author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. KEVIN GUESS
    (13321)
    O’Connell, Heiman and Spear, Js.

      Argued June 6
    decision released September 12, 1995

      Donald J. Bowers, with whom, on the brief, was Sandra P. Lax, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Cecilia Wiederhold, assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The genesis of this case is a substitute information charging the defendant with murder in violation of General Statutes §§ 53a-54a and 53a-8, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, criminal attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2), 53a-8 and 53a-54a and carrying a pistol without a permit in violation of General Statutes §§ 29-28 and 29-35.

The jury returned a verdict of not guilty as to the charges of murder, conspiracy to commit murder and criminal attempt to commit murder, of guilty of what the court instructed were the lesser included offenses of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-8 and 53a-55a and conspiracy to commit manslaughter in the first degree with a firearm in violation of §§ 53a-48 and 53a-55a, and of guilty of the charged offense of carrying a pistol without a permit.

The trial court subsequently granted the defendant’s motion for judgment of acquittal of the lesser included offense of conspiracy to commit manslaughter in the first degree with a firearm.

The defendant appeals from the conviction of the lesser included offense of manslaughter in the first degree with a firearm and carrying a pistol without a permit.

The defendant claims that the trial court improperly (1) denied his motion to suppress tangible evidence, (2) denied his motion to suppress the statement he gave to the police, (3) denied his motion to sever his joint trial, and (4) denied his postjudgment motion for judgment of acquittal of the lesser included offense of manslaughter in the first degree with a firearm because there was insufficient evidence to support the conviction. We affirm in part and reverse in part.

The jury could reasonably have found the following facts. Throughout the day on May 31, 1991, shooting erupted at the Quinnipiac Terrace housing project in New Haven as two rival gangs battled for control of the project’s drug trade. While responding to a reported shooting at the project, investigating officers encountered sporadic gunfire. As police tried to defuse the situation, the defendant and a person later to be tried as the codefendant concealed themselves behind a bush. One of the officers at the scene saw muzzle flashes from shots fired from behind the bush. One of these shots led to the death of Andre Moore, a member of one of the project’s gangs.

Police recovered various nine millimeter and ten millimeter shell casings from behind the bush, including but not limited to Winchester brand nine millimeter casings. On June 5,1991, police executed a search warrant for the defendant’s apartment at 25 Donna Drive in New Haven. In the apartment, police found a Star nine millimeter semiautomatic pistol with live ammunition in the magazine, eight live rounds of ammunition, cash, records of drug transactions and a bulletproof vest. After procuring a second warrant, police searched the basement storage bin at 25 Donna Drive and found the following: a nine millimeter semiautomatic firearm, three boxes of nine millimeter ammunition, 23,000 empty small plastic bags and a quantity of cocaine. The defendant possessed neither state nor local permits to carry pistols or revolvers.

The fifteen Winchester shell casings found at the scene of the shooting had been ejected from the two weapons seized at the defendant’s apartment. Moore was probably killed by a Winchester brand bullet fired from one of the fifteen Winchester shell casings found at the scene.

On November 30, 1991, the defendant gave a statement to police in which he admitted firing four nine millimeter shots from behind a bush during the shootout, but denied that he directly aimed his pistol at anyone. The defendant explained that one other individual had been with him behind the bush, but he repeatedly refused to identify that person. The defendant further told police that the second individual had fired a weapon, but that he could not identify the type of weapon used, how many shots had been fired from it, or at whom the shots had been aimed. Additional facts are included in the analyses of individual claims.

I

SEARCH WARRANT

The essence of the defendant’s first claim is that the search warrant affidavit, based largely on facts supplied by confidential informants, did not support a conclusion of probable cause in violation of the fourth amendment of the United States constitution and article first, § 7, of the Connecticut constitution.

For a search warrant to issue, a neutral and detached judge must make an independent determination that the facts in the supporting affidavit constitute probable cause. State v. Delmonaco, 194 Conn. 331, 337, 481 A.2d 40, cert. denied, 496 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984). “ ‘Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.’ ” State v. Vincent, 229 Conn. 164, 171, 640 A.2d 94 (1994), quoting State v. Weinberg, 215 Conn. 231, 238, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

Under the fourth amendment to the federal constitution and article first, § 7, of our state constitution, the “totality of the circumstances” test is used to determine if there is probable cause to issue a search warrant that is based on the information of confidential informants. Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); State v. Zarick, 227 Conn. 207, 222, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State v. Barton, 219 Conn. 529, 544-45, 594 A.2d 917 (1991). When a search warrant affidavit is based on information provided to the police by a confidential informant, the magistrate must examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis for the belief that the information is reliable. Where the bases for crediting the source of the information are apparent, and when a magistrate has in fact found probable cause, the reviewing court will not invalidate a warrant by app lying rigid analytical categories. State v. Barton, supra, 544-45. Rather, we review an issuing judge’s determination that probable cause existed by considering the information before the judge “at the time of the issuance of the warrant, together with the reasonable inferences drawn from such information, in the light most favorable to the issuing judge’s determination of probable cause.” State v. Zarick, supra, 222; State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991).

The challenged affidavit in this case clearly provided a substantial factual basis from which the issuing judge could have reasonably inferred that nine millimeter guns were located in the defendant’s apartment and that the defendant was himself connected to the shooting of Moore. Police drafted a thoroughly detailed search warrant based on the data supplied to them by two known confidential informants, each of whom had previously provided reliable, accurate information to the police.

The first informant telephoned the police each day with information relating to gang activity in the Quinni-piac Terrace projects. During the week of June 3,1991, he informed the police that he had observed the defendant in possession of nine millimeter firearms at his residence, had personally observed the defendant storing various firearms at 126 Olive Street, and had been told by the defendant that Moore’s death was a result of a shootout involving the defendant’s gang.

The second informant, a gang member who had been working for the New Haven police department for more than six months, also provided information regarding the shooting death of Moore. That informant not only corroborated each piece of information supplied by the first informant, but also told police that he was present when the defendant admitted personal responsibility for the death of Moore.

In addition to relying on the tips supplied by the confidential informants, the officers also independently ascertained that both nine millimeter and ten millimeter shell casings were found at the scene of the shooting. They further consulted an agent of the federal Bureau of Alcohol Tobacco and Firearms to confirm that the types of weapons allegedly located at the defendant’s apartment were capable of firing nine millimeter cartridges.

The trial court found that the reliability of each informant was amply demonstrated because each informant confirmed the information of the other, and because the remainder of the information was based on personal knowledge and police investigation. The warrant affidavit adequately described both the factual basis of the informants’ knowledge and the basis on which the police concluded that the information was reliable. The trial court considered details provided by the confidential informants and the information yielded by independent police investigation.

We conclude that the trial court properly determined that the affidavit provided a substantial factual basis for its finding that there was probable cause to believe that the defendant was involved in Moore’s shooting and that evidence of that crime was located at the defendant’s residence.

II

STATEMENT

The defendant next raises the issue of whether his confession was obtained without a waiver of his Miranda rights in violation of the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Because the defendant did not advance a separate state constitutional argument, we will limit our analysis to federal constitutional grounds.

The purpose of the Miranda warnings is to assure that a confession is the product of an “essentially free and unconstrained choice by its maker.” (Internal quotation marks omitted.) State v. Madera, 210 Conn. 22, 48, 554 A.2d 263 (1989). Waiver must be “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). “ ‘[C]ourts indulge eveiy reasonable presumption against waiver’ . . . ‘and do not presume acquiescence in the loss of fundamental rights.’ ” Id. To be valid, a waiver of the Miranda rights must be “ ‘voluntary, knowing, and intelligent.’ ” State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992).

An effective waiver presupposes full knowledge of the right or privilege allegedly waived as well as some act done knowingly to relinquish it. State v. Ramos, 201 Conn. 598, 603, 519 A.2d 9 (1986). In considering the validity of the waiver, the reviewing court looks, as does the trial court, to the totality of the circumstances surrounding the claimed waiver. State v. Madera, supra, 210 Conn. 49. Factors used to assess the totality of the circumstances for capacity for intelligent and voluntary waiver include: age of the accused; lack of education; lack of advice of constitutional rights; and the length and nature of the interrogation. State v. Toste, 198 Conn. 573, 584, 504 A.2d 1036 (1986). “ ‘[0]ur usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.’ ” State v. Stanley, supra, 223 Conn. 686.

The defendant claims that he was incapable of understanding his rights as read to him because he was “shook up” from being arrested. Our examination of the record and the factors used to assess the totality of the circumstances leads us to conclude that the defendant’s waiver in this case was made knowingly, voluntarily and intelligently.

At the suppression hearing, the state presented the following evidence. After being read the Miranda rights twice, the defendant signed a card waiving those rights. The state then produced a transcript of an orally recorded confession in which the defendant said that he had been twice informed of his Miranda rights. At no time before or during the interrogation did the defendant, a college student, indicate that he did not understand the rights as presented to him, nor did he request that the rights be explained. The defendant did not attempt to exercise his right to remain silent or his right to obtain counsel. Viewed in the totality of the circumstances, the defendant’s claim that he did not understand his rights as read to him is without merit.

From our review of the record, we conclude that the trial court correctly found substantial evidence that the defendant’s statement was given pursuant to a valid waiver, and was not obtained in violation of his fifth and fourteenth amendment rights.

Ill

SEVERANCE

The defendant next claims that the trial court improperly denied his motion to sever his trial from that of his codefendant, Sherman Edwards. We do not agree with the defendant.

“Ordinarily justice is better subserved where the parties [jointly informed against] are tried together.” State v. Walton, 227 Conn. 32, 56, 630 A.2d 990 (1993). A joint trial is preferred because it “expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called to testify [more than] once.” Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968).

Notwithstanding the state’s interest in joint trials, severance is appropriate “where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused.” (Internal quotation marks omitted.) State v. Smith, 201 Conn. 659, 669, 519 A.2d 26 (1986). “[T]he phrase prejudicial to the rights of the parties means something more than that a joint trial will probably be less advantageous to the accused than separate trials.” (Internal quotation marks omitted.) State v. Walton, supra, 227 Conn. 56.

The trial court enjoys discretion in determining whether to sever the trials of defendants involved in the same criminal incident. Practice Book § 829; State v. Vinal, 198 Conn. 644, 649, 504 A.2d 1364 (1986). The standard for the trial court is “ ‘whether substantial injustice is likely to result unless a separate trial be accorded. The test for this court [on appeal] is whether the denial of the motion for a separate trial has resulted in substantial injustice to the accused.’ ” State v. Smith, supra, 201 Conn. 671. Because the trial court enjoys wide latitude in determining whether substantial injustice is likely to result if separate trials are not ordered, this court “will reverse a trial court’s ruling on joinder only where the trial court commits an abuse of discretion that results in manifest prejudice to one or more of the defendants.” State v. Vinal, supra, 649; State v. Burns, 23 Conn. App. 602, 608, 583 A.2d 1296 (1990).

The defenses asserted by the codefendants here are not antagonistic. Defenses offered by codefendants at a joint trial are sufficiently antagonistic to mandate separate trials where a jury can reasonably accept the core of the defense offered by one defendant only if it rejects the core of the defense offered by the codefen-dant. State v. Vinal, supra, 198 Conn. 652. The defendant in the present case argued that, although he fired a gun at the crime scene, he did not aim at the victim and thus lacked the requisite intent for murder. Edwards asserted an alibi defense. The defenses presented by the codefendants, although different, were not antagonistic. The jury was, therefore, not in the position of accepting the defense of one defendant only by rejecting the defense of the other.

The defendant was not prejudiced by evidence that was admissible against the codefendant but not against him. In this case, the only evidence presented that would not have been admissible against the defendant had he been tried alone was that one witness claimed to recognize the codefendant from jail. The admission of this sole piece of evidence did not result in substantial injustice so as to require a separate trial.

The defendant contends that he suffered irreparable prejudice because the evidence was too complex for the jury to separate it as to each defendant. To illustrate this prejudice, he points to the fact that the court did not give identical jury charges with respect to each codefendant. The defendant received the lesser included offense instructions that he requested, and the codefendant, who requested no lesser included offense instructions, received the lesser included offense instructions that the court thought appropriate. State v. Rodriguez, 180 Conn. 382, 407-408, 429 A.2d 919 (1980).

In the absence of a clear indication to the contrary, juries are presumed to follow the instructions that they are given. State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). Throughout the trial and in its charge, the court specifically instructed the jury to consider each case separately and independently. There is no evidence in the record before us that the jury was confused by the separate charges or unable to separate the evidence relating to each codefendant.

The trial court did not abuse its discretion in finding that no substantial injustice was likely to result from a joint trial of the two defendants. Accordingly, the motion to sever was properly denied.

IV

LESSER INCLUDED OFFENSE

The defendant’s final claim concerns the sufficiency of the evidence to support a conviction of manslaughter in the first degree with a firearm. Before addressing that claim, we must first address the threshold question of whether, under the facts of this case, manslaughter in the first degree with a firearm is a lesser included offense of murder as charged. At oral argument, we raised this question sua sponte and discuss it now under the plain error doctrine.

“ ‘ [P] lain error review is limited to instances involving confidence in the fairness and integrity of the adjudicative process . . . the doctrine essentially invokes the discretion of the court.’ Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 196, 520 A.2d 208 (1987).” (Citation omitted.) State v. Rogers, 18 Conn. App. 104, 110-11, 556 A.2d 1830 (1989). The doctrine allows an appellate court “in the interests of justice [to] notice plain error not brought to the attention of the trial court.” Practice Book § 4185. The plain error principle may also be invoked when the “ ‘existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . and results in an unreliable verdict or miscarriage of justice.’ ” (Citations omitted; internal quotation marks omitted.) State v. Harvey, 27 Conn. App. 171, 187, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992).

“ ‘Nothing is more elementary in criminal law than that an accused is required to defend only against the charge alleged.’ ” State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983). The information serves the crucial function of alerting the defendant to the nature of the accusations against him as required by our federal and state constitutions. U.S. Const., amend. VI; Conn. Const., art. I, § 8; State v. Belton, supra, 501.

When determining whether one crime is a lesser included offense of another crime, the reviewing court must consider whether “it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser . . . .” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Proof of a lesser included offense must not require proof of any element that is not needed to commit the greater offense. State v. Castro, 196 Conn. 421, 429, 493 A.2d 223 (1985).

In this case we must determine whether it was possible for the defendant to commit murder in the manner described in the information without having first committed manslaughter in the first degree with a firearm. To make this determination, we examine both the relevant statutes and the charging documents. State v. Falcon, 26 Conn. App. 259, 265, 600 A.2d 1364, cert. denied, 211 Conn. 911, 602 A.2d 10 (1992). The state urges us to consider counts two and three of the information, both of which refer to the firing of shots from a handgun. The state also asks us to consider the probable cause hearing in which the court found probable cause to believe that the defendant shot the victim. We cannot do so, however, because notice of the crime charged in the information is what determines “notice of all lesser included offenses.” Id., 264. Specific mention of use of a firearm in other counts of the information and at the probable cause hearing, while alerting the defendant to possible presentation of evidence at trial, does not provide the defendant with notice that he could be convicted of a crime that is not properly a lesser included offense under Whistnant.

In the present case, count one of the substitute information charged the defendant with murder by alleging that the defendant “with intent to cause the death of another person, did cause the death of Andre Moore in violation of § 53a-54a (a) of the Connecticut General Statutes.” Count one, however, did not contain an allegation that the defendant used a firearm in the commission of that crime. Because the crime of manslaughter in the first degree with a firearm requires proof of the additional element of use of a firearm, which is not a necessary element of the crime of murder as charged in the information, the defendant could not be lawfully convicted of manslaughter in the first degree with a firearm.

We addressed this issue in State v. Falcon, supra, 26 Conn. App. 259, a case factually similar to the present case. The defendant in Falcon was charged with murder. The information contained no allegation of use of a firearm. After examining the relevant statutes and the charging document, we held that it was possible for the defendant to commit murder as charged without first having committed manslaughter in the first degree with a firearm. Thus, manslaughter in the first degree with a firearm was not a lesser included offense of murder.

Our decision today does not mean that manslaughter in the first degree with a firearm can never be a lesser included offense of murder. Under the facts of two cases, our Supreme Court has found that manslaughter in the first degree with a firearm is a lesser included offense of murder. State v. Shipman, 195 Conn. 160, 486 A.2d 1130 (1985); State v. Marino, 190 Conn. 639, 462 A.2d 1021 (1983). In both Shipman and Marino, however, the defendant was charged with murder by charging documents that expressly stated that the crime was committed by the use of a firearm. The information in this case contains no such allegation and therefore does not give the defendant the requisite notice for lesser included offense purposes.

Because we conclude that the defendant cannot be convicted of manslaughter in the first degree with a firearm, we turn to the issue of the disposition of the appeal. Our Supreme Court and this court have modified judgments after a reversal rather than remanding for a new trial. State v. Carpenter, 214 Conn. 77, 85, 570 A.2d 203 (1990); State v. Falcon, supra, 26 Conn. App. 267. In those cases, the courts had rendered judgments for crimes that were necessarily included in the jury’s determination. In this case, as in Falcon, the improper instruction, and resulting conviction, implicated the jury’s finding only as to the use of a firearm. Before the jury could find the defendant guilty of manslaughter in the first degree with a firearm, it necessarily had to find the defendant guilty of manslaughter in the first degree. The trial court clearly provided the jury with an explanation of all the elements of manslaughter in the first degree. General Statutes § 53a-55 (a) (l). Manslaughter under § 53a-55 (a) (1) is a lesser included offense of murder. State v. Maselli, 182 Conn. 66, 71, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981).

We next consider the question of whether the evidence is sufficient to support a judgment of conviction of manslaughter in the first degree. In reviewing claims of insufficiency, this court first reviews the evidence presented at trial and construes it in the light most favorable to sustaining the verdict. State v. Stanley, supra, 223 Conn. 677-78. We then look at the facts established at trial and the inferences reasonably drawn therefrom, and decide whether the jury could have reasonably concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. Id.

In order to be convicted of manslaughter in the first degree in violation of § 53a-55 (a) (1), the defendant must, with the intent to cause serious physical injury to another person, cause the death of such person or a third person. See footnote 10. The element of intent is ordinarily proved by circumstantial evidence and must usually be inferred from the defendant’s conduct and the surrounding circumstances. State v. Smith, 35 Conn. App. 51, 63, 644 A.2d 923 (1994). “[Ijntent to cause [serious physical injury] may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death [of the victim].’ ” (Internal quotation marks omitted.) State v. Carpenter, supra, 214 Conn. 82-83, quoting State v. Patterson, 213 Conn. 708, 721, 570 A.2d 174 (1990). Although not required to do so, a jury is permitted to infer that a defendant intended the natural consequences of his voluntary conduct. State v. Stanley, supra, 223 Conn. 679.

On the basis of the evidence presented and the inferences reasonably drawn therefrom, the jury reasonably could have concluded beyond a reasonable doubt that the defendant intended to cause serious physical injury to the victim. The state presented witnesses who established that the defendant had a motive to shoot the victim, a rival gang member. The defendant admitted that he concealed himself behind the bush, from which location the shots were fired. Two eyewitnesses testified that they observed the defendant fire his gun at the victim. A police officer testified that he saw the muzzle flashes of gunfire erupt from behind the bush toward the victim. The defendant admitted to firing four shots from behind the bush, but denied aiming at the victim. It was uncontested that the defendant’s gun fired ammunition identical to that which caused the victim’s death.

The defendant attacks the credibility of these witnesses and points out that there are inconsistencies in their testimony. Our criminal jurisprudence does not mandate that a jury accept a defendant’s version of events. Rather, “[t]he jury is free to juxtapose conflicting versions of events and to determine which is the more credible.” State v. Adams, 225 Conn. 270, 278, 623 A.2d 42 (1993). The reviewing court does not “sit as a thirteenth juror . . . [but rather defers] to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor, and attitude.” (Citation omitted; internal quotation marks omitted.) State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). In performing its function, the jury was free to disbelieve the defendant’s statement and credit other witnesses’ testimony. The state produced sufficient evidence to prove the elements of manslaughter in the first degree.

The judgment of conviction of manslaughter in the first degree with a firearm is reversed and the case is remanded to the trial court with direction to render a judgment of conviction of manslaughter in the first degree in violation of § 53a-55 (a) (1) and to resentence the defendant in accordance with that conviction; the judgment of conviction of carrying a pistol without a permit is affirmed.

In this opinion the other judges concurred.

       Sherman Edwards is a codefendant in this case, and has also appealed from his conviction. See State v. Edwards, 39 Conn. App. 242, 665 A.2d 611 (1995).

       At trial, the ballistics expert testified that, although badly deformed, the bullet recovered from the victim was “likely” to be a Winchester brand nine millimeter bullet.

        Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Although the card was misplaced and therefore not entered into evidence, the trial judge credited the testimony of the officer who witnessed the defendant signing the card.

       Practice Book § 829 provides: “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”

       The parties were ordered to file supplemental briefs to address the following inquiries: “(1) is the crime of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a a lesser included offense of the crime of murder in violation of General Statutes § 53a-54a as charged in the information in light of the doctrine of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), and (2) if the answer is no, what relief shall be afforded to the defendant?” Compare Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98-99, 644 A.2d 325 (1994).

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

       General Statutes § 53a-55a (a) provides: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       General Statutes § 53a-55 (a) provides in pertinent part: “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 . . . ."


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. SHERMAN EDWARDS
    (13223)
    O’Connell, Heiman and Spear, Js.

      Argued June 6
    decision released September 12, 1995

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Cecilia Weiderhold, assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

This appeal is a companion to State v. Guess, 39 Conn. App. 224, 665 A.2d 126 (1995), which we have decided today. The basis of this case is the fifth substitute information charging the defendant with murder in violation of General Statutes §§ 53a-54a and 53a-8, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, and criminal attempt to commit murder in violation of General Statutes §§ 53a-49 (a) (2), 53a-8 and 53a-54a. The jury returned a verdict of not guilty of the charges of murder, conspiracy to commit murder and criminal attempt to commit murder, and guilty of the lesser included offense of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-8 and 53a-55a. The defendant appeals from this conviction.

The defendant claims that the trial court improperly (1) denied his motion to sever his joint trial, (2) instructed the jury on reasonable doubt, (3) admitted the defendant’s mug shot into evidence, and (4) denied his postjudgment motion for judgment of acquittal of the lesser included offense of manslaughter in the first degree with a firearm because there was insufficient evidence to support the conviction. We reverse the judgment of the trial court.

In Guess, the facts concerning the shooting that lead to the death of Andre Moore are set forth in detail. We incorporate the basic facts into this decision without repeating them in full. The facts differ to the extent that the defendant claims that he was not the person behind the bush with the codefendant when the shooting occurred. The jury could reasonably have found otherwise. Additional facts pertaining only to this appeal are included in the analyses of individual claims.

I

SEVERANCE

The defendant first claims that the trial court improperly denied his motion to sever his trial from that of the codefendant. We disagree. We adopt the discussion of the severance issue from State v. Guess, supra, 39 Conn. App. 233-36, in so far as it applies to this case.

The distinction between the defendant’s severance claim and that of the codefendant involves the admission of the codefendant’s statement into evidence. A defendant is deprived of his rights under the confrontation clause when the nontestifying codefendant’s confession, which expressly implicates him as a participant in the crime, is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). That deprivation does not occur if the codefendant’s confession is redacted to omit any reference to the defendant, and a proper limiting instruction is given by the trial court. Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987).

Bruton is limited to those confessions that are incriminating on their face in that they “expressly implicate” the defendant in the actual commission of the crime. Richardson v. Marsh, supra, 481 U.S. 204-10; State v. Smith, 15 Conn. App. 122, 129-30, 543 A.2d 301, cert. denied, 209 Conn. 805, 548 A.2d 441 (1988). Confessions by a codefendant that do not directly implicate the defendant are therefore not within the prohibition of Bruton. See State v. John, 210 Conn. 652, 679, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Briggs, 17 Conn. App. 648, 656, 554 A.2d 1112, cert. denied, 211 Conn. 802, 559 A.2d 1137 (1989). The calculus does not change simply because the defendant is subsequently linked to the confession by evidence properly admitted against him at trial. Richardson v. Marsh, supra, 208-10.

In this case, the codefendant gave a statement in which he admitted firing gunshots from behind a bush. In Ms statement, the codefendant implicated a second person in the shooting, but did not disclose the identity of the other participant. The codefendant also indicated that he could not discern how many shots were fired by the second shooter or at whom those shots were fired. The defendant was never identified by the code-fendant as the second assailant, nor does the defendant’s name appear anywhere in the codefendant’s statement. The trial court admitted the statement into evidence, and instructed the jury that it was to consider the statement solely against the codefendant.

The defendant argues that there is a distinct implication from the codefendant’s statement that the defendant is also responsible for shooting Moore. The defendant argues that the codefendant’s statement has the same effect as if the codefendant had specified the defendant by name, creating the functional equivalent of the problem in Bruton. We do not agree that the implication was that clear. In tMs case, the confession, on its face, did not incriminate the defendant, and would have done so only when linked with other evidence introduced at trial. See Richardson v. Marsh, supra, 481 U.S. 208.

We conclude that the facts of this case do not fall witMn the ambit of Bruton, and also determine that there is no evidence to suggest that the jury did not follow the specific instructions given to it regarding the admissibility of the statement. A jury is presumed to follow the court’s instructions. State v. Ortiz, 217 Conn. 648, 669, 588 A.2d 127 (1991). Accordingly, the defendant did not suffer substantial prejudice by the admission of the codefendant’s statement so as to require a separate trial.

The defendant also contends that he was prejudiced by the spillover effect from the evidence admitted against the codefendant, and claims that the jury instructions were inadequate to cure the prejudice he suffered. We disagree, and find no merit to the defendant’s claim that the jury could not have evaluated his guilt without using the codefendant’s statement. The jury was furnished with other evidence that, if believed, was sufficient to implicate the defendant in the shooting. The trial court specifically charged the jury as to the admissibility of each piece of evidence, and instructed it not to use the codefendant’s statement, or any of the other evidence admitted solely against the codefendant, in evaluating the defendant’s guilt.

The defendant did not suffer substantial injustice from the evidence admitted against the codefendant, nor was he deprived of his rights under the confrontation clause. We therefore conclude that the trial court properly denied the defendant’s motion to sever his joint trial.

II

REASONABLE DOUBT INSTRUCTION

It is fundamental that proof of guilt in a criminal case must be established beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. DelVecchio, 191 Conn. 412, 419, 464 A.2d 813 (1983). The reasonable doubt standard “provides concrete substance for the presumption of innocence—the bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ ” In re Winship, supra, 363. A defendant in a criminal case is entitled to a clear and unequivocal charge by the court that the guilt of the defendant must be proved beyond a reasonable doubt. State v. DelVecchio, supra, 420.

The defendant contends that the trial court’s instructions impermissibly diluted the state’s burden of proving the defendant guilty beyond a reasonable doubt and weakened the general principle of the presumption of innocence. Because this claim was not preserved, the defendant seeks review under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The first two conditions of Golding are met because the right not to be convicted except by proof beyond a reasonable doubt is a constitutional right, and the record is adequate for our review. The defendant cannot prevail on his claim, however, because he has failed to demonstrate that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial as required by Golding.

In reviewing a constitutionally based challenge to a court’s jury instruction, we must examine the charge in its entirety to determine whether it is reasonably possible that the jury was misled. State v. Quintana, 209 Conn. 34, 50, 547 A.2d 534 (1988); State v. Cardany, 35 Conn. App. 728, 737, 646 A.2d 291, cert. denied, 231 Conn. 942, 653 A.2d 823 (1994). It is axiomatic that in reviewing a challenged portion of a jury charge, we must consider the charge as a whole and its effect in guiding the jury to a proper verdict. State v. Quintana, supra, 50. We do not scrutinize an individual section of an instruction in artificial isolation from the overall charge in “ ‘a microscopic search for possible error.’ ” State v. McDonough, 205 Conn. 352, 356, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988).

The essence of the defendant’s claim is that the trial court improperly instructed on reasonable doubt and the presumption of innocence when, on a single occasion, it charged the jury as follows: “If the jury views all of the evidence as reasonably permitting either of two conclusions, one of innocence, the other of guilt, the jury should, of course, adopt the conclusion of innocence.” (Emphasis added.) The defendant contends that the word “should” is permissive and effectively gave the jury an option, rather than a mandate, to acquit if the state did not meet its burden of proving each and every element beyond a reasonable doubt.

The trial court’s instructions on the presumption of innocence and reasonable doubt encompass three pages of the trial transcript. In those pages, the jury was instructed that “the presumption of innocence alone is sufficient to acquit,” and that “[a] reasonable doubt may arise not only from the evidence produced but also from a lack of evidence .... [A] defendant has the right to rely upon a failure of the prosecution to establish such proof.” The sentence in question occurred as the court continued in its instructions on reasonable doubt by stating: “If however, on all the evidence you have a reasonable doubt as to the guilt of the defendant you must find him not guilty. If the jury views all of the evidence in the case as reasonably permitting either of two conclusions, one of innocence, and the other of guilt, the jury should, of course, adopt the conclusion of innocence.” (Emphasis added.)

After the trial court scrupulously charged the jury on the offenses applicable to each codefendant, the jury was again told that “[t]he state does not want the conviction of [an] innocent person or of any person of whose guilt upon the evidence there is a reasonable doubt.” The court then reinstructed the jury that it was to convict “[i]f and when guilt was established beyond a reasonable doubt.” The court concluded its charge by reviewing the basic concept upon which the presumption of innocence is based: “[I]f you have a reasonable doubt as to his guilt you will give him the benefit of that doubt and find him not guilty.” (Emphasis added.)

While at times the words “should” and “must” carry two different directives, one permissive and one mandatory, the words may be used interchangeably. Because there is a discrepancy in shades of meaning, we do not approve of substituting “should” for “must” in any portion of a reasonable doubt instruction. Our task, however, is not to extract single words in isolation, but rather to examine them in the context of the whole charge. In so doing, we conclude that the trial court properly instructed the jury on reasonable doubt both before and after the single use of the word “should.” Upon examination of the record and the instructions in their entirety, we cannot conclude that the challenged instruction was fundamentally unfair to the defendant. Accordingly, the defendant cannot prevail under the bypass rule of State v. Golding, supra, 213 Conn. 239-40.

Ill

ADMISSION OF MUG SHOT

The defendant next claims that his right not to testify was unconstitutionally burdened when his mug shot from the New Haven police department was introduced at trial, thus effectively putting his prior criminal record before the jury. Because this claim was unpreserved, the defendant seeks review under Golding, We will review the claim because the defendant alleges a violation of a fundamental right, and the record is adequate for review.

The state attempted to introduce into evidence a photograph taken by the New Haven police department. The photograph contained both an identification number and a date. After having initially made an objection to the admission of the photograph, defense counsel withdrew the objection because he did not “foresee prejudice to [his] client as a result of this issue in view of other evidence presented so far.” Defense counsel did not request that the mug shot be sanitized by removing the number or the date.

“Our courts have recognized the potentially prejudicial effect of exposing a jury to mugshots.” State v. Harris, 10 Conn. App. 217, 232, 522 A.2d 323 (1987). In this case, however, defense counsel withdrew his objection to the admission of the mug shot because he did not foresee any prejudice to the defendant. Accordingly, the trial court admitted the mug shot into evidence. For the defendant to claim on appeal that he was prejudiced by the admission of the evidence is trial by ambuscade. State v. Robinson, 227 Conn. 711, 741, 631 A.2d 288 (1993).

This situation is in the nature of induced error. Actions that are induced by a party ordinarily cannot be grounds for error. State v. Walton, 227 Conn. 32, 67, 630 A.2d 990 (1993); State v. Boyd, 36 Conn. App. 516, 520, 651 A.2d 1313, cert. denied, 232 Conn. 912, 654 A.2d 356 (1995). A defendant can present a claim of relief from induced error “only upon a showing that the error violated his constitutional rights.” State v. Harrison, 34 Conn. App. 473, 488, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994).

Although the defendant labels his claim as constitutional, he has foundered on the third prong of Golding. The trial court properly instructed the jury to draw no inferences from the defendant’s failure to testify. The jury, in the absence of a fair indication to the contrary, is presumed to follow the court’s instructions. State v. Ortiz, supra, 217 Conn. 669. The defendant has not established that the admission of the mug shot was clearly a constitutional violation and clearly deprived him of a fair trial. State v. Golding, supra, 213 Conn. 239-40. We further conclude that if there was any prejudice, it was cured by a proper jury instruction.

IV

LESSER INCLUDED OFFENSE

The defendant also claims that the evidence adduced at trial was insufficient to support a conviction of manslaughter in the first degree with a firearm.

In State v. Guess, supra, 39 Conn. App. 238, we held that, under the facts of that case, manslaughter in the first degree with a firearm was not a lesser included offense of murder, and concluded that the facts supported a conviction of manslaughter in the first degree. We reach the same conclusion in this case. The state produced sufficient evidence to prove the elements of manslaughter in the first degree.

The judgment of conviction of manslaughter in the first degree with a firearm is reversed and the case is remanded to the trial court with direction to render a judgment of conviction of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and to resentence the defendant in accordance with that conviction.

In this opinion the other judges concurred.

       The defendant was also charged with carrying a pistol without a permit in violation of General Statutes §§ 29-28 and 29-35. Shortly before the close of evidence, the trial court granted the defendant’s motion for judgment of acquittal on that count.

       The defendant claims that he was prejudiced not only by the codefendant’s confession, but also by other evidence properly admitted against the codefendant at trial, including the fruits of the search of the codefendant’s apartment.

       In State v. Golding, supra, 213 Conn. 239-40, the court reformulated the standard set forth in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as follows: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”
      The first two conditions must be met before a claim will be reviewed, but the third condition involves a review of the claim itself. State v. Cardany, 35 Conn. App. 728, 733, 646 A.2d 291, cert. denied, 231 Conn. 942, 653 A.2d 823 (1994); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

       “Should” is defined as “an auxiliary . . . used to express duty, obligation, necessity, propriety . . . .” Webster’s Third New International Dictionary.
      “Must” is defined as “an imperative need or duty: obligation, requirement . . . .” Id.

       See footnote 3.

       The parties were ordered to file supplemental briefs to address the following inquiries: “(1) is the crime of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a a lesser included offense of the crime of murder in violation of General Statutes § 53a-54a as charged in the information in light of the doctrine of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), and (2) if the answer is no, what relief shall be afforded to the defendant?” Compare Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98-99, 644 A.2d 325 (1994).


text:
    CHARLOTTE STEPHEN v. RHONDA L. HOERLE ET AL.
    (13174)
    O’Connell, Foli and Heiman, Js.
    Argued April 18
    decision released September 12, 1995

      Hugh J. Lavery, for the appellant (plaintiff).

      John W. Mills, with whom, on the brief, were Alan Chandler and Kathleen Paul, for the appellees (defendants).

      Lawrence W. Berliner, filed a brief for the office of protection and advocacy for persons with disabilities as amicus curiae.
   O’CONNELL, J.

This is an action for damages arising from an automobile accident. The plaintiff alleged that the defendants negligently caused her to suffer serious injuries, including the exacerbation of preexisting agoraphobia.

The defendants noticed the plaintiffs deposition to be taken on July 19,1993, at the office of the defendants’ attorney in Bridgeport. The plaintiff filed a motion for a protective order, claiming that her agoraphobia prevented her from traveling to Bridgeport and constituted good cause, pursuant to Practice Book § 221, for relocating the deposition to her home town of Newtown. On August 16, 1993, the trial court denied the motion.

The plaintiff filed a second motion for a protective order, again seeking to have the location of the deposition then scheduled for August 20, 1993, changed. The defendants thereafter moved for a nonsuit because of the plaintiffs failure to appear at that deposition. On October 12, 1993, the trial court denied the plaintiffs second motion for a protective order, ruling that the plaintiff failed to demonstrate that she could not travel to Bridgeport and thus failed to establish good cause. On the same date, the court granted the defendants’ motion for a judgment of nonsuit. On November 2,1993, the plaintiff filed a motion to open the judgment of nonsuit and a motion to reargue her second motion for a protective order. The trial court denied both motions on December 13, 1993.

On appeal, the plaintiff claims that the trial court improperly (1) failed to hold an evidentiary hearing before ruling on her motions for protective orders, the defendants’ motion for nonsuit or the plaintiffs motion to open the nonsuit, (2) decided the defendants’ motion for nonsuit when that motion had not been scheduled to be heard and without the plaintiffs being afforded an opportunity to be heard on the motion, (3) failed to accommodate the plaintiffs mental disability in violation of her due process and equal protection rights under article first, § 20, of the Connecticut constitution, and (4) failed to accommodate the plaintiffs mental disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.

Appeals must be taken within twenty days of a judgment. Practice Book § 4009. In this case, the plaintiff waited twenty-one days after the judgment of nonsuit before filing her motion to open. Section 4009 provides that motions that “would render the judgment . . . ineffective” toll the running of the twenty day appeal period if they are filed within that period. Here, however, the motions to open and to reargue did not stop the appeal period from running on the underlying judgment because they were not filed within the twenty day period.

The plaintiff does not agree that her motion to open was untimely. At oral argument the plaintiff contended that, when properly computed, the time elapsed from October 12, 1993, to November 2, 1993, did not as a matter of law exceed twenty days. There are a variety of ways to compute time periods for a variety of purposes. “It is well settled that the day of the act from which a future time is to be ascertained is to be excluded from the computation. . . . The authorities are in conflict concerning the exclusion of the last terminal day, but the reasons for the divergent decisions are the varied circumstances of the cases and the differences in language of the statutes under consideration.” (Citations omitted.) Lamberti v. Stamford, 131 Conn. 396, 397-98, 40 A.2d 190 (1944).

The filing period in this case is controlled by Practice Book § 4010, which establishes the rule for determining the expiration of time periods pertaining to the filing of papers in the Supreme and Appellate Courts. Section 4010 explicitly provides that for this purpose the first day shall not be counted and the last day shall be counted. In the present case, the clerk’s office was open on November 1,1993, the twentieth and last day for the timely filing of the plaintiffs motion to open. Computed according to § 4010, the plaintiffs motion to open was filed twenty-one days after the rendition of the judgment of nonsuit.

Where an appeal has been taken from the denial of a motion to open, but the appeal period has run with respect to the underlying judgment, we have refused to entertain issues relating to the merits of the underlying case and have limited our consideration to whether the denial of the motion to open was proper. Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 671, 652 A.2d 1063 (1995). “When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment.” Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 640, 626 A.2d 804 (1993). “This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” Tiber Holding Corp. v. Greenberg, supra, 671.

With one exception, the plaintiffs claims on appeal relate to the merits of the trial court’s rulings that led to the rendering of the judgment of nonsuit, rather than to whether the trial court abused its discretion in refusing to open the judgment. We may not review these claims and, therefore, must dismiss them.

The sole claim of the plaintiff that we can review is the portion of her first issue in which she claims that the trial court improperly failed to hold an evidentiary hearing before ruling on her motion to open the judgment of nonsuit.

“[D]enial of a motion to [open a judgment of] nonsuit should not be held to be an abuse of discretion in any case in which it appears that a plaintiff has not been prevented from prosecuting the claim by mistake, accident or other reasonable cause.” Jaconski v. AMF, Inc., 208 Conn. 230, 238, 543 A.2d 728 (1988); see General Statutes § 52-212 (a). The court held a hearing on the motion to open, allowing into evidence two psychiatric reports and an affidavit from the plaintiff, before denying the motion. At this hearing, the plaintiff failed to establish, to the trial court’s satisfaction, that she was prevented, by mistake, accident or other reasonable cause, from prosecuting her claim. We find no abuse of discretion in the action of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       This issue was raised by the court sua sponte at oral argument. In order to comply with Lynch v. Granby Holdings, Inc., 230 Conn. 95, 99, 644 A.2d 325 (1994), the parties were ordered to file simultaneous supplemental briefs addressing the following question: “Where the appeal period has run with respect to the underlying judgment, is the Appellate Court limited to consideration of whether the denial of the motion to open is proper?” See Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 671, 652 A.2d 1063 (1995); Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 639, 626 A.2d 804 (1993).

       Practice Book § 4010 provides: “In determining the last day for filing any papers in this court, the last day shall, and the first day shall not, be counted. Time shall be counted by calendar, not working, days.
      “When the last day of any limitation of time for filing any paper under these rules or an order of the court falls on a day when the office of the trial court or of the appellate clerk is not required to be open, the paper may be filed on the next day when such office is required so to be open.”

       General Statutes § 52-212 (a) provides in relevant part: “Any judgment rendered or decree passed upon a . . . nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment. . . and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”


author: LAVERY, J.

text:
    LUBA HILL v. JAMES HILL
    (13064)
    O’Connell, Lavery and Hennessy, Js.
    Argued April 27
    decision released September 12, 1995

      Jocelyn B. Hurwitz, with whom was Richard G. Kent, for the appellant (defendant).

      Luba Hill, pro se, with whom, on the brief, was John R. Williams, for the appellee (plaintiff).
   LAVERY, J.

The defendant appeals from the trial court’s decision granting the plaintiffs motion to modify an order of child support. On appeal, the defendant argues that the trial court improperly (1) increased his child support obligation in response to the plaintiffs motion, (2) retroactively modified a prior judge’s order concerning child support payments, and (3) proceeded with the hearing on the plaintiffs motion in the absence of sworn affidavits from both parties. We disagree with the defendant’s arguments and affirm the judgment of the trial court.

The record reveals the following facts. On June 4, 1991, the plaintiff brought this action seeking the dissolution of her fifteen year marriage to the defendant. The trial in this matter was held on March 10, 1992, and by decision dated March 18, 1992, the trial court, Karazin, J., rendered judgment dissolving the parties’ marriage. At the time of the dissolution, the trial court ordered, inter alia, the continuation of a prior order of unallocated alimony and child support of $250 per week.

On May 12, 1993, the parties appeared in court on the plaintiffs motion for emergency financial relief. After a hearing on the motion, the trial court, Moran, J., ordered the defendant to pay $595 per week to the plaintiff as child support effective as of that date. On June 8, 1993, Judge Moran entered further orders continuing the child support at $595 per week and modifying the alimony award to $365 per week, effective immediately.

The plaintiff subsequently filed a motion to modify the child support, dated September 14, 1993, which is the subject of this appeal. In that motion, the plaintiff requested that her award of child support be increased to $652 per week because the defendant had “consistently and substantially understated his net monthly income and overstated his federal tax withholding for the purpose of defrauding his children of the support to which they are entitled under the Child Support Guidelines.” A hearing was held on the motion on November 17, 1993. At the conclusion of this hearing, the trial court, Petroni, J., ordered that for the fourteen week period between the date of Judge Moran’s order, May 12, 1993, through August 31, 1993, the defendant was required, pursuant to the child support guidelines, to pay child support in the amount of $652 rather than the $595 that originally had been ordered. The trial court therefore ordered that the difference of $57 be paid and added to the defendant’s support obligation. The trial court further ordered, on the basis of the documentation submitted at the hearing, that as of the date of the modification hearing, the defendant’s child support obligation be increased to $670 per week.

I

The defendant first argues that the trial court improperly increased his child support obligation in response to the plaintiffs motion to modify. Specifically, the defendant argues that neither the motion to modify nor the trial court’s decision was based on the criteria for modification set forth in General Statutes § 46b-86, namely, a substantial change of circumstances or a deviation from the child support guidelines. According to the defendant, if there was an error in Judge Moran’s support order, the plaintiff should have filed a motion to open the judgment within four months of the date of the judgment. Since the plaintiff did not do this, the defendant argues that the plaintiff was required to prove fraud in order to justify opening the judgment. Because the court did not make a finding of fraud, the defendant therefore argues that it had no authority to modify the support order since the motion was filed more than four months after the date of Judge Moran’s order. We disagree with the defendant’s arguments.

The plaintiffs motion to modify alleged that the defendant’s sworn statements concerning his alleged federal tax withholding were false. At oral argument on the motion, the plaintiff stated that she was alleging fraud. After the hearing on the motion, and after considering the evidence, Judge Petroni, without making a finding of fraud, concluded that the defendant had improperly determined his tax exemptions, resulting in a lesser amount of child support due for the four minor children. The court therefore modified the award so that it complied with the standard established by the child support guidelines. We conclude that the court acted within its discretion in so ordering.

“Courts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake.” In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992). In the present case, we conclude that Judge Petroni properly vacated Judge Moran’s decision on the ground of mutual mistake.

“The support guidelines create a rebuttable presumption that the amount of support calculated thereunder is the appropriate amount of support to be ordered by the court. General Statutes § 46b-215b. This presumption can be rebutted only if the trial court finds, on the record, that it would be inequitable or inappropriate to apply the guidelines because of evidence satisfying one of the guidelines deviation criteria.” Feliciano v. Feliciano, 37 Conn. App. 856, 858-59, 658 A.2d 141, cert. granted, 234 Conn. 915, 661 A.2d 96 (1995); see Favrow v. Vargas, 222 Conn. 699, 712-13, 610 A.2d 1267 (1992).

At oral argument before this court, the defendant conceded that, taking judicial notice of the child support guidelines in effect at the time, and using the defendant’s affidavit submitted to the court for the May 12,1993 hearing, the appropriate amount of child support equals $652. This is the amount that Judge Petroni ordered so as to correct what he considered the defendant’s improper conduct in claiming his tax exemptions. The record supports the conclusion that Judge Petroni found that a mutual mistake had been committed in the prior financial orders entered by Judge Moran due to the format of the defendant’s affidavit. The record further supports the conclusion that Judge Petroni corrected the parties’ mutual mistake and increased the defendant’s required payments to comply with the standard required by the child support guidelines. Considering the policy of the child support guidelines, we conclude that Judge Petroni properly corrected the mathematical error in Judge Moran’s decision and properly increased the defendant’s support obligation.

II

The defendant next argues that Judge Petroni lacked the authority, pursuant to § 46b-86, to modify retroactively Judge Moran’s order concerning support payments. We conclude, however, that the trial court did not retroactively modify the support order and, therefore, we disagree with the defendant’s argument.

We agree with the defendant that retroactive modification of a support order is prohibited. See Sanchione v. Sanchione, 173 Conn. 397, 406, 378 A.2d 522 (1977). We previously concluded, however, that Judge Petroni acted within his discretion in correcting the parties’ mutual mistake in the support order based on the incorrect information submitted by the defendant at the May 12, 1993 hearing. The court, upon discovering the mistake, entered the order that was mandated by the child support guidelines effective as of the date of the original order. We conclude that this correction does not amount to a retroactive modification of the support order.

Judge Petroni further ordered a prospective modification of the defendant’s support obligation to $670 per week based on evidence that his weekly salary had increased from $1370 to $1430. This order likewise does not violate the prohibition against retroactive modification of a support order.

III

The defendant next argues that the trial court improperly proceeded with a hearing on the plaintiffs motion in the absence of sworn financial affidavits from both parties pursuant to Practice Book § 463. The plaintiff argues in response that the purpose of her motion was not to effect a change in circumstances but rather was intended to conform the support order to the true income of the defendant. She therefore argues that the trial court acted within its discretion in not requiring her to file a new financial affidavit. We agree with the plaintiff.

In Glinski v. Glinski, 26 Conn. App. 617, 623, 602 A.2d 1070 (1992), we noted that “§ 463 specifically allows a court to render permanent financial orders in the absence of the opposing party’s financial affidavit. See Sachs v. Sachs, 22 Conn. App. 410, 419, 578 A.2d 649, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990).” We conclude, in the circumstances of this case, that it was not an abuse of discretion for the trial court to consider the plaintiff’s motion based on the documentation that was already before the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs motion asserted the following facts:
      “1. Child support for the four (4) minor children of this marriage . . . was set by this Court (Moran, J.~) earlier this year at $595 per week.
      “2. The said order was based on financial affidavits submitted by the defendant wherein the defendant swore that $913 per month was being deducted from his gross pay for federal taxes. Said affidavits were submitted to this court on three separate occasions in 1993, and they are dated April 22, 1993, and July 12, 1993.
      “3. Based upon his aforesaid sworn statement concerning his alleged federal tax withholding, the defendant swore to this court on April 22, 1993, that his total net monthly income was $5,170. On the same basis, the defendant swore on July 12, 1993, that his total net monthly income was $4,873. These statements were false.
      “4. On September 7,1993, pursuant to the plaintiffs subpoena, the defendant produced in this court his pay stubs for the period of May 1, 1993 to September 1,1993. Those pay stubs were marked as exhibits for the plaintiff at the hearing conducted that day before Judge Moran on the plaintiffs motion for contempt.
      “5. The said pay stubs establish that at all times in the months of May through August, 1993, the federal tax deductions from the defendant’s pay have been only $160.65 per month in each and every month of that time period. The said pay stubs further establish that the defendant’s average net monthly pay for the months of May through August, 1993, was $5,934.85.” (Emphasis in original.)

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. ... No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing parly pursuant to section 52-50.”

       General Statutes § 52-212a provides in relevant part: “[A] civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .” See Practice Book § 326.

       We note that on May 12, 1993, the defendant was ordered to pay $595 per week as child support. On June 8, 1993, the court, in ruling on the plaintiffs motion to modify support and alimony dated April 16,1993, continued the child support order at $595 per week and modified the alimony award to $365 per week. At oral argument on the plaintiffs motion on November 17, 1993, her counsel indicated that she sought to modify the order of May 12, 1993.

       The following colloquy occurred:
      “Mr. Williams [Plaintiffs Counsel]: It is my contention that when Judge Moran entered his support order earlier this year he did so upon the basis of inaccurate statements by the defendant about . . . the nature of his withholding and his net pay.
      “The Court: So you are saying there was either an intentional fraud or a negligent act, something in negligence that was submitted at that time upon which orders were based?
      “Mr. Williams: That’s right, Your Honor.
      * 0! *
      “Mr. Williams: We are not alleging a material change in circumstances. We are alleging fraud as to certain mistakes.
      “The Court: So if there is a fraud, under a whole line of cases I can always hear it if there is a fraud.
      “Mr. Williams: That’s right.”

       The trial court stated: “The guidelines set forth the number of children that require certain minimum support each week. . . . [TJhere is no evidence in any statute or case law or in the legislative history that a person can determine on his own to exempt 27 persons when, in fact, there are only 4 exemptions in the federal and state code for this situation for the . . . four minor children. These children are all minors and the court finds that it should be considered under the combined or the net weekly income of the defendant for four children and finds accordingly.
      “The court finds . . . that Judge Moran’s order was based on certain criteria that involved withholding taxes, both on the state and federal level.
      “The court will not make a finding that there was fraud, but the evidence to me is clear and convincing that the . . . defendant James T. Hill had no right on his own as far as the child support guidelines are concerned to withhold 27 exemptions and will base its findings only on four children being his duty to support and will apply that formula in the guidelines. The evidence is clear to the court that his duty is to support according to these guidelines, which are minimum requirements.
      * X **
      “I’m finding that the method that [the defendant] used . . . did not show intentional fraud, but it is an error and he had no right to use that method, if the information that’s correct is before me, and I will order that the correct amount that is due these children be paid.
      * * *
      “I find that he had no right to withhold the 27 exemptions and that his income at that time averaged $1,370 net, and under that formula under the guidelines it required him to pay $652 and I have so ordered, and that is a shortfall of $57 per week for that fourteen week period.
      “As far as today, the court finds . . . that his income falls in the category of $1,430, which creates an obligation of $670 per week for the four children based on these Child Support Guidelines which, as the court said, is minimum.
      “There is a substantial change in circumstances also in that this court has found that the pay records that are before it produce net income guidelines that I just stated for that four-month period, they were $1,370 a week and the correct amount that the court finds is $652 under those guidelines, and as of this date the support orders will be $670 a week for the four minor children.
      “[T]he court has considered all of the arguments today and finds that there is a substantial change in circumstances under § 46b-86 of the Connecticut General Statutes . . . .”

       Judge Petroni found that “it is an error.” The defendant did not seek, pursuant to Practice Book § 4051, to have Judge Petroni articulate his decision regarding the error and we therefore cannot ascertain whether Judge Petroni was referring to the parties’ error or an error by Judge Moran.

       Practice Book § 463 provides in relevant part: “At the time a motion concerning alimony, support or custody is filed, or at the time a dissolution of marriage, legal separation or annulment action is claimed for a hearing, the moving party shall file a sworn statement substantially in accordance with a form prescribed by the chief court administrator, of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income. The opposing party shall file such sworn statements at least three days before the date of the hearing on any of the above matters. . . . Notwithstanding the above, the court may render pendente lite and permanent orders, including judgment, in the absence of the opposing party’s sworn statement.”