not been definitively resolved. Principally, we relied on a lack of identity between the litigants in the probate proceedings and the litigants in the judicial proceedings. Conti v. Murphy, supra, 23 Conn. App. 179. That is not this case.


author: LANDAU, J.

text:
    JAMES O’HALLORAN v. CHARLOTTE HUNGERFORD HOSPITAL ET AL.
    (AC 19641)
    (AC 20122)
    Landau, Spear and Daly, Js.
    Argued January 11
    officially released May 15, 2001

      Philip S. Walker, with whom, on the brief, was Maxwell Branson, for the appellant (plaintiff).

      Jeffrey R. Bobbin, for the appellees (defendants).
   Opinion

LANDAU, J.

In this consolidated appeal, the plaintiff, James O’Halloran, appeals from the judgments of the trial courts dismissing related actions for lack of subject matter jurisdiction. In his appeal in the first case ([O’Halloran I), the plaintiff claims that the trial court improperly granted the defendants’ motion to dismiss for lack of subject matter jurisdiction. In his appeal in the second case (O ’Hallaran II), the plaintiff claims that the court improperly granted the defendants’ motion to dismiss for lack of subject matter jurisdiction pursuant to the prior pending action doctrine. We agree with the plaintiffs claims as to OHalloran I and reverse the judgment of the trial court in that matter.

The following facts are necessary for our resolution of the plaintiffs claims. The plaintiff is a physician licensed in this state and an active member of the medical staff at the defendant Charlotte Hungerford Hospital (hospital). On January 12, 1999, the individual defendants recommended a change in the plaintiffs category of appointment at the hospital from active to consulting. Pursuant to the procedures set forth in the hospital’s bylaws, the plaintiff gave formal notice of his intent to appeal and, on April 7, 1999, requested a hearing. The plaintiff retained his active appointment status and clinical privileges during the pendency of the administrative appeal. At the time that O’Halloran I was decided, the defendants claimed that the plaintiff had not exhausted his administrative remedies available under the bylaws of the hospital. The defendants thus filed a motion to dismiss O’Halloran I for lack of subject matter jurisdiction. The court concluded that it did not have subject matter jurisdiction over the O’Halloran I action on two grounds. First, the plaintiff had not exhausted his administrative remedies. Second, because the plaintiff had not yet been deprived of his appointment status or clinical privileges, he had not suffered any injury and, therefore, his claims were nonjusticiable. Accordingly, the court granted the defendants’ motion to dismiss for lack of subject matter jurisdiction. Other facts will be discussed where relevant.

The plaintiff claims that the court improperly granted the defendants’ motion to dismiss O'Halloran I for lack of subject matter jurisdiction. Our standard of review of a ruling on a motion to dismiss is well established. “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs] claim. . . . We first note that, because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Citations omitted; internal quotation marks omitted.) Hyllen-Davey v. Plan & Zoning Commission, 57 Conn. App. 589, 592, 749 A.2d 682, cert. denied, 253 Conn. 926, 754 A.2d 796 (2000).

In our review of the plaintiffs claim, we must evaluate the allegations in the complaint. “The interpretation of pleadings is always a question of law for the court. . . . In addition, [t]he allegations of the complaint must be given such reasonable construction as will give effect to [it] in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. . . . Jacques All Trades Corp. v. Brown, 33 Conn. App. 294, 302, 635 A.2d 839 (1993). It is axiomatic that the parties are bound by their pleadings. . . . Geren v. Board of Education, 36 Conn. App. 282, 289, 650 A.2d 616 (1994), cert. denied, 232 Conn. 907, 653 A.2d 194 (1995). . . .Kunst v. Vitale, 42 Conn. App. 528, 532, 680 A.2d 339 (1996).” (Internal quotation marks omitted.) Baldwin v. Jablecki, 52 Conn. App. 379, 381-82, 726 A.2d 1164 (1999).

I

The plaintiff first claims that the court improperly dismissed O’Halloran I on the ground that he failed to exhaust his administrative remedies. More specifically, the plaintiff claims that he was not required to exhaust his administrative remedies because he was seeking remedies unavailable to him via the administrative process. We agree.

Pursuant to our standard of review, we take as true the following facts alleged in the complaint in O’Hal-loran I. Hyllen-Davey v. Plan & Zoning Commission, supra, 57 Conn. App. 592. The plaintiff is a physician licensed in this state, he maintains an office for the practice of medicine and is a member of the active medical staff of the hospital. In the years prior to the commencement of O’Halloran I, the individual defendants consistently and continuously treated the plaintiff differently than other similarly situated physicians at the hospital. The individual defendants acted in a concerted and calculated attempt to drive him from the active staff at the hospital. As a result of the individual defendants’ actions, the plaintiff suffered damages in the form of lost opportunities to treat his own patients, to attract new patients and to obtain referral patients from other physicians.

The following additional facts are necessary for our resolution of this claim. The court’s conclusion to dismiss the action on the ground of exhaustion was based, in large part, on its categorization of the plaintiffs action as one that merely challenged the reappointment process of the defendants. In support of its conclusion, the court noted that the hospital’s bylaws set forth fairly comprehensive procedures for the reappointment process and for the hearing and appellate procedures for adverse reappointment recommendations. A review of the plaintiffs complaint reveals, however, that he challenged allegedly tortious conduct on the part of the defendants unrelated to the reappointment process and that he sought compensation for financial damage caused by injury to his reputation and standing. The hospital’s bylaws do not provide a means for the plaintiff to receive redress for the type of injury alleged.

“An adequate remedy at law is one which is specific and adapted to securing the relief sought conveniently, effectively and completely.” (Internal quotation marks omitted.) Bianco v. Darien, 157 Conn. 548, 554-55, 254 A.2d 898 (1969). Moreover, the doctrine of exhaustion of remedies does not apply in situations where pursuit of the administrative remedy would be useless. Maresca v. Ridgefield, 35 Conn. App. 769, 773, 647 A.2d 751 (1994). Here, the plaintiff did not have an adequate remedy at law available through the hospital’s administrative process. Accordingly, the court improperly dismissed the plaintiffs action for failure to exhaust administrative remedies.

II

The plaintiff next claims that the court improperly dismissed O’Halloran I on the ground that the claims therein were nonjusticiable. We agree.

A review of the court’s memorandum of decision indicates that the court based its decision to dismiss the plaintiffs action as nonjusticiable on (1) its miscate-gorization of the nature of the plaintiffs action and (2) its finding that the plaintiffs appointment status had not changed.

“The principles that underlie justiciability are well established. ‘Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.’ . . . State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982); Pellegrino v. O’Neill, 193 Conn. 670, 674, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984).” Nielsen v. State, 236 Conn. 1, 6-7, 670 A.2d 1288 (1996). “The requirements of justiciability and controversy are ordinarily held to have been met when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity. ... As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great.” (Citation omitted; internal quotation marks omitted.) Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 463-64, 673 A.2d 484 (1996).

It is apparent from a reading of the complaint in O’Halloran I that the plaintiff sought compensation for financial damage caused by tortious injury to his reputation and standing. The requirements of justiciability are, therefore, satisfied. Accordingly, the court improperly dismissed the action on the ground that the claims were nonjusticiable.

The judgment in the first case, O’Halloran I, is reversed and the case is remanded for further proceedings consistent with this opinion. The judgment in the second case, O’Halloran II, is affirmed.

In this opinion the other judges concurred.

       On February 26, 1999, the plaintiff brought an action (O’Halloran I) against the defendants, Charlotte Hungerford Hospital and physicians Vasudeva Shenoi, Richard Dutton, Peter Bull and William Coll, seeking injunctive relief and damages. On May 14, 1999, the trial court dismissed O’Halloran I on the ground that it lacked subject matter jurisdiction in that (1) the plaintiff had failed to exhaust his administrative remedies and (2) the plaintiff s claims were nonjusticiable.
      On May 28, 1999, the plaintiff brought a second action (O'Halloran II) against the same defendants. The trial court, subsequently dismissed O'Halloran II on the ground that the claims asserted were virtually identical to those in O’Halloran I and were barred under the prior pending action doctrine.

       See footnote 1.

       The plaintiff also sought equitable relief from the defendants’ attempt to reduce his appointment status without a hearing. The defendants subsequently agreed to allow the plaintiff to keep his status as an active appointment during the pendency of the administrative appeal, and the claim for equitable relief became moot.

       As discussed in part I of this opinion, the court miscategorized the plaintiffs action as one challenging the reappointment process of the defendants. On the basis of our review of the plaintiffs complaint, we conclude that he was actually seeking compensation for financial damage caused by tortious injury to his reputation and standing.

       In his brief, the plaintiff asserts that the complaint in O’Halloran II merely reasserted the damages claims improperly dismissed in O’Halloran I. Because we reverse the court’s judgment in OHalloran I, we need not address the claims raised in OHalloran II, but we affirm the judgment.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. GORDON LEE FRUEAN II
    (AC 17623)
    Schaller, Mihalakos and Stoughton, Js.

      Argued February 27
    officially released May 15, 2001

      Averum J. Sprecher, special public defender, for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom were John T. Redway, state’s attorney, and, on the brief, Timothy J. Liston, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Gordon Lee Fruean II, appeals from the judgment of conviction, rendered following a jury trial, of two counts of manslaughter in the first degree in violation of General Statutes § 53a-55. The defendant claims that the trial court improperly failed to instruct the jury on intervening or superseding causation, thereby violating his constitutional right to have the jury instructed on each element of the offense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Janet Griffin, a friend of the defendant, and Gina Coccia, an acquaintance of the defendant, had a romantic relationship for several years in Vermont. Coccia ended the relationship in 1992 and, one year later, moved to Connecticut with Patricia Steller, one of the two victims, while Griffin remained in Vermont.

Griffin visited Middletown, the town in which Coccia resided, with her friend, Natalie Jurgen, on three separate occasions during the fall of 1993. Her purpose in doing so was to gather information about Steller’s home and the surrounding area. On November 1,1993, Griffin rented an automobile that she had reserved, specifically selecting a rental company in New York that did not require credit cards. The defendant drove Griffin and Griffin’s daughter to Steller’s home in Middletown. Once they arrived at the home, Griffin sent her daughter to the store. Griffin and the defendant then walked to the back of the home. The defendant climbed through the “dog door” from the deck and opened the back door so that Griffin could enter the home. The two waited for Steller to return.

Steller and Ronald King, Steller’s nephew, entered the home. Griffin fired an antique gun, which the defendant had supplied to her, at both King and Steller until all of the bullets were spent. The victims survived the shooting. Griffin then asked the defendant for help in killing the victims. The defendant responded by handing a knife to Griffin, who in turn proceeded to stab Steller with the knife. The defendant also handed Griffin a lamp, which Griffin used to strike Steller. Griffin returned the gun to the defendant before the two left the home. They drove away from the home and threw the gun and holster into a pond.

Coccia returned to the home approximately two hours after the attack. Upon finding the bodies, she ran from the home to find help and called the Middletown police. One of the first officers on the scene heard the answering machine playing a message that stated that the recorder was full. Police officers seized the tape.

When investigators played the tape, the recording contained the defendant’s voice stating, “Do it!” In response to Griffin’s request for assistance, the defendant is heard to say, “Here!” Sounds of a struggle are then heard, followed by the sound of an object striking another object. One of the voices on the tape states, “Done,” and later, “Not done,” which is followed by the sound of an object breaking.

The police questioned the defendant, who gave several statements to the police. His statements reflected varying levels of involvement. The defendant ultimately admitted that he was involved in the killings and that he had helped clean Griffin’s car before returning it to the rental company. He accompanied the police to the pond in Middletown, where the police recovered the gun.

At trial, the defendant was charged with two counts of murder as an accessory in violation of General Statutes §§ 53a-54a (a) and 53a-8 and one count of capital felony as an accessory in violation of General Statutes §§ 53a-54b (8) and 53a-8. The defendant testified at his trial, admitting his role in the killings. Medical testimony indicated that the gunshot wounds inflicted on each victim were potentially fatal. The defendant pleaded duress and extreme emotional disturbance as defenses.

The defendant’s attorney requested that the court instruct the jury on proximate cause. When the court questioned whether proximate cause was at issue in the case, the defendant’s attorney replied that “we think it may be with respect to the handing a knife.” The court refused the request to charge, and the defendant took exception to the charge as given. The court noted that it believed “that the state did not allege . . . that the defendant proxima[tely] caused anything.” The jury found the defendant guilty of the lesser offense of manslaughter in the first degree in violation of § 53a-55. The defendant received a sentence of thirty years.

The defendant’s sole claim on appeal is that the court improperly instructed the jury on causation. Specifically, the defendant claims that he was entitled to an instruction on proximate cause because the victims already had been mortally wounded at the time that he handed Griffin the knife. We are not persuaded.

Our analysis begins with a well established standard of review. “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the puipose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Griffin, 251 Conn. 671, 714, 741 A.2d 913 (1999). “[I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Valinski, 254 Conn. 107, 119—20, 756 A.2d 1250 (2000).

It is well settled that “accessorial liability does not attach unless the defendant has the same degree of criminal intent required to commit the offense as the principal. [T]o establish the guilt of an accused as an accessory for aiding and abetting the criminal act of another the state must prove criminality of intent and community of unlawful purpose. It is not enough that the accused committed acts which may in fact have aided the committing of the criminal act.” (Internal quotation marks omitted.) State v. Wilchinski, 242 Conn. 211, 233, 700 A.2d 1 (1997). “[A] conviction under § 53a-8 requires proof of a dual intent . . . that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.” (Internal quotation marks omitted.) State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 277 (1987). Furthermore, “[t]o be guilty as an accessory one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it.” (Internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 783, 760 A.2d 82 (2000).

Section 53a-8 provides that “a person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he solicits the other person to commit it, or aids or agrees or attempts to aid the other person in planning or committing it, or (having a legal duty to prevent the crime) fails to make the proper effort to prevent it. ” (Emphasis added; internal quotation marks omitted.) State v. Foster, supra, 202 Conn. 532.

“[T]o convict one as an accessory for aiding and abetting, the state must prove that the accused had both criminal intent and community of purpose with the principal perpetrator of the crime. General Statutes § 53a-8 requires (1) that the accessory have the intent to aid the principal, and (2) that, in so doing, he have the intent to commit the offense with which he is charged. . . . These two requirements effectively exclude from the statute’s purview those whose innocent acts do in fact aid one who commits a crime . . . while still including those who have criminal intent and community of purpose even though not present actively aiding, abetting or being guilty of a positive act in the commission of an offense.” (Citations omitted; internal quotation marks omitted.) State v. Tucker, 9 Conn. App. 161, 164, 517 A.2d 640 (1986).

Our Supreme Court has approved a jury instruction that provides: “Where it cannot be determined who fired the fatal shot, beyond a reasonable doubt, the element of murder as to who caused the death has not been proved beyond a reasonable doubt. However, persons acting with the mental state required for commission of murder, who intentionally aid one another to engage in . . . such conduct, and cause the death, are accessories to one another, and would be criminally liable for such conduct as accessories to murder.” (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 627, 725 A.2d 306 (1999). Furthermore, “[i]t is of no consequence that the evidence does not clearly establish which of the killings were committed by the defendant and which were done by his accomplice . . . .” State v. Roseboro, 221 Conn. 430, 437 n.6, 604 A.2d 1286 (1992). Therefore, once the court correctly instructed the jury on accomplice responsibility and intent, it is of little moment whether the potential existed that the knife or lamp did not inflict the fatal blow to the victim.

The defendant’s reliance on proximate cause and theories of intervening and superseding causes is misplaced. “The doctrine of intervening cause, which has deep roots in the law of proximate cause, both criminal and civil, has been referred to several times in our case law. ... It refers to a situation in which the defendant’s conduct is a ‘but for’ cause, or cause in fact, of the victim’s injury, but nonetheless some other circumstance subsequently occurs — the source of which may be an act of the victim, the a,ct of some other person, or some nonhuman force — that does more than supply a concurring or contributing cause of the injury, but is unforeseeable and sufficiently powerful in its effect that it serves to relieve the defendant of criminal responsibility for his conduct. . . . Thus, the doctrine serves as a dividing line between two closely related factual situations: (1) where two or more acts or forces, one of which was set in motion by the defendant, combine to cause the victim’s injuries, in which case the doctrine will not relieve the defendant of criminal responsibility; and (2) where an act or force intervenes in such a way as to relieve a defendant, whose conduct contributed in fact to the victim’s injuries, from responsibility, in which case the doctrine will apply.” (Citations omitted; emphasis added.) State v. Munoz, 233 Conn. 106, 124-25, 659 A.2d 683 (1995).

The defendant claims that the court improperly failed to instruct the jury on his theory of proximate cause. “We emphasize that . . . the requirement of language in the jury instructions regarding an efficient, intervening cause is not ironclad. It arises in those cases in which the evidence could support a finding by the jury that the defendant’s conduct was overcome by an efficient, intervening cause, or in which the evidence regarding proximate causation was such that, based on the doctrine of efficient, intervening cause, the jury could have a reasonable doubt about the defendant’s guilt. Thus, in the general run of cases, in which the evidence is susceptible of a finding of only one cause of harm contemplated by the statute, a statement in the jury instruction referring to an efficient, intervening cause might well be unnecessary.” (Emphasis added.) Id., 121-22 n.8.

In the present case, the court properly declined the request to charge on proximate cause. Under the facts of this case, the defendant allowed Griffin, known to be armed at the time, entry to the home and stood by as she fired the gun that he had supplied to her. He also handed the knife and lamp to Griffin after she had shot the victims. The recording of the attack established the defendant’s substantial involvement in Griffin’s execution of the plan, both in the form of encouragement (“Do it!”) and assistance (“Here!”). This is not a case in which the defendant claims that another person or force interrupted the chain of causation that led to the victims’ demise, indicating the defendant’s innocence. See id., 121-22 n.8. Rather, the defendant’s claim consists of an assertion that the act of handing the knife to Griffin when the victims already were mortally wounded was a futile act that could not affect the outcome. The instruction as requested misstated and misapplied the concepts of proximate cause and accessory liability and was properly rejected. See State v. Lepri, 56 Conn. App. 403, 414, 743 A.2d 626 (requested charge properly rejected on basis of potential to confuse jury on applicable law), cert. denied, 253 Conn. 902, 753 A.2d 938 (2000).

The defendant’s claim is similar to that raised before this court in State v. Barnett, 53 Conn. App. 581, 734 A.2d 991, cert. denied, 250 Conn. 918, 738 A.2d 659 (1999). In that case, we concluded that “the defendant was charged with assault against [the victim] as an accessory, and, therefore, the state did not need to prove that the defendant actually caused serious physical injury to [the victim]. It is enough for the state to prove that the defendant, acting with the intent to cause serious injury to [the victim], solicited, requested, commanded, importuned or intentionally aided another person to cause serious physical injury to [the victim] by means of a dangerous weapon.” Id., 588. Such is the case here.

We conclude that the evidence before the court was not such as to require a jury instruction on proximate cause. The defendant cannot claim that the factual situation before the court presented a situation in which he could assert the existence of an intervening cause that broke the chain of causation. See State v. Munoz, supra, 233 Conn. 121-22 n.8. The court, therefore, properly declined to give the defendant’s requested instruction to the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-54a (a) provides: “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 or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-8 provides in relevant part: “(a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.
      “(b) A person who sells, delivers or provides any firearm ... to another person to engage in conduct which constitutes an offense knowing or under circumstances in which he should know that such other person intends to use such firearm in such conduct shall be criminally liable for such conduct and shall be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of . . . (8) murder of two or more persons at the same time or in the course of a single transaction . . . .”

       In State v. Munoz, supra, 233 Conn. 114-15, our Supreme Court found it improper to decline a charge on proximate cause when one theory of the defense was that the defendant fought with the victim but left the victim alive, only to be killed by a third party after the defendant had departed from the scene of the altercation. The court concluded that “the jury instruction . . . was improper because the court did not indicate that, for the defendant to be found guilty, ‘the defendant’s conduct cannot have been superseded by an efficient, intervening cause that produced’ [the victim’s] death.” Id., 122.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. DARRYL FLETCHER
    (AC 20285)
    Laveiy, C. J., and Foti and Healey, Js.
    Argued March 26
    officially released May 15, 2001

      Donald D. Dakers, special public defender, with whom, on the brief, was Michael Williams, law student intern, for the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, former supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Darryl Fletcher, appeals from the judgment of conviction, rendered following a trial to the court, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), possession of narcotics with intent to sell within 1500 feet of a public school in violation of General Statutes § 21a-278a (b), possession of marijuana in violation of General Statutes § 2 la-279 (c) and three counts of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. On appeal, the defendant claims that the trial court improperly failed to grant his motion to suppress. We affirm the judgment of the trial court.

On the basis of the evidence presented during the hearing on the defendant’s motion to suppress and at the subsequent trial before the court, the court reasonably could have found the following facts. On March 23,1998, Reginald Sutton and Patricia Helliger, officers from the New Haven police department who were dressed in plain clothes, observed the defendant wearing a black leather jacket and selling drugs on the porch at 637-639 Howard Avenue in New Haven. They observed numerous transactions and called for assistance from fellow officers David Sydnor and Donald Harrison. As Sutton and Helliger approached, several men left the porch, and the defendant entered the front door of 639 Howard Avenue. All four of the officers followed the defendant inside and chased him up the stairs. The defendant entered the last room on the left and tried to lock the door behind him. After two or three attempts, the officers forced their way in, fearing that the defendant had a firearm on his person along with narcotics.

The dimensions of the room were approximately twelve by fourteen feet and contained a dresser on one side of the window, in front of which the defendant was standing, and a closet on the other side. The defendant was standing about two feet from the dresser and four feet from the closet. The defendant was no longer wearing the black leather jacket, and the officers observed the jacket on a chair near the entrance of the room.

The defendant was handcuffed and patted down. He had $60 on his person and was placed under arrest. The defendant admitted that the apartment was his, as were the contents of the dresser. An open drawer revealed a plastic sandwich bag containing eleven blue glassine packets that contained narcotics, along with six glassine packets of crack cocaine found in a pair of rolled up socks.

Because the defendant was standing near an open window when the officers entered, a search below the apartment window was conducted. When nothing was found there, Sydnor went to the closet next to the defendant believing that he might have tossed narcotics or weapons in there. When Sydnor moved a pile of clothes to check for weapons or narcotics, he discovered a piece of plastic sticking out between the closet floorboards. He pulled on the plastic, which revealed a space beneath the floorboards. The plastic turned out to be a baggie containing blue glassine packets identical to those that had been found in the drawer. An inspection revealed that the cavity below the floorboards contained a cache of both weapons and narcotics. There were four loaded handguns and five bundles of heroin, each of which contained ten pieces, six other bundles of heroin containing a total of fifty-four pieces, a plastic baggie containing forty-one packets of cocaine and a baggie containing marijuana.

“On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... The conclusions drawn by the trial court will be upheld unless they are legally and logically inconsistent with the evidence. . . . [W]e engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 225, 673 A.2d 1098 (1996).

The defendant does not contest the legality of his arrest or the lawful presence of the officers in the apartment. The defendant’s sole claim on appeal is that the search of the closet and the seizure of the items under the floorboards violated his rights under the fourth and fourteenth amendments to the United States constitution and under article first, § 7, of the constitution of Connecticut.

The court noted that “a person who knew that guns were located in the shallow hole discovered by Sydnor could have reached down to the closet floor and exposed the guns just as easily as Sydnor.” The court concluded that the search of the closet was a search of an area that was within the defendant’s immediate control incident to a lawful arrest and, therefore, was constitutionally permissible. This conclusion was based on a specific finding that the search of the closet was made because it was “close enough to the defendant so that the officers reasonably believed that the defendant might have been able to reach . . . [it] in order to obtain a weapon.”

Whether the trial court properly found that the facts submitted were sufficient in connection with the motion to suppress is a question of law, and the court’s determination on the issue is therefore subject to plenary review on appeal. See State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001). Great deference must be given to the findings of the trial court “because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Id., 280.

“Our constitutional preference for warrants is overcome only in specific and limited circumstances.” State v. Miller, 227 Conn. 363, 383, 630 A.2d 1315 (1993). “[A] lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant . . . whether or not there is probable cause to search.” State v. Badgett, 200 Conn. 412, 425, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); see also United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (custodial arrest of suspect based on probable cause is reasonable intrusion under fourth amendment, and search incident to arrest requires no additional justification because lawful arrest establishes authority to search).

“Under article first, § 7, of the constitution of Connecticut, our Supreme Court has ‘recognized that the police may make a search without a warrant incidental to a lawful custodial arrest.’ State v. Delossantos, 211 Conn. 258, 266, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); see also State v. Copeland, [205 Conn. 201, 208-13, 530 A.2d 603 (1987)]; State v. Shaw, 186 Conn. 45, 48, 438 A.2d 872 (1982); J. Bruckmann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook (1992) pp. 107-108.” State v. DaEria, 51 Conn. App. 149, 161, 721 A.2d 539 (1998). “ [ W]hether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time . . . and not on the officer’s actual state of mind at the time the challenged action was taken.” (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431,441, 733 A.2d 112, cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999).

The defendant argues that there was little or no probability that he could access the weapons because of both his distance from the closet and the fact that he was handcuffed before Sydnor had searched the closet. We are not persuaded. The distance involved does not allow us to conclude that it would have been physically impossible for the defendant to have accessed the nearby closet. As to the defendant’s being handcuffed, the record is silent as to whether the defendant had his hands cuffed in front of or behind his body. In any event, as we noted in State v. Reddick, 15 Conn. App. 342, 346, 545 A.2d 1109, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988), even “had the defendant already been handcuffed, it is not inconceivable that he may have grabbed for a gun . . . .” Proper police procedures following an arrest may require, for safety purposes, both a handcuffing and a search of the immediate surrounding area for weapons and to prevent evidence from being concealed or destroyed. We cannot conclude that once an arrestee has been handcuffed, police may not conduct a lawful search incident to that arrest.

We conclude that the court properly denied the defendant’s motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       On August 4, 1999, the state withdrew a seventh count charging the defendant with possession of a sawed-off shotgun in violation of General Statutes § 53a-211 (a). The defendant received a total effective sentence of twenty years, execution suspended after thirteen years, followed by five years of probation.

       Although the court found that the defendant had been about four feet away from the closet when the officers entered, Sydnor testified that the distance was two feet. The only relevance of the distance goes to Sydnor’s "reasonable belief” and to his subsequent actions in conducting the search of the closet.

       Having concluded that the motion to suppress was properly denied, we need not discuss the state’s alternative theory of inevitable discovery. The state argued that the police could have obtained a search warrant because probable cause existed and that they would have obtained a search warrant but for Sydnor’s inadvertent discovery of the guns and drugs.


text:
    JOHN C. GIBBONS v. UNITED TECHNOLOGIES CORPORATION, PRATT AND WHITNEY AIRCRAFT DIVISION, ET AL.
    (AC 20749)
    Foti, Spear and Hennessy, Js.

      Argued March 21
    officially released May 15, 2001

      Brian W. Prucker, for the appellant (plaintiff).

      Douglas L. Drayton, for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiff, John C. Gibbons, appeals from the decision of the workers’ compensation review board (board) affirming the decision by the workers’ compensation commissioner (commissioner) dismissing his claim for benefits. On appeal, the plaintiff claims that the board improperly affirmed the commissioner’s decision because the commissioner incorrectly applied the law to the subordinate facts. We affirm the decision of the board.

The commissioner found the following facts. The plaintiff was employed by the defendant employer, United Technologies Corporation, Pratt and Whitney Aircraft Division, on March 11, 1991, when he felt ill and went to the plant medical department. He thereafter was transported by ambulance to the Middlesex Shoreline emergency room, where he was diagnosed with a heart condition. In 1994, he filed a notice of claim regarding his March 11, 1991 illness, claiming that it was an accident caused by a confrontation with his supervisor, Albert LaBelle. The plaintiff told Arthur V. McDowell, his physician, about the confrontation with LaBelle, causing McDowell to opine that this event caused the plaintiff to have a heart attack on March 11, 1991. LaBelle, a long-term employee of the defendant, became fifty years old on March 11, 1991. Contrary to the plaintiffs version of events, LaBelle did not come to work on March 11,1991, as he regularly did not come to work on his birthday. LaBelle’s attendance record confirmed his absence on that date.

The commissioner determined that “[t]he heart of this matter is credibility,” and concluded that the plaintiff’s “testimony and presentation of his history to his physician was inaccurate and lacked credibility.” The commissioner therefore concluded that the plaintiff had “failed to sustain his burden of proving that he sustained an accidental injury arising out of and in the course of his employment with the employer.” Accordingly, the commissioner dismissed the plaintiffs claim. Thereafter, the commissioner denied the plaintiffs motion to correct the commissioner’s decision. The plaintiff appealed to the board from that denial and from the commissioner’s ruling dismissing his claim. After the board affirmed the commissioner’s decision, the plaintiff brought this appeal.

“The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] 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. . . . Neither the review board nor this court has the power to retiy facts. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board.” (Citations omitted; internal quotation marks omitted.) Schiano v. Bliss Exterminating Co., 57 Conn. App. 406, 411, 750 A.2d 1098 (2000).

“We will not review the facts as found by the commissioner. Our role is to determine whether the review [board’s] decision results ‘from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’ Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979); Luddie v. Foremast Ins. Co., 5 Conn. App. 193,196, 497 A.2d 435 (1985).” Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).

“[T]he power and duty of determining the facts rests on the commissioner, who is the trier of fact. Fair v. People’s Savings Bank, 207 Conn. 535, 539 [542 A.2d 1118] (1988), citing Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457 [78 A.2d 339] (1951). This authority to find the facts entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses. Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 [630 A.2d 136] (1993), appeal dismissed, 229 Conn. 587 [642 A.2d 721] (1994).” (Internal quotation marks omitted.) Funaioli v. New London, 52 Conn. App. 194, 197, 726 A.2d 626 (1999).

The standard of review used by the board when reviewing a commissioner’s findings requires the board “not to retry the case before it, but to determine whether evidence supports the commissioner’s finding.” Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447, 774 A.2d 992 (2001).

It is well settled in workers’ compensation cases that the injured employee bears the burden of presenting competent evidence to prove that an injury was causally connected to the workplace. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151, 291 A.2d 743 (1972). “Whether an injury arose out of and in the course of employment is a question of fact to be determined by the commissioner.”Pereira v. State, 228 Conn. 535, 544, 637 A.2d 392 (1994).

Consequently, the plaintiff was required to demonstrate a causal connection between his employment and his heart attack to prove that he was entitled to compensation benefits. He attempted to satisfy that burden by presenting his medical history to his physician, McDowell, who then rendered a medical opinion about the cause of the plaintiffs injury on the basis of that medical history. The commissioner properly evaluated the weight to afford that medical history and the medical opinion that followed from it. The commissioner, as reflected in his decision, obviously doubted that the alleged stressful incident between the plaintiff and LaBelle actually occurred. That determination consequently brought into question the plaintiffs entire testimony concerning his injuries.

The maxim, “falsus in uno, falsus in omnibus,” expresses the general principle of law that the commissioner may have applied. That maxim, meaning “false in one thing, false in everything,” expresses the general principle of law that when the trier of fact determines that a witness has testified falsely in one respect, it is free to disregard that witness’ testimony in other respects, unless such testimony is corroborated by other proof. See Rogers v. Northeast Utilities, 45 Conn. App. 23, 26 n.1, 692 A.2d 1301, cert. denied, 241 Conn. 924, 696 A.2d 1266 (1997); Ballentine’s Law Dictionary (3d Ed. 1969). The commissioner found the factual inconsistency, or discrepancy, in the plaintiffs representation to his physician to be significant. That was the commissioner’s decision, and it was within his discretion to accept some, all or none of the plaintiff’s testimony. The issue was one of credibility. The conclusions drawn by the commissioner from the facts found must stand because they did not result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. See Dengler v. Special Attention Health Services, Inc., supra, 62 Conn. App. 445.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       CIGNA Property and Casualty Companies, the workers’ compensation insurance carrier for the named defendant, also is a defendant in this action.

       The plaintiff contends that he did not file a notice of claim, which also is known as a form 30C. “A form 30C is the name of the form prescribed by the workers’ compensation commission of Connecticut for use in filing a notice of claim under the [Workers’ Compensation Act, General Statutes § 31-275 et seq.].” Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 619 n.11, 748 A.2d 278 (2000). The board determined “that the commissioner’s reference to a notice of claim was irrelevant to the ultimate decision in the case, which depended upon the credibility of the [plaintiff’s] testimony.” We agree.