text:
    STATE OF CONNECTICUT v. WILLIE ASKEW
    (14771)
    Heiman, Spear and Hennessy, Js.

      Argued December 9, 1996
    officially released February 18, 1997

      Sheila A. Huddleston, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Willie Askew, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress the victim’s out-of-court and in-court identifications, (2) excluded impeachment evidence regarding the key witness’ prior felony conviction, (3) refused to give a Simmons-Telfaire instruction to the jury and (4) deprived him of a fair trial by its cumulative actions.

The jury could reasonably have found the following facts. On February 28, 1994, Patsy Cobbs, while purchasing food in a pizza shop located on the comer of Bulkeley Avenue and Park Street in Hartford, noticed the defendant looking at her through the window of the shop. While walking home, she was approached by the defendant, who then pulled a handgun from his pocket, pointed it at her head and demanded money. The victim gave the defendant a pouch in which she kept her money, and the defendant grabbed her food and fled.

Officer John Inho was dispatched to the scene, and the victim described her assailant to Inho as a tall, slim black male in his late twenties or early thirties, wearing a black Starter jacket with lettering across the back that may have been the Raiders or Lakers logo and wearing black jeans and a black wool cap. Inho searched the area with the victim in his patrol car but failed to find the suspect. The officer drove the victim home.

On that same evening, Nelson Bogan, the victim’s boyfriend, and Joaquin Marvin, while walking on Capitol Avenue, noticed a slim black male wearing a black jacket with a label on the back and a sweater cap running very fast toward them and into an apartment building at 1052 Capitol Avenue. A short time later, Yvonne Brown approached Bogan and Marvin and offered to sell the two men a stereo. Brown, Bogan and Marvin went to Brown’s apartment located at 1052 Capitol Avenue. Bogan and Marvin noticed that the man they had seen earlier running toward them on Capitol Avenue was present in the apartment. While walking home after deciding not to purchase the stereo, Bogan and Marvin met Kimberly Mobley, a neighbor of the victim and a witness to the robbery from her third floor apartment window, and Erica Cobbs, the victim’s daughter, who informed them of the robbery. Bogan went to his girlfriend’s apartment and, after hearing her describe the robber, realized that her description matched the appearance of the person he saw running on Capitol Avenue. Bogan and Marvin began to search for the robber and found him with Brown on Park Street. The robber ran away when they approached.

Bogan and Marvin went to Capitol Avenue where they stopped Inho to tell him that they were chasing the robber. They were soon joined by the defendant and Officer Antoni Kozieradzki, who was investigating the defendant’s complaint that two men were chasing him. Inho and Kozieradzki drove the defendant to the victim’s apartment. When they arrived, Bogan went to the victim’s apartment and brought her to the police car. The victim identified the defendant as the person who had robbed her.

I

The defendant first claims that the trial court improperly denied his motion to suppress the out-of-court identification as unnecessarily suggestive and unreliable. The defendant argues that the use of a one-to-one confrontation instead of a photograph array to determine if the victim could identify the suspect as the person who had robbed her created an unnecessary risk of misidentification. Furthermore, the defendant objects to the trial court’s reliance on the victim’s testimony concerning her opportunity to view her assailant because the testimony contained statements that were contradictory, uncertain and inconsistent, rendering the identification of the defendant as the robber unreliable. The trial court denied the defendant’s motion to suppress the victim’s identification of him as the assailant on the grounds that the identification was reliable and the exigencies of the circumstances warranted the use of the one-to-one identification procedure.

“A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” (Internal quotation marks omitted.) State v. Hin ton, 196 Conn. 289, 293, 493 A.2d 836 (1985). To succeed on the motion to suppress, “the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances.” State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Hinton, supra, 292-93.

“We recognize that almost any one-to-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively ‘suggestive,’ but not all suggestive confrontations are unnecessary.” State v. Aversa, 197 Conn. 685, 694, 501 A.2d 370 (1985). An immediate viewing of the suspect may be justified where “it [is] important for the police to separate the prime suspect gold from the suspicious glitter, so as to enable them ... to continue their investigation with a minimum of delay.” State v. Maturo, 188 Conn. 591, 596, 452 A.2d 642 (1982). “Circumstances may also justify an immediate viewing because prompt on-the-scene confrontations are generally more reliable and allow an innocent party to be released quickly if no positive identification is made.” State v. Collette, 199 Conn. 308, 311, 507 A.2d 99 (1986).

In the present case, the confrontation between the defendant and the victim, under the totality of circumstances, resulted in an identification that was reliable. “The constitutional test for reliability requires the trial court to consider ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.’ Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Theriault, [182 Conn. 366, 373-74, 438 A.2d 432 (1980)].” State v. Hinton, supra, 196 Conn. 295-96. The victim saw her assailant through the window of the pizza shop and again came face-to-face with him when he confronted her outside. The assailant commanded the victim’s full attention when he pointed a gun at her head and demanded her money and food. The victim’s description of her assailant was detailed and her identification of the defendant as her assailant at the one-to-one confrontation was certain and took place approximately one and one-half hours after the robbery. Under all the circumstances, the victim’s identification of the defendant as the robber was reliable.

The defendant further claims that the trial court improperly found that the exigencies of the situation justified the one-to-one confrontation. “The factors to be considered in determining exigency include whether the defendant is or is not in custody, whether the victim will be available to make an identification when alternative procedures can be arranged, and whether there is any other particular need for the police to determine quickly whether they [are] on the wrong trail.” (Internal quotation marks omitted.) State v. Anderson, 6 Conn. App. 15, 21, 502 A.2d 446 (1986).

Here, the defendant was not in custody and, until the confrontation with the victim, the police lacked probable cause to arrest him. Furthermore, the circumstances were unusual in that Bogan and Marvin claimed that the defendant fit the description of the robber and was seen running in the area shortly after the robbery. Also, the defendant had enlisted the police to protect him from two men who were chasing him. To ascertain the possible culpability of the defendant and to determine quickly if they were on the wrong trail, the police were justified in using the one-to-one identification procedure.

The defendant’s claim that the in-court identification of the defendant by the victim was tainted by an improper out-of-court identification is without merit. “Generally, an in-court testimonial identification need be excluded, as violative of due process, only when it is tainted by an out-of-court identification procedure which is unnecessarily suggestive and conducive to irreparable misidentification.” State v. Smith, 200 Conn. 465, 469, 512 A.2d 189 (1986). Because we find that the out-of-court identification was reliable and not the result of an improper procedure, this claim must fail.

II

The defendant next claims that the trial court improperly excluded evidence that the victim had previously been convicted of a felony larceny.

“The credibility of a witness may be attacked by introducing the witness’ conviction of a crime if the maximum penalty for that conviction is imprisonment exceeding one year. See General Statutes § 52-145 (b); State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985). State v. Sauris, 227 Conn. 389, 409, 631 A.2d 238 (1993). Three factors have usually been identified as of primary importance in considering whether a former criminal conviction is to be admitted: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime in indicating untruthfulness; and (3) its remoteness in time. State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982). We will not disturb the trial court’s determination as to the admissibility of a prior conviction to impeach a witness absent an abuse of discretion. State v. Braswell, supra [307]; State v. Nardini, supra, 521-22.” (Internal quotation marks omitted.) State v. Carter, 228 Conn. 412, 430-31, 636 A.2d 821 (1994).

The court excluded the evidence because it found that the victim’s felony conviction in July, 1984, occurred more than ten years ago and, therefore, was too remote in time. In State v. Roman, 6 Conn. App. 189, 192, 504 A.2d 529 (1986), we stated, “It is a rare prior conviction which is more than ten years old which retains the minimal probative value sufficient to overcome its prejudice.” The trial court properly exercised its discretion in excluding the evidence.

Ill

In the defendant’s third claim on appeal, he maintains that the trial court improperly refused to give a Simmons-Telfaire instruction to the jury and instead gave an instruction that was inaccurate and inappropriate.

A Simmons instruction includes a caution to the jury concerning police use of an improper identification procedure. Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Anderson, 20 Conn. App. 271, 281, 566 A.2d 436 (1989), cert. denied, 213 Conn. 813, 569 A.2d 549 (1990). A Telfaire instruction “tells the jury to consider in appraising the identification testimony of a witness the adequacy of his opportunity and his capacity to observe the offender; the length of time available for the witness to observe the offender; the proximity of the witness to the offender; whether the witness had seen or known this person in the past; whether the identification was a product of the witness’ own recollection; and the credibility of the witness. United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972).” State v. Davis, 198 Conn. 680, 685, 504 A.2d 1372 (1986).

The court instructed the jury as to those factors that should be considered concerning the reliability of identification testimony as follows: “First, her opportunity to observe the person. Now, that’s basically how close, the amount of time, the lighting conditions, the degree of attention, and the degree of stress. Two, you should consider her verbal description of the defendant, as to any consistencies or inconsistencies, having now the opportunity of viewing the defendant in the courtroom. Three, the time which passed between the incident and such identification. As I recall it, Officer Inho indicated from his report that he was dispatched to George’s Pizza at 10:01 and that he made the arrest of the defendant after the identification at 11:55. And, fourth, any incidence of suggestion which might occur before the identification was made. Five, the certainty with which the identification was made here .... You likewise may consider any evidence which corroborates or contradicts such identification.”

“[W]e note that there is no constitutional right to an instruction on the fallibility of eyewitness identifications. . . . Although such an instruction may be given in an appropriate case ... it is not reversible error for a trial court to refuse to give a Telfaire instruction where the conviction of the defendant did not turn upon the testimony of eyewitnesses who were uncertain, unclear or inconsistent. . . . The ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.” (Citations omitted; internal quotation marks omitted.) State v. Anderson, supra, 20 Conn. App. 281-82.

We cannot conclude that the victim, the eyewitness, was uncertain, unclear or hesitant in her identification of the defendant. In addition, the trial court’s instructions to the jurors as to the factors they should consider in determining the reliability of the identification testimony were comprehensive enough to give adequate guidance to them. The trial court’s instruction adequately covered the dangers of misidentification. Furthermore, the court is not required to charge the jury in language identical to that in the defendant’s request. See State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986); State v. Anderson, supra, 20 Conn. App. 282. Because the trial court properly found that there was no unnecessary suggestiveness in the identification procedure, the defendant’s claim that the court improperly failed to give the requested charge based on Simmons is also without merit. State v. Anderson, supra, 283.

The defendant additionally claims that the court gave an improper charge in response to a question asked by the jury concerning the identification procedure.

The following additional facts are necessary for the resolution of this claim. The jury interrupted its deliberations to request that the trial court to “explain the concept of reasonable doubt as it may pertain in this case. And the identification process, there was no lineup. Can you comment on how, legally, this affects the validity of the identification process?” The trial court gave the following instruction: “There is presently no procedure available to a police officer to detain a suspect even though he may fit the description given to him by the victim for a sufficient amount of time to arrange a lineup. So where, as here, the circumstances are exigent, that is, the crime has just been committed and the police are in fresh investigation as to the perpetrator, the law finds that it is necessary for the police to make a face-to-face confrontation with the victim, even though it is presumptively suggestive. So that if the victim states that such a person is not the perpetrator, such innocent person may be immediately released and the police investigation immediately continued. On the other hand, it would be very unfair to deprive the victim from making an immediate identification when the victim’s memory is fresh. So, to answer your question directly, the absence of a lineup in this case does not make the identification process illegal or invalid, provided you follow my instructions as to the factors to consider.” The trial court then repeated its earlier instruction as to the factors to be considered when evaluating the reliability of identification testimony.

The defendant took an exception to the trial court’s response and again asserted that the court should have included language from his requested Simmons-Telfaire instruction. He also argued: “We contend that merely telling the jury that situations where there are no lineups, where there are one-on-one identifications, are legal, although correct in the law, is an inadequate response to this jury’s question. We contend that what they were also looking for is how this type of identification should be scrutinized or treated in comparison to any other forms or types of identifications. And in the language that I had suggested earlier and that I suggested when I just read it into the record, I feel it would have been an appropriate response for the court to make.”

We find no merit to the defendant’s preserved challenge to the court’s response. The trial court’s answer adequately addressed the jury’s inquiry into the validity of the one-to-one identification procedure. Furthermore, the court addressed the defendant’s requested Simmons-Telfaire language by repeating its earlier instruction on the reliability of identification testimony. The court’s answer was both legally adequate and responsive to the jury’s question.

The defendant next raises several unpreserved challenges to the identification testimony charge and a supplemental charge given in response to the jury’s question. He argues that the identification testimony charge was improper in three respects. First, he maintains that by instructing the jury that it should consider the victim’s prior description of the “defendant,” instead of using a less accusatory word, the court conclusively identified the defendant as the person whom the victim had described. Second, the defendant claims that the court unduly emphasized the testimony of Inho and thereby suggested that the length of time between the robbery and the identification was especially significant. Third, he claims that the trial court did not explain what “incidence of suggestion” might mean as used in its instruction to the jury.

The defendant maintains that the trial court’s response to the jury’s question was incorrect and prejudicial. He first claims that the court’s statement that “[t]here is no procedure available to detain a suspect even though he may fit the description given to him by the victim for a sufficient amount of time to arrange a lineup” is incorrect because the police could have asked the suspect to consent to a lineup or to accompany them to the police station for further investigation. Second, the defendant claims that the court’s statement, “where, as here, the circumstances are exigent . . . the law finds that it is necessary for the police to make a face-to-face confrontation with a victim, even though it is presumptively suggestive,” was incorrect and improper because by stating that the one-to-one confrontation was necessary, the court effectively suggested to the jury that it had formed an opinion as to the defendant’s guilt. Third, he claims that the court’s statement that the police use face-to-face confrontations so that an “innocent person may immediately be released” suggests to the jury that the defendant, who had not been released, could not be innocent. Fourth, the defendant argues that the statement that it would be “very unfair to deprive the victim from making an immediate identification when the victim’s memory was fresh” was prejudicial to the defendant.

The defendant failed to raise these specific challenges to the court’s identification testimony instruction and its response to the jury’s question at trial. The defendant has also failed to request review of these unpreserved claims under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Our Supreme Court has consistently held that we are not bound to review on appeal unpreserved, non-constitutional claims. See, e.g., State v. Kulmac, 230 Conn. 43, 74, 644 A.2d 887 (1994); State v. Hammond, 221 Conn. 264, 289, 604 A.2d 793 (1992); State v. Golding, supra, 213 Conn. 239-40; State v. Smith, 209 Conn. 423, 426, 551 A.2d 742 (1988); State v. Bailey, 209 Conn. 322, 338, 551 A.2d 1206 (1988). “The policies behind the requirement that claims be made at trial in order to be reviewed on appeal are both ancient and sound . . . and have been often stated. It is rare that a claim which the defendant did not think important enough to raise at trial will require reversal of his conviction. Requiring such claims to be made at trial permits their correction before it is too late. It avoids needless multiple proceedings which are neither in the defendant’s nor the public’s interest, and which contribute to the economic waste of court congestion.” (Citation omitted; internal quotation marks omitted.) State v. Cosby, 6 Conn. App. 164, 173, 504 A.2d 1071 (1986).

The defendant has not requested that we review his unpreserved claims under Golding. “In the absence of such a request, we have, in the past, declined to review a defendant’s claim under similar circumstances.” State v. Rogers, 38 Conn. App. 777, 787, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995); see State v. Teel, 42 Conn. App. 500, 504, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996); State v. Casado, 42 Conn. App. 371, 374-75, 680 A.2d 981, cert. denied, 239 Conn. 920, 682 A.2d 1006 (1996); State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995); State v. Jones, 34 Conn. App. 807, 815-16, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994). We decline, therefore, to grant review of the defendant’s claims under Golding, We further decline to review the claim under the plain error doctrine because we do not find that the instructions as given affected the fairness or integrity of the proceedings or resulted in manifest injustice to the defendant. See Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995).

IV

The defendant’s final claim is that the cumulative effect of the trial court’s actions denied the defendant a fair trial in violation of his right to due process under the United States constitution and the Connecticut constitution. Our Supreme Court has rejected a claim that the cumulative effect of a variety of alleged improprieties should be the basis of a claim of constitutional violation. State v. Robinson, 227 Conn. 711, 747, 631 A.2d 288 (1993). As in State v. Reddick, 33 Conn. App. 311, 339, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994), we also reject as untenable the creation of “a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.” (Internal quotation marks omitted.)

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court measured the ten year period from the date of the victim’s conviction to the date she identified the defendant at trial. The defendant argues that the trial court should have measured the ten year period from the date of the victim’s conviction to the date she identified the defendant on the night of the robbery. The victim’s identification of the defendant on the night of the crime, February 28, 1994, was within ten years of her conviction. The defendant’s proposed method of calculating the ten year period, however, is not supported by Connecticut case law. See State v. Sauris, supra, 227 Conn. 410; State v. Roman, supra, 6 Conn. App. 691. The trial court correctly determined that the conviction occurred more than ten years ago.

       Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (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, tire state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.

       In State v. Roy, 34 Conn. App. 751, 764-66, 643 A.2d 289 (1994), we declined review of the defendant’s unpreserved sufficiency of the evidence claim under Golding because he failed to invoke Golding review. Our Supreme Court, reversed our decision but limited its decision to “the circumstances of this case.” State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995).
      The present case is clearly distinguishable. In Roy, the defendant’s claim was a sufficiency of the evidence claim that the Supreme Court noted was “ ‘an essential of the due process guaranteed by the Fourteenth Amendment Id. Here, the defendant’s unpreserved jury instruction challenges do not rise to that level of constitutional magnitude.

         The defendant argues that the claims merit review because the unpreserved issues are “so interwoven with the properly preserved issue of the requested instruction.” We are not so persuaded. The unpreserved claims are distinct from the preserved ones and may be separately reviewed.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LIDA NOSIK
    (14975)
    Landau, Schaller and Spear, Js.
    Argued December 2, 1996
    officially released February 18, 1997

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

      Michael E. O’Hare, deputy assistant state’s attorney, with whom, on the brief, were Walter Flanagan, state’s attorney, and Kevin Black, deputy assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant, Lida Nosik, appeals from the judgment of conviction, rendered after a trial to the court, of larceny in the second degree in violation of General Statutes § 53U-123. On appeal, the defendant claims that the trial court improperly (1) found the evidence presented at trial was sufficient to convict her of larceny in the second degree, and (2) found that the charging document stated an offense under the second degree larceny statute. We affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. The defendant was hired by the Danbury board of education in September, 1985. At that time, the defendant completed a payroll data sheet that indicated her marital status as single. On December 8, 1988, the defendant applied for a contract change with Blue Cross and Blue Shield of Connecticut, Inc., to change her marital status from single to married and listed her husband as Michael Kovac and her son Michael Dovrow Kovac, as her dependents. The defendant indicated on this form that she married Kovac on July 5, 1987.

On July 21, 1991, the Danbury board of education changed the company that provided health insurance coverage to its employees from Blue Cross and Blue Shield to CIGNA Healthcare of Connecticut, Inc. (CIGNA). The defendant completed the necessary forms, listed Kovac as her husband and the father of Michael Dovrow Kovac, and selected the family health insurance option. Under CIGNA’s plan, only the lawful spouse and children of employees were eligible for benefits as dependents. Between July 1, 1991, and October 6,1993, CIGNA paid claims in the amount of $10,692.94 to medical providers on behalf of Kovac. On October 6, 1993, the defendant’s employer requested proof of her marriage to Kovac. Because the defendant failed to produce any proof of the marriage, her employer filed a complaint with the Danbury police department. In December, 1993, detective James Fisher of the Danbury police department obtained a warrant for the defendant’s arrest, charging her with insurance fraud.

I

The defendant’s first claim is that the trial court improperly found that the evidence presented at trial was sufficient to convict her of larceny in the second degree. We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . In this process of review, the probative force of the evidence is not diminished because it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citations omitted.) State v. Scales, 38 Conn. App. 225, 228, 660 A.2d 860 (1995).

“In determining whether the defendant is guilty, [i]t is the sole right of the . . . trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist. . . . It is also the absolute right and responsibility of the [trier] to weigh conflicting evidence and to determine the credibility of the witnesses. . . . Furthermore, in considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct. . . . State v. Roy, 38 Conn. App. 481, 488-89, 662 A.2d 799 (1995) [cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996)].” (Internal quotation marks omitted.) State v. Garrett, 42 Conn. App. 507, 512, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 397, 398 (1996).

The state had the burden of proving beyond a reasonable doubt that the defendant “knowingly [made] a false representation with the intent to defraud, and that false representation [induced] action that effectively [caused her or another] to receive something of value without compensation.” State v. Rochette, 25 Conn. App. 298, 306, 594 A.2d 1006, cert. denied, 220 Conn. 912, 597 A.2d 337 (1991); see General Statutes § 53a-119. From the facts established and the reasonable inferences to be drawn therefrom, it was reasonable for the court to have found the defendant guilty of second degree larceny. It was undisputed that the defendant obtained medical insurance coverage for Kovac by claiming him as her dependent, that he claimed and received $10,692.94 in benefits as a dependent under the defendant’s insurance policy, and that such coverage was limited to the defendant’s lawful spouse. Thus, the only issue before the trial court was whether Kovac was, in fact, the defendant’s lawful spouse.

The defendant initially claimed that she and Kovac were married on July 21, 1987, in a civil ceremony in Beli Manastir in the former Yugoslavia. The defendant testified that she and Kovac left for Yugoslavia on July 15, 1987, they were married on July 21, 1987, and they returned to the United States on July 22, 1987. Two witnesses testified that they attended the wedding and the defendant offered a marriage certificate that certified her marriage to Kovac in the town of Beli Manastir on July 21, 1987. The marriage certificate that the defendant introduced into evidence purported to be a copy of the record of the defendant’s marriage to Kovac that is maintained in the town hall of Beli Manastir. The certificate refers to Kovac’s country of birth as SJR, the Serbo-Croatian abbreviation for the Federal Republic of Yugoslavia. The state called Jonathan Moore, a state department officer, who testified, however, that at the time of the defendant’s alleged marriage to Kovac in 1987, that term for the country of Yugoslavia had not yet come into use.

The state also offered into evidence eight checks negotiated by the defendant to various individuals and businesses in the United States between July 16 and July 23, 1987. One of the checks represented payment for an oil delivery on July 20,1987. The driver identified the defendant as the person who gave him the check in payment for that delivery. Frances Haut testified that she met Kovac in early July, 1987, and that they dated a few times. When she was presented with Kovac’s July, 1987 telephone bill, she testified that the bill included charges for two telephone calls to her office and one to her residence. These calls were made on July 20, 23, and 25, 1987. As a result, it was reasonable for the trial judge to find that the defendant and Kovac were not married in Yugoslavia as the defendant claimed.

The defendant now claims that there is no dispute that she and Kovac were married on December 31, 1988, in the Serbian Orthodox Church in Elizabeth, New Jersey. The defendant offered as evidence at trial a copy of the marital registry of the church of the marriage, but no evidence was proffered that a marriage license was issued authorizing the marriage as required by New Jersey Statutes § 37:1-2. The defendant, citing Carabetta v. Carabetta, 182 Conn. 344, 350, 438 A.2d 109 (1980), argues that “a marriage duly solemnized but deficient for want of a marriage license is not void.” The defendant asserts that because the evidence of the religious ceremony in New Jersey was uncontroverted, the trial court was obliged to find a valid marriage under Connecticut law. The defendant’s claim fails for the following reasons.

First, Carabetta does not control. In Carabetta, the plaintiff and the defendant exchanged marital vows before a priest in the rectory of Our Lady of Mt. Carmel Church in Meriden according to the rite of the Roman Catholic Church. They lived together as husband and wife, raised four children, all of whose birth certificates listed the husband as their father. Until the action for dissolution of marriage, approximately twenty-five years later, the defendant husband had no recollection of ever having denied that the plaintiff and defendant were married. The issue before the Carabetta court was whether, under Connecticut law, despite solemnization according to an appropriate religious ceremony, occurring in Connecticut, a marriage is void where there has been noncompliance with the statutory requirement of a marriage license. The Supreme Court reversed the judgment of the trial court dismissing the action, disagreeing with the ruling of the trial court that failure to obtain a marriage license was a flaw fatal to the creation of a legally valid marriage and that the court lacked subject matter jurisdiction over an action for dissolution. Because the parties participated in a religious ceremony in Connecticut, the Supreme Court, in its analysis, focused on the provisions of the Connecticut statutes. The Supreme Court noted that “[i]n determining the status of a ... marriage, we are bound therefore to examine with care the relevant legislative enactments that determine its validity.” Id., 346. In our case, the religious ceremony took place not in Connecticut, but in New Jersey, a foreign jurisdiction. As a result, Carabetta is not controlling.

In addition, because the ceremony occurred in New Jersey, the validity of the marriage is determined by New Jersey law. It is well established that the validity of a marriage is determined by the law of the jurisdiction where the ceremony was performed. Fattibene v. Fattibene, 183 Conn. 433, 437, 441 A.2d 3 (1981); Davis v. Davis, 119 Conn. 194, 197-98, 175 A.2d 574 (1934). New Jersey Statutes § 37:1-2 provides in pertinent part: “Before a marriage can be lawfully performed in this state, the persons intending to be married shall obtain a marriage license from the licensing officer and deliver it to the person who is to officiate . . . .” New Jersey Statutes § 37:1-10 provides that “no marriage . . . shall be valid unless the contracted parties shall have obtained a marriage license as required by section 37: 1-2 of this Title . . . .” In Dacunzo v. Edgye, 19 N.J. 443, 450, 117 A.2d 508 (1955), the New Jersey Supreme Court observed that § 37:1-10 “renders absolutely void a marriage contracted without a license . . . .” Thus, we conclude that the defendant’s marriage to Kovac was void under New Jersey law. A priori, no valid marriage existed in Connecticut.

As further proof that the defendant and Kovac were not married, the state offered the defendant’s 1987 tax return, on which she claimed single status, and her 1988 and 1990 tax returns, on which she claimed head of household status. In 1991, the defendant testified in two civil cases before the Superior Court concerning her relationship with Kovac. When asked if she and Kovac had ever dated, she replied, “We are friends, so that means no.” She also testified that she had seen Kovac approximately five times since 1990. Finally, in September, 1992, she told an insurance investigator who was investigating a claim that she was divorced, and later swore an affidavit, in which she also indicated that she was divorced.

Kovac described his relationship with the defendant in a deposition given in November, 1992. He admitted that he lived with her for a short period of time and that he had a child with her, but he repeatedly denied that they were married. He maintained that they were merely friends and claimed that there was no romantic relationship between them.

Our review of the foregoing leads us to conclude that the trial court could have reasonably concluded that the defendant was guilty of second degree larceny beyond a reasonable doubt. Thus, the evidence presented at trial was sufficient to convict the defendant.

II

In her second claim, the defendant argues that the trial court improperly found that the charging document stated an offense under the larceny statute. Specifically, the defendant argues that the enactment of General Statutes §§ 53-442 and 53-443 reveals an unexpressed legislative intent to exclude frauds perpetrated against health insurers from the ambit of the larceny statutes. The state argues that this court should not review this claim because the defendant is raising it for the first time on appeal, and, further, the defendant failed to request review under Evans-Golding. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

“It is well established that generally this court will not review claims that were not distinctly raised in the trial court. State v. Tillman, 220 Conn. 487, 504, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000,120 L. Ed. 2d 876 (1992). A defendant may prevail on a claim of constitutional error not preserved at trial, however, if all the conditions of Evans-Golding are satisfied. . . . Here, the unpreserved claim was not claimed under an Evans-Golding analysis in the defendant’s brief, [nor] argued in his reply brief as a result of the state’s anticipatory argument. . . . We, accordingly, decline to review the defendant’s claim. Practice Book § [4061]; see State v. Nelson, 17 Conn. App. 556, 576, 555 A.2d 426 (1989) (refusing to review party’s claim because party failed to raise issue at trial and brief failed to argue claim was reviewable under Evans); . . . Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988) (only in most exceptional circumstances will an appellate court consider claim that was not raised in trial court) . . . .” (Citations omitted.) State v. Jones, 34 Conn. App. 807, 815-16, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994). We decline, therefore, to review the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-123 provides in relevant part: “(a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-1 19 and . . . (2) the value of the property or service exceeds five thousand dollars . . . ."
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       Count three of the substitute information dated January 12,1995, alleged: “Said Deputy Assistant State’s Attorney further accuses Lida Nosik of the crime of Larceny in the Second Degree and charges that at the City of Danbury, Connecticut, beginning on or about May 22, 1991, and continuing through January 21, 1994, the said Lida Nosik did, with intent to deprive another of property or to appropriate the same to herself or a third person, obtain medical insurance for, and present claims for medical insurance benefits for, or on behalf of, Michael Kovac, which aggregated over $5000, by indicating that said Michael Kovac was her lawful spouse, in violation of Connecticut General Statutes Section 53a-123.”

       At the close of the state’s evidence, the trial judge granted the defendant’s motion for judgment of acquittal with respect to count one, which charged tire defendant, in violation of General Statutes § 53a-215 (a) (1), with defrauding an insurance company by presenting written statements, including information regarding her marital status, and claims for payments with knowledge that the written statements contained false and misleading information. The trial court also granted the defendant’s motion for judgment of acquittal with respect to count two, which charged the defendant, in violation of § 53a-215 (a) (2), with intending to aid and abet Michael Kovac in obtaining fraudulent insurance coverage by presenting false and misleading statements and information that the defendant was married to Kovac.

       While the defendant mentions in her brief that the religious ceremony also bears on the question of intent, she neither briefs nor provides an analysis of this argument. We therefore deem this portion of the issue abandoned. State v. Francis, 228 Conn. 118, 122 n.3, 635 A.2d 762 (1993); State v. Carolina, 40 Conn. App. 762, 768-69 n.7, 673 A.2d 562, cert. denied, 237 Conn. 914, 675 A.2d 886 (1996).


author: PER CURIAM.

text:
    LINDA LEGG v. DAVID W. LEGG
    (15314)
    Duponl, O. J., and Lavery and Landau, Js.
    Submitted on briefs December 18, 1996
    officially released February 18, 1997

      Richard S. Scalo, Ronald D. Japha and Abraham I. Gordon filed a brief for the appellant (plaintiff).

      David Legg, pro se, the appellee (defendant), filed a brief.
   PER CURIAM.

This case arises out of a judgment rendered in connection with a motion for contempt filed after a judgment of dissolution of marriage. The issue presented is whether, when the parties have agreed in a stipulation incorporated into the judgment of dissolution that they will share the cost of their children’s postsecondary education, including room and board, each is responsible for one half of the cost of room and board when the child lives at home with one party, rather than on the college campus. The trial court, Munro, J., held that the defendant was not responsible. On the basis of the stipulation that the parties executed, we conclude that the defendant is responsible for the costs in question and reverse the judgment of the trial court.

The plaintiff and the defendant were married on February 3, 1973, and the judgment of dissolution was rendered on May 21, 1990, by the court, F. Freedman, J. There are two children of the marriage, Robert Legg and Timothy Legg, who were sixteen and fourteen years of age respectively at the date of judgment.

The defendant has a history of making untimely support payments and had appeared in the trial court many times since the dissolution judgment on numerous motions for contempt filed by the plaintiff. These contempt hearings were ongoing from 1991 to 1995. The plaintiff has alleged in these contempt motions the failure of the defendant to make both general child support payments and payments for the education expenses of both Robert and Timothy. This appeal concerns the education expenses of Timothy only.

The motion for contempt involved in this appeal alleged that the defendant had not paid his share of Timothy’s tuition, books, and room and board at Quinnipiac College. Timothy entered Quinnipiac College in the fall of 1994 and lived at home with his mother to reduce expenses. The room and board claimed for one semester was $750. At the contempt hearing, the defendant argued that he should not have to split the cost of Timothy’s living expenses with the plaintiff because Timothy was living at home instead of on the Quinnipiac campus. The trial court found that the expenses of living at home were not “room and board” within the spirit and intent of the parties’ stipulation and, therefore, that the defendant should not be required to pay. Because we conclude that the intent of the parties is clear in the stipulation, intent is a matter of law, rather than a question of fact. See Zadravecz v. Zadravecz, 39 Conn. App. 28, 31, 664 A.2d 303 (1995). It was unnecessary for the trial court to look beyond the agreement to ascertain the intent of the parties. Furthermore, there was no evidence to indicate the intent and spirit of the stipulation.

An agreement between divorced parties regarding the postmajority education of their children that is incorporated into a dissolution decree should be regarded as a contract. Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990). “In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Citations omitted; internal quotation marks omitted.) Id., 110; see also Sanitary Services Corp. v. Greenfield Village Assn., Inc., 36 Conn. App. 395, 399, 651 A.2d 269 (1994).

The stipulation of the parties made clear their intention to pay for the room and board of their children when they attended college. These items have a dollar value, whether incurred on or off campus, and each party agreed to pay one half of that value. Nowhere in the agreement is there a specification that requires the child to live on campus for the parents to be responsible for room and board expenses. The defendant could have incorporated such a specification into the stipulation had he wanted, but he did not. If the son had lived on campus, the evidence indicated that the father’s share of room and board would greatly exceed $750.

Since the contract of the parties was unambiguous, we find that it was improper for the court to find as a fact that “the spirit and the intent of the agreement” did not require the defendant to pay one half of the cost of room and board while the son lived at home and attended college.

The judgment is reversed and the case is remanded with direction to order the defendant to pay one half of the cost of room and board in accordance with the judgment of May 21, 1990.

       The pertinent language in the stipulation provides: “The parties agree that each will pay one-half of the post-secondary educational expenses (limited to tuition, room and board, books and school fees) of each child of the parties until such child reaches the age of 23 and to the extent that such expenses are not covered by scholarships or student loans. In no event shall the annual liability of either party for such expenses exceed one-half of the total cost for that year of such expenses for an in-state full-time undergraduate student at the University of Connecticut.”

        The following is a history of the nine motions for contempt filed against the defendant, and the changes in the support payments that resulted. The plaintiffs first motion for contempt was filed on July 22, 1991, and was amended on August 1, 1991. The motion alleged, among other things, that the defendant had failed to make the $285 weekly payment on at least one occasion. The plaintiff filed a second motion for contempt on October 10, 1991, which made the same allegation. On October 28, 1991, the trial court, Bassick, J., found the defendant in contempt and ordered him to pay. In 1992, the plaintiff filed three more motions for contempt, on March 17, April 7, and April 23, respectively. On June 8, 1992, the trial court, Axelrod, J., denied the motions. On May 12, 1993, the plaintiff filed her sixth motion for contempt, and the trial court, Doherty, J., issued a contempt citation against the defendant on June 8, 1993. The defendant was ordered to pay $142.50 plus $50 per week for the arrearage. On the same day, the trial court, Doherty, J., pursuant to the defendant’s motion to modify, reduced the defendant’s weekly payment to $75, plus $50 per week arrearage. The plaintiff filed the seventh motion for contempt on August 26, 1993, alleging that the defendant did not pay the $75 as required by the trial court’s June 8, 1993 order. On August 30, 1993, the trial court, Coppeto, J., ordered the defendant to continue his $75 per week payment, but raised the arrearage amount to $80 per week. On February 15, 1994, the plaintiff filed her eighth motion for contempt because the defendant had not complied with the August 30, 1993 order. The trial court, Jones, J., referred the case to the office of family relations for investigation. This motion was finally resolved on September 22,1994, when the trial court, Pittman, J., found the defendant in contempt by and ordered him incarcerated. The defendant was purged of contempt by his payment of $1059 to the plaintiff on the same day. The matter was continued to October 26, 1994, when the trial court, Pittman, J., ordered the defendant to pay $100 in child support per week plus $25 per week toward education expenses. The ninth motion for contempt filed by the plaintiff on September 8, 1995, is the subject of this appeal.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. JAMES EVANS
    (15143)
    Dupont, C. X, and Schallor and Daly, Js.

      Argued December 12, 1996
    officially released February 18, 1997

      Donald Dakers, special public defender, for the appellant (defendant).

      Jo Anne Sulik, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, supervisory assistant state’s attorney, for the appellee (state).
   DALY, J.

The defendant appeals from judgments of conviction rendered after a jury trial. The convictions stemmed from charges arising out of three cases involving different incidents and different victims, which cases were consolidated for trial. Each case related to one set of facts. In the first case, the jury found the defendant guilty of burglary in the third degree in violation of General Statutes § 53a-103 (a), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), and robbery in the third degree in violation of General Statutes § 53a-136 (a). In the second case, the jury found the defendant guilty of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), kidnapping in the first degree in violation of § 53a-92 (a) (2) (B), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and robbery in the third degree in violation of § 53a-136 (a). In the third case, the jury found the defendant not guilty of burglary in the first degree in violation of § 53a-101 (a) (2), but guilty of the lesser included offense of burglary in the third degree and guilty of assault of a victim sixty or older in the second degree in violation of § 53a-60b (a), and robbery in the third degree in violation of § 53a-136 (a).

The defendant claims that the trial court improperly (1) found sufficient evidence to sustain the conviction for robbery in the third degree in the first case, (2) admitted into evidence the tape recording of the 911 call in the second case, (3) permitted the identification of the color photograph in the second case, (4) infringed upon the defendant’s right against self-incrimination by ordering him to display his teeth in the presence of the jury in the second case, and (5) ordered such display in the second case knowing that the defendant would refuse to comply.

The jury reasonably could have found the following facts. In the first case, at about 4:30 p.m. on July 20, 1994, the defendant entered the premises at 5 Mueller Drive in Hamden. The female occupant was upstairs taking a shower and two female guests, Michelle Onofrio and Gina Jurado, were in the downstairs bedroom when the defendant entered the bedroom and demanded money. When both young women denied having any money, the defendant grabbed one of them and forced her to unscrew the wires to the videocassette recorder (VCR) and Nintendo game in the bedroom. The defendant demanded that they accompany him and pushed them upstairs to another bedroom, where he took jewelry. The defendant then went downstairs to the living room where he took another VCR. Finally, the defendant gathered the items he had taken in the kitchen and left the premises with the items. The two women ran to the bathroom and informed the occupant of what had transpired, and the police were notified.

In the second case, at about 6 p.m. on August 24, 1994, the victim was alone in her home at 559 Woodin Street in Hamden, when the defendant came to her door and stated that the victim’s husband had hired him to do some work on the premises. Realizing that the story was fictitious, she immediately closed and bolted the door, ran to the kitchen telephone and dialed 911. Meanwhile, the defendant ran around to the kitchen door, kicked it in, entered the home and tried to wrestle the telephone from her hand. When she would not relinquish it, he bit her hand and punched her in the face. While she continued to clutch the receiver, he ripped the telephone base from the wall and hit her in the eye, face and left shoulder with it. He then knocked her to the floor and continued to beat her. As she struggled to get away, he knocked her to the floor again and choked her. She managed to elude him and ran for the telephone in the family room. The defendant threatened her with bodily harm and ordered her to stop screaming. He knocked the telephone to the floor, dragged her back through the kitchen into the living room and out the front door, then released her and ran away with her pocketbook. When the Hamden police arrived, the victim described her assailant, particularly noting that he had distinctive front teeth, which were “chipped, almost evenly, so that it looks almost like a triangle.”

A week after the incident, the victim identified the defendant’s photograph from an array of eight black and white photographs at the Hamden police station. She asked if any color photographs were available and was taken to the New Haven police station, where she was shown four color photographs of the defendant taken at different times. She identified the fourth photograph, but failed to identify the first three. She later identified the defendant in court. The victim still suffers from injuries to her hip and shoulder incurred during the attack by the defendant.

In the third case, at about 11 p.m. on August 1, 1994, the defendant forced his way into the apartment of an eighty-nine year old woman. He grabbed her from behind and forced her to walk through her apartment with him, keeping his hand over her mouth while he looked for items to steal. He took five dollars in quarters from a cedar box on her dresser and demanded that she surrender two rings from her fingers, threatening to remove them by force if she did not comply. Although the victim was unable to identify the robber, two fingerprints found on the cedar box matched the defendant’s fingerprints obtained during a previous arrest.

I

In the first case, the defendant was convicted of, inter alia, robbery in the third degree in violation of § 53a-136. Section 53a-136 (a) provides that “[a] person is guilty of robbery in the third degree when he commits robbery as defined in section 53a-133.” Section 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” Thus, a robbery occurs when the accused uses or threatens the immediate use of physical force for the purpose of committing a larceny. Proof of simple larceny requires proof of a taking of property with the intent to deprive the owner of possession permanently. In re Juvenile Appeal (84-4), 1 Conn. App. 642, 645, 474 A.2d 485 (1984).

The defendant claims that because the information alleged a robbery of two individuals, Onofrio and Jurado, the state was required to prove that both Onofrio and Jurado were robbed. He claims that because Jurado was upstairs in the shower during the robbery, and there was no confrontation between the defendant and Jurado, she was not robbed and, therefore, he should be acquitted of this count. We disagree.

This issue was raised in State v. Kyles, 221 Conn. 643, 650, 607 A.2d 355 (1992). In that case, the defendant argued that although “the state could have limited [the count] by charging the defendant with a robbery upon only one specific person, the state gratuitously added elements of proving a total of at least three separate robberies” committed against two unspecified persons and one named person. (Internal quotation marks omitted.) Id. “Since there was no evidence presented that [the named person] was robbed, the defendant [claimed] that the state failed to prove that the defendant committed the robbery in the particular manner described.” Id., 650-51. Our Supreme Court disagreed, holding that because the state had charged the defendant with only one count of robbery in the first degree it “was only required to prove that one person was robbed.” Id., 651. The court pointed out that the state can “charge a separate robbery count for each and every robbery of each and every person.” Id.

There is no question that “the state is limited to proving that the defendant has committed the offense in substantially the manner described” in the information. (Internal quotation marks omitted.) State v. Newton, 8 Conn. App. 528, 532, 513 A.2d 1261 (1986). “The inclusion in the state’s pleading of additional details concerning the offense,” however, “does not make [those additional details] essential elements of the crime . . . .” State v. Morrill, 197 Conn. 507, 551, 498 A.2d 76 (1985). Because the defendant was charged with only one count of robbery, and it was proved that he had committed a robbery of one individual, his conviction of one count of robbery was proper. State v. Kyles, supra, 221 Conn. 651.

II

The defendant next claims that the trial court improperly permitted into evidence in the second case the tape recording of the 911 call that the victim made to the Hamden police department when the intruder entered her home, and the return call from the police to her home, which consisted entirely of the victim screaming. The trial court listened to the tape outside the presence of the jury and determined that the evidence was relevant and that its probative value outweighed any prejudicial effect.

The defendant claims that the 911 recording was irrelevant and, in the alternative, that even if it was relevant, its prejudicial effect outweighed its probative value. The state argues that the 911 recording is relevant because it confirms “that the initial report was made from a telephone located at that address,” that “it tends to establish that a violent crime occurred and that it was still in progress at 5:57 p.m., when the dispatcher returned the call, that the screaming is relevant to the defendant’s intent, that the jury could reasonably have inferred that the screaming was a result of the infliction of physical injury, that the assailant knew he was causing physical injury, and that he continued in that conduct.” Further, the state claims that the 911 recording “gave the jury additional information from which to find that physical force was used,” that it “verifies the length of time that the defendant was in the house,” which is relevant to the charge of kidnapping, that, “[f]rom her screaming, the jury could infer that she was not at liberty to leave,” that “the length of time also is relevant to [the victim’s] identification of the defendant,” that “the recording shows how long [the victim] was able to observe her attacker,” and finally, that the 911 tape “established the violent nature of the assault.”

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible. . . . State v. Sauris, 227 Conn. 389, 406-407, 631 A.2d 238 (1993).” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996).

“We have previously outlined four situations where prejudice to the defendant could outweigh the probative value of evidence. These are: (1) where the facts offered may unduly arouse the juiy’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the juiy 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. Greene, 209 Conn. 458, 478-79, 551 A.2d 1231 (1988). We have also noted, however, that ultimately, [a] trial court has broad discretion in determining whether the probative value of proffered evidence is outweighed by the prejudice that is likely to result from its admission. ... We will not overturn its decision absent an abuse of discretion. . . . State v. McGraw, 204 Conn. 441, 449-50, 528 A.2d 821 (1987).” (Internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 307, 664 A.2d 743 (1995).

“Because of the inherent difficulties in weighing these considerations against the need for relevant evidence, the resolution of this determination has been traditionally entrusted to the trial court. . . . Every reasonable presumption must be given in favor of the correctness of the court’s ruling, and reversal will ensue only where an abuse of discretion is manifest or where injustice appears to have been done. . . . Prejudice is not measured by the significance of the evidence which is relevant bxit by the impact of that which is extraneous.” (Citations omitted; internal quotation marks omitted.) State v. Saraceno, 15 Conn. App. 222, 249-50, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988).

In considering whether the trial court’s admission of allegedly inflammatoxy photographic evidence was proper, our Supreme Court in State v. Walker, 206 Conn. 300, 314-15, 537 A.2d 1021 (1988), stated: “The principies governing the admission of potentially inflammatory photographic evidence are clear. As this court has stated on a number of occasions, we adhere to the general rule that photographs which have a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry are not rendered inadmissible simply because they may be characterized as gruesome. . . . When, however, an initial determination is made by the trial court that such photographs may have the tendency to prejudice or inflame the jury, the admissibility of such evidence is dependent upon the trial court’s determination as to whether their value as evidence outweighs their possible prejudicial effect. . . . Since the trial court exercises its broad discretion in such circumstances, its determination will not be disturbed on appeal unless a clear abuse of that discretion is shown. State v. Piskorski, 177 Conn. 677, 700-701, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); see State v. DeJesus, 194 Conn. 376, 381-82, 481 A.2d 1277 (1984); State v. Haskins, 188 Conn. 432, 452, 450 A.2d 828 (1982); State v. Smith, 174 Conn. 118, 122-23, 384 A.2d 347 (1977). State v. Falcon, 196 Conn. 557, 565-66, 494 A.2d 1190 (1985).” (Internal quotation marks omitted.)

“[T]he prosecution, with its burden of establishing guilt beyond a reasonable doubt, is not to be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce. State v. Smith, 185 Conn. 63, 88, 441 A.2d 84 (1981), quoting State v. Piskorski, supra, [177 Conn. 701-702], The trial court did not abuse its discretion in admitting the photographs.” (Internal quotation marks omitted.) State v. Walker, supra, 206 Conn. 315. We conclude that the same rationale applies here and that the trial court did not abuse its discretion in admitting the entire 911 tape.

III

The defendant next claims that, in the second case, the trial court improperly permitted testimony as to the pretrial identification of the defendant from a color photograph at the New Haven police station because the procedure used was unnecessarily suggestive and, therefore, violative of his due process rights. The victim identified the defendant from an array of eight black and white photographs of black males shown to her by Detective Joseph Murray on September 2,1994, approximately one week after the August 24, 1994 incident. She testified that although she had no doubt that the defendant, whom she identified from a photographic array at the Hamden police station, was the intruder who attacked and robbed her, she felt that “the color wasn’t right . . . [and that it] looked like an old, old photograph that had yellowed. So, the color wasn’t right. [She] wanted to make sure that this was positively the man.” She, therefore, requested to see a color photograph of the defendant.

Murray took the victim to the New Haven police station, where she was shown four color photographs of the defendant on a computer screen in chronological order. She failed to identify the defendant in the first three photographs, but made a positive identification of the fourth photograph—the most recent—dated June 2, 1994. During the trial, the victim identified all four color photographs as pictures of the defendant. The defendant moved unsuccessfully to have both the Ham-den and New Haven photograph identifications suppressed as being unduly suggestive and in violation of his state and federal constitutional rights to due process. On appeal, the defendant has abandoned any claim that the Hamden police procedures were unduly suggestive and any challenge to the in-court identification; see State v. Hinton, 196 Conn. 289, 291 n.2, 493 A.2d 836 (1985); and claims only that the procedure used at the New Haven police station was unduly suggestive.

“We note at the onset that [b]ecause the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable. . . . State v. Howard, 221 Conn. 447, 454, 604 A.2d 1294 (1992). . . . State v. Figueroa, 235 Conn. 145, 155, 665 A.2d 63 (1995). This court has adopted the federal standard set forth in Neil v. Biggers, [409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972)], for determining whether a pretrial identification procedure violated a defendant’s due process rights. [T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991), quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); see also State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). To prevail in his claim, the defendant must demonstrate that the trial court erred in both of its determinations regarding suggestiveness and reliability of identifications in the totality of the circumstances. . . . State v. Hinton, [196 Conn. 289, 293, 493 A.2d 836 (1985)]. State v. Mayette, 204 Conn. 571, 581, 529 A.2d 673 (1987). State v. Pollitt, 205 Conn. 132, 162, 531 A.2d 125 (1987). . . . State v. Wooten, 227 Conn. 677, 685, 631 A.2d 271 (1993). . . . State v. Figueroa, supra, 155-56. An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. State v. White, 229 Conn. 125, 161-62, 640 A.2d 572 (1994). If the procedures used to identify the defendant were not unnecessarily suggestive, we need not independently analyze whether the identification was reliable. State v. Williams, [203 Conn. 159, 173-74, 523 A.2d 1284 (1987)]; State v. Miller, [202 Conn. 463, 470, 522 A.2d 249 (1987)]; State v. Amarillo, 198 Conn. 285, 294, 503 A.2d 146 (1986). State v. Boscarino, 204 Conn. 714, 726, 529 A.2d 1260 (1987).” (Internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 498-99, 687 A.2d 489 (1996). We conclude that the identification procedure in question was neither unnecessarily suggestive nor unreliable under all of the circumstances.

Our Supreme Court in State v. Hinton, supra, 196 Conn. 294, stated: “While we have recognized that pictorial recurrence can be suggestive in that it increases the risk of misidentification . . . the initial identification in this case was made with such a high degree of assurance that the second identification involving a more recent photograph could only have benefitted the defendant.” (Citations omitted; internal quotation marks omitted.) Similarly, in the present case, the victim was certain of her identification of the defendant from the array of photographs that she viewed at the Hamden police station. Taking care to be absolutely accurate, however, she requested to see color photographs of the defendant to be sure that the skin tone of the defendant was the same as that of the robber. We conclude that the presentation of the color photographs to the victim did not, under the totality of the circumstances, constitute an impermissibly suggestive pretrial identification procedure.

Nevertheless, assuming arguendo that the display was unnecessarily suggestive, we will consider whether, on the basis of an examination of the totality of the circumstances, the identification was nevertheless reliable. State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). We conclude that it was.

The factors to be considered in determining the reliability of an identification subsequent to a suggestive identification procedure include the opportunity of the witness to view the criminal at the time of the crime. “[T]he witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and confrontation . . . [are] to be weighed [against] the corrupting effect of the suggestive identification itself.” (Internal quotation marks omitted.) State v. Evans, 200 Conn. 350, 356, 511 A.2d 1006 (1986).

In this case, the victim had ample opportunity to view the intruder during the robbery. She observed him for several minutes as he dragged her from room to room, she was within eight to nine inches of him, he was on top of her while she was on the floor, it was daylight and the rooms were relatively brightly lit, and she saw him both inside her house and in the front yard. Where a witness’ view of a defendant was brief, “a good hard look will pass muster even if it occurs during a fleeting glance.” (Internal quotation marks omitted.) State v. Cubano, 9 Conn. App. 548, 553-54, 520 A.2d 250 (1987). In this case, the victim had an opportunity for “a good hard look” while she was being beaten by the defendant, and she gave a detailed description. Her initial description of her assailant matched the defendant: he was a black male in his early twenties, approximately 5 feet 7 inches tall, of medium build, with short hair, very dark skin, broad nose and chipped front teeth. In making the identification of the defendant from the fourth color photograph at the New Haven police station, the victim was “100 per cent certain” that he was her assailant. Only a short time had elapsed between the attack on August 24,1994, and her identification of the defendant on September 2,1994. “[A]lthough [in considering challenges to identification evidence] we examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact-finding of the trial court,” we conclude that, under all of the circumstances, the trial court could reasonably have found that any “corrupting influence of the [identification procedure] was minimal and that [it] did not result in a very substantial likelihood of irreparable misidentification, and that the [identification was] sufficiently reliable to be considered by the jury.” (Internal quotation marks omitted.) State v. Ramsundar, supra, 204 Conn. 12-13.

IV

The defendant next claims that the trial court, in ordering him to display his teeth in the presence of the jury, violated his privilege against self-incrimination under article first, § 8, of the Connecticut constitution. He seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that this claim is not of constitutional magnitude and that it, therefore, fails to satisfy the second prong of Golding.

The constitution of Connecticut, article first, § 8, provides in pertinent part: “No person shall be compelled to give evidence against himself.” Our Supreme Court discussed the meaning of that provision in detail in State v. Asherman, 193 Conn. 695, 713, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). “Judicial review of an asserted invasion of the protection against compelled self-incrimination must focus on whether the state (1) actually compelled the complainant to disclose (2) testimonial communications (3) which tended to incriminate him.” (Emphasis in original; internal quotation marks omitted.) Id., 712-13. “[C]ompulsion which makes a suspect or accused the source of real or physical evidence does not violate a person’s constitutional rights as it is not such as compels communications or testimony.” (Internal quotation marks omitted.) State v. Campfield, 44 Conn. App. 6, 16, 687 A.2d 903 (1996).

Our Supreme Court held in State v. Asherman, supra, 193 Conn. 711-15, that the privilege against self-incrimination under article first, § 8, of the Connecticut constitution applies only to testimonial evidence. In particular, the court held that compelling a defendant to submit to the taking of a dental impression did not compel testimonial evidence and did not violate article first, § 8, of the Connecticut constitution. Id., 715. Similarly, compelling an accused to drop his pants to display scratches on his thigh would not violate his constitutional rights. Id., 713-14.

The defendant claims that the present case is distinguishable from Asherman because in Asherman the trial court ordered the defendant to submit to an examination prior to trial, which would produce evidence at trial, rather than ordering a defendant to provide such evidence in the presence of the jury. The defendant claims that when a defendant is ordered to perform an act in the presence of the jury, that act becomes testimonial in nature, but he offers no authority for that proposition. Some federal courts have rejected that argument. See United States v. Williams, 704 F.3d 315 (6th Cir.), cert. denied, 464 U.S. 991, 104 S. Ct. 481, 78 L. Ed. 2d 679 (1983); United States v. Roberts, 481 F.2d 892, 894 (5th Cir. 1973). Moreover, nothing in the court’s discussion or reasoning in Asherman would support the defendant’s argument.

We conclude that because the order to display one’s teeth, whether prior to or at trial, does not involve communications or testimony, the defendant’s claim is not of constitutional magnitude and does not satisfy the second prong of Golding.

V

Finally, the defendant maintains that the trial court’s order to the defendant to display his front teeth to the jury constituted an abuse of discretion because the court was aware that the defendant would refuse to comply and that other evidence would be presented concerning the condition of the defendant’s teeth. Although the defendant seeks review of this claim under Golding, he makes no argument that there is a constitutional deprivation in this claim of abuse of discretion. The second prong of Golding, therefore, does not allow us to review the claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       The issue involving the joinder of these cases for trial was withdrawn at oral argument.


author: O’CONNELL, J.

text:
    ROBERT T. DESALLE, SR., ET AL. v. GUSTAF T. APPELBERG ET AL.
    (14995)
    O’Connell, Schaller and Hennessy, Js.

      Argued November 14, 1996
    officially released February 18, 1997

      Stanton H. Lesser, with whom was Robert K. Lesser, for the appellants (defendants).

      David M. Wattman, with whom were Donald R. Kiefer and, on the brief, David Kelso McConnell, for the appellees (plaintiffs).
   O’CONNELL, J.

The defendants appeal from a judgment for the plaintiffs following a hearing before an attorney trial referee (attorney referee). The defendants claim that the trial court improperly (1) found the defendant Gustaf T. Appelberg personally liable, and (2) failed to grant a motion for mistrial and revocation of the reference to the attorney referee. We reverse the trial court’s judgment.

The genesis of this case is the alleged breach of an agreement by which the plaintiffs sold a sign business to the defendants. A promissory note represented a portion of the purchase price and was a significant part of the plaintiffs’ claim. The case was referred to an attorney referee who heard evidence and filed his report with the court recommending judgment against the defendants. Both sides filed motions to correct the report. The attorney referee’s rulings on these motions could materially change the outcome of the case. While the motions to correct were pending, the attorney referee contacted the defendants’ counsel and asked permission to call a plaintiffs’ witness to obtain a copy of a promissory note. The defendants’ counsel denied permission, but the attorney referee nevertheless contacted the plaintiffs’ witness ex parte and obtained a copy of the promissory note from him. It is not known what happened to the original of this note. The attorney referee thereafter ruled on the motions to correct, and made findings relying on the note.

As a result of the attorney referee’s ex parte communications with the plaintiffs’ witness, the defendants moved for a mistrial and revocation of the reference to the attorney referee. The motion was heard by Vertefeuille, J., who made the following findings: “While the motions to correct were pending, the attorney trial referee placed two phone calls to Attorney Martin O’Neill. O’Neill was the plaintiffs’ former attorney who testified for the plaintiffs during the trial. The [attorney referee] made the phone calls in order to procure a copy of a promissory note which he believed was an exhibit at trial. The [attorney referee] made these calls without obtaining consent from the defendants. O’Neill did not return the first call because of concern about the ex parte nature of the call. However, when the [attorney referee] called O’Neill a second time, O’Neill took the call. The [attorney referee] asked O’Neill to telecopy to him a copy of the promissory note which gave rise to one of the plaintiffs’ claims during the trial and O’Neill did so. The [attorney referee] shortly thereafter issued his ruling on the motion to correct.”

Judge Vertefeuille concluded that “there is little question that the [attorney referee’s] action in speaking with a trial witness and obtaining a copy of the promissory note from the witness created the appearance of impropriety in violation of Canon 2 of the Code of Judicial Conduct, which is also applicable to [attorney referees]. . . . The court finds no prejudice to the defendants from the incident in question. . . . Although the [attorney referee] acted improperly with the resulting appearance of impropriety, a mistrial under these circumstances is not warranted.”

The case then proceeded before the trial court, Levin, J., who, in a memorandum of decision, concluded that “this court concurs with Judge Vertefeuille’s decision. The ex parte communication was improper and violated Cannon 3 A (4) of the Code of Judicial Conduct to which the attorney trial referee was bound. The transgression here was especially serious: The trier contacted a witness (and former party). However, receiving a copy of the promissory note, which was a product of the ex parte communication was harmless beyond a reasonable doubt.”

The Code of Judicial Conduct applies to attorney referees. Rowan Construction Corp. v. Hassane, 17 Conn. App. 71, 75-76, 549 A.2d 1085 (1988), aff'd, 213 Conn. 337, 567 A.2d 1210 (1990). Both trial court judges found that the attorney referee had committed a serious breach of the Code of Judicial Conduct resulting in an appearance of impropriety. They concluded, however, that because the defendants had failed to show harm or prejudice from this misconduct, they were not entitled to relief.

The issue, however, is not whether the misconduct proved harmful or caused prejudice to one of the parties. The issue is whether the misconduct would have caused an outside observer to question the judge’s impartiality. Dubaldo v. Dubaldo, 14 Conn. App. 645, 649, 542 A.2d 750 (1988). We have in the past taken a strict stand on ex parte communications between a judge and a witness. Id.

In the present case, an outside observer would see an attorney referee, acting as a judge, with matters, i.e., the motions to correct the report, pending before him that could affect the outcome of the case. The outside observer also would learn that the attorney referee contacted the defendants’ attorney to seek permission to communicate with a plaintiffs’ witness and that permission was denied. The observer then would learn that the attorney referee nevertheless contacted the witness, who was also the plaintiffs’ former attorney, and obtained a copy of a promissory note, which had not been admitted into evidence. The attorney referee thereafter ruled on the motions to correct relying on the note and recommending judgment for the plaintiffs. Confronted with this scenario, the outside observer would have reason to question the impartiality of the attorney referee.

Cases concerning whether a judge should disqualify himself are relevant and instructive. “The code sets forth an objective standard for disqualifications; Canon 3 (C) (1) provides: A judge should disqualify [himself] in a proceeding in which [his] impartiality might reasonably be questioned .... Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard . . . . The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his . . . impartiality, on the basis of all of the circumstances. . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Dubaldo v. Dubaldo, supra, 14 Conn. App. 649.

“The question presented here is not whether the judge could render an impartial decision, but whether [the judge’s] ex parte discussion with the witness . . . created in the minds of observers, particularly the defendant, an appearance of impropriety. We believe that, regardless of the judge’s intent, [the judge’s] action created the appearance of impropriety.” Id., 650.

“Proof of actual bias is not required for disqualification. Dacey v. Connecticut Bar Assn., 184 Conn. 21, 441 A.2d 49 (1981); Krattenstein v. G. Fox & Co., [155 Conn. 609, 615, 236 A.2d 466 (1967)]. The appearance as well as the actuality of impartiality on the part of the trier is an essential ingredient of a fair trial. ” Cameron v. Cameron, 187 Conn. 163, 170, 444 A.2d 915 (1982). “We have embraced the rule that ‘justice must satisfy the appearance of justice’; Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 2d 11 (1954); even though this ‘stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.’ In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955).” Dubaldo v. Dubaldo, supra, 14 Conn. App. 650-51.

In the situation described in Dubaldo, although there had been no showing of actual bias on the part of the trial judge, the facts and circumstances reasonably implicated the appearance of impropriety so that this court reversed the trial court’s judgment for failure to grant a mistrial. “Impartiality on the part of a judge is a fundamental tenet of our system of jurisprudence. . . . The trial judge must be ever vigilant to consider his conduct from the viewpoint not only of an unbiased observer, but also of the biased litigant who is desperately searching to find a flaw in the judge’s conduct.” In re Shana M., 26 Conn. App. 414, 417, 600 A.2d 1385 (1992).

In support of their contention that prejudice must be demonstrated to support a motion for mistrial, the plaintiffs rely on Fair v. Warden, 211 Conn. 398, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989); Shelnitz v. Greenberg, 200 Conn. 58, 79-81, 509 A.2d 1023 (1986); State v. Festo, 181 Conn. 254, 265, 435 A.2d 38 (1980); Aillon v. State, 168 Conn. 541, 547, 363 A.2d 49 (1975); Izzo v. Crowley, 157 Conn. 561, 565, 254 A.2d 904 (1969); and Tukstas v. Saint Francis Hospital & Medical Center, 23 Conn. App. 680, 583 A.2d 941 (1990). All of these cases are inapposite. None of those cases involves a motion for a mistrial based on conduct violating the Code of Judicial Conduct and thereby creating the appearance of impropriety.

The plaintiffs also argue that the ex parte communication was permitted by canon 3 A (4) (a), which allows ex parte contacts for “scheduling, administrative purposes or emergencies that do not deal with substantive matters . . . .” We are not persuaded that the attorney referee’s conduct came within any of these exceptions allowed by this canon.

We conclude that the attorney referee’s ex parte communication with a witness for the purpose of obtaining a document that was not in evidence, even if the substance of its contents may have been before the attorney referee, violated the principles of impartiality underlying the Code of Judicial Conduct and irreparably tainted the judicial process. The trial court should have granted the defendants’ motion for mistrial. In view of our disposition of the mistrial issue, we do not reach the defendants’ claim concerning the merits of the trial court’s decision.

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

In this opinion the other judges concurred.

       The parties filed a written stipulation with the trial court, the relevant paragraphs of which are as follows: “2. The Asset Purchase Agreement between the parlies was submitted as Exhibit A-4 during the trial of this action. The Asset Purchase Agreement contained a copy of the Note as a schedule. Counsel for the parties cannot confirm whether this schedule reflects an executed copy of the Note. ... 4. The Note was not separately marked as an exhibit and introduced into evidence during the trial of this actioti, which trial occurred before Attorney Trial Referee John Fracassini in July, 1992. The foregoing does not a constitute a stipulation by counsel for DeSalle that the Note was not properly before the Court during the trial of this action.” (Emphasis added.)
      Because Exhibit A-4 has been lost, this court could not examine the copy of the note contained therein to determine if it was an executed copy. Whether or not the substance of the note was before the court, it is clear from the stipulation that the original promissory note was not introduced as a separate exhibit before the attorney referee.

       Canon 2 of the Code of Judicial Conduct provides in pertinent part: “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All the Judge’s Activities.
      “A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. . . .”

       Judge Vertefeuille, the presiding judge of the civil court in the judicial district of Fairfield, entertained the motion for mistrial and revocation of reference to the attorney referee. Judge Levin was the trial court judge who accepted the attorney referee’s report and rendered judgment thereon in favor of the plaintiff.

       Canon 3 of the Code of Judicial Conduct provides in pertinent part: “A Judge Should Perform the Duties of Judicial Office Impartially and Diligently. . . .
      “A. Adjudicative Responsibilities. . . .
      ‘(4) A judge should accord to every person who is legally interested in a proceeding, or that person’s lawyer, full right to to be heard according to law. A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that: “(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:
      “(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
      “(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond. ...”
      The official commentary to Canon 3 A (4) provides that a “judge must not independently investigate facts in a case and must consider only the evidence presented.”

       See footnote 4.