author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. SAMUEL DUNBAR
    (AC 17143)
    Lavery, Spear and Daly, Js.

      Argued September 17
    officially released December 22, 1998

      Christian Young and Deborah Stevenson, certified legal interns, with whom was G. Douglas Nash, public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph J. Harry, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal at the close of the state’s evidence, (2) allowed the state to reopen its case-in-chief to present additional evidence and (3) denied his request to redact a prejudicial statement from a defense exhibit. Although the first claim attacks the sufficiency of the evidence, the waiver rule precludes review. The second claim also raises a question as to the sufficiency of the evidence, but we conclude that it is without merit. We agree with the defendant’s third claim and, accordingly, reverse the judgment.

The jury reasonably could have found the following facts. On July 5, 1996, Detective Juan Gonzalez of the Bridgeport police department and Trooper James Craig of the state police were patrolling the Stratford Avenue area of Bridgeport in an unmarked car. They were searching for a wanted felon, Roland McLellon, who was also known as “Cobra.” The officers had a description and a photograph of McLellon. The officers saw the defendant walking down Stratford Avenue and, mistaking him for McLellon, called for backup in preparation to stop and arrest the defendant. After two uniformed officers arrived, the four officers approached the defendant, who was standing alone on the sidewalk.

Approximately seven to ten feet away from the defendant, two men sat in a parked car. There were no other parked cars in the immediate area. As the officers approached the defendant, they saw him reach into his pocket and remove something that resembled a handgun. The defendant wrapped it in a T-shirt and threw it into the open window of the parked car. Gonzalez retrieved the T-shirt, which did contain a handgun. The defendant was eventually arrested and subsequently convicted of possession of a handgun without a permit. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal that was made at the close of the state’s evidence. He claims that the state failed to present sufficient evidence from which the jury could find that he did not have a permit to carry a gun. The state rested without offering a proposed stipulation that the defendant did not possess a pistol permit. After the trial court denied the motion for judgment of acquittal, the defendant presented evidence. By doing so, the defendant subjected his sufficiency claim to the operation of the waiver rule.

“Under the existing rules, when a defendant elects to put on evidence after a denial of his motion for judgment of acquittal at the end of the state’s evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the completion of the state’s case. State v. Booker, 28 Conn. App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn. App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992).” State v. Wolff, 29 Conn. App. 524, 527, 616 A.2d 1143 (1992). Although the waiver rale has received much criticism, it is still in effect and, therefore, we decline to review this claim. See State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984).

II

The defendant’s next claim is that the trial court improperly granted the state’s motion to reopen its case after the denial of the motion for judgment of acquittal. We disagree.

Certain additional facts are necessary to our resolution of this issue. Prior to the opening of evidence, the state notified the trial court that it was prepared to call two witnesses to establish that the defendant did not possess a permit to carry a handgun. Defense counsel notified the court that he was prepared to stipulate to the nonexistence of a permit if the state offered the stipulation at the close of evidence.

In reliance on the defendant’s offer to stipulate, the state did not call the two witnesses to establish that the defendant did not possess a permit. The state failed, however, to offer the proposed stipulation at the close of its case-in-chief. The state did call Gonzalez who testified that he asked the defendant if he had a pistol permit and that the defendant never produced a permit. In addition, Gonzalez testified that the defendant was detained and after “it was determined that he didn’t have a pistol permit,” he was arrested. After denying the defendant’s motion for judgment of acquittal made at the close of the state’s case-in-chief, the trial court granted the state’s motion to reopen its case to offer the stipulation.

The defendant asserts that this issue is controlled by State v. Allen, 205 Conn. 370, 533 A.2d 559 (1987). We disagree. In Allen, the state failed to offer any evidence on the length of the barrel of the pistol, an essential element of the crime charged. The defendant moved for a judgment of acquittal at the close of the state’s case, claiming that the evidence was insufficient on that element. The state argued, and the trial court agreed, that the length of the barrel was not a material element of the crime and denied the defendant’s motion. The following day, the state moved to reopen its case to present evidence on the length of the barrel of the firearm. Over the defendant’s objection, the trial court allowed the state to reopen its case. Our Supreme Court reversed the trial court’s judgment of conviction on the weapons charge and directed a judgment of acquittal, holding that a trial court abuses its discretion by reopening the state’s case “when the state has failed to make out a prima facie case because insufficient evidence has been introduced concerning an essential element of a crime and the defendant has specifically identified this evidentiary gap in a motion for judgment of acquittal . . . .” State v. Allen, supra, 205 Conn. 385.

The Allen case is inapposite because the present case differs from it in two critical respects. First, the state conceded in Allen that by failing to offer any evidence to prove an essential element of the crime, it had failed to make out a prima facie case. Under those circumstances, the defendant was entitled to a judgment of acquittal, and reopening the case was an abuse of the court’s discretion. In the present case, however, the state disputed the defendant’s claim of insufficient evidence on the issue of a pistol permit. The state claimed that the jury could infer that the defendant did not have a permit because evidence of the defendant’s felony conviction was presented and a felon is not authorized to receive a permit to carry a firearm. In addition, the state’s first witness, Gonzalez, testified that he asked the defendant if he had a permit and that no permit was ever received from, given or offered by the defendant. When, as in this case, the trial court implicitly ruled that the state had established a prima facie case by denying the defendant’s motion for judgment of acquittal, the trial court’s decision to reopen was within its discretion. State v. Zoravali, 34 Conn. App. 428, 443, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994). The trial court’s implicit conclusion that the state had made out a prima facie case is not subject to review as discussed in part I of this opinion. “If the trial court had ruled that a prima facie case had not been made, then reopening the state’s case would have been an abuse of discretion. State v. Allen, supra, [205 Conn.] 385.” State v. Zoravali, supra, 442-43.

“The decision to reopen a criminal case to add further testimony lies within the sound discretion of the trial court. State v. Carter, [228 Conn. 412, 420, 636 A.2d 821 (1994)]. The trial judge’s discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . Id., 421, quoting State v. McKnight, 191 Conn. 564, 576-77, 469 A.2d 397 (1983). The purpose of this discretion is to preserve the fundamental integrity of the trial’s truth-finding function. State v. Carter, supra, 426. The trial court’s discretion will be reversed only upon manifest abuse of discretion or injustice. Ostolaza v. Warden, 26 Conn. App. 758, 778, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).” (Internal quotation marks omitted.) State v. Zoravali, supra, 34 Conn. App. 442.

The second way in which AUen is distinguishable is that here the state was aware of and was prepared to prove the essential element that is at issue. Our Supreme Court’s holding that it is an abuse of discretion for a trial court to allow the state to reopen its case to fill an evidentiary gap “specifically identified . . . [by the defendant] in a motion for judgment of acquittal”; State v. Allen, supra, 205 Conn. 385; was based on the conclusion that “allowing the state to reopen its case-in-chief after the defendant has identified its shortcomings was fundamentally unfair to the defendant . . . Id., 383-84. This fundamental unfairness does not exist here. The defendant did not alert the state to the evidentiary gap. The state was prepared to prove the lack of a permit through the testimony of two witnesses prior to the defendant’s offer to stipulate to that fact.

Moreover, the defendant offered to stipulate “at the close of evidence.” It was reasonable for the state to believe that “at the close of evidence” meant at the close of all the evidence, not at the close of the state’s case. “ ‘[I]f a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is a serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.’ ” Wood v. Bridgeport, 216 Conn. 604, 606, 583 A.2d 124 (1990), quoting Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 (1940). The trial court specifically found that the stipulation was inadvertently not offered into evidence, and it properly allowed the state to reopen its case.

Ill

The defendant next claims that the trial court improperly denied his motion to redact a police incident report introduced into evidence during his cross-examination of Gonzalez. We agree.

Certain additional facts are necessary to our resolution of this claim. The trial court admitted the police report as a Ml exhibit for the defense after redacting certain references to statements made by the defendant after his arrest, but before he was given Miranda warning's. After further cross-examination, defense counsel asked that the last paragraph of the report be redacted because it stated that the defendant had been arrested the previous day for “weapon charges by a convicted felon” and that the arrest bond had been raised by an additional $50,000. The trial court granted the defendant’s request to redact the statement, finding that its prejudicial effect outweighed any probative value.

Alter the state had rested and just prior to the defendant’s resting, defense counsel made another motion to redact a portion of the police incident report. A notation on the bottom of the second page stated that “Mr. Dunbar has numerous felony arrests and convictions and is listed as a convicted felon. He was also arrested yesterday 7-4-96 for weapon violation.” The defendant asked that those statements be redacted in accordance with the court’s prior ruling. The court ruled that “[t]he request to redact any further item from the defendant’s exhibits] is denied. The ruling that I made was based upon the fact that not only did the officer not make the entry, but more importantly, that it had nothing to do with raising his bond. So, that was really what I was addressing and that’s all I believe the language was that I redacted.”

The following day, defense counsel asked the court to reconsider his request to redact the statements on page two of the incident report. The trial court asked defense counsel to provide any authority that would allow the court, after the state had rested, to redact the report. The trial court stated, “I don’t believe that I have the authority to exercise my discretion as you’re requesting. . . . But, I’d have to deny your request again. There’s nothing that you presented today different from what you presented the last time, and believe you me, I’ve considered the equities involved here. The equities have to go both sides, the state as well as to yourself. So that, your request is denied.”

A

The defendant initially claims that the trial court improperly failed to exercise its discretion and that such failure mandates a reversal of the defendant’s conviction. He further claims that, if we conclude that the trial court in fact exercised its discretion, it abused that discretion because the prejudice engendered by the evidence far outweighed any probative value. The state claims that the trial court did exercise its discretion and balanced the competing interests in arriving at a proper decision. We conclude that the trial court did exercise its discretion but that the denial of the defendant’s request was an abuse of discretion.

The trial court is bound to determine the admissibility of evidence. “The admissibility of . . . evidence must be entrusted to the sound discretion of the trial judge. State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980).” State v. Bell, 188 Conn. 406, 413, 450 A.2d 356 (1982). This duty is not discharged at the close of the state’s evidence, but remains throughout the evidence phase of trial. The trial court has broad discretion to determine the admissibility of evidence. Paige v. St. Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998).

While the trial court stated that it did not believe that it had discretion to redact the incident report, a closer review of the context in which that statement was made reveals that the trial court did, in fact, exercise its discretion. When first asked to redact the report, the trial court denied the request because the challenged portions were not covered by its prior ruling. When asked to reconsider the request, the trial court stated that the defendant had not provided it with any additional authority than was presented the previous day. In addition, the trial court stated, “I’ve considered the equities involved here. The equities have to go both sides, the state as well as to yourself.” We conclude that the trial court did exercise its discretion in denying the defendant’s request.

B

We next address whether the trial court abused its discretion. The defendant claims that the statement should have been excluded because it was highly prejudicial and irrelevant. We agree.

It is well settled that “[t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).

“In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998). Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. Berry v. Loiseau, 223 Conn. 786, 804, 614 A.2d 414 (1992); Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 191-92, 510 A.2d 972 (1986). Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 193, 646 A.2d 195 (1994).” (Internal quotation marks omitted.) Fahey v. Safeco Ins. Co. of America, 49 Conn. App. 306, 320-21, 714 A.2d 686 (1998).

“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. ... To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.” (Citations omitted; internal quotation marks omitted.) State v. Oliver, 48 Conn. App. 41, 49-50, 708 A.2d 594, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998).

The state contends that the challenged evidence fits an exception to the general rule because it was probative of the defendant’s motive. The state argues that the defendant’s felony convictions and recent arrest on a weapons charge tended to explain why he discarded the gun when the officers approached him. The state does not explain why a person with a felony record and recent arrest would be more motivated to rid himself of a gun that he possessed illegally than someone who possessed a gun illegally but had no felony record or recent arrest on a weapons charge. Even if we accept the state’s claim, this evidence has such marginal probative value that it is clearly outweighed by the prejudice that it engendered.

Our Supreme Court has specified four situations where prejudice to the defendant may outweigh the probative value of evidence: “(1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982).

The circumstances here fit into the first category because the evidence at issue may well have unduly aroused the jurors’ emotions and hostilities. This evidence painted the defendant as a recidivist who flouted the law by carrying a gun illegally only one day after his arrest on a similar charge. Such evidence invited the jury to conclude that if he did it before, he did it this time also. This was especially so because the trial court gave no instructions to the jury as to how it could use the evidence.

The state contends that even if the trial court improperly refused to redact the challenged evidence, the error was harmless in light of the overwhelming evidence of guilt. Because the parties stipulated that the defendant did not possess a permit to carry a pistol, the only contested matter was whether the defendant actually had the gun on his person. The officers testified that they saw the defendant discard the pistol. The defendant did not testify but his two witnesses testified that they were on the scene and did not see the defendant in possession of a pistol, nor did they see the defendant discard a pistol. Those witnesses also contradicted the officers’ testimony in other respects. The prejudicial evidence may well have tipped the scales in favor of the state on the possession issue and therein lies the prejudice.

Moreover, our Supreme Court “has consistently indicated that [a]ny improper evidence that may have a tendency to excite the passions, awaken the sympathy, or influence the judgment of the jury, cannot be considered as harmless.” (Internal quotation marks omitted.) State v. Girolamo, 197 Conn. 201, 206-207, 496 A.2d 948 (1985); see also State v. Ferraro, 160 Conn. 42, 45, 273 A.2d 694 (1970); State v. McNellis, 15 Conn. App. 416, 436, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).

We conclude that the prejudicial effect of the evidence that the trial court refused to redact so clearly outweighs any minimal probative value that such refusal was an abuse of the court’s discretion.

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

In this opinion the other judges concurred.

       Defense counsel’s offer to stipulate was made in the following colloquy:
      “[Assistant State’s Attorney]: Also, Your Honor, to cut some of the witnesses out, [defense counsel] has informed me that he’s going to stipulate that there is no gun permit in existence for the defendant. . . .
      “The Court: Is there any stipulation, [defense counsel], with regard to any of the facts claimed by the state?
      “[Defense Counsel]: We will—we’re prepared to stipulate, Your Honor, to the nonexistence of a pistol permit, but I’m not going to stipulate to the—
      “The Cornt: To anything else.
      “[Defense Counsel]:—any nonoperability ....
      “The Court: All right. So, that’s the only fact you will stipulate to in this case?
      “[Defense Counsel]: Yes, Your Honor.
      “The Court: All right.
      “[Defense Counsel]: Prepared to do that at the close of evidence if [the state] offers that stipulation, the defense is prepared to agree to it.”

       The waiver rule does not preclude a defendant from challenging the sufficiency of the evidence as presented in the entire case. Here, the defendant did not move for a judgment of acquittal at the close of all the evidence, nor does he seek a review of the sufficiency of all the evidence pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). If the sufficiency question were before us, we would conclude that the evidence was sufficient to convict.

       The trial court stated: “In the interest of justice, this court was required to exercise its discretion accordingly since no substantial prejudice would occur in allowing the state to correct this mere inadvertence, which is what I find it to be. And the trial judge’s discretion should be exercised in a manner not to impede or defeat the ends of substantial justice. Substantial justice includes fairness to the state as well as to [the defendant].”

       The trial court stated: “The issues that are going to be resolved in this trial have absolutely no bearing upon the statement, and I’ll just for the record read it: 'Samuel Dunbar’s bond was raised an additional $50,000 per Lieutenant Brian McCarthy in relation to arrest on 7/4/96, which were similar weapon charges by a convicted felon.’ I believe that allowing it to stand notwithstanding that [the state is] correct, by the way, but this is a judgment call I have to make as the trial judge, allowing it to stand in there does not assist the state or hurt the state by removing it in any way, shape or form in the issues to be tried, and I think that allowing the jury to see that would be highly prejudicial to the defendant and outweighs any probative value that it has. As a matter of fact, the court also finds that it’s totally irrelevant to this trial and for those reasons I will allow it to be redacted.”

       In its brief, the state also claims that the evidence fits within an exception to the general rule because it explained the crime by setting the context for the crime charged. This claim was not made to the trial court and undoubtedly was not a basis for the court's refusal to redact the statements. The state simply asserts that claim without any analysis as to how the evidence was relevant or probative. We find the claim to be without merit.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FIRST UNION NATIONAL BANK v. BENJAMIN BONITO, JR., ET AL.
    (AC 17758)
    (AC 17759)
    (AC 17760)
    (AC 17761)
    Foti, Schaller and Spear, Js.
    Argued November 3
    officially released December 22, 1998

      Jerald S. Barber, for the appellant (named defendant).

      Mark L. Bergamo, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In these actions to foreclose tax liens, the owner of the equity of redemption with respect to several parcels of land appeals from the trial court’s denial of his motions to open the judgments of strict foreclosure for the purpose of extending the law days. The decision whether to open a foreclosure judgment rests in the discretion of the trial court. General Statutes § 49-15. After a review of the record, we conclude that the trial court did not abuse its discretion in this case. See New Haven Savings Bank v. Gurland, 3 Conn. App. 508, 489 A.2d 1070 (1985).

The judgments are affirmed and the case is remanded for the purpose of setting new law days.


text:
    STATE OF CONNECTICUT v. PHILIP BURKE
    (AC 16363)
    Foti, Schaller and Spear, Js.
    Argued November 3
    officially released December 22, 1998

      Michelle M. Napoli, with whom, on the brief, was Richard M. Maraño, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney and Steven M. Carney, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Philip Burke, appeals from the judgment of conviction, rendered after a jury trial, of reckless endangerment in the first degree in violation of General Statutes § 53a-63 and criminal mischief in the first degree in violation of General Statutes § 53a-115. The defendant claims that the trial court improperly (1) denied his motion for discovery, which requested that the state turn over exculpatory and favorable material concerning the state’s witness, and refused to conduct an in camera review of that material, (2) interrupted defense counsel’s voir dire and cross-examination of one of the state’s witnesses and (3) denied his motion to suppress evidence seized from his person and vehicle following his arrest. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 9,1994, at approximately 1:20 a.m., Vincent Anglace and Alexandra Anglace were driving their sports utility vehicle north on 1-95 in Waterford, in the left lane of a two lane highway. They were approached from the rear by the defendant, who was driving a station wagon. Unable to pass, the defendant moved into the right lane and drove by the Anglaces. As the defendant passed, he fired several shots at the Anglaces’ vehicle. Alexandra Anglace used a mobile telephone to call the police and Vincent Anglace pulled their vehicle into a nearby weigh station because of engine difficulty that occurred shortly after the shots were fired.

Connecticut State Trooper Clifford Labbe responded to the Anglaces’ call and met them at the weigh station. The Anglaces described the vehicle from which the shots were fired as a dark colored, older Ford or Mercury station wagon with a tinted rear window and a red and white out of state license plate. Labbe broadcast the description of the station wagon to Connecticut and Rhode Island troopers in the area. When Labbe examined the Anglaces’ vehicle, he found three bullet holes in the passenger side. He also found two spent shell casings on the right shoulder of 1-95 where the shooting occurred.

Several miles ahead, State Trooper Zacharias Abbey positioned his vehicle near exit 89 of 1-95 in Mystic to watch for the vehicle described in Labbe’s broadcast. He saw a Ford station wagon that matched the description given by Labbe and began to follow it. The vehicle accelerated to seventy-five miles per hour and began to swerve erratically between the right and left lanes. Abbey did not stop the vehicle because he was awaiting assistance from other troopers. Just beyond exit 93, the defendant stopped his vehicle in the breakdown lane. Abbey parked his vehicle behind the defendant’s vehicle, but did not approach it. The defendant remained there for a few moments and then continued north into Rhode Island. Several miles further, Abbey was joined by two Rhode Island state troopers, and they stopped the defendant’s vehicle.

The defendant consented to a search of his vehicle. The troopers found a shell casing on the driver’s side floor, a rifle, a shotgun and a metal box containing ammunition. Labbe drove the Anglaces to Rhode Island to view the defendant’s vehicle. They could not positively identify the defendant as the shooter, but did positively identify the defendant’s vehicle.

The defendant was subsequently arrested and his hands were swabbed with chemicals, which, upon laboratory testing, revealed the presence of gunshot residue. Edward McPhillips, a firearms examiner with the Connecticut state police forensic laboratory, determined that all three shell casings had been fired by the rifle found in the defendant’s vehicle.

The defendant testified that he owned the rifle found in his vehicle and that he had fired at the Anglaces’ vehicle to scare them. After viewing a photograph of the bullet holes in the vehicle, the defendant stated: “There’s no doubt in my mind it probably came from my rifle .... I didn’t aim it, but that’s where it hit.” After a trial by jury, the defendant was convicted of reckless endangerment in the first degree and criminal mischief in the first degree. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion for discoveiy, which requested that the state turn over exculpatory material concerning a state’s witness, and that the court refused to conduct an in camera review of that material. We are unpersuaded.

Pursuant to Practice Book § 741, now § 40-11, Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 154-55, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), the defendant filed a motion for discoveiy requesting that the state disclose all information with respect to each potential state witness and each informant used by the state during its investigation of the case. Specifically, the defendant requested that the state disclose “any and all evidence of drug or alcohol abuse, mental illness, and treatment for such conditions, of the informant.”

On the first day of trial, Clements Wolenc, a prisoner who was transported to the courthouse with the defendant, told the assistant state’s attorney that, earlier that morning, the defendant had confessed his involvement in the crime for which the defendant was on trial. The state promptly disclosed that information to defense counsel, provided him with a copy of Wolenc’s criminal record and indicated its desire to call Wolenc to testify. Defense counsel requested that the state comply with his discovery request and that it provide any exculpatory information and psychiatric records.

The state disclosed that it was unaware of any exculpatory information, that Wolenc had an extensive criminal record, that he was not a “professional snitch” and that he had denied any previous psychiatric treatment or drug use. After Wolenc was called to testify, defense counsel requested an opportunity to question Wolenc’s competence outside of the presence of the jury. During the questioning, Wolenc denied ever having been treated by a psychiatrist but admitted that he had undergone a psychiatric evaluation and had spoken with a psychiatrist about three or four times in connection with other court cases in Middlesex County. At the request of the defendant, the prosecutor contacted the state’s attorney’s office in Middlesex County and inquired about any psychiatric reports in their possession. The state’s attorney answered that he was aware of several evaluations, but that he believed the contents to be confidential and refused to release the reports. It is this material that the defendant claims the state improperly withheld.

“The United States Supreme Court has held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the [government], Brady v. Maryland, [supra, 373 U.S. 87]; State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990); State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); see State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988). This type of violation of the defendant’s due process rights is commonly referred to as a Brady violation. State v. Morales, 232 Conn. 707, 714, 657 A.2d 585 (1995).” (Internal quotation marks omitted.) State v. Connelly, 46 Conn. App. 486, 512, 700 A.2d 694, cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998). “Impeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused.” (Internal quotation marks omitted.) Demers v. State, 209 Conn. 143, 161, 547 A.2d 28 (1988).

“To prevail on a Brady claim, the defendant bears a heavy burden to establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material. State v. Milner, [supra, 206 Conn. 539]. The test of materiality of nondisclosed exculpatory evidence requires that there be a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. . . . [W]here there is no reasonable probability that disclosure of the exculpatory evidence would have affected the outcome, there is no constitutional violation under Brady. . . . State v. McIntyre, 242 Conn. 318, 323-24, 699 A.2d 911 (1997). [T]he mere possibility that an item of undisclosed evidence might have helped the defense or might have affected the outcome . . . does not establish materiality in the constitutional sense.” (Internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 311, 715 A.2d 1 (1998).

The defendant’s claim fails because he has not proven that the allegedly suppressed evidence was material. After a careful review of the record, we conclude that there is no reasonable probability that the disclosure of Wolenc’s psychiatric records would have affected the outcome. Wolenc testified only to the fact that the defendant admitted firing his rifle at the Anglaces’ vehicle. The defendant also testified that he owned the rifle found in his station wagon and that he fired the shots that struck the Anglaces’ vehicle. Because we determine that confidence in the outcome has not been undermined, any alleged failure of the state to disclose Wolenc’s psychiatric records did not deprive the defendant of his constitutional right to a fair trial.

II

The defendant next claims that the trial court improperly intruded into his cross-examination of Wolenc so as to deprive him of his right to a fair trial. We disagree.

“Impartiality as a core requirement of the right to trial by jury is served not only by the sixth amendment, which applies to the states as well as to the federal government; see, e.g., Witherspoon v. Illinois, 391 U.S. 510, 529, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968) (Douglas, J., concurring); Parker v. Gladden, 385 U.S. 363, 364, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966); but also by the due process and equal protection clauses of the fourteenth amendment. See, e.g., Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972). We have held that the due process clauses of both the United States and Connecticut constitutions have the same meaning and impose similar limitations. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). Due process of law guarantees a criminal defendant a fair trial before an impartial judge and jury in a neutral atmosphere. U.S. Const., amend. XIV; Conn. Const., art. I, § 8. State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); State v. Gordon, 197 Conn. 413, 424D, 504 A.2d 1020 (1985). State v. Smith, 200 Conn. 544, 549, 512 A.2d 884 (1986).” (Internal quotation marks omitted.) State v. Cruz, 212 Conn. 351, 364, 562 A.2d 1071 (1989). Any claim that the trial judge crossed the line between impartiality and advocacy is subject to harmless error analysis. State v. Smith, supra, 551.

Even assuming arguendo that the trial court did ask improper questions, we fail to see how the defendant was prejudiced in any respect. As stated previously, Wolenc testified that the defendant admitted to firing at the vehicle. The defendant also testified to that fact himself. Any error, therefore, is harmless beyond a reasonable doubt.

Ill

The defendant next claims that the trial court improperly denied his motion to suppress items seized from his person and vehicle immediately following his arrest. We are unpersuaded.

The defendant argues that the state troopers did not have probable cause to search his person or his vehicle. He further argues that the troopers did not have a reasonable and articulable suspicion necessary to justify a stop and protective search under Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). After a hearing on the defendant’s motion to suppress, the trial court found that the defendant consented to the search of his vehicle. That finding is not challenged on appeal. On the basis of the trial court’s finding, the court properly denied the defendant’s motion to suppress. “Consent ... [is an exception] to the rule excluding evidence obtained as a direct result of a warrantless search and seizure. State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980).” State v. Vargas, 34 Conn. App. 492, 496, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    FREDDY RIVERA v. COMMISSIONER OF CORRECTION
    (AC 17320)
    Landau, Spear and Dupont, Js.
    Argued November 2
    officially released December 22, 1998

      George C. Springer, Jr., forthe appellant (petitioner).

      Ellen Jawitz, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Dropick, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Freddy Rivera, was convicted of sexual assault in the first degree after a jury trial and we affirmed the conviction in State v. Rivera, 30 Conn. App. 523, 621 A.2d 298 (1993), aff'd, 228 Conn. 756, 638 A.2d 34 (1994). Thereafter, he filed a petition for habeas corpus alleging that his trial counsel furnished ineffective assistance. The habeas court dismissed the petition and Rivera appeals from that judgment on the sole ground that the habeas court improperly refused to review the entire transcript of the petitioner’s criminal trial. We disagree with the petitioner’s claim that such a review was required under the circumstances of this case and, accordingly, affirm the judgment of the habeas court.

The petitioner relies on this court’s holding in Evans v. Warden, 29 Conn. App. 274, 277, 613 A.2d 327 (1992), for the proposition that, when requested, a habeas court must review the entire transcript before ruling on the petition for habeas corpus. This reliance is misplaced. In Evans we said that “[a] full and fair review of the petitioner’s claim that . . . appellate counsel provided ineffective assistance in failing to include a sufficiency of the evidence claim in his direct appeal required the habeas court to read the trial transcript.” Id., 278.

In the present case, there was no claim that counsel was ineffective in failing to raise insufficiency of evidence as a ground of appeal. Moreover, none of the discrete claims of the petitioner necessitated a review of the entire transcript of the criminal trial. The habeas court repeatedly told the petitioner to point out the sections of the transcript that related to his claims and stated repeatedly that it would read all necessary portions of the transcript of the trial court proceedings. The petitioner ultimately pointed out those sections of the trial transcript that related to his claims and the habeas court reviewed those portions of the transcript prior to ruling.

The petitioner was unable to articulate in his brief or at oral argument any reason why the habeas court was required to read the entire transcript in light of his discrete, particularized claims of ineffective assistance of counsel. Moreover, habeas counsel acquiesced when the court asked him to point out the specific pages that counsel wanted the habeas court to read.

The judgment is affirmed.

       The habeas corpus petition also alleged that trial counsel rendered ineft'oct ive assistance by failing: (1) to conduct an adequate pretrial investigal ion, (2) to consult properly with the petitioner prior to trial, (3) to request a continuance to locate certain witnesses, (4) to call certain favorable witnesses, (5) to cross-examine adequately certain witnesses, (C) to introduce expert testimony on rape trauma syndrome, (7) to obtain a favorable ruling that would have suppressed the petitioner’s statement to the police and certain other evidence, (8) to object to the admissibility of the petitioner’s statement and certain other evidence, (9) to object to the admissibility of certain photographs, (10) to call the petitioner as a witness and (11) to investigate the petitioner’s complaint of prosecutorial misconduct.

       At the beginning of the hearing on the habeas corpus petition, the following colloquy took place between the petitioner’s counsel and the trial court:
      “[Petitioner’s Attorney]: Your Honor, I was going to offer by stipulation the transcript in its entirety as a point of reference to the court, but obviously during the course of the testimony, if it is necessary, I can point out references to the transcript.
      “The Court: You mean the whole trial transcript?
      “[Petitioner’s Attorney]: Yes.
      “The Court: That’s okay. I don’t care how you do it. If you want me to read any, you will have to be specific as to which pages you want me to read.
      “[Petitioner’s Attorney]: Yeah. I am not sure what Your Honor would do with respect to briefing, whether you want to permit that or not in this instance, I—obviously, I can do that in the form of a brief.
      “The Court: I don’t require briefs in 99 percent of the cases. . . .
      “[Petitioner’s Attorney]: Your Honor .... At this point I will leave it to the court’s discretion until the end of the evidence, perhaps we can revisit the issue.
      “The Court: Well, I mean, you could put in the whole transcript, the only thing I say is that before the trial concludes just tell me what, if any, of the pages you want me to read, and whatever you want me to read, I will read.
      “[Petitioner’s Attorney]: Okay, Your Honor. Thank you


text:
    STATE OF CONNECTICUT v. BOGDAN KONDRACKI
    (AC 17429)
    Foti, Sullivan and Spallone, Js.
    Argued November 9
    officially released December 22, 1998

      Jacek I. Smigelski, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Antonia Carabillo, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Bogdan Kondracki, appeals from the judgment of conviction, rendered after a trial to the court, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a, evading responsibility in violation of General Statutes § 14-224 (b) and failure to drive on the right in violation of General Statutes § 14-230 (a). On appeal, the defendant claims that the evidence presented at trial was insufficient to sustain his conviction. Specifically, the defendant claims that the evidence was insufficient to prove that he was the operator of the motor vehicle in question. We disagree and affirm the judgment of the trial court.

The following facts are relevant to this appeal. On August 11,1996, at approximately 1:53 a.m., a limousine occupied by the defendant and a second person, Mark Puckowski, struck two parked cars on Clinic Drive in New Britain and then rolled to a stop. At trial, Michelle Jean, a resident of Clinic Drive, testified that on the night in question, she was watching television in her bedroom when she heard a loud crash. She immediately looked out the window and observed the limousine rolling slowly down the street. After calling 911, she ran outside and, from the front steps of her building, saw that the limousine continued to roll down the street. When the limousine finally came to a stop, she observed the defendant exit from the driver’s seat. A short time later, she observed Puckowski exit the rear of the limousine.

A second witness, Arthur Warchol, also a resident of Clinic Drive, testified as follows. On the night in question, he was in his apartment talking on the telephone. After hearing the crash, he looked outside and observed the limousine rolling down the street. He called 911 and immediately ran outside. As Warchol approached the limousine, he observed the defendant crawling out of the driver’s side. He also observed Puckowski inside the limousine in the backseat. He testified further that he saw no one else at the scene at that time.

Scott Roberts, a paramedic who had responded to the scene of the accident, testified that the defendant had an abrasion on his chin and right kneecap and Puckowski was uninjured. On the basis of this evidence, the trial court concluded that the most probable scenario was that the defendant had “hit his chin on the steering wheel.” The court further concluded that Puckowski’s lack of injury was “consistent with his being in the backseat” of the vehicle at the time of the accident.

Prior to trial, the defendant stipulated that his blood alcohol content exceeded the legal limit at the time of the accident, and that the accident had occurred on a public highway for purposes of § 14-227a. The sole issue at trial, therefore, was who was operating the vehicle. The defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he, and not Puckowski, was the operator of the limousine. Our review of the record, transcripts and briefs indicates, however, that the trial court, as the finder of facts in this case, acted reasonably, rationally and in accordance with applicable law in finding that the defendant was the operator of the limousine.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489, 698 A.2d 898 (1997). “ ‘On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty.’ ” Id., 490.

The evidence presented was sufficient to support the trial court’s conclusion that the defendant was the operator of the limousine. Both Jean and Warchol testified that they had witnessed the defendant exit from the driver’s side of the limousine and that Puckowski was in the rear of the limousine. Additionally, Roberts testified, and the trial court agreed, that the defendant’s injuries were consistent with his being the driver at the time of the accident. The damage to the interior of the limousine supports this conclusion. While the defendant testified that Puckowski was driving the limousine at the time of the accident, the trial court chose not to credit his testimony.

We are guided by the well established principle that “[t]he trier of fact may accept or reject the testimony of any witness.” State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 [cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541] (1996). It is the trier of fact’s “exclusive province to weigh the conflicting evidence and determine the credibility of witnesses.” State v. Hooks, 30 Conn. App. 232, 239, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We give deference to the evidence and the reasonable inferences drawn therefrom that support the trial court’s determination of guilt. State v. Dukes, 46 Conn. App. 684, 690, 700 A.2d 119 (1997).

The judgment is affirmed.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person 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 ... (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 § 14-224 (b) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes physical injury, as defined in section 53a-3, to any other person or injury or damage to property shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to the owner of the injured or damaged property, or to any officer or witness to the physical injury to person or injury or damage to property, and if such operator of tire motor vehicle causing the physical irqury of any person or injury or damage to any property is unable to give his name, address and operator’s license number and registration number to the person injured or the owner of the property injured or damaged, or to any witness or officer, for any reason or cause, such operator shall immediately report such physical injury of any person or injury or damage to property to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the physical injury of any person or the injury or damage to property and his name, address, operator’s license number and registration number.”

       General Statutes § 14-230 (a) provides: “Upon all highways, each vehicle, other than a vehicle described in subsection (c) of this section, shall be driven upon the right, except (1) when overtaking and passing another vehicle proceeding in the same direction, (2) when overtaking and passing pedestrians, parked vehicles, animals or obstructions on the right side of the highway, (3) when the right side of a highway is closed to traffic while under construction or repair, (4) on a highway divided into three or more marked lanes for traffic, or (5) on a highway designated and signposted for one-way traffic.”

       At trial, the defendant claimed that he was seated in the passenger seat at the time of the accident. In its memorandum of decision, however, the trial court noted that the defendant’s injuries were consistent with the damage that occurred to the driver’s side of the vehicle, e.g., cracked windshield and broken radio knob. The trial court concluded that had the defendant “been sitting in the passenger seat . . . there would surely have been some damage to that side of the vehicle.”


author: O’CONNELL, C. J.

text:
    FEDERAL NATIONAL MORTGAGE ASSOCIATION v. JOHN P. DICIOCCIO ET AL.
    (AC 18151)
    O’Connell, C. J., and Foti and Dupont, Js.
    Submitted on briefs October 29
    officially released December 22, 1998

      Jonathan A. Peck and Bruce N. Shibles filed a brief for the appellant (plaintiff).
   Opinion

O’CONNELL, C. J.

In this foreclosure action, the plaintiff, Federal National Mortgage Association, appeals from the judgment of the trial court denying its motion for further supplemental judgment. In its motion, the plaintiff moved the trial court to render a further supplemental judgment to rectify a clerical error made in calculating the debt set forth in the affidavit of debt. On appeal, the plaintiff claims that the trial court improperly denied its motion. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. On July 29, 1996, the trial court rendered a judgment of foreclosure by sale and found a debt of $47,313.36. This debt amount was based on the affidavit of debt submitted by the plaintiff. The affidavit of debt, however, contained a clerical error in which escrow advances for taxes in the amount of $5129.94 were subtracted from the debt rather than added to it. After the sale of the property, the trial court rendered a supplemental judgment for the plaintiff in the amount of $49,537.59 that reflected the original debt plus accrued interest. After discovering the error, the plaintiff filed its motion for further supplemental judgment and attached a copy of a corrected affidavit of debt. At the hearing on July 21, 1997, the trial court questioned its authority to change the amount of debt after judgment had been rendered. It subsequently denied both the motion for further supplemental judgment and a later motion to reconsider. This appeal followed. In its appeal, the plaintiff claims that the trial court improperly denied the motion for further supplemental judgment. We agree.

“[A] foreclosure action constitutes an equitable proceeding. . . . In an equitable proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Citation omitted; internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 120, 629 A.2d 410 (1993). Furthermore, atrial court may correct a clerical error at anytime. Blake v. Blake, 211 Conn. 485, 495, 560 A.2d 396 (1989).

In the present case, the trial court, as a court of equity, had the authority to correct the clerical error to achieve an equitable result. To ignore the error would result in an injustice to the plaintiff because it is owed $10,259.88 more than the foreclosure judgment ordered. The motion for further supplemental judgment, therefore, should have been granted.

The judgment is reversed as to the denial of the motion for supplemental judgment and the case is remanded with direction to render a further supplemental judgment correcting the amount of the debt by the adding $10,259.88 to the amount owed to the plaintiff on the foreclosure judgment.

In this opinion the other judges concurred.

       At the July 21, 1997 hearing, the trial court stated, “How can I increase the amount of the debt after the judgment?”

       The amount of $10,259.88 is twice the amount of the escrow advance, $5129.94, and corrects the effect of mistakenly subtracting instead of adding the escrow advances to the original debt.