author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. BUCKLEY OTTO
    (AC 16180)
    O’Connell, C. J., and Schaller and Sullivan, Js.

      Argued May 28
    officially released August 25, 1998

      Neal Cone, assistant public defender, for the appellant (defendant).

      Michael E. O'Hare, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl Taylor, assistant state’s attorney, for the appellee (state).
   Opinion .

SULLIVAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), interference with a police officer in violation of General Statutes § 53a-167a, attempted possession of narcotics within 1500 feet of a school in violation of General Statutes §§ 53a-49 (a) (2) and 2 la-279 (d), and attempted possession of narcotics in violation of General Statutes §§ 53a-49 (a) (2) and 21a-279 (a). On appeal, the defendant claims that the trial court improperly (1) excluded evidence that two prosecution witnesses had settled personal injury claims with the defendant, (2) instructed the jury on first degree assault, (3) instructed the jury on the narcotics possession charges, (4) concluded as a matter of law that sufficient evidence existed to support the conviction of first degree assault and (5) violated the defendant’s constitutional protection against double jeopardy by allowing both of the narcotics convictions to stand. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. This case arises out of a reverse sting operation that the Hartford police department conducted on January 14, 1995, at the Bellevue Square housing project in Hartford. Officer Reginald Allen posed as a drug dealer while Officers Mark Castagna and David Kardys awaited Allen’s signal in a nearby building. Lieutenant Michael Fallon watched the scene from a van on the same street.

At approximately 11:32 a.m., the defendant and a female companion approached Allen in a Chrysler New Yorker automobile. The defendant asked Allen if he “had anything” and said that he wanted heroin. After speaking to his passenger, the defendant told Allen that he wanted five bags of heroin. The defendant had money in his hand.

At that point, Allen signaled the other officers and identified himself to the defendant as a police officer. The defendant said, “Oh, shit,” and the passenger said, “Go, go, go.” The defendant then sped down the street.

Castagna and Kardys appeared, identified themselves as police officers and ordered the defendant to stop. Both officers were wearing clothing clearly identifying them as police officers. Castagna drew his gun as he ordered the car to stop. The defendant veered his car onto the sidewalk, hitting Castagna and Kardys.

As the defendant continued down the street, Fallon blocked the defendant’s car with his vehicle. Kardys, Allen and Fallon surrounded the car, identified themselves as police officers, and ordered the defendant to shut off the engine and get out of the car. When the defendant did not comply, the officers forcibly removed the defendant from the car and arrested him. The officers then arrested the defendant’s companion.

A jury convicted the defendant of first degree assault, interfering with a police officer, attempted possession of narcotics, and attempted possession of narcotics within 1500 feet of a school. This appeal followed.

I

The defendant first claims that the trial court improperly excluded as irrelevant the cross-examinations of Castagna and Kardys on their settlements with the defendant’s insurance company and improperly excluded extrinsic evidence of those settlements offered to impeach the witnesses’ credibility. The defendant argues that this ruling violated his constitutional rights to confrontation and to due process. Because the settlements of the injury claims are not relevant to the officers’ credibility, this court finds no impropriety in the trial court’s ruling.

The right to confrontation, which includes the right to cross-examine adverse witnesses, is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution, but it is not an absolute and unbounded right. State v. Thompson, 191 Conn. 146, 148, 463 A.2d 611 (1983). A court may, in the exercise of its discretion, limit the extent of cross-examination, especially with respect to credibility. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.4.3, pp. 43-44. We traditionally apply a two part analysis to determine whether a party has been deprived of effective cross-examination. “First, we determine whether the defendant received the minimum opportunity for cross-examination of adverse witnesses required by the constitution. ... If so, we then consider whether the trial court’s restriction of cross-examination amounted to an abuse of discretion under the rules of evidence. ... To establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon the cross-examination were clearly prejudicial. ... If, however, the defendant is denied the right of effective cross-examination, there would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” (Citations omitted; internal quotation marks omitted.) State v. Plaskonka, 22 Conn. App. 207, 214, 577 A.2d 729, cert. denied, 216 Conn. 812, 580 A.2d 65 (1990).

As to the first part, the defendant does not assert that he was denied the minimum opportunity for cross-examining the witnesses. Although the defendant largely limited his cross-examination of Castagna to the settlement issue, the defendant cross-examined Kardys more widely with no restriction from the court except as to the settlement issue.

Contrary to the defendant’s assertions, the trial court’s decision did not unduly restrict the defendant’s questioning so as to violate his right effectively to cross-examine the -witnesses against him or to present a defense. Effective cross-examination does not include eliciting or presenting evidence that is immaterial or irrelevant. See State v. Barnes, 232 Conn. 740, 746, 657 A.2d 611 (1995). When the trial court properly excludes evidence as irrelevant, it does not abuse its discretion in limiting cross-examination as to the excluded evidence. See State v. Barrett, 43 Conn. App. 667, 676-77, 685 A.2d 677 (1996), cert. denied, 240 Conn. 923, 692 A.2d 819 (1997).

On cross-examination, Castagna testified that the defendant intentionally hit him with his car. Prior to his court appearance, Castagna had settled a personal injury claim with the defendant’s insurer pursuant to a policy that excludes intentional torts from its coverage. At trial, the defendant asserted that the settlement constituted conduct equivalent to a prior inconsistent statement and sought to impeach Castagna by eliciting testimony and introducing extrinsic evidence in the form of a signed general release of liability. The defendant also wanted to introduce similar evidence with respect to Kardys. The trial court limited the cross-examination about the settlement and excluded the extrinsic evidence.

The trial court’s ruling was proper because the settlement evidence was not relevant to impeach Castagna and Kardys. A defendant may introduce prior inconsistent statements to impeach a witness. State v. Keating, 151 Conn. 592, 597, 200 A.2d 724 (1964), cert. denied sub nom. Joseph v. Connecticut, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 (1965); C. Tait & J. LaPlante, supra, § 7.24.3, p. 207. The trial court must determine, however, whether the statement or conduct is, in fact, sufficiently contrary to the position asserted at trial to justify its introduction as a prior inconsistent statement. State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

The relevancy issue, therefore, hinges on whether the mere settlement of a potential tort claim permits the imputation to a settling party of a position sufficient to constitute an inconsistent statement. Specifically, the defendant argues that by settling civil claims where intentionality would bar recovery, Castagna and Kardys essentially admitted that the defendant did not act intentionally. We do not agree.

Signing a general release of liability does not necessarily constitute an assertion of any particular theory of liability. That the insurer settled the claims on a negligence basis does not necessarily lead to the conclusion that this representation was made to the insurer or that the witnesses’ counsel in those matters did not present alternate theories. A prior inconsistent statement must be “sufficiently inconsistent.” Id., 711. On the basis of the facts and assertions in the record here, we cannot find that the trial court abused its discretion in excluding this evidence.

Moreover, the settlement does not serve as an indicia of financial incentive, motive or bias. Neither Castagna nor Kardys had any personal interest in the outcome of the criminal trial. Although a pending claim or civil suit by one of the witnesses might suggest evidence of bias or interest because the outcome of the criminal trial would bear directly on the success of the civil action, there was no such pending action here.

We do not go so far as to say that representations made in a settlement or complaint will never constitute statements or admissions. In this case, however, they do not and, thus, we conclude that the trial court properly excluded the settlement evidence.

II

The defendant next claims that the trial court improperly instructed the jury with respect to the first degree assault charge. Specifically, the defendant claims that the trial court failed to comment on the evidence and inadequately defined “substantial and unjustifiable risk” when instructing on reckless assault in the first degree. See General Statutes § 53a-3 (13). We address these two claims separately.

A

We first note that at the conclusion of the trial court’s instructions to the jury, the defendant requested that the trial court amend its instructions to define “substantial and unjustifiable risk.” When the trial court declined his request, the defendant excepted to the instructions. This portion of the defendant’s second claim, therefore, was properly preserved for appeal. We disagree, however, that the trial court’s instructions on reckless assault in the first degree were inadequate.

The standard of review of jury instructions is well established. “A charge to the jury is not to be critically dissected nor are individual instructions to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) State v. Taylor, 196 Conn. 225, 231, 492 A.2d 155 (1985). “In reviewing a challenge to jury instructions, we must examine the charge in its entirety. . . . While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury. . . . The court is under no duty at any time to charge in the exact language requested. . . . Failure to charge precisely as proposed by a [party] is not error where the point is fairly covered in the charge.” (Citations omitted; internal quotation marks omitted.) Barrenechea v. Lamonica, 44 Conn. App. 389, 395, 689 A.2d 1137 (1997).

Here, in its instructions on reckless assault in the first degree, the trial court explained the terms “recklessly” and “substantial and unjustifiable risk” to the jury as follows: “Now, second, the state must prove beyond a reasonable doubt that under the circumstances as described, the defendant recklessly engaged in conduct that created a risk of death to another person. How does a person act recklessly? A person acts recklessly with respect to a result under circumstances described by the statute as defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur and that such circumstances exist. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a, reasonable person would observe in the situation. The standard of conduct of a reasonable person in the same situation as the defendant is the doing of something that a reasonably prudent person would do under the circumstances or omitting to do what a reasonably prudent person would not do under the circumstances.

“Now, a gross deviation is a great or substantial deviation, not just a slight or moderate deviation. There must be a great or substantial indifference between, on the one hand, the defendant’s conduct in disregarding a substantial and unjustifiable risk and, on the other hand, what a reasonable person would have done under the circumstances. Whether a risk is substantial and unjustifiable is a question of fact for you to determine under all the circumstances.” (Emphasis added.)

Considering the trial court’s instructions on reckless assault in the first degree as a whole, we do not believe that the jury could have been misled by the trial court’s explanation of a “substantial and unjustifiable risk.” We conclude that the trial court’s instructions on this issue were proper.

B

The defendant’s claim regarding the trial court’s failure to comment on the evidence during its charge to the jury was not properly preserved at trial. He now seeks review under the standards of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

A constitutional claim not properly preserved for appeal may nonetheless be successful. Our Supreme Court has stated that “a defendant can prevail on a claim of constitutional error not preserved at trial 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, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 239-40.

“In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result. . . . We will reverse a conviction only if, in the context of the whole, there is a reasonable possibility that the jury was misled in reaching its verdict. . . . In assessing whether a jury reasonably could have been misled by the court’s instructions ... it is always proper to consider whether the issues in the case are complicated.” (Citation omitted; internal quotation marks omitted.) State v. Rose, 41 Conn. App. 701, 713-14, 679 A.2d 19, cert. denied, 239 Conn. 906, 682 A.2d 1011 (1996).

In State v. Lemoine, 233 Conn. 502, 512, 659 A.2d 1194 (1995), our Supreme Court concluded that “review of or comment on the evidence is not constitutionally mandated where the trial court, in the exercise of its sound discretion, determines that such commentary is not necessary and that the jury would be properly instructed and not misled in its absence.” In reaching that conclusion, the Supreme Court noted that “[i]t has long been established that [i]n properly instructing the juiy it may or may not be necessary for the court to recall the attention of the jury to the evidence and to the facts which the State and the accused respectively claim to have established, or to comment upon the evidence or express an opinion as to its weight, or as to what verdict would be proper if the jury should find certain facts to have been proved. The charge should be so framed that the jury may clearly understand the matters which are submitted to them. . . . It is within the province, and may be within the duty, of the trial judge to not only call attention to the evidence adduced, but to state to the jury in the charge his own opinion of the nature, bearing and force of such evidence. . . . It is not necessarily error to omit all comment upon the bearing and weight of evidence; and generally the extent to which the court should discuss the evidence in submitting a case to the jury is, so long as in criminal cases the jury [is] not directed how to find [its] verdict, within the discretion of the trial judge. . . . State v. Long, 72 Conn. 39, 43, 43 A. 493 (1899).” (Emphasis added; internal quotation marks omitted.) State v. Lem-oine, supra, 510-11.

Here, as in Lemoine, the trial court, after the close of the evidence and final arguments of counsel, instructed the jury as to the law applicable to all of the charges against the defendant. The trial court then instructed the jury as to the elements the state must prove as to each of the crimes charged in the information in order to convict the defendant. The trial court’s instructions specified the victims to which the various charges against the defendant applied, and the jury had the information during deliberations. Further, the issues presented were narrow and uncomplicated, and the elements of the crimes with which the defendant was charged, the claims of the parties and the evidence presented were not difficult to understand.

Moreover, as in Lemoine, the final arguments of counsel thoroughly reviewed the testimony given by the witnesses. We conclude, on the basis of the foregoing, that it was not reasonably possible that the jury was misled by the trial court’s instructions and that no injustice to the defendant resulted by reason of the court’s instructions. See id., 516; see also State v. Glover, 40 Conn. App. 387, 393-94, 671 A.2d 384, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996). The defendant’s claim fails to satisfy the third prong of Golding.

Ill

The defendant next claims that the trial court’s instruction on the narcotics charges was inadequate and misleading. Specifically, the defendant maintains that the jury instruction should have made clear that “possession,” an essential element of the crime of attempted possession of narcotics, denotes “exclusive control and dominion.” This claim was not raised at trial and was thus not properly preserved for appeal. The defendant now seeks review of it under the standards of State v. Golding, supra, 213 Conn. 239-40. We will review the defendant’s claim as the record is adequate for review and the alleged violation is of constitutional magnitude involving the defendant’s constitutional due process rights to proper jury instructions on the essential element of a crime. See State v. Hinton, 227 Conn. 301, 308, 630 A.2d 593 (1993). We conclude, however, that the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial.

This court has stated that “[a]s long as the jury charge provides the jury with a clear understanding of the elements of the crime and guidance for proper determination of whether those elements were present, the charge is constitutionally adequate.” State v. Jenkins, 40 Conn. App. 601, 607, 672 A.2d 969, cert. denied, 237 Conn. 918, 676 A.2d 1374 (1996). Here, the trial court’s instruction to the jury on the charge of attempted possession of narcotics was almost four pages long. As to the essential element of possession, the trial court stated, “First, I will discuss the elements of the underlying crime of possession of narcotics. Now, under our statutes a person is charged with violating Connecticut General Statutes § 2 la-279 (a), which, as it pertains to this case, provides as follows. Any person who possesses any quantity of any narcotic substance, except as authorized, shall be punished.”

The defendant asserts that the trial court’s failure to explain that possession indicates exclusive control or dominion rendered the jury instructions inadequate. Under the facts of this case, however, it was not necessary for the trial court to instruct on exclusive control and dominion. Exclusive control or dominion by a defendant becomes critical only where a defendant’s mere presence near the contraband is the sole factor supporting an inference of possession. See State v. Cruz, 28 Conn. App. 575, 580, 611 A.2d 457 (1992). The defendant did not suggest at trial that he may have served as a mere conduit of the drags to his companion. The state presented evidence to show that the defendant did attempt to possess the narcotics. The defense presented evidence intended to show that the defendant merely asked Allen for directions and fled when he thought he was being attacked by armed robbers. Given the evidence presented and the arguments made at trial, the jury had the choice of either concluding beyond a reasonable doubt that the defendant attempted to possess drugs or concluding that the state had not met its burden. The jury instructions made that clear.

Reading the instructions as a whole, we conclude that the jury was properly instructed on the crime of attempted possession of narcotics. See State v. Jenkins, supra, 40 Conn. App. 606. The defendant’s claim, therefore, fails the third prong of Golding.

IV

The defendant claims that the trial court improperly concluded that there was sufficient evidence to sustain a guilty verdict with respect to the charge of first degree assault. The defendant failed to preserve this claim properly at trial because he failed to make a motion for judgment of acquittal at the close of the evidence pursuant to Practice Book § 42-42, formerly § 885, or to claim that the evidence was insufficient in any way. We review this claim under State v. Golding, supra, 213 Conn. 233, because it is of constitutional magnitude alleging the violation of a fundamental right; see State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993); and the record is adequate to permit review.

Our Supreme Court has held that the mere possibility that a jury could have found otherwise is not ground for upsetting a verdict. A verdict must be sustained unless the jury could not have reasonably or logically inferred guilt beyond a reasonable doubt from the evidence presented at trial. State v. Ford, 230 Conn. 686, 692-93, 646 A.2d 147 (1994).

The review of a claim of insufficient evidence involves a two part analysis. In making the assessment, the court must first “construe the evidence in the light most favorable to sustaining the verdict.” (Internal quotation marks omitted.) State v. Roy, 38 Conn. App. 481, 488, 662 A.2d 799 (1995), cert. denied, 237 Conn. 902, 674 A.2d 1333 (1996). Second, the court must determine “whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) Id.

The evidence presented by the state and accepted by the juiy tended to show that the defendant sped rapidly down the street away from Allen, that he veered onto the sidewalk and struck Castagna and Kardys, and that he continued down the road until a police van blocked his path. Construing the evidence in the light most favorable to sustaining the verdict, we are satisfied that the jury reasonably could have concluded that the defendant “recklessly engage [d] in conduct [that created] a risk of death to another person, and thereby cause[d] serious physical injury to another person.” General Statutes § 53a-59 (a) (3). The defendant’s claim fails to satisfy the third prong of Golding.

V

The defendant’s final claim, which was not preserved at trial, is that his convictions for both attempted possession of narcotics and attempted possession of narcotics within 1500 feet of a school violate the protections against double jeopardy provided under the state and federal constitutions. Because the record is adequate to review this alleged claim of error and the claim is of constitutional magnitude, we conclude that the first two prongs of Golding are met and that the claim is reviewable.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial.” (Internal quotation marks omitted.) State v. Patrick, 42 Conn. App. 640, 644, 681 A.2d 380 (1996).

“Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 290-91, 579 A.2d 84 (1990).

. In the present case, both charges undisputedly arise from the same act or transaction because “it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser.” (Internal quotation marks omitted.) State v. Morin, 180 Conn. 599, 601, 430 A.2d 1297 (1980). Specifically, the defendant could not have been guilty of violating §§ 53a-49 (a) (2) and 21a-279 (d), attempted possession of narcotics within 1500 feet of a school, without having first committed the crime of attempted possession of narcotics as defined by §§ 53a-49 (a) (2) and 21-279 (a).

In analyzing whether two offenses constitute the same offense, the United States Supreme Court has stated that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Emphasis added.) Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In the present case, the two offenses constitute the “same offense” under Blockburger analysis, because only one of the offenses requires proof of an additional fact that the other does not, that fact being that the defendant was within 1500 feet of a school when he attempted to sell narcotics. The analysis, however, does not end here.

“[T]he Blockburger test is not a conclusive presumption of law; Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985); but is a rule of statutoiy construction and should not be controlling where there is a clear indication of contrary legislative intent. Missouri v. Hunter, 459 U.S. 359, 367, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). As a rule of statutory construction, the Blockburger test ‘does no more than create a rebuttable presumption.’ State v. Delgado, 19 Conn. App. 245, 251-52, 562 A.2d 539 (1989). The determinative question is whether the legislature intended the offenses to be separate. State v. Smart, 37 Conn. App. 360, 365, 656 A.2d 677 [cert. denied, 233 Conn. 914, 659 A.2d 187] (1995).” State v. Braswell, 42 Conn. App. 264, 269, 679 A.2d 407 (1996), appeal dismissed, 243 Conn. 248, 701 A.2d 1057 (1997).

“The United States Supreme Court has held that ‘where ... a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or juiy may impose cumulative punishment under such statutes in a single trial.’ ” State v. Patrick, supra, 42 Conn. App. 648. This court has concluded that legislative intent to authorize cumulative punishment is evidenced by “the language, structure and legislative history of a statute . . . .” (Internal quotation marks omitted.) Id., 647.

We conclude that the language of § 21a-279 (d) manifests the legislature’s clear intent to impose cumulative punishment for violating § 21a-279 (a) within 1500 feet of aschool. Section 21a-279 (d) provides that possession within 1500 feet of a school be punished by imprisonment “for a term of two years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of subsection (a), (b) or (c) of this section.” (Emphasis added.)

The legislative history of § 21a-279 (d) demonstrates that in enacting § 21a-279 (d), the legislators intended to impose cumulative punishment. During the Senate hearings on Public Acts 1989, No. 89-256, Senator John Atkin stated, “The previous law only required the extra sentence for the sale of and now we’re adding possession. I think this will go a long way to keep these drugs away from our children.” 32 S. Proc., Pt. 10,1989 Sess., p. 3606. Representative Chiistel Truglia expressed similar sentiments in the General Assembly: “I rise in support of this bill to increase penalties for illegal sale or possession of drugs near school grounds. The drug problem is one of the most serious issues facing our cities, state and country. . . . The message here is that the state will not tolerate the corruption of our youth. Our criminal justice system’s ability to fight the war on drugs is enhanced by this bill to a great extent.” 32 H.R. Proc., Pt. 11, 1989 Sess., pp. 3863-64.

Because we conclude that the legislature intended and authorized cumulative punishments for violations of § 21a-279 (a) and (d), we hold that the defendant’s convictions of both do not violate the prohibition against double jeopardy.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when . . . (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       General Statutes § 53a-167a (a) provides: “Aperson is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 21a-279 (d) provides: “Any person who violates subsection (a), (b) or (c) of this section in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school and who is not enrolled as a student in such school or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place, shall be imprisoned for a term of two years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of subsection (a), (b) or (c) of this section.”

       General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined find imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       In a reverse sting, undercover police officers target purchasers of drugs by posing as sellers.

       Kardys wore a blue jacket with a badge insignia on the front breast and the words “Crime Suppression” on the back. Castagna wore a blue jersey with a golden badge insignia and the words “Hartford Police” on the front.

       The exchange at trial was as follows:
      "[Defense Counsel]: Your Honor, [he has] received a settlement for personal injuries for an accident or occurrence. Now that [he has] testified that this is an intentional act, that he was run down, I think I should be allowed to ascertain if in fact he signed a release. I don’t know about the money. It’s not necessary for me to get the amount of the money in the settlement, but I think I should be allowed to ask him if he didn’t sign a piece of paper or release involving this case in which he signed a paper for an accident or occurrence. It’s a tacit admission, Your Honor, is what it is.
      "The Court: Admission of what?
      “[Defense Counsel]: It’s a tacit admission of what he’s testifying here today, that he was assaulted, that there’s other indicia that he’s received money for negligence.
      “[Assistant State’s Attorney]: I would object, Your Honor. First of all, I do not believe that what counsel’s talking about constitutes an admission. Number two, I do not think that’s relevant.
      “[Defense Counsel]: Well, Your Honor, I’ve looked at [rule] 408 of the federal rules [of evidence]. Obviously, offers of settlement or compromise are not allowable. However, to show bias, prejudice—

        “The Court: How would the fact that [he has] already had his settlement show bias and prejudice? . . . [He has] already participated, received— you think that because [he has] received it, it’s an ongoing prejudice?
      “[Defense Counsel]: Your Honor, when the defendant was charged with assault, an intentional act, this witness made claims under negligence.
      “The Court: So?
      “[Defense Counsel]: So, they’re in contrast, Your Honor.
      “The Court: Contrast to what?
      “[Defense Counsel]: He’s saying this is an intentional act, Your Honor. His testimony, Your Honor, since it’s cross-examination I should be allowed to impeach him. How far that impeachment goes—I would agree that I don’t think I should be able to put in the amounts.
      “The Court: And I’ll listen to the state’s position. But you can ask him if [he has] been involved in an insurance settlement over this matter. If the answer’s yes, you’re out of there.
      “[Defense Counsel]: I’d like to ask the words on the release, Your Honor. That is, for an accident or occurrence that he signed off on. I don’t necessarily need the money, because I don’t think that’s relevant.
      “[Assistant State’s Attorney]: I would object. I believe the only relevant thing that counsel can ask is did you make a claim and was there a settlement of that claim.
      “The Court: That’s exactly right. And that’s all I’m going to allow you .... You can have an exception. Did you make a claim and was there a settlement offer? As far as—you know one of the points on the record ... is this officer does not have any control over which statute the state prosecution brings. ... So, I’ll restrict the questions to did you file a claim in this particular matter and was that matter settled.”

       Chief State’s Attorney John Kelly, whose office submitted the original bill, also testified before the General Assembly’s judiciary joint committee. He stated that the bill was designed to target “those people on the outside who deal drugs, possess drugs or paraphernalia .... The intent is to obviously hit hard at these outsiders . . . . These are going to be mandatory consecutive sentences and have an impact.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1989 Sess., pp. 1193-94.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    IRIS W. LORD v. PAUL H. MANSFIELD ET AL.
    (AC 17122)
    (AC 18035)
    O’Coimell, C. X, and Foti and Daly, Js.

      Argued June 8
    officially released August 25, 1998

      Max F. Brunswick, with whom, on the brief, was John R. Williams, for the appellant (plaintiff).

      Frederick W. Krug, for the appellees (defendants).
   Opinion

FOTI, J.

In the first of these consolidated appeals, the plaintiff appeals from the trial court’s judgment rendered in favor of the defendants on the plaintiffs complaint and on the defendants’ counterclaim. The second appeal is the plaintiffs appeal from the trial court’s judgment of civil contempt. In the first appeal (17122), the plaintiff claims that the trial court improperly (1) excluded evidence, (2) limited the plaintiffs testimony, (3) refused to hear rebuttal evidence, (4) denied the plaintiffs motion to amend her complaint and (5) concluded that the plaintiffs actions were extreme and outrageous, intentionally inflicting emotional distress on the defendants. In the second appeal (18035), the plaintiff claims that the trial court improperly awarded a compensatory amount to the defendants after the plaintiffs actions were found to be in contempt of a court order.

I

The parties are owners of adjoining parcels of land in Woodbury. The plaintiff commenced this action seeking a judgment declaring that she had acquired, by adverse possession, a strip of land between the common boundary of the two properties and a split rail fence about six to eight feet from that boundary. Her complaint also sought damages for the defendants’ intentional infliction of emotional distress in connection with this property dispute. The defendants disputed the claims and filed a counterclaim asking the court to confirm the boundary line as they requested, and to award damages for the plaintiffs intentional infliction of emotional distress.

On April 8, 1997, after a lengthy trial, the trial court filed its twenty-two page memorandum of decision, finding against the plaintiff on her complaint and for the defendants on their counterclaim. Each defendant was awarded $15,000 in compensatory damages, and the court further granted the defendants a permanent injunction in accordance with their request for relief. With respect to the defendants’ claim for punitive damages for the plaintiffs intentional infliction of emotional distress, the trial court concluded that such were warranted and appropriate, and scheduled a supplemental hearing on April 25,1997, “for evidence about the defendants’ litigation expenses.”

On April 25, 1997, the plaintiff filed her appeal from “the memorandum of decision and judgment dated April 8, 1997.” Thereafter, on July 15, 1997, the trial court filed its seven page memorandum of decision, awarding the defendants punitive damages of $1815.

The trial court’s original judgment of April 8, 1997, disposed of both counts of the plaintiffs complaint and, therefore, constitutes an appealable final judgment as to the complaint. Practice Book (1998 Rev.) § 61-2. The plaintiffs first four issues on appeal relate to that judgment and may be reviewed by this court. Her fifth issue, however, challenges the trial court’s judgment on the defendants’ counterclaim for intentional infliction of emotional distress. Because this appeal was taken prior to the July 15, 1997 determination as to the amount of punitive damages due the defendants on that claim, we must, as aprehminary matter, decide whether an appealable final judgment had been rendered on the counterclaim at the time the appeal was taken. The parties were notified and addressed this issue, which appears to be one of first impression, at oral argument.

Generally, a judgment as to liability only that leaves the amount of damages unresolved is not an appealable final judgment. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985). “It is well established that appellate courts in this state do not have jurisdiction to entertain appeals not taken from final judgments. See General Statutes § 52-263; State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The lack of a final judgment is a jurisdictional defect that mandates dismissal.” Connecticut National Bank v. Rytman, 241 Conn. 24, 34, 694 A.2d 1246 (1997). While a judgment is not final where the trial court has yet to rule on a claim for prejudgment interest; Balf Co. v. Spera Construction Co., 222 Conn. 211, 214-15, 608 A.2d 682 (1992); a judgment on the merits is final for purposes of appeal even if the recoverability or amount of counsel fees remains to be determined. Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988).

In distinguishing prejudgment interest from attorney’s fees, the Balf Co. court concluded that prejudgment interest was part of the plaintiffs compensation and not collateral to the judgment in the main cause of action. The court stated that “unlike attorney’s fees, which at common law were regarded as an element of costs and therefore not part of the merits judgment. . . prejudgment interest traditionally has been considered part of the compensation due [the] plaintiff. Second, unlike a request for attorney’s fees or a motion for costs, a motion for discretionary prejudgment interest does not rais[e] issues wholly collateral to the judgment in the main cause of action . . . nor does it require an inquiry wholly separate from the decision on the merits . . . . In deciding if and how much prejudgment interest should be granted, a district court must examine—or in the case of a postjudgment motion, reexamine— matters encompassed within the merits of the underlying action. . . . Osterneck v. Ernst & Whinney, [489 U.S. 169, 175-76, 109 S. Ct. 987, 103 L. Ed. 2d 146 (1989)]. Third, the conclusion that a postjudgment motion for discretionary prejudgment interest postpones the finality of a judgment on the merits helps further the important goal of avoiding piecemeal appellate review of judgments. Id., 177.” (Internal quotation marks omitted.) Balf Co. v. Spera Construction Co., supra, 222 Conn. 214-15.

The Supreme Court in Balf Co. held that the plaintiffs right to recovery of prejudgment interest “is part of its claim to be made whole. Whether it succeeds will depend upon an assessment of the underlying merits of the transaction between the parties. An appeal after a resolution of all the issues will afford an appellate court a better opportunity to review in its entirety the alleged ‘wrongfulness of the defendant’s conduct and the plaintiffs full damages, as well as other matters of equity bearing on the merits of the litigation.’ [Osterneck v. Ernst & Whinney, supra, 489 U.S. 177].” Balf Co. v. Spera Construction Co., supra, 222 Conn. 215. Our inquiry, then, is whether punitive damages represent part of the compensation due the plaintiff, as part of her “claim to be made whole.” We conclude that they do.

Punitive damages are limited to the plaintiffs litigation expenses less taxable costs. Berry v. Loiseau, 223 Conn. 786, 827, 614 A.2d 414 (1992). Although attorney’s fees may be the primary component of litigation expenses, and have been regarded as an element of costs and not part of the “merits judgment”; Balf Co. v. Spera Construction Co., supra, 222 Conn. 214; punitive damages serve a different end and have a different purpose than attorney’s fees. Some purposes are clearly not intended to be for compensation to the plaintiff, i.e., “ ‘to vindicate the public interest, not that of a particular plaintiff ”; Freeman v. Alamo Management Co., 221 Conn. 674, 679, 607 A.2d 370 (1992), quoting M. Wheeler, “The Constitutional Case for Reforming Punitive Damages Procedures,” 69 Va. L. Rev. 269, 292 (1983); “not merely to deter a particular defendant from future misconduct but to deter others from committing similar wrongs.” Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 562-63, 562 A.2d 1100 (1989) (punitive damages awarded as to loss of consortium claim).

Our Supreme Court, however, has observed: “In Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., [193 Conn. 208, 477 A.2d 988 (1984)] . . . [w]e affirmed the continuing viability of a long line of cases holding that common law punitive damages serve primarily to compensate the plaintiff for his injuries and, thus, are properly limited to the plaintiffs litigation expenses less taxable costs. . . . We remain convinced that a rule limiting punitive damages awards to the expenses of litigation less taxable costs ‘fulfills the salutary purpose of fully compensating a victim for the harm inflicted on him while avoiding the potential for injustice which may result from the exercise of unfettered discretion by a jury.’ [Id., 238].” (Citations omitted.) Berry v. Loiseau, supra, 223 Conn. 827. Punitive damages in Connecticut are not designed “to punish the defendant for his offense but rather to compensate the plaintiff for his injuries.” Miller v. Drouin, 183 Conn. 189, 190, 438 A.2d 863 (1981); see also Virgo v. Lyons, 209 Conn. 497, 503-504, 551 A.2d 1243 (1988); Tedesco v. Maryland Casualty Co., 127 Conn. 533, 538, 18 A.2d 357 (1941); Doroszka v. Lavine, 111 Conn. 575, 578, 150 A. 692 (1930).

Because we conclude that punitive damages are designed to compensate the injured party fully, we also conclude, as in Balf Co., that the judgment is not final under these circumstances. We therefore dismiss that portion of the plaintiffs appeal challenging the judgment on the defendants’ counterclaim.

II

The plaintiff also appeals from the judgment rendered for the defendants on her complaint. The plaintiff does not challenge any of the trial court’s findings of fact. Additionally, the plaintiff does not contest the trial court’s ultimate conclusion that she was unable to prove continuous adverse use of the properly in dispute for an uninterrupted period of fifteen years, thereby requiring a judgment for the defendants on her claim of adverse possession. We therefore find it unnecessary to set forth the facts as found except as required for each issue.

A

The plaintiff first claims that the trial court improperly excluded testimony concerning conduct by other members of the defendants’ family, specifically their adult children. The proffered evidence was excluded by the court because it found that the acts or statements of nonparties were not relevant in the absence of any foundation that they had acted as agents of the defendants. In addition, the court found that because the defendants’ children were not parties to the action, the evidence exceeded “the scope of the allegations in the complaint.”

It is well established that a trial court has broad discretion in ruling on the admissibility and relevancy of evidence, and its ruling on evidentiary matters will be overturned only on a showing of a clear abuse of that discretion. Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn. App. 699, 706, 700 A.2d 1179 (1997). “The proffering party bears the burden of establishing the relevance of the offered testimony.” State v. Barnes, 232 Conn. 740, 747, 657 A.2d 611 (1995). “Unless a proper foundation is established, the evidence is irrelevant.” State v. Beliveau, 237 Conn. 576, 586, 678 A.2d 924 (1996).

The trial court concluded that the plaintiff failed to prove any of the allegations of harassment. On appeal, the plaintiff has failed to sustain her burden of demonstrating that the excluded evidence would have in any way affected the result of her emotional distress claim. After reviewing the record, we conclude that the trial court did not abuse its discretion in refusing to admit the evidence.

B

The plaintiff next claims that the trial court improperly limited her testimony. The record discloses that after the plaintiff had testified for nearly five hours in support of her emotional distress claim, the trial court allowed her one additional hour, commenting that her testimony was “not presented in any sort of reasonable fashion with appropriate respect for the time demands of this court.” When the plaintiff failed to complete her testimony within the hour allotted, the court refused to hear further testimony. The plaintiff neither objected nor made an offer of proof as to what she would have said had she been allowed to continue.

Our review of the record does not disclose a clear abuse of discretion in the trial court’s actions. The plaintiff, having failed to make an offer of proof, cannot demonstrate that the court’s action was harmful. If the plaintiff wanted to preserve this claim for appellate review, she should have presented an offer of proof. See State v. Conrod, 198 Conn. 592, 597, 504 A.2d 494 (1986). It is the appellant’s burden to ensure that we are provided with an adequate appellate record to support her claim. Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). “Without an adequate record on which to review the rulings of the trial court, this court must assume that the trial court acted properly. Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979); Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971).” State v. James L., 26 Conn. App. 81, 86, 598 A.2d 663 (1991).

C

The plaintiff next claims that the trial court improperly refused to allow her to present rebuttal evidence. After the parties had rested on the adverse possession and quiet title counts, the plaintiff sought to present three “rebuttal” witnesses. Because the plaintiff had proceeded on her claim involving emotional distress and had not requested permission or reserved the right to present rebuttal witnesses, the trial court sustained the defendants’ objection. The trial court refused to open the first segment of the trial dealing with adverse possession. The plaintiff made no formal offer of proof, but did indicate that the witnesses would testify “that there was no fence between the two parties, the Stevens and the Gibson property, from approximately 1956 to 1962 when the Mansfields purchased their property.”

“In order to establish adverse possession, the claimant must oust an owner of possession and keep such owner out uninterruptedly for fifteen years by open, visible and exclusive possession under a claim of right with intent to use the property as his own and without the consent of the owner.” Clark v. Drska, 1 Conn. App. 481, 485, 473 A.2d 325 (1984). “ ‘In the final analysis, whether possession is adverse is a question of fact for the trier.’ Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980).” Goodrich v. Diodato, 48 Conn. App. 436, 442, 710 A.2d 818 (1998). Because the trial court concluded, and it has not been disputed, that the plaintiff failed to prove adverse use for a continuous period of fifteen years, the rebuttal testimony would not have been relevant. Therefore, the plaintiff cannot demonstrate harmfulness.

D

The plaintiff finally claims that the trial court improperly refused to allow her to amend her complaint to conform to the evidence. After the trial had concluded and the parties had fully briefed the issues, the plaintiff filed a motion requesting permission to amend her complaint to add a third count claiming a prescriptive easement and a fourth count alleging that a fence erected by the defendants violated General Statutes § 52-570. The court sustained the defendants’ objection.

It is within the discretion of the trial court to grant or deny an amendment; the trial court’s decision will not be disturbed unless there is a clear abuse of discretion. Lawson v. Godfried, 181 Conn. 214, 216-17, 435 A.2d 15 (1980). Here, no such abuse of discretion is clearly evident where the amendment, offered after trial, purported to conform the pleadings to the proof but, in reality, raised two issues neither pleaded nor litigated. We have held that “[t]he cause of action of title by adverse possession and of the acquisition of an easement by prescription are two different causes of action.” Sanford v. Dimes, 3 Conn. App. 639, 640, 491 A.2d 398 (1985). Furthermore, the plaintiff did not produce any evidence to satisfy the elements of a violation of § 52-570. We conclude, therefore, that the trial court did not abuse its discretion in denying the plaintiffs amendment.

We affirm the judgment rendered in favor of the defendants on the plaintiffs complaint.

Ill

In the second of these consolidated appeals, the plaintiff appeals from the judgment of contempt rendered on January 2, 1998. We affirm the judgment of the trial court.

Following an evidentiary hearing on the defendants’ motion for contempt, the trial court found that the plaintiffs actions during an incident on July 1,1997, involving an altercation with the defendants, were wilful and in violation of the permanent injunction issued on April 8, 1997. Pursuant to the injunction, the plaintiff had been enjoined from “trespassing or entering on the property of the defendants,” and from “any and all further acts of harassment against the defendants.” In finding the plaintiff in contempt, the trial court credited the testimony of the defendants, which was corroborated in some respects by the observations of a police officer. The court awarded the defendants $1485 as reasonable attorney’s fees pursuant to General Statutes § 52-256b, and $275.55 as a fine, payable to the defendants to compensate them for losses sustained “to defend the breach of peace charge, which arose out of the plaintiffs conduct and which was ultimately nolled.”

While the plaintiffs statement of issues appears to raise the propriety of the finding of contempt, her brief adequately addresses only a purported abuse of discretion by the court in imposing the compensatory fine of $275.55. Because the plaintiff does not contest the findings relied on by the court to conclude that her actions were wilful and in violation of the court order, we again find it unnecessary to recite specific facts found by the trial court, except as they relate to the sole issue presented.

The police officer who responded to the scene of the altercation ultimately gave both the plaintiff and the defendant Pauline Mansfield a summons for breach of the peace. The trial court accepted the defendants’ evidence that they had incurred attorney’s fees of $275.55 to defend the breach of the peace charge, which had resulted from the plaintiffs actions in contempt of the court order. The issue on appeal is whether the award of $275.55, as a compensatory fine, is improper as a matter of law and, if not, whether the court abused its discretion in awarding this amount.

There is no question that the contempt order was a civil order. See CFM of Connecticut, Inc. v. Chowdhury, 38 Conn. App. 745, 748-49, 662 A.2d 1340 (1995), aff'd, 239 Conn. 375, 685 A.2d 1108 (1996). “Sanctions for civil contempt may be either a fine or imprisonment; a fine may be remedial or it may be the means of coercing compliance with the court’s order and compensating the complainant for losses sustained. . . . The fine imposed for a civil contempt may be payable to the complainant as compensation for his loss.” (Citations omitted.) Dunham v. Dunham, 217 Conn. 24, 28 n.3, 584 A.2d 445 (1991). Because a compensatory fine may be imposed as part of a civil contempt, our sole remaining inquiry is whether the trial court abused its discretion. Our review of the record fails to disclose any abuse of discretion; the plaintiff has also failed to demonstrate such.

The appeal challenging the judgment on the counterclaim is dismissed; the judgments are affirmed.

In this opinion the other judges concurred.

       The plaintiff, together with her agents and servants, were “permanently enjoined from trespassing or entering on the property of the defendants known as 164 Sycamore Avenue, Woodbury, including the disputed property,” and were “further enjoined from any and all further acts of harassment against the defendants.”

       Practice Book (1998 Rev.) § 61-2 provides in relevant part: “When judgment has been rendered on an entire complaint, counterclaim or cross complaint, whether by judgment ... or otherwise, such judgment shall constitute a final judgment. . . .”

       The parties were notified on May 29, 1998, as follows: “The court has directed that the parties should be prepared to address whether that portion of the appeal challenging the award of damages on the counterclaim should be dismissed for lack of a final judgment because the amount of punitive damages had not yet been determined at the time the appeal was taken. See Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 85, 495 A.2d 1063 (1985); but cf. Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988) Qudgment on merits final even though amount of attorney’s fees remains to be determined).”

       The plaintiff testified initially on September 12, 1996, for nearly five hours. When the trial resumed on November 8, 1996, she completed one additional hour of testimony. Our review of the transcripts discloses that the testimony was not any more organized on the second occasion.

       The trial court allowed the plaintiff to present two witnesses who were unavailable to testify during the plaintiffs case-in-chief on the adverse possession count.

       General Statutes § 52-570 provides: “Action for malicious erection of structure. An action may be maintained by the proprietor of any land against the owner or lessee of land adjacent, who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land.”

       General Statutes § 52-256b (a) provides: “When any person is found in contempt of any order or judgment of the Superior Court, the court may award to the petitioner a reasonable attorney’s fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt.”

       The plaintiff stated the issue: “Did the court abuse its discretion in finding the plaintiff in civil contempt for an incident in which the defendants were arrested by the investigating police officer, and in imposing as a part of the penalty for such contempt the costs incurred by the defendants in defending against the criminal prosecution initiated by the police officer and the state’s attorney?”

       The sole reference to the trial court’s finding of contempt appears to be that “the court abused its discretion in finding the plaintiff in contempt, and punishing her, for the discretionary actions of the arresting officer and the state’s attorney in arresting and prosecuting the defendant in connection with that incident. . . . [T]he arrest and prosecution of the defendant was apparently a part of the court’s basis in holding the plaintiff in contempt.”


author: KULAWIZ, J.

text:
    STATE OF CONNECTICUT v. BRUNO TETI
    (AC 17090)
    O’Connell, C. J., and Foti and Kulawiz, Js.

      Argued June 8
    officially released August 25, 1998

      Kenneth J. Bartschi, with whom were Wesley W. Horton and, on the brief, Robert M. Shields, Jr., and James M. Marinetti, for the appellant (defendant).

      Lisa Herskowits, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Paul Rotiroti, deputy assistant state’s attorney, for the appellee (state).
   Opinion

KULAWIZ, J.

The defendant, Bruno Teti, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (2). On appeal, the defendant claims that (1) there was insufficient evidence to support the conviction, (2) the trial- court improperly communicated ex parte with the jury and (3) the trial court inadequately instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 20, 1995, sometime between 1 a.m. and 1:30 a.m., Walter Darden of New Britain awoke to the sound of spinning tires. Darden looked out of his window and saw someone inside a vehicle trying to remove it from a snowbank. Darden could not identify the person inside the vehicle and he called the police. Five or ten minutes later, Darden looked out his window again and saw someone standing by the driver’s door of the vehicle. No one else was in the area.

Officer Stephen King of the New Britain police department was the first officer to arrive. King did not see anyone in or near the vehicle. King, however, did see footprints that went from the driver’s door to the back of the vehicle and then away from the vehicle. King saw no footprints other than those and his own.

King went to speak with Darden. While King was gone, Officer Eric Peck of the New Britain police department arrived. The defendant arrived next.

Peck asked the defendant if he knew what had happened. The defendant initially did not respond and then stated that he was with some friends, one of whom had driven the vehicle. The defendant refused, however, to identity his friends. The defendant denied drinking alcohol that night and admitted that the vehicle was his. Peck saw “crisp” footprints that matched those of the defendant.

While speaking with the defendant, the officers noticed that the defendant was staggering and slurring his speech. The officers then administered field sobriety tests to the defendant at the scene, which he failed. The officers arrested him and transported him to police headquarters, where he was administered two tests showing blood alcohol levels of 0.169 percent and 0.149 percent, both well above the legal limit.

I

The defendant first claims that there was insufficient evidence to support his conviction. Specifically, the defendant contends that the state failed to present evidence from which a jury could conclude beyond a reasonable doubt that the defendant operated a motor vehicle while under the influence of liquor or drugs. We disagree.

The defendant and a witness, Tina Espinosa, a neighbor of the defendant, testified at trial to a different version of the events. The defendant presented evidence that at about; 1 a.m. on December 20, 1995, Espinosa’s daughter became ill and needed medicine. Espinosa asked the defendant if she could borrow his car to go to a store. The defendant consented and Espinosa left with the car. When Espinosa was on her way home, the vehicle slid into a snowbank. Espinosa unsuccessfully tried to remove the vehicle from the snowbank.

Espinosa walked to the defendant’s house to tell him what happened. The defendant told her not to worry about it, and Espinosa went home to bed. The defendant went to investigate the vehicle. It took the defendant about thirty seconds to get from his house to the accident scene. Upon arriving, the defendant found that the vehicle was locked, and he went around the back of the vehicle to a parking lot to ask a snowplow driver for help. The snowplow driver agreed to help, and the defendant walked back to the accident scene, assuming that the snowplow driver would follow. The officers then interviewed the defendant, administered sobriety tests to him and arrested him. The defendant claims that because the evidence does not preclude the reasonable hypothesis that the only person operating the vehicle was Espinosa, the evidence was insufficient to support a conviction.

“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.” (Citations omitted.) State v. Scales, 38 Conn. App. 225, 228, 660 A.2d 860 (1995).

The defendant was charged with operating a motor vehicle while under the influence of liquor or drugs. A person operates a motor vehicle within the meaning of § 14-227a (a) (2) “when in the vehicle he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle.” State v. Ducatt, 22 Conn. App. 88, 90-91, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990).

The state was required to prove beyond a reasonable doubt that the defendant operated a motor vehicle while under the influence of liquor or drugs. The defendant did not dispute that his blood alcohol content exceeded the legal limit or that Whiting Street is a public highway as that term is used in § 14-227a (a) (2). The defendant merely claims that the state’s evidence was insufficient to prove beyond a reasonable doubt that he was the person who drove into and tried to remove the vehicle from the snowbank.

The state could not proffer any direct evidence proving that the defendant was the operator of the vehicle. Because operating the vehicle is an essential element of the crime, that element must be proven beyond a reasonable doubt. State v. Harris, 227 Conn. 751, 757, 631 A.2d 309 (1993). However, “[w]hile the jury must find every element proven beyond a reasonable doubt in order to luid the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Adams, 225 Conn. 270, 276-77, 623 A.2d 42 (1993).

The state’s case was based on circumstantial evidence. “There is no distinction between direct and circumstantial evidence as far as probative force is concerned . . . .” (Internal quotation marks omitted.) State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984). In fact, “circumstantial evidence may be more certain, satisfying and persuasive than direct evidence.” (Internal quotation marks omitted.) State v. Scales, supra, 38 Conn. App. 229. In a case involving circumstantial evidence, we must examine “the cumulative impact of a multitude of factors in order to determine whether the identification of the defendant has been satisfactorily established by the circumstantial evidence.” Id.; State v. Salz, 226 Conn. 20, 38, 627 A.2d 862 (1993). “If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” State v. Smith, 138 Conn. 196, 200, 82 A.2d 816 (1951).

In the present case, the circumstantial evidence, when viewed in the light most favorable to sustaining the verdict, was sufficient for a jury to find that the defendant was the operator of the vehicle. First, Peck testified that there was only one set of footprints coming from the vehicle and that the footprints matched the defendant’s. Moreover, the only footprints in the area were those of the defendant and the police officers. Therefore, the jury reasonably could have concluded that the defendant operated the vehicle and reasonably could have rejected the defendant’s claim that either a snowplow destroyed Espinosa’s footprints or snow covered them. Footprints, together with other circumstantial evidence of guilt, are sufficient to sustain a conviction. See State v. Scales, supra, 38 Conn. App. 229-30.

Second, both times within a ten minute period when Darden looked out his window, he saw someone standing by the vehicle. The defendant conceded that he was the person whom Darden saw the second time. The jury reasonably could have found that the defendant did not have time between sightings to go home and return to the accident scene. Therefore, the jury reasonably could have concluded that Darden saw the defendant each time that he looked out of his window.

Third, there was evidence of the defendant’s consciousness of guilt. A jury can properly draw an inference from consciousness of guilt evidence. State v. Sivri, 231 Conn. 115, 130, 646 A.2d 169 (1994). In this case, evidence of guilt consisted of the defendant’s (1) ignoring Peck’s initial question of what happened, (2) claiming that he had been riding in the vehicle with his friends and (3) denying to the officers that he had been drinking. From that evidence, the jury reasonably could have concluded that the defendant was trying to hide from the officers that he had operated a motor vehicle while intoxicated.

The defendant argues that his conviction must be reversed because the evidence does not preclude the reasonable hypothesis that the only person operating the vehicle was Espinosa. We disagree.

Our Supreme Court has rejected similar claims. In State v. Sivri, supra, 231 Conn. 115, the defendant argued that his conviction of murder must be reversed because the evidence did not preclude the reasonable hypothesis that he killed the victim with less than an intentional state of mind. The defendant in that case relied on State v. Carpenter, 214 Conn. 77, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992), as his authority. The Carpenter court stated that “fa] conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” (Internal quotation marks omitted.) Id., 84. The Sivri court, however, rejected the defendant’s use of Carpenter and held that the defendant’s “argument is based upon a fundamental misconception of the relationship between the principles articulated in Carpenter and our well established and traditional scope of review of jury verdicts.” State v. Sivri, supra, 132.

Similarly, in the present case, the defendant bases his argument on a fundamental misunderstanding of the traditional scope of review of jury verdicts. The jury’s role as trier of fact is to draw reasonable and logical inferences from the facts as it finds them to exist. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Sivri, supra, 231 Conn. 132.

The defendant’s reasonable hypothesis argument is directly contrary to our traditional scope of review of jury verdicts. In the present case, the defendant has presented a theory by which the jury could have acquitted him. The jury heard testimony from the defendant and Espinosa that Espinosa had been the operator of the vehicle. The jury, however, chose not to believe this testimony. The jury is the sole judge of the credibility of witnesses. SFP Tisca v. Robin Hill Farm, Inc., 244 Conn 721, 731, 711 A.2d 1175 (1998). Therefore, even though the defendant could describe to the jury a situation that could support a reasonable hypothesis of innocence, the jury reasonably interpreted the evidence to support a verdict of guilty. “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” Sivri, supra, 231 Conn. 134.

II

The defendant’s second issue on appeal is whether the trial judge improperly communicated ex parte with the jury. The defendant claims that the trial judge’s written ex parte response to the jury’s question was improper and presumptively prejudicial. We disagree.

Additional facts are necessary to our resolution of this claim. During deliberations, the jury made a written request to the trial court to review a police report that was not admitted into evidence. The court called counsel into chambers and discussed the jury’s request with them. Instead of bringing the jury into open court to answer the question, however, the court wrote directly on the jury’s note that “[y]ou may not review the police report. It was not offered into evidence by either party. There are endless reasons as to why certain documents are not offered as exhibits, and you should not speculate as to why this document wasn’t. You may rightfully consider any references that were made to the report during trial.” The court clerk marked the note from the jury and the judge’s response as a court exhibit.

Later that day, the court read on the record its response to the jury’s question. The defendant did not object and the jury was excused for the day. At the sentencing hearing six weeks later, the defendant moved for a new trial because the court improperly communicated ex parte with the jury. The court denied the defendant’s motion, ruling that even if it had committed error, the error was harmless.

Practice Book § 42-7, formerly § 845, provides that “[a]ll communications from the jury to the judicial authority shall be in writing. The judicial authority shall require that a record be kept of all communications received by it from a juror or the jury after the jury have been sworn, and it shall not communicate with a juror or the jury on any aspect of the case itself, as distinguished from matters relating to physical comforts and the like, except after notice to all parties and reasonable opportunity for them to be present.” In a criminal trial, ex parte conversations between the judge and jury are constitutionally prohibited. State v. McCall, 187 Conn. 73, 81-82, 444 A.2d 896 (1982). “ ‘Even when communication occurs between the judge and a juror after deliberations have begun, however, prejudice must be found to warrant a mistrial. . . . In a criminal case the burden is on the state to show that the communication was harmless beyond a reasonable doubt.’ ” (Citation omitted.) State v. Wooten, 227 Conn. 677, 706, 631 A.2d 271 (1993).

We conclude from our review of the record that the state demonstrated that the trial court’s actions were harmless beyond a reasonable doubt. The absence of prejudice “was shown in this case by the full and immediate disclosure in open court of what had transpired . . . .” (Internal quotation marks omitted.) State v. McCall, supra, 187 Conn. 82. The record indicates that when the jury sent the note requesting to see the police report, the court discussed the request with counsel in chambers. The court, later that day, read on the record its response to the jury’s question. The defendant did not object to the court’s actions until the sentencing hearing. Because the court’s response was made a court exhibit and because the court read its response on the record, the defendant knew exactly what the court wrote to the jury. The defendant does not object to the content of the court’s response to the jury’s question. Therefore, even if the court’s actions were improper, they did not prejudice the defendant.

Ill

The defendant’s final issue on appeal is whether the trial court inadequately instructed the jury. Specifically, the defendant claims that the trial court gave the jury a defective curative instruction that left the jury with the impression that the court “sided with the state [regarding] a significant piece of evidence.” We disagree.

Additional facts are necessary to our resolution of this claim. During its closing argument, the state mentioned that Darden had testified that the snow was lessening when the accident occurred. The defendant objected, arguing that the state mischaracterized the evidence. The state, in response, withdrew the statement.

Before the court charged the jury, the defendant argued to the court that unless the court played back Darden’s testimony to the jury, the court would be preventing the defendant from receiving a fair trial. The court disagreed and instead, during its jury charge, read a curative instruction regarding the objection. Moreover, throughout its charge, the court reminded the jury that its recollection of the evidence was controlling.

Following the charge, the defendant claimed that his right to a fair trial had been violated. The court disagreed. “In reviewing a challenge to jury instructions, we must examine the charge in its entirety.” Felsted v. Kimberly Auto Services, Inc., 25 Conn. App. 665, 668, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991). “[C]ommenting on evidence rests within the discretion of the trial court and impropriety will be found only where that discretion has been abused.” Geren v. Board of Education, 36 Conn. App. 282, 287, 650 A.2d 616 (1994), cert. denied, 232 Conn. 907, 653 A.2d 194 (1995). The trial court’s comments must be reasonable, and the court must not misstate facts or evidence. Id., 287-88.

“ ‘The jury are presumed to follow the court’s directions in the absence of a clear indication to the contrary.’ ” State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). “[Cjurative instructions are entitled to great weight and ordinarily prevent an appellate court from finding that the trial court committed reversible error.” (Internal quotation marks omitted.) State v. Youdin, 38 Conn. App. 85, 94, 659 A.2d 728, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995).

Our review of the record reveals that the trial court did not abuse its discretion. The trial court properly instructed the jury that even if the court’s recollection of the evidence was incorrect, the jury’s recollection of the evidence was controlling and that the jury should disregard any of the court’s comments regarding that evidence. The defendant failed to provide us with evidence that the jury did not follow the court’s instructions.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state ... (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       The court read the following curative instruction: “I’d like first to bring up one issue. If you recall, prior to the recess, during the final argument. . . for the state. . . counsel for the defense objected to the characterization of the testimony of Mr. Darden as to whether or not the snow had begun to stop. The court overruled the objection and indicated that my recollection was the same. The court may have been mistaken in this recollection, as could either counsel have been. You are, therefore, advised to disregard any statement made by the court on those facts and to rely completely and solely on your own recollection. In addition, Mr. Darden’s testimony, regarding this issue, as with any testimony that has been given in this case, may be played back to the jury upon your request when you are making your deliberations.”


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. DARRELL JOHNSON
    (AC 17858)
    O’Connell, C. X, and Laveiy and Spear, Js.
    Argued May 28
    officially released August 25, 1998

      Mark J. Welsh, deputy assistant public defender, with whom, on the brief, was Louis J. Hanna, certified legal intern, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Jeffrey Doskos, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, who had been convicted of the crimes of unlawful restraint in the second degree, attempt to commit assault in the third degree and threatening, appeals from the judgment of the trial court revoking his probation and ordering that he serve the balance of a suspended sentence. The defendant claims that the trial court, after finding a violation of probation, violated Practice Book § 43-10 (3), formerly § 919 (3), either by not giving the defendant an opportunity to address the court or by not inquiring whether the defendant wanted to address the court before the court ordered a disposition. The trial court’s action at the time was consistent with this court’s holding in State v. Strickland, 42 Conn. App. 768, 777-78, 682 A.2d 521 (1996), in which we concluded that there was no right of allocution in a violation of probation proceeding. Our Supreme Court’s later reversal of that decision; State v. Strickland, 243 Conn. 339, 703 A.2d 109 (1997); compels us, in the exercise of our supervisory authority, to reverse the judgment of the trial court.

There is no dispute about the operative facts. On May 22, 1996, the defendant was sentenced to a term of three years, execution suspended after six months, with a probationary term of two years. While on probation, the defendant was arrested and charged with violating the terms of his probation with respect to counseling and anger management. A violation of probation hearing was conducted and, at the completion of the evidence, the trial court found that the defendant had violated the terms of his probation and ordered that he serve the balance of the suspended sentence. Immediately thereafter, the court adjourned. This appeal followed.

The state first asserts that the defendant’s claim is not reviewable because it was not raised in the trial court. The defendant did not ask to be heard and was silent as the court found a violation and proceeded to a disposition. That silence, the state maintains, distinguishes this case from State v. Strickland, supra, 243 Conn. 339, in which our Supreme Court held that the right of allocution provided for in Practice Book § 919 (3), now § 43-10 (3), applies to revocation of probation dispositions as well as to sentencing hearings. In Strickland, the defendant did ask the court for an opportunity to speak and the court refused to hear him. On appeal, we affirmed the trial court’s refusal because we concluded that Practice Book § 919 (3) did not apply to revocation of probation dispositions. Reversing our decision, our Supreme Court held, inter alia, that considerations of procedural fairness, as well as the perception of fairness, required that § 919 (3) be applied to the separate and distinct disposition phase of probation revocation proceedings. In so holding, the court stated that “revocation of probation proceedings embody a form of sentencing.” Id., 351.

Although the defendant here did not request an opportunity to be heard prior to disposition, we will, nevertheless, review his claim pursuant to our supervisory powers. See Practice Book § 60-2, formerly § 4138. Our decision in Strickland was released on September 3, 1996, and was the controlling law at the time of the disposition of this case on October 9,1997. The Supreme Court opinion in State v. Strickland, supra, 243 Conn. 339, was released on December 2, 1997. It would be unfair to penalize the defendant for failing to request an opportunity to speak in view of our decision that a defendant had no such right in a probation revocation disposition. Accordingly, we may invoke our supervisory authority to review a claim that was not raised in the trial court where we deem it appropriate because of the nature and significance of the issue. See West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, 507, 636 A.2d 1342 (1994). Under the facts of this case, our concern that judicial proceedings not only be fair, but have the appearance of fairness, compels the exercise of our supervisory power and review of the defendant’s claim.

Practice Book § 43-10 (3) mandates that the defendant be given “a reasonable opportunity to make a personal statement” and to present mitigating information. The sequence of events here clearly shows that the defendant never had a reasonable opportunity to speak. “[U]nder [General Statutes] § 53a-32, a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial eviden-tiary hearing to determine whether the defendant has in fact violated a condition of probation. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge . . . and shall have the right to cross-examine witnesses and to present evidence in his own behalf. General Statutes § 53a-32 (a). If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. General Statutes § 53a-32 (b). In making this second determination, the trial court is vested with broad discretion.” (Citation omitted; internal quotation marks omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994).

By finding a violation of probation, ordering immediately that the defendant serve the balance of the suspended sentence and then adjourning for the day, the trial court deprived the defendant of a reasonable opportunity to exercise his right of allocution. It is not necessary, therefore, for us to address the defendant’s claim that Practice Book § 43-10 (3) mandates that the trial court inquire of a defendant whether the defendant wants to speak.

The state also asserts that because the defendant testified in the first phase of the proceedings and his counsel addressed the court after that phase concluded, he was allowed “the functional equivalent of allocution” and, therefore, any error is harmless. This claim is without merit. The defendant has a right to address the court before disposition pursuant to Practice Book § 43-10 regardless of whether he has testified and counsel has argued during the first phase of the probation revocation hearing.

Pursuant to State v. Strickland, supra, 243 Conn. 339, we conclude that a new disposition hearing is required in the interests of fairness to the defendant.

The judgment as to the disposition is reversed and the case is remanded for another dispositional phase of the probation revocation proceedings, before a different judge, in which the defendant is to be allowed the right of allocution.

In this opinion the other judges concurred.

       Practice Book § 43-10 (3), formerly § 919 (3), provides: “The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence.”

       The defendant was also charged with a criminal offense, but that claim was not pursued in the revocation proceedings.

       The defendant’s assertion that we may review this claim pursuant to the plain error doctrine is obviously without merit, as it can hardly be plain error for the trial court to have acted in a manner that was consistent with then existing law.