author: Per Curiam.

text:
    James J. Drummond v. Edmund J. Hussey
    (9075)
    Nokcott, Lavery and Landau, Js.
    Argued January 9
    decision released March 19, 1991

      R. Bartley Halloran, with whom, on the brief, was Jeffrey Holley, for the appellant (defendant).

      Alfred J. Garofolo, for the appellee (plaintiff).
   Per Curiam.

The defendant in this conversion action appeals from the trial court’s refusal to charge in accordance with his requests, and challenges the court’s instruction to the jury. We affirm the judgment of the trial court.

The defendant’s first claim is that the trial court did not charge on the concepts of express and implied contracts or on the theory of quantum meruit. These contract issues were not raised in the pleadings, however, and are not supported in the evidence. The trial court need charge only on those points of law that arise pursuant to the claims of proof advanced by the parties in their pleadings. Nesbitt v. Mulligan, 11 Conn. App. 348, 351, 527 A.2d 1195, cert. denied, 205 Conn. 805, 531 A.2d 936 (1987); see Tierney v. American Urban Corporation, 170 Conn. 243, 250, 365 A.2d 1153 (1976). The court does not have a duty to submit to the jury issues that are not supported by the evidence. See Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982); Miles v. Sherman, 116 Conn. 678, 682, 166 A. 250 (1933).

The defendant also claims that the trial court, in its charge, improperly instructed the jury to disregard the words “wrongfully” and “fraudulently” included in the first count of the plaintiff’s amended complaint. This count states that “the defendant wrongfully, fraudulently and without authority issued checks to himself or for his benefit, which checks represented funds which were rightfully the property of the plaintiff thereby converting such funds to his own use.” The trial court clearly determined that the facts pleaded were “sufficient to support a claim of conversion” and that it regarded the use of the word “fraudulently” as surplusage. “ ‘[T]he interpretation of pleadings is always a question of law for the court . . . .’” Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). In addition, “[t]he allegations of the complaint must be given ‘ “such reasonable construction as will give effect to [it] in conformity with the general theory which it was intended to follow, and do substantial justice between the parties. ” ’ (Emphasis in original.)” Burns v. Koellmer, 11 Conn. App. 375, 382, 527 A.2d 1210 (1987), quoting Cahill v. Board of Education, supra. The trial court, therefore, properly instructed the jury on the issue of conversion.

The defendant’s final claim is that the trial court failed to instruct the jury on the issue of consent. A trial court need not charge the jury in the language requested. “ ‘ “[E]rror cannot be predicated on a failure to adopt the particular language of a request to charge where the matter is adequately and fairly covered in the charge.” ... A charge must be read as a whole; the test is not whether it is exhaustive, letter perfect or technically accurate . . . but whether the charge as a whole fairly presented the case so that no injustice was done.’ ” (Citations omitted.) Rogers v. Delfino, 13 Conn. App. 725, 728, 539 A.2d 156 (1988). In its instructions to the jury on the elements of conversion, the court employed the words “unauthorized assumption,” “unauthorized acts” and “without any authority.” The issue of consent is implicit in this language. The totality of the court’s charge thus provided the necessary guidance for the jury to make its determination.

The judgment is affirmed.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Goldblatt Associates v. Lynn Panza
    (8981)
    O’Connell, Foti and Heiman, Js.
    Submitted on briefs January 9
    decision released March 19, 1991

      Robert L. Sweeney, Jr., filed a brief for the appellant (plaintiff).

      Laurence P. Nadel filed a brief for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment rendered for the defendant in an action, tried to the court, for a real estate commission. The plaintiff claims that the trial court improperly concluded (1) that the plaintiff was not entitled to a real estate commission unless it obtained a sublease prior to the expiration of the listing agreement, and (2) that recovery under quantum meruit is precluded by General Statutes § 20-325a (b). We affirm the judgment of the trial court.

The court found the following facts. In the summer and early fall of 1986, the defendant operated a takeout restaurant and a retail store on opposite sides of Whitney Avenue in New Haven. Charlotte Goldblatt, a licensed real estate broker who is president of the plaintiff company, learned in casual conversation with the defendant that she was considering closing the retail store and wanted to find a sublessee to take over her obligation under a multi-year lease of the premises. Goldblatt brought a client, Sheila Reigelmann, to look at the retail space some months before entering into an open listing agreement with the defendant for the sublease of the premises. This agreement stated that the defendant gave the plaintiff “the right to obtain a sub-lessee for the premises listed above,” that the sublease price was to be $1985, that the listing term was to be one month beginning on September 22,1986, and that the plaintiff would receive a commission of 6 percent of the remaining portion of the gross lease. The agreement also stated that the plaintiff “acknowledges that this is not an exclusive listing and requests that you [Panza] notify us if another sub-lease is negotiated by the owner or any other agent.”

During the listing period, Reigelmann looked at the premises and measured it, but did not enter a sublease agreement. The one month listing agreement expired without the plaintiffs obtaining a sublessee. On November 14,1986, Reigelmann entered into a sublease of the premises. The plaintiff played no role in the negotiation or preparation of the sublease. The defendant had no contact with Reigelmann during the term of the listing agreement, nor did she do anything to induce Reigelmann to delay her decision to sublease the premises. Reigelmann was a bookkeeper who was considering opening a woman’s clothing store, and she took an extended period of time looking for a location. Reigelmann did not decide to sublease the premises in question until after the term of the listing period had expired.

The court also found that at one time Reigelmann had presented the plaintiff with a check that was payable to the plaintiff but that there was no evidence that this check had any relationship to the terms of the sublease or that it was provided to the plaintiff in connection with any particular anticipated transaction.

The listing agreement prepared by the plaintiff was an open listing for a specific time period that required the plaintiff to obtain a sublessee. The court found that during the one month period the plaintiff had neither obtained a sublessee nor brought the parties to an enforceable agreement nor produced a ready, willing and able customer, and, therefore, in the absence of an extension clause, the plaintiff was not entitled to a commission.

On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous, and, where the legal conclusions of the trial court are challenged, we must determine whether they are legally and logically correct and whether they are supported by the facts set out in the memorandum of decision. Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 304, 552 A.2d 827 (1989).

It is clear “that a broker who has, in accordance with a listing contract, found a [lessee] ready, willing, and able to [lease], on the owner’s own terms, is entitled to its commission . . . .” Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 242, 440 A.2d 306 (1982).

Assuming a valid, written listing contract in conformity with the requirements of General Statutes § 20-325a, the broker is entitled to a commission on whatever terms the listing contract stipulates. William Pitt, Inc. v. Taylor, 186 Conn. 82, 84, 438 A.2d 1206 (1982).

The court’s findings that the parties entered into a binding listing agreement, that the plaintiff did not bring a sublessee and the defendant to an enforceable agreement during the listing period, and that the listing agreement contained no extension clause are undisputed. The plaintiff prepared the listing agreement which contained the formal requirements that attached to it. The parties could have agreed to terms in the listing agreement that would have entitled the plaintiff to a commission without first having to obtain a sublease but in this instance they did not. Under the terms of this agreement, the plaintiff must do more than merely find or locate a party that is ready, willing and able to lease on the defendant’s terms; it actually had to obtain the sublease. In light of these circumstances, we conclude that the trial court’s findings were not clearly erroneous. Because the plaintiff had not met its burden of proving that it had obtained a sublessee in accordance with the terms of the listing contract, the trial court’s determination that the plaintiff was not entitled to recover its commission was not erroneous.

There is no merit to the plaintiff’s claim that the trial court erroneously held that recovery for a real estate broker was not available under the theory of quantum meruit. “Listing contracts are governed exclusively by § 20-325a”; William Pitt, Inc. v. Taylor, supra. If the listing agreement should prove faulty, such as its not being in compliance with § 20-325a, the broker is precluded from recovering in quantum meruit; Good v. Paine Furniture Co., 35 Conn. Sup. 24, 27-28, 391 A.2d 741 (1978); or from seeking equitable relief; Currie v. Marano, 13 Conn. App. 527, 532, 537 A.2d 1036, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988). Although this case does not involve noncompliance with § 20-325a (b), a careful reading shows that by its terms this statute limits recovery to the terms of the contract between the parties. We conclude that the trial court correctly determined that recovery in quantum meruit is not an available theory of recovery in this case.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Spallone, J.

text:
    City of Hartford v. IAFF, Local 760, AFL-CIO, CLC
    (9195)
    Dupont, C. J., Spallone and Heiman, Js.
    Argued January 15
    decision released March 19, 1991

      Brian A. Doyle, with whom, on the brief, was James C. Ferguson, for the appellant (defendant).

      Helen Apostolidis, assistant corporation counsel, for the appellee (plaintiff).
   Spallone, J.

On appeal from the judgment of the trial court vacating an arbitration award, the defendant claims that the court improperly concluded that the arbitrators exceeded their authority by granting relief in excess of the parties’ submission. We agree with the defendant and reverse the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. The plaintiff city of Hartford and the defendant Local 760 of the International Association of Fire Fighters, AFL-CIO, CLC, entered into a written collective bargaining agreement that, among other things, provided a multiple step procedure for the resolution of grievances, culminating in arbitration before the Connecticut state board of mediation and arbitration.

On January 30, 1985, a grievance was filed by the defendant alleging that the fire chief of Hartford had violated the collective bargaining agreement by prohibiting firefighters from wearing leather helmets. The pertinent section of the collective bargaining agreement alleged to have been violated provides that “The City will continue to furnish uniforms and replacements under existing practice.” After the parties failed to resolve the issue, they agreed to submit the following issues for arbitration: (1) “Is this grievance arbitrable?” (2) “If so, did the City of Hartford violate Section 3.7 of the 1981-1984 contract when it replaced leather helmets with polycarbon helmets?” (3) “If so, what shall the remedy be?”

After a full hearing, the board of mediation and arbitration ruled as follows: (1) “Based on the weight of the evidence presented, this panel finds the instant grievance arbitrable,” and (2) “The City of Hartford violated Section 3.7 in 1981-1984 contract when it replaced leather helmets with polycarbon helmets. The City is ordered to replace the current polycarbon helmets with OSHA approved Cairns New Yorker 5A helmets.” The arbitration panel found that helmets were included within the meaning of the word “uniforms” as that word is used in the contract and concluded that the city was obligated to continue to furnish helmets to the firefighters “under existing practice.”

Upon review, the trial court granted the plaintiff’s application to vacate the award. Although the court agreed that the issues presented to the board were arbitrable, the court concluded that the remedy awarded by the arbitration panel exceeded the submission. The court reasoned that because the submission mentioned only leather helmets, the arbitrators exceeded the powers conferred by the submission by specifically awarding Cairns New Yorker 5A leather helmets. The defendants appeal from the decision to vacate.

Consensual arbitration, as an alternative means of settling disputes and avoiding the “ ‘formalities, delay, expense and vexation of ordinary litigation’ Diamond Fertiliser & Chemical Corporation v. Commodities Trading International Corporation, 211 Conn. 541, 546, 560 A.2d 419 (1989); has frequently been endorsed as a “ ‘favored means of settling differences’ ”; Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338, 555 A.2d 406 (1989); Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985); and is afforded a great deal of autonomy. The scope of judicial review is limited, in cases where the arbitrator’s authority is challenged, to a comparison of the award to the submission and a determination of whether the award conforms to the submission. Watertown Police Union Local 541 v. Watertown, supra, 338-39; Stratford v. Local 134, IFPTE, 201 Conn. 577, 584, 519 A.2d 1 (1986). The court may not review the award for errors of law or fact. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981). Where the parties have consented to arbitration and have framed the issue submitted, we “make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings.” O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987). The party challenging an arbitration award, therefore, bears the burden of demonstrating that the award violates the parties agreement. Id., 145-46. On the basis of the record provided in this case, we conclude that the plaintiff has not met its burden.

The plaintiff failed to provide the trial court with the transcripts of the proceedings before the arbitration panel. On the basis of the record before it, the trial court noted that it could not find any reference to Cairns New Yorker 5A helmets but that it “might assume that the ‘Cairns . . . helmets’ were the helmets in use ‘under existing practice’ under the agreement.” If those helmets were in use under existing practice, the arbitration panel, of course, could have properly fashioned a remedy calling for the city of Hartford to continue to supply them under the terms of the contract. Such an award would not exceed the submission where the parties asked the arbitration panel to interpret the meaning of a contract provision requiring the city to continue providing “uniforms . . . under existing practice.” If the plaintiff wanted to establish that the existing practice did not involve Cairns New Yorker 5A helmets, it should have provided the trial court with the transcript of the proceeding before the arbitration panel.

The stipulated submission by the parties was unrestricted and afforded the arbitrators broad power to fashion an appropriate remedy. In agreeing to an unrestricted submission, the parties authorized the arbitration panel “to use [its] own judgment and discretion and to render an appropriate award.” Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 294, 377 A.2d 323 (1977).

In light of the governing precedent, we must presume, as the trial court should have, that the arbitration panel acted properly. As the plaintiff has failed to establish that the panel exceeded its authority, the panel’s decision must be confirmed.

Although the trial court may have disagreed with the arbitrators’ remedy and may not have shared their conclusions, the court is precluded from substituting its own conclusions for that of the arbitrators. Diamond Fertiliser & Chemical Corporation v. Commodities Trading International Corporation, supra, 549; O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 153; Board of Education v. Bridgeport Education Assn., supra, 291.

The judgment is reversed and the case is remanded with direction to render judgment confirming the arbitrators’ award.

In this opinion the other judges concurred.

       The grounds on which the Superior Court may vacate an arbitration award are set forth in General Statutes § 52-418 (a). There are only two very narrow exceptions to the rule that a court may not substitute its own conclusions for the findings of the arbitrators. These exceptions occur where the arbitrators rule on the constitutionality of a statute or order a party to engage in conduct in clear violation of public policy. New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 416, 544 A.2d 186 (1988).


text:
    State of Connecticut v. David Farr
    (9431)
    Spallone, Landau and Heiman, Js.
    Submitted on briefs January 10
    decision released March 19, 1991

      MarkS. Solak, state’s attorney, Timothy J. Sugrue, assistant state’s attorney, and Roger Caridad, deputy assistant state’s attorney, filed a brief for the appellant (state).

      Arthur P. Meisler filed a brief for the appellee (defendant).
   Spallone, J.

The state of Connecticut appeals from the judgment of the trial court dismissing an information against the defendant after that court granted the defendant’s motion to suppress evidence seized from his vehicle at the time of his arrest. On appeal, the state claims that the trial court improperly ruled that the warrantless search of the defendant’s closed and locked glove compartment was not constitutionally permissible as a search incident to the arrest of the defendant. We agree with the state and reverse the judgment of the trial court.

The facts relevant to this claim are as follows. On March 2,1990, at approximately 12:30 a.m., Willimantic police officers Michael Cancellaro and Kenneth Buchanan, while patrolling in a marked car, observed a 1985 Volvo proceed through a red traffic light. As the officers turned their vehicle to give chase, the Volvo accelerated in the opposite direction, resulting in a high speed chase during which the Volvo ran three more red traffic lights and illegally passed four other vehicles.

After the Volvo came to a halt, Buchanan saw the defendant remove the keys from the ignition, reach over and lock the glove compartment and then return the keys to the ignition. Upon approaching the vehicle, Cancellaro requested the defendant to produce his motor vehicle documents. Cancellaro detected a strong odor of alcohol on the defendant’s breath and observed that the defendant exhibited slurred speech, glassy, darting eyes and had difficulty with his motor skills. The defendant was ordered to exit the vehicle and, after he failed several field sobriety tests that were administered by Cancellaro, he was arrested for driving under the influence of intoxicating liquor. The defendant was then handcuffed and placed in the backseat of the patrol car.

While in the process of arresting the defendant, Cancellaro directed other officers at the scene to search the defendant’s car for any evidence of drunken driving. Buchanan and Officer Joseph Yarchak searched the passenger area of the vehicle including the glove compartment which they opened with the defendant’s key. The officers discovered and seized approximately four ounces of marihuana from inside the glove compartment. The patrol car, with the defendant inside, remained at the scene of the arrest during the search of the Volvo and the discovery of the marihuana.

At the suppression hearing, the state maintained that the defendant was lawfully arrested and that the search of the vehicle was permissible as a search incident to that arrest. The defendant did not challenge the legality of the arrest, but maintained that because he was handcuffed and in the back of a patrol car when the search was conducted, thus “away from the scene,” the search was not a permissible search incident to his arrest. The trial court concluded that the search of the defendant’s glove compartment was not proper because “the defendant was under arrest, handcuffed, and held in the back of the police cruiser when the search was undertaken.”

Under both the federal and state constitutions, a warrantless search is per se unreasonable, subject to well defined exceptions. State v. Januszewski, 182 Conn. 142, 151-52, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). One such exception is the search of an automobile as incident to a lawful custodial arrest. New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); State v. Delossantos, 211 Conn. 258, 263-66, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Quinones, 21 Conn. App. 506, 510, 574 A.2d 1308 (1990).

In New York v. Belton, supra, the United States Supreme Court held “that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” The court recognized that searches incident to arrests have long been considered valid because of the need to remove any weapons that the arrestee might seek to use in resisting arrest or in effectuating an escape and the need to prevent the concealment or destruction of evidence. Similarly, our Supreme Court has stated that “when police make a lawful custodial arrest of an occupant of an automobile, and the arrestee is detained at the scene, police may contemporaneously search without a warrant the interior passenger compartment of the automobile.” State v. Delossantos, supra, 266-67. The glove compartment of an automobile is within the permissible scope of a vehicle search made incident to an arrest. See New York v. Belton, supra, 460-61 n.4 (passenger compartment includes closed or open glove compartments); State v. Delossantos, supra, 267 (passenger compartment encompasses all space reachable without exiting the vehicle); State v. Hull, 210 Conn. 481, 556 A.2d 154 (1989). The validity of a vehicle search that is made incident to a lawful custodial arrest does not depend on the existence of probable cause to believe that the vehicle contains contraband or evidence of a crime. See, e.g., New York v. Belton, supra, 462 n.6; State v. Delossantos, supra, 26.7 n.4. The only probable cause required in a search incident to an arrest is probable cause to support the underlying arrest.

In reaching its conclusion, the trial court relied on our Supreme Court’s decision in State v. Badgett, 200 Conn. 412, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). In Badgett, the defendant had been stopped by the police for speeding. After the officer discovered that there were outstanding arrest warrants for the defendant, the defendant was arrested, handcuffed, and placed in a police vehicle. While a search of the defendant’s automobile was under way, the officer left the scene with the defendant. Upon review, our Supreme Court held that, in a warrantless search of an automobile incident to a lawful arrest, “the right of a police officer to search the vehicle ceases the instant the arrestee departs the scene because the arrestee’s removal forecloses any possibility that he could reach for an article within the vehicle.” Id., 428. In that case, the Supreme Court further stated that a warrantless search of a vehicle incident to a lawful arrest is constitutionally permissible “while the arrestee remains at the scene of the arrest at the time the search is conducted.” Id.

This issue was later addressed in State v. Hull, supra. In that case, the defendant was arrested for driving while intoxicated. After handcuffing the defendant and placing him in the back of a police vehicle, the officer returned to the defendant’s truck and opened the closed glove compartment. In so doing, the officer found two knives that were later admitted into evidence in the defendant’s trial for the murder of his wife. As to the defendant’s claim that the search was impermissible, the court stated that “[t]he defendant mistakenly relies upon State v. Badgett, supra, to support his claim that the search of his truck was unrelated to his arrest and hence unconstitutional. Although we recognized in Badgett that a lawful arrest ceases to provide justification for the warrantless search of an automobile once the arrestee is taken from the scene of the arrest; id., 427-28; that limitation on New York v. Belton is inapplicable in this case. The search that took place here falls within the general rule of New York v. Belton that ‘a lawful custodial arrest justifies a contemporaneous search of the entire passenger compartment of an automobile, whether or not the arrestee actually had control over the area.’ State v. Badgett, supra, 425. The defendant concedes that he had not been removed from the scene of his lawful arrest at the time of the search of his truck, and the search was, therefore, constitutionally valid as incident to a legal arrest.” State v. Badgett, supra, 496-97.

It is clear, therefore, that the permissibility of a vehicle search made incident to a lawful custodial arrest is not defeated when the arrestee is removed from his vehicle, handcuffed and placed in a patrol car. State v. Hull, supra, 497; State v. Calovine, 23 Conn. App. 123, 127-28, 579 A.2d 126 (1990); United States v. Karlin, 852 F.2d 968, 970-71 (7th Cir. 1988), cert. denied, 489 U.S. 1021, 109 S. Ct. 1142, 103 L. Ed. 2d 202 (1989); United States v. McCrady, 774 F.2d 868, 870-71 (8th Cir. 1985); see also State v. Delossantos, supra, 261-62 (arrestee removed from car and handcuffed); State v. Quinones, supra, 510-11; United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir. 1985).

The search of the defendant’s glove compartment was proper as a search incident to a lawful arrest. Accordingly, the trial court improperly ruled that the search was unlawful.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion to suppress and for further proceedings according to law.

In this opinion the other judges concurred.


author: Heiman, J.

text:
    State of Connecticut v. Clyde Turner
    (8923)
    Dupont, C. J., O’Connell and Heiman, Js.

      Argued January 7
    decision released March 19, 1991

      Susan M. Hankins, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gerald Esposito, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (l) and assault in the second degree with a deadly weapon in violation of General Statutes § 53a-60 (a) (2). He claims that (1) the trial court should not have submitted the charge of attempt to commit assault in the first degree to the jury because (a) the evidence was insufficient to support the elements of intent or substantial step and (b) the evidence proffered on this charge permitted a rational hypothesis that was inconsistent with guilt, (2) the court permitted the jury to go beyond the confines of the substantial step that was alleged in the information, (3) the court improperly instructed the jury on an uncharged statutory allegation that was not supported by the evidence, (4) the court improperly charged the jury with respect to the meaning of proof beyond a reasonable doubt, and (5) the court improperly charged the jury in such a manner as to cast the burden on the defendant to prove his innocence. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. On January 22,1989, at approximately 6:30 p.m., Antoinette Russell and Tina Flowers exited a building on Blatchley Avenue in New Haven. A car approached the area and the vehicle struck Flowers. The defendant exited the vehicle with a gun in his hand and told both women to “come here.” The defendant approached Russell and pointed the gun at her face. The gun clicked, but it did not fire. Flowers had started to walk down the street, away from the defendant, when she heard shots. One bullet hit her in the back of the leg. Flowers was hospitalized because of her resulting injury. The defendant was later apprehended by the New Haven police who were responding to a radio broadcast about the shooting. No weapon was found, but a .38 caliber bullet was found in the defendant’s pocket.

I

The defendant challenges the sufficiency of the evidence regarding the charge of attempt to commit assault in the first degree. He first posits that the state failed to establish that the defendant possessed the requisite intent to cause serious physical injury to Russell, and, secondly, he claims that the state failed to prove that the actions of the defendant constituted a substantial step in a course of conduct intended to culminate in an assault. Thus, he claims that two essential elements of § 53a-49 (a) (2) were not established. We do not agree.

When called upon to review a challenge to the sufficiency of the evidence, we are required to apply a two-pronged analysis. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, from the facts established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Dawson, 23 Conn. App. 720, 722-23, 583 A.2d 1326 (1991).

In his attack on the sufficiency of the evidence on the element of intent, the defendant claims that one of the victim’s testimony was self-contradictory and that the testimony of the two victims was inconsistent. The defendant further claims that the clearest evidence of his lack of intent to attempt to commit assault in the first degree against Russell is the fact that only Flowers was shot.

The evidence taken in the light most favorable to sustaining the verdict indicates that the defendant aimed the gun at Russell and pulled the trigger. Although the gun clicked, it did not fire. The jury could reasonably have inferred from this evidence that the defendant intended to cause serious physical injury to Russell.

“The intent of the actor is a question for the trier of fact, and the conclusion of the trier in this regard should stand unless it is an unreasonable one.” State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980). Further, when the conclusion is one that is dependent on the resolution of conflicting testimony, it should ordinarily be left to the jury for its judgment. State v. Torello, 100 Conn. 637, 647-48, 124 A. 375 (1924).

The jury was free to credit the testimony that the defendant pointed the loaded gun at Russell, pulled the trigger, and that the gun clicked but did not fire. Crediting this testimony, we cannot say that an inference that the defendant intended to inflict serious physical injury on Russell was either unreasonable or illogical. “ Tt was within the province of the [trier] to draw reasonable and logical inferences from the facts proven. . . .’” (Citations omitted.) State v. Avcollie, supra, 470. “Also, the jury can draw an inference from the facts they found as the result of other inferences.” Id. Thus, the evidence presented at trial amply supported the existence of the requisite intent. See State v. Green, 194 Conn. 258, 273, 480 A.2d 526, cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1984).

Drawing a second arrow from his quiver to attack the sufficiency of the evidence, the defendant claims that the state failed to establish that his conduct was a substantial step in a course of conduct planned to culminate in the commission of an assault as was alleged in the information. We do not agree.

We have previously reviewed the facts that the jury could reasonably have found, including the fact that the defendant pointed a loaded gun at Russell’s face and pulled the trigger, but the gun clicked and did not fire.

Our Supreme Court has stated that “ ‘ “the attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption . . . or for other extrinsic cause.” State v. Wilson, 30 Conn. 500, 506 [1862]; State v. Enanno, 96 Conn. 420, 427, 114 A. 386 [1921].’ State v. Mazzadra, [141 Conn. 731, 736, 109 A.2d 873 (1954)]. In Mazzadra, as noted earlier, we also said that ‘[t]he acts done must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the [defendant] at least to be possible of commission by the means adopted.’ State v. Mazzadra, supra, citing 1 Wharton, Criminal Law (12th Ed.) § 221. Each case depends upon its own factual pattern. State v. Mazzadra, supra.” State v. Green, supra, 276. What constitutes a substantial step in any given case is a question of fact to be resolved by the trier of fact under proper instructions. State v. Green, supra, 277.

“ ‘ “To constitute a ‘substantial step,’ the conduct must be ‘strongly corroborative of the actor’s criminal purpose.’ . . . ‘The application of this standard will, of course, depend upon the nature of the intended crime and the facts of the particular case. . . . This standard properly directs attention to overt acts of the defendant which convincingly demonstrate a firm purpose to commit a crime.’ ” (Citations omitted.)’ ” State v. Washington, 15 Conn. App. 704, 717, 546 A.2d 911 (1988).

Our review of the evidence satisfies us that “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

Finally, with respect to his sufficiency of the evidence claims, the defendant posits that because the evidence supports a rational hypothesis that is inconsistent with the defendant’s guilt of the crime of attempt to commit assault in the first degree as to the victim Russell, that the verdict cannot stand. We do not agree.

“ ‘A 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.’ ” State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984). “ ‘But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition.’ ” Id.; State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982); State v. Foord, 142 Conn. 285, 294-95, 113 A.2d 591 (1955). “ ‘Emphasis needs to be placed on the distinction between the word “reasonable” and the word “possible.” . . . Proof of guilt must exclude every reasonable supposition of innocence .... “[A] mere 'possible hypothesis’ of innocence will not suffice.” ’ (Citations omitted.) State v. Englehart, 158 Conn. 117, 121-22, 256 A.2d 231 (1969).” State v. Morrill, supra, 611.

II

The defendant next claims that the trial court improperly charged the jury by authorizing it to go beyond the confines of the specific substantial step that was alleged in the information, in violation of the defendant’s right to due process under the state and federal constitutions. We do not agree.

In the course of its charge, while explaining the concept of an act’s being a substantial step, the court used the language “whether the accused did anything which constituted a substantial step . . . .” The court then immediately went on to summarize the evidence relating to the substantial step that was alleged in the information. Later in the charge, the trial court used the language “did something which constituted a substantial step” and finally, in a supplemental charge, the court used language, “he intentionally does anything.” From these few phrases, the defendant argues that the trial court’s charge impermissibly expanded the area of the jury’s inquiry about what the claimed substantial step was.

The language about which the defendant now complains tracks almost exactly his request to charge. He nonetheless claims that he is entitled to an adjudication of this claim on the basis of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Ordinarily, action induced by an appellant cannot be a ground for error. State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987). “It seems a bit disingenuous [however] for the defendant to claim the trial court committed error by instructing the jury . . . when he requested an instruction on that very issue. At least, where no constitutional rights are violated, when an accused requests in writing that an issue be submitted to the jury, he cannot, on appeal, claim error in its submission. State v. Hinckley, 198 Conn. 77, 81 n.2, 502 A.2d 388 (1985).” State v. Scognamiglio, supra.

Our examination of the record leads us to conclude that the portion of the charge about which the defendant now complains did not, in any way, expand the crime charged against the defendant. The charge that was given fairly met the issues presented. In our view, these instructions could not have misled the jury into assuming that they might properly convict the defendant on the basis of anything that was not grounded in the evidence. See State v. Quintana, 209 Conn. 34, 43, 547 A.2d 534 (1988).

Thus, the defendant cannot prevail on his unpreserved claim because he has failed to satisfy the second and third prongs of the Golding test on this issue. State v. Golding, supra, 239-40.

Ill

The claims raised by the defendant in part III of his brief have been disposed of by our discussion in parts I and II of this opinion.

Specifically, we concluded above that the court’s charge did not impermissibly expand the criminal liability of the defendant, and that there was more than sufficient evidence for the jury to have found all of the requisite elements of the crimes charged beyond a reasonable doubt.

IV

A

The defendant complains that the trial court violated his federal and state constitutional rights by instructing the jury that a reasonable doubt “is a doubt for which a reasonable man or woman can give a valid reason.”

The defendant concedes that no exception was taken to the trial court’s charge on the issue of reasonable doubt. Further, the language about which the defendant now complains is taken from his own request to charge. See State v. Scognamiglio, supra. Nonetheless, the defendant claims a right of review under State v. Evans, supra, and State v. Golding, supra. We disagree.

The record reveals that the instructions on the issue of reasonable doubt are the same or similar to jury instructions that have been approved by the Supreme Court. See, e.g., State v. Brown, 199 Conn. 14, 28, 505 A.2d 690 (1986); State v. Palmer, 196 Conn. 157, 168-69, 491 A.2d 1075 (1985); State v. Just, 185 Conn. 339, 353, 441 A.2d 98 (1981). It is clear after reading the court’s charge in its entirety that the jury was more than adequately informed as to the nature of the requirement of proof beyond a reasonble doubt. A charge to the jury is not to be critically dissected or examined in isolation from the charge as a whole. State v. Reed, 174 Conn. 287, 304-305, 386 A.2d 243 (1978). The test to be applied to any portion of the charge is whether the charge as a whole presents the case to the jury so that no injustice will be done. State v. Piskorski, 177 Conn. 677, 746, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The charge in this case met this test.

Because there was no clear deprivation of a fundamental constitutional right, we will follow the example of our Supreme Court, and decline to review the defendant’s claim relating to reasonable doubt under State v. Evans, supra, and (State v. Golding, supra. State v. Thomas, 214 Conn. 118, 120, 570 A.2d 1123 (1990).

B

The defendant finally claims that the charge placed a burden on him to prove his innocence and that its emphasis on the concept of innocence injected an extraneous concept irrelevant to the constitutionally mandated standard.

The defendant points to no specific part of the trial court’s charge to support either of these claims.

We have examined the court’s charge as a whole and we are satisfied that it fully, fairly and impartially instructed the jury with respect to the state’s burden of proof and the defendant’s presumption of innocence. State v. Piskorski, supra; see also State v. Thomas, supra.

The defendant’s claims are unsupported by the record and are without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides in pertinent part: “criminal attempt: sufficiency of conduct; renunciation as defense, (a) 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 § 53a-59 provides in pertinent part: “assault IN THE first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-60 provides in pertinent part: “assault in the second degree: class d felony, (a) A person is guilty of assault in the second degree when . . . (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       Because the defendant has not presented a separate analysis under the state constitution, we will consider his claims under the federal constitution only. See State v. Ortiz, 217 Conn. 648, 665 n.13, 588 A.2d 127 (1991).

       “It is for you to determine on the evidence whether the accused intentionally did anything which constituted a substantial step in a course of conduct which he planned to culminate in the commission of assault in the first degree as to Antoinette Russell.
      “Now the state claims, as I mentioned, that the defendant pointed a handgun in the direction of Ms. Russell and pulled the trigger. Although no shot was fired, the state claims the defendant intended to cause Antoinette Russell serious physical injury by pointing a loaded gun in her direction and pulling the trigger.
      “The defendant claims on the other hand that no credible evidence was introduced which demonstrated that the defendant had the requisite intent to cause Antoinette Russell serious physical injury nor that any steps were taken toward commission of the crime of assault in the first degree.” (Emphasis added.)

       “To briefly sum it up, on the first count charging attempted assault first degree, it will be your duty to decide whether the state has proven beyond a reasonable doubt that the defendant, Clyde Turner, intentionally attempted to cause serious physical injury to Antoinette Russell by the use of a deadly weapon, and that he intentionally did something which constituted a substantial step in an effort to commit the crime of assault in the first degree.” (Emphasis added.)

       The court stated: “The attempt statute says: ‘A person is guilty of an attempt to commit a crime if acting with the kind of mental state required for the commission of the crime he intentionally does anything which under the circumstances as he believes them to be is an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.’ The crime that is being referred to is the crime of assault first degree.” (Emphasis added.)

       See footnote 4, supra.

       The court’s charge on reasonable doubt is as follows: “The law says that the state must not only prove him guilty but must prove him guilty beyond a reasonable doubt. It is not enough for the state to make out a case of probable guilt, but the burden on the state, which never shifts, is to prove the defendant guilty beyond a reasonable doubt.
      “It is not required that the state prove the defendant guilty beyond all possible doubt. A reasonable doubt means this: It is a doubt for which a reasonable man or woman can give a valid reason.
      “The burden of proving his guilt beyond a reasonable doubt requires the state to produce sufficient evidence to create in your minds a strong and abiding conviction of the guilt of the defendant. In other words, it is the law that the evidence must be so sufficient that it would leave no room in your minds for any reasonable hypothesis of the innocence of the accused.
      “A reasonable doubt is not a doubt raised by one who questions for the sake of raising a doubt. A reasonable doubt is not a surmise or speculation, or conjecture or an imaginary doubt. A reasonable doubt is not a capricious or a frivolous doubt, nor is it a doubt which is raised by the ingenuity of counsel or by a juror and unwarranted by the evidence, nor is it a doubt prompted by sympathy for the defendant.
      “A reasonable doubt is a real doubt, an honest doubt, a doubt which has its foundation in the evidence offered in the case or the lack of evidence. Absolute certainty in the affairs of life is almost never attainable. And the law does not require absolute certainty to authorize a conviction. What it does require is that the guilt be established as charged beyond a reasonable doubt, which is one founded upon the evidence.
      “A reasonable doubt is a doubt which would cause you as reasonable and prudent men and women to hesitate to act in the more weighty and important matters relating to your own affairs. Proof beyond a reasonable doubt is proof only consistent with the defendant’s guilt and inconsistent with any other rational conclusion.”

       The defendant’s request to charge reads as follows: “Now, the phrase ‘reasonable doubt’ has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word ‘reasonable.’ A reasonable doubt is a doubt for which a valid reason can be assigned. It is a doubt which is something more than a guess or surmise.”


author: Norcott, J.

text:
    Cora Sokolowski v. Medi Mart, Inc.
    (9086)
    Dupont, C. J., Norcott and Landau, Js.

      Argued December 14, 1990
    decision released March 19, 1991

      Barbara B. Sacks, with whom, on the brief, was Edward W. Gasser, for the appellant (defendant).

      Richard C. Mahoney, for the appellee (plaintiff).
   Norcott, J.

The defendant, Medi Mart, Inc., appeals from the judgment rendered after a jury trial in favor of the plaintiff. The plaintiff brought the underlying action to recover damages for injuries and losses she allegedly sustained as a result of a fall at the defendant’s store in Simsbury on December 30, 1985. On February 28, 1990, the jury returned a verdict of $45,000 in favor of the plaintiff and further determined that there was no comparative negligence involved in the case. On March 5, the defendant moved to set aside the verdict. The trial court denied the defendant’s motion on April 4, 1990.

On appeal, the defendant claims that the trial court improperly (1) denied its motion in limine seeking the exclusion of evidence of the defendant’s offers to pay the plaintiff’s medical bills, (2) allowed the plaintiff to present evidence of the defendant’s subsequent failure to pay her medical bills, (3) excluded certain medical reports of the plaintiffs treating physician, (4) allowed the admission of the plaintiff’s medical records concerning injuries that were unrelated to her accident, and (5) denied its motion for a directed verdict.

The jury could reasonably have found the following facts from the evidence presented at trial. On December 30, 1985, the plaintiff, a business invitee of the defendant, slipped on a foreign substance and fell to the floor at the defendant’s store. The offending substance was located about eight to ten feet from a counter where three of the defendant’s employees were working and within a similar distance from at least five customers who had been standing there for a period of approximately fifteen minutes prior to the plaintiff’s fall. No witness testified to having heard a bottle break during this time period.

As a result of the fall, the plaintiff sustained a 5 percent permanent partial disability of her cervical spine and incurred $1100 in medical expenses and $500 in lost wages. Other facts pertinent to our decision will be discussed later in this opinion.

The defendant first claims that the trial court improperly denied its motion in limine, filed before trial, which sought to exclude any testimony about the defendant’s offers to pay the plaintiff’s medical bills. The defendant argues that evidence of such offers was inadmissible because they were offers to compromise or settle.

During the argument on its motion in limine, the defendant unsuccessfully contended that the trial court should rule that any statements made by its assistant manager relating to the store’s payment of the plaintiff’s medical bills were inadmissible as offers of settlement and compromise. The defendant only briefly argued, however, that the store’s assistant manager allegedly told the plaintiff: “Anything you need or want, you know, just let us know,” and “If you have any medical bills, bring them in, and we’ll take care of them.” Given the brevity and substance of the defendant’s motion in limine, we cannot say that the trial court’s conclusion that the assistant manager’s comments were not offers of settlement was clearly erroneous, and that that court therefore should not have denied the defendant’s motion.

The defendant further argues, however, that the trial court committed reversible error when it later allowed the plaintiff to testify that the defendant offered to pay her medical bills. At trial, the plaintiff testified that when she returned to the defendant’s store two days after the accident, an assistant manager directed another store employee to “give her anything she wants, and [there will] be no charge for it.” The plaintiff also testified that the assistant manager then told her concerning “any bills that occurred to bring them in and Medi Mart would take care of them.” The defendant did not object to this testimony.

We first address the plaintiff’s argument that this claim is unreviewable because the defendant failed to object to the plaintiff’s testimony. We disagree. The defendant alerted the trial court to the issue that it now presses on appeal. The plaintiff’s testimony at trial clearly raised the issue of whether the defendant had made offers of settlement or compromise. Given the trial court’s previously expressed sentiment about the issue, it is not surprising that the defendant did not object. We agree with the defendant that the failure to object to the plaintiff’s testimony after its motion in limine was denied is not a waiver of the defendant’s claim as long as that claim remains the same on appeal, as it does here. See Practice Book § 4185; see also West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 311 n.2, 541 A.2d 858 (1988); Cohen v. Cohen, 11 Conn. App. 241, 248, 527 A.2d 245 (1987).

Turning next to the merits of the defendant’s first claim, we conclude that the trial court should not have allowed the assistant manager’s hearsay statements into evidence after it had clearly been alerted to the possibility of the introduction of those statements, which could have been interpreted as offers to settle or compromise. “To promote the settling of disputes, offers of compromise, if made to buy peace, are not admissible against the party making them as an admission of liability. Stranahan v. East Haddam, 11 Conn. 507, 512-519 (1836).” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.5.4 (b). Offers to pay medical bills fall within this principle. See Danahy v. Cuneo, 130 Conn. 213, 33 A.2d 132 (1943). The assistant manager’s comments in this case, however, are ambiguous. “ ‘Where it is not clear whether the statement is an offer of compromise or an admission of liability [or other fact] and the motive of the declarant is subject to speculation and conjecture, the statement must be excluded.’ ” Simone Corporation v. Connecticut Light & Power Co., 187 Conn. 487, 490, 446 A.2d 1071 (1982). Thus, the trial court should have excluded the assistant manager’s hearsay statements, which could have easily been construed as an offer to settle or compromise.

We next turn to the defendant’s second, closely related claim. The defendant alleges that, after permitting the plaintiff to testify as to the statements of its assistant manager, the trial court wrongfully allowed her to present evidence of the defendant’s failure to pay the medical bills that it had promised to cover.

During direct examination, the plaintiff testified that, after she spoke with the assistant manager, the defendant refused to pay her medical bills for certain X rays. The defendant immediately objected on the ground of relevancy. The trial court first indicated that the evidence might be relevant to the issue of damages or the “out-of-pocket costs as part of [the] case.” The court then stated that “testimony has come in that the store has indicated they would take care of bills, so the explanation that at a point they weren’t doing that is, I think, in the context of that testimony, acceptable testimony. I’m going to allow that.” The defendant again duly excepted to the court’s ruling.

Whatever its reasoning, the trial court should not have allowed this evidence because, under our analysis, the exclusion of the improper evidence of settlement or compromise renders the evidence of the failure to pay certain medical bills irrelevant.

In any event, the jury heard testimony that we have found to be inadmissible, and our next inquiry is whether the court’s evidentiary rulings constituted harmful error. To be reversible, evidentiary error must be both wrong and harmful. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142, 491 A.2d 389 (1985); DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798 (1955). The appellant bears the burden of establishing the specific harmfulness of the error. See Braun v. Edelstein, 17 Conn. App. 658, 554 A.2d 1102, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989). We find that the defendant has failed to meet this burden.

We first note that the defendant never identifies any specific harm it may have suffered from the trial court’s improper introduction of the challenged evidence. The defendant suggests that the jury was prejudiced because the evidence allowed them to develop a “bad guy” opinion of the drug store. Our review of the record reveals, however, that the defendant itself, on cross-examination of the assistant manager, brought out that it was the store’s policy to offer to pay the medical bills of persons in the position of the plaintiff. Thus, the court allowed the defendant, in turn, to offset any “bad guy” impression through this cross-examination, which would tend to suggest to the jury that the store had a humane policy toward accident victims.

We also note that the entirety of the testimony concerning this claim was extremely brief. Indeed, the assistant manager could not even recall having received any X-ray bills for payment from the plaintiff. Neither counsel argued the defendant’s alleged promise to pay and subsequent nonpayment of the plaintiff’s medical bills to the jury during final arguments, and the trial court did not charge on these issues. Our review leads us to conclude, because of the paucity of this unemphasized testimony, that the jury was not prejudiced by such evidence. Thus, the defendant cannot prevail on these claims.

The defendant’s next two claims concern the trial court’s rulings on certain medical records introduced by the defendant and the plaintiff respectively.

The first of these claims is that the court should not have excluded the notes of the plaintiff’s treating physician offered into evidence by the defendant. The defendant claimed that the notes were relevant and necessary to impeach the plaintiff’s testimony by showing that her claimed injuries were related to certain of her preexisting medical conditions. The court allowed the defendant to present an offer of proof during which it first offered twenty years of notes and then reduced the offer to notes for four specific dates. The court then questioned both the defendant’s counsel and the plaintiff about the relevancy of the notes. The court found that (1) the physician’s notes did not qualify as “medical records” under General Statutes § 52-174 and (2) the notes were mostly illegible and could not be explained without medical testimony. Although the trial court ruled that the notes were irrelevant and therefore inadmissible, the court did give the defendant the opportunity to subpoena the authoring physician and call him as a witness to explain and clarify his notes. The defendant declined the court’s offer.

We agree with the trial court’s determination that, without the clarification of competent medical testimony, the medical notes were irrelevant and their admission would have caused the jury to speculate as to the plaintiffs preexisting injuries. It is axiomatic that the trial court has wide discretion in determining matters of relevancy. State v. Higgins, 201 Conn. 462, 470, 518 A.2d 631 (1986). At best, a review of the notes indicates that they refer to a multitude of infirmities suffered by the plaintiff over a period of years, but did not specifically relate to any injury similar to those alleged by the plaintiff in this case.

The court’s questioning of the plaintiff during the voir dire of this offer demonstrates the difficulty the jury would have had with the vague medical references expressed in a series of mainly illegible physician’s notes. We need not determine whether the notes qualified as medical records under the statute since we conclude that the trial court correctly ruled that the offered evidence had no relevance to the issue of preexisting injury. Additionally, the trial court offered to accommodate the defendant by allowing it sufficient opportunity to substantiate the relevancy of the offer of proof during the court’s voir dire and time in which to call the plaintiff’s treating physician as a witness.

The defendant next claims that the trial court improperly allowed into evidence other medical reports prepared by the plaintiff’s treating physician. These records were introduced pursuant to General Statutes § 52-174 (b) to establish a causal connection between the plaintiff’s injuries and the accident. The defendant claims that the reports should have been excluded because it did not state in terms of reasonable, medical probability the causal relationship between the plaintiff’s injury and the accident. We disagree.

“Section 52-174 (b) in no way eliminates a plaintiff’s burden of establishing the relevancy of the expert opinions expressed [in the report.]” Struckman v. Burns, 205 Conn. 542, 554, 534 A.2d 888 (1987). The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician. Id. “Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony. . . . When reports are the substitute for testimony, the entire report should be examined, not only certain phrases or words.” (Citations omitted.) Id., 555. Thus, in Struckman, our Supreme Court rejected the notion that a physician’s report must employ certain talismanic words to convey that the opinion expressed therein is reasonably probable.

In the present case, our review of the exhibit reveals that the trial court correctly concluded that the reports were relevant and therefore admissible. The court properly determined that there was a “common thread of treatment” throughout the reports between the injuries treated by the physician and those that had resulted from the accident. It concluded further that the reports were based on reasonable medical probability. We are not persuaded that the court’s decision was incorrect.

We also find that there is no merit to the defendant’s claim that it was prejudiced by the physician’s reports because their contents increased the sympathies of the jury for the plaintiff.

The defendant’s final claim rests on the court’s denial of its motion for a directed verdict. The essence of the claim is that the plaintiff failed to prove that the defendant had actual or constructive notice of the claimed defective condition. We disagree.

“The rules controlling appellate review of a directed verdict are well settled. ‘Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion. Pinto v. Spigner, 163 Conn. 191, 192-93, 302 A.2d 266 (1972); Console v. Nickou, 156 Conn. 268, 270, 240 A.2d 895 (1968); Santor v. Balnis, 151 Conn. 434, 435, 199 A.2d 2 (1964). In reviewing the trial court’s decision directing a verdict [for the defendant] and denying a subsequent motion to set it aside, this court considers all the evidence, including reasonable inferences, in the light most favorable to the plaintiff. Pinto v. Spigner, supra; Leary v. Johnson, 159 Conn. 101, 104, 267 A.2d 658 (1970).’ Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979); see Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982).” Bleich v. Ortiz, 196 Conn. 498, 500-501, 493 A.2d 236 (1985).

Against these standards we conclude that the trial court was correct in denying the defendant’s motion for a directed verdict. Viewed in the light most favorable to the plaintiff, the record reveals that the plaintiff, after standing near a counter for approximately fifteen minutes, moved a few paces toward the store’s pharmacy area, where she slipped and fell. No one heard a bottle break during that fifteen minute period. The jury could have reasonably found from the evidence that there was a substance on the floor and that the substance was aftershave lotion. Furthermore, the evidence revealed that the floors of the store were swept nightly and that the accident occurred around 5 p.m. Finally, the evidence showed that the store had no formal policy for periodic checks for breakages or spills.

Although there was no proof at trial that the defendant had actual notice of the defective condition, i.e., the spill, the jury could have reasonably drawn from the evidence discussed above, the inferences to support a finding of constructive notice. The determinative question is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it. Morris v. King Cole Stores, Inc., 132 Conn. 489, 492-93, 45 A.2d 710 (1946). It is settled that circumstantial evidence can establish constructive notice. Id. The jury could have concluded from the totality of the evidence that the spilled aftershave lotion had remained on the floor for more than fifteen minutes. From this fact, the jurors could have inferred that the defendant, in the exercise of reasonable care, should have detected and remedied the condition. We are therefore not persuaded by the defendant’s argument that the jury engaged in speculation regarding the defendant’s constructive notice of the defective condition.

The judgment is affirmed.

In this opinion the other judges concurred.

       The breadth of the relevant colloquy was as follows:
      “The Court: What form were those statements made?
      “[Defense Counsel]: My understanding, I guess the evidence would be there was a verbal statement on behalf of, made by the assistant manager of the store.
      “The Court: Is this when the accident took place, while she was there in the store having fallen? What did he say? What is he alleged to have said?
      “[Defense Counsel]: Alleged to have said ‘Anything you need or want, you know, just let us know,’ and later they were discussing this for approximately twenty minutes, he said, ‘If you have any medical bills, bring them in, and we’ll take care of them.’
      “The Court: Is that it? Court does not see that as settlement discussions, counselor. So I will not preclude that testimony.
      “[Defense Counsel]: Note my exception for that, please, Your Honor.
      “The Court: Noted for the record.”

       “[Practice Book] Sec. 4185. errors considered
      “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”

       Federal Rule of Evidence 409 similarly provides: “Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.”

       The defendant also unsuccessfully attempted to offer a typed interpretation of the notes immediately before it rested its case.

       The assistant manager testified that the report he had made shortly after the accident stated that the source of the spill was aftershave lotion.


text:
    State of Connecticut v. Russell Brelsford
    (7810)
    Dupont, C. J., Daly and Foti, Js.
    Argued November 8, 1990
    decision released March 19, 1991

      William R. Schipul, assistant public defender, with whom, on the brief, was William Holden, public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Smriga, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of escape from custody in violation of General Statutes § SSa-Wl. The defendant claims that the trial court improperly allowed a treating psychiatrist from the Bridgeport correctional center to testify as a state’s witness concerning matters that were protected by the psychiatrist-patient privilege. We affirm the judgment of the trial court.

The defendant did not contest the state’s allegation that he left custody, but, rather, elected to raise two affirmative defenses both of which arose from his need for Elavil, an antidepressant medication. The defendant asserted (1) duress, alleging that police officers in the lock up area threatened him physically when he asked for Elavil, and (2) necessity, alleging that part of his reason for leaving custody was to obtain this medication.

The defendant offered the testimony of Roseanne Wenz, a nurse and supervisor of the medical department at the Bridgeport correctional center, who maintained the records of the medications that physicians order for the inmates. Wenz testified that from September 2 to November 2,1986, the defendant had been prescribed 100 milligrams of Elavil at bedtime. She classified this medication as an antidepressant, and characterized it as a mood elevator rather than as a tranquilizer. It was administered orally in pill form. The defendant also called Mary Lou McDougall, a clerk at the institution, who produced the defendant’s mittimus which indicated that he needed medication and that a suicide watch was placed on him.

The defendant testified that the police had refused to give him Elavil when he asked for it and told him to be quiet or they would hurt him. He further testified that he was afraid to go without Elavil because he had taken it for a long time, and that, although he thought the police would kill him if he continued to ask for the medication, he felt he could not function without it. On cross-examination, he stated that he took Elavil because the doctor told him to and that every time he is in jail he receives the medication if he sees the doctor.

After the defendant’s case-in-chief, the state presented James Alexander, the psychiatrist at the Bridgeport facility. He testified, over the defendant’s objection, as to years of treatment, the defendant’s problems with depression, his therapy with the medication Elavil, his adjustment to incarceration and whether he was intimidated. Specifically, he testified that he had treated the defendant for years and that he currently prescribed Elavil for the defendant, which is an antidepressant drug possessing moderate sedating qualities. The withholding of one dose of Elavil would result in a slight decrease in the medication level in the blood, not sufficient to cause any significant agitation or any type of withdrawal symptom. The withholding of more than one dose, Alexander testified, would not cause any substantial change in behavior. There are no withdrawal symptoms from the cessation of Elavil.

In the defendant’s case, this regimen served primarily as a chemical restraint to help control some of the defendant’s aggressive and obstreperous behavior. The defendant had also shown some symptoms of mild depression and this would be the treatment for depression. Alexander also testified that, even if the defendant were not in the correctional facility, some form of sedation or chemical restraint would be necessary. He further testified that the defendant had made a reasonable adjustment to incarceration, and that his behavior had not been altered in any way since the development of a psychotic state.

There is no dispute that Alexander is a psychiatrist and is acting as such at the Bridgeport facility and that the defendant is his patient. The state argues that the defense has failed to establish the existence of a patient-psychiatrist relationship. The record, however, clearly shows otherwise.

The state also argues that although General Statutes § 52-14e (a) generally prohibits any person from disclosing or transmitting “any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency,” it does not apply in this case because the testimony contained no direct reference to any communication or record. This argument is also without merit. General Statutes § 52-146d (2) defines communication and records to mean “all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist . . . including communications and records which occur in or are prepared at a mental health facility . . . .” General Statutes § 52-146d (5) defines a mental health facility to include “any hospital, clinic, ward, psychiatrist’s office or other facility, public or private, which provides inpatient or outpatient service, in whole or in part, relating to the diagnosis or treatment of a patient’s mental condition. . . .” The hospital clinic section at the Bridgeport facility is clearly a mental health facility pursuant to the statute. General Statutes § 52-146d (6) defines patient as a “person who communicates with or is treated by a psychiatrist in diagnosis or treatment . . . .” In summation, Alexander’s testimony described the treatment of a patient at a mental health facility and was, therefore, within the scope of the statute.

The state further argues that Alexander’s diagnosis of the defendant may have been based on observations rather than communications or records and that the record is insufficient to show otherwise. Again, we do not agree. The record is clear that Alexander treated the defendant for years, had his records before him and diagnosed and treated the defendant in a psychiatrist-patient relationship. It is obvious that the relationship is based not only on observations, but also on communications and records.

The state’s final argument is that, although there is no express waiver, the defendant waived the privilege by his conduct. The state argues that the defendant cannot assert the privilege because he put his need for Elavil into issue by raising the affirmative defense of necessity. We agree.

“[A] waiver must be the intelligent relinquishment of a known right. A necessary element to waiver is the requisite knowledge of the right and a waiver presupposes a full knowledge of an existing right or privilege and something done designedly or knowingly to relinquish it.” State v. Toste, 178 Conn. 626, 629-30, 424 A.2d 293 (1979). The standard for finding such a waiver “ ‘must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.’ ” State v. Acquin, 187 Conn. 647, 666, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). It may be shown that a party may intentionally relinquish a known right, by his conduct, if that conduct is not equivocal or of doubtful import. O’Keefe v. St. Francis Church, 59 Conn. 551, 561 (1890); see also In re Manuel R., 207 Conn. 725, 736 n.7, 543 A.2d 719 (1988).

The conduct herein, that of exercising a defense of necessity by the defendant’s testimony that he believed himself dependent on a drug, indicates a plain intention to abandon the privilege, and such conduct places the state in such a position, with reference to the evidence, as to have us conclude that it would be unfair and inconsistent to permit the retention of the privilege. The defendant’s entire defense is based on his claimed need for Elavil. The issue raised in defense is not whether the defendant was truly dependent on Elavil, but rather whether he believed he was in need of that drug. The state could rebut an objective test of drug dependency by any competent evidence showing that Elavil is not a drug that causes addiction or dependency; however, to rebut the subjective belief issue raised by the defendant required getting into his mind, and that rebuttal could only be accomplished through the testimony of Alexander. The state presented Alexander’s testimony not only to show the purpose and effects of the drug Elavil, but also to explain how the defendant thought that drug affected him. The state was placed in an untenable position by the defendant’s assertion of the defense and did not have an alternative to counter the defendant’s position without resorting to the privileged testimony of Alexander.

We recognize that, while the defendant has both the constitutional right to assert a defense and the statutory right to claim a privilege, under certain circumstances the assertion of both might collide, causing the privilege to be relinquished. In this case, the defendant’s testimony about his subjective belief of his need for Elavil did exactly that. The exercise of the right to a defense of necessity did not cause a waiver of the privilege, but, rather, the defendant’s testimony that he believed himself dependent on Elavil, a nonaddictive drug, resulted in that waiver. Compare State v. Toste, supra.

It was the defendant’s voluntary testimony that without the medication he could not function and that he escaped to get the Elavil. He put in issue his reasons for the escape and that testimony constitutes a waiver of the privilege. It would not serve the ends of justice to allow the defendant to describe at length to the jury his supposed great need, both mentally and physically, for a nonaddictive drug, and then to allow him to claim a privilege in order to suppress the available proof of his false statements.

While we perceive that the admission of Alexander’s testimony may have been harmful to the defendant, we must conclude that in order to mount his particular defense through his subjective beliefs, the defendant, by that very act, waived the privilege.

The judgment is affirmed.

In this opinion the other judges concurred.

       The information charged that the defendant escaped from custody while in the booking area of the Bridgeport police department where he was being charged with the crime of sexual assault in the first degree, a felony.

       We note that this court has held, subsequent to the judgment rendered in this case, that to succeed in establishing a defense of necessity to the crime of escape from custody, a defendant must meet five requirements. In State v. Woods, 23 Conn. App. 615, 583 A.2d 639 (1990), we adopted the holding of People v. Lovercamp, 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110 (1975). “In Lovercamp, the California court held that, in the context of criminal escape, a limited defense of necessity is available if: ‘(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) there is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory; (3) there is no time or opportunity to resort to the courts; (4) there is no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape; and (5) the prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.’ ” State v. Woods, supra, 619.
      The record contains no evidence that the defendant complied with the fifth requirement of this defense and, therefore, he would not have had a valid defense of necessity had his trial taken place after State v. Woods, supra.

       The defendant objected to the testimony on the basis of the psychiatrist-patient privilege set out in General Statutes §§ 52-146c to 52-146Í. General Statutes § 52-146e provides in part: “(a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.”

       The record reveals the following testimony by James Alexander:
      “Q. And as a psychiatrist at the North Avenue Correctional Center have
      you had occasion to treat Mr. Russell Brelsford?
      “A. Yes I have.
      “Q. Now—and that occurred where?
      “A. That occurred at the Bridgeport Correctional Center in the course of my routine responsibility as a state psychiatrist assigned to the correctional center.
      “Q. How long have you had occasion to treat Mr. Brelsford?
      “A. Several years.
      “Q. And do you know whether or not he is prescribed any medication?
      “A. Yes, he is.
      “Q. And what medication is he currently prescribed?
      “A. He’s presently taking Elavil which is an antidepressant medication.
      “Q. Okay. And could you explain why you prescribed Elavil for Mr. Brelsford?
      “A. Yes. In Mr. Brelsford’s case—first I must explain about Elavil. Elavil also has a moderate sedating quality. In Mr. Brelsford’s case his primary reason for being on Elavil is a form of chemical restraint to help control some of his aggressive and obstreperous behavior. Also, he has from time to time manifested some symptoms of mild depression and, of course, this would be the treatment of choice for depression also.
      “Q. If you were treating Mr. Brelsford outside of a prison situation would you use the same course of drug therapy?
      “A. That would depend on the circumstances and certainly on his behavior. I would either use that or use some other form of sedation or chemical restraint.”

       The statute contains several exceptions that are not relevant in this case, and permits the patient or his authorized representative to waive the privilege.

       The state argues that the defendant should not be permitted to prevail by using the psychiatrist-patient privilege as a “sword” to exaggerate his dependency and also as a “shield” to prevent the truth from being known.


author: Cretella, J.

text:
    State of Connecticut v. Willie Henderson
    (7944)
    Daly, Landau and Cretella, Js.
    Argued December 6, 1990
    decision released March 26, 1991

      Vicki H. Hutchinson, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Cretella, J.

The defendant appeals from judgments of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 and burglary in the third degree in violation of General Statutes § 53a-103. The defendant’s sole claim is that the trial court improperly admitted into evidence testimony and comments concerning his postarrest silence. Since this claim had not been preserved by the defendant at trial, we will test its reviewability under the four articulated conditions as set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

. Although the record is adequate to review the alleged claim and although it is of constitutional magnitude alleging a violation of a fundamental right, we conclude that the alleged violation does not clearly exist and that the defendant was not deprived of a fair trial. We therefore affirm the judgments of the trial court.

The jury could have reasonably found that on August 28,1987, the victim was living in a three-family house that was owned by her mother. She resided on the first floor of that house with her five children and her brother. In the early morning hours, she was sleeping with two of her children in one of the bedrooms. When she fell asleep, the television in that room was on. She was awakened by the defendant who had entered through her broken back door and had placed a gun to her head. The room was dark because the television had been unplugged. She was ordered to get out of bed, to disrobe and then, under threat of bodily harm, she was sexually attacked. Before leaving, the defendant plugged in the television set for lighting so that he could see the victim’s face and, in turn, the victim had the opportunity to look at the defendant. While the defendant was attempting to escape, the victim’s brother and two of her sons were awakened. They chased the defendant outside of the house, finally catching him in a neighbor’s backyard two houses away. In the ensuing struggle, one of the sons knocked the defendant unconscious when he hit him in the head with a toy wagon. The police arrived in a few minutes, took the defendant into custody and thereafter found a toy gun and a knife in the victim’s bedroom.

That morning, while the victim was at the police station giving a statement to the police, she was shown several photographs including one of the defendant that she positively identified as being of the person who had sexually assaulted her. She also made an in-court identification of the defendant during the trial.

The defendant, who took the stand on his own behalf, denied having entered the victim’s residence or having had any sexual relations with her. On cross-examination, the state asked the defendant if, while he was in police custody, he had stated that he had no recollection of what he was doing on the night in question. Instead of replying with a simple yes or no, the defendant replied, “I gave the detective no statement.” There was no objection made to the state’s question nor any motion to strike the defendant’s response and no further questions were asked of the defendant.

In rebuttal, the state called Detective Ronald Faggaini, who had spoken with the defendant at police headquarters on the evening in question. He testified that the defendant, after he had been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), stated to him “that he did not remember what he did that morning and that he had nothing to say.” The defendant again made no objection to this testimony, nor did he make any motion to strike it.

The question to be decided is whether the defendant’s claim involves the use of a prior inconsistent statement to impeach his credibility or an invasion of postarrest silence as is prohibited under Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). If it involves an invasion of the defendant’s right to remain silent after custodial inquiry has been completed, it would be a constitutional violation. It is not a constitutional violation, however, if it involves only the state’s efforts to impeach the credibility of the defendant. If, after he has been advised of his rights pursuant to Miranda, a defendant gives any statement to the police, that statement may be used to impeach his credibility, as the prosecutor did here when the defendant chose to testify at trial to a different exculpatory version of the events that transpired. See State v. Apostle, 8 Conn. App. 216, 223, 512 A.2d 947 (1986).

The defendant’s reliance on Doyle to support his argument that his due process rights and his right against compelled self-incrimination were violated is misplaced. In Doyle, the United States Supreme Court held that the prosecutor’s attempt to impeach the defendant’s trial testimony by commenting on the defendant’s failure to speak after being given Miranda warnings was a violation of due process. Although Doyle bars the use of a criminal defendant’s silence after receiving Miranda warnings, it does not apply to cross-examination that inquires into prior inconsistent statements of the defendant. Such cross-examination, as was undertaken here, is not making unfair use of silence but is solely for the purpose of impeaching the defendant’s credibility. See State v. Reed, 193 Conn. 646, 652-53, 480 A.2d 463 (1984).

“There is no doubt that the use of a statement made after Miranda warnings have been given, relating to the facts of the crime with which the defendant is charged, may be used to impeach his credibility by illustrating inconsistencies between that statement and a different exculpatory statement given during his in-court testimony.” State v. Apostle, supra, 222. Cases involving Doyle silence are concerned only with custodial interrogation and their focus is on the period immediately following the defendant’s receipt of Miranda warnings. State v. Apostle, supra, 233. It is constitutionally permissible to delve into a defendant’s prior inconsistent statement and to inquire about the reason for the inconsistency. The principles of Doyle, therefore, are not applicable to anything the defendant told the police about the facts of the crime and the state could properly question the defendant and comment about them.

During his direct testimony, the defendant testified in detail to his actions during the late evening of August 27 and the early morning hours of August 28. The state had information that after being taken into custody and given his Miranda rights, the defendant had allegedly told Faggaini that he did not remember what he had done that morning. On cross-examination, the state was clearly within its rights to impeach the defendant’s credibility and asked only one question: “Mr. Henderson, on the 28th of August 1987 when you were in police custody did you tell the Hartford police detective that you had no recollection whatsoever of what you were doing that night?” It was to that question that the defendant replied “I gave the detective no statement.” No further questions were then asked of the defendant. On rebuttal, it was proper for the state to continue with the impeachment process by asking the detective what the defendant had stated at the police station.

During his closing argument, the prosecutor’s remarks were for the sole purpose of pointing up the attempted impeachment of the defendant’s testimony. They were neither improper nor violative of the defendant’s constitutional rights against self-incrimination.

The judgments are affirmed.

In this opinion the other judges concurred.