text:
    STATE OF CONNECTICUT v. RICARDO MILLS
    (AC 23360)
    Laveiy, C. J., and Dranginis and McLachlan, Js.

      Argued October 17
    officially released December 30, 2003

      E. Paul Haringa, assistant public defender, with whom was Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Melissa L. Streeto, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Gail P. Hardy, assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Ricardo Mills, appeals from the judgment of conviction, rendered following a jury trial, of assault in the first degree in violation of General Statutes § 53a-59. On appeal, he claims that the trial court abused its discretion by denying his motion to introduce evidence of the dying declarant’s prior convictions in violation of the defendant’s right of confrontation. We affirm the judgment of the trial court.

This appeal arises from an argument over a dog. On September 16, 1996, the victim, Ralph Hickey, and several other persons were visiting Laura Blumberg and James Blumberg in Waterbury. At approximately 6:30 p.m., the defendant, a friend of the Blumbergs, knocked on the door of their apartment. After being invited in by James Blumberg, the defendant headed toward the victim and began arguing about an incident involving the defendant’s dog. The defendant punched the victim in the face, a fight ensued and the other guests fled the room. During the struggle, the defendant picked up a knife and stabbed the victim several times. Shortly after the fight, the victim left with Laura Blumberg to go to Southbury by car. During the trip, the victim, suffering the effects of the stab wounds, drove into the Southbury Food Center parking lot. Police and medical personnel were called. They transported the victim to St. Mary’s Hospital in Waterbury, where he later died.

The defendant was immediately arrested and charged. In his first jury trial, he was convicted of manslaughter in the first degree and assault in the first degree. On appeal, this court reversed the conviction due to prosecutorial misconduct and remanded the case for a new trial. State v. Mills, 57 Conn. App. 202, 748 A.2d 318, cert. denied, 253 Conn. 914, 915, 754 A.2d 163 (2000).

The defendant was retried in February, 2002. At trial, Officer George Slaiby of the Southbury police department testified that when he arrived at the parking lot on September 16, 1996, the victim responded that he had been in an altercation with the defendant over a dog, during which the victim was stabbed. Though hearsay, that statement was admitted by the court as a dying declaration. The defendant later sought to impeach that testimony by introducing into evidence “the dates and times and convictions of felonies of the victim.” The court denied the motion. The jury found the defendant guilty of assault in the first degree. As in the defendant’s first trial, the court sentenced the defendant to fifteen years incarceration, execution suspended after twelve years, with five years probation. This appeal followed.

I

This case causes us to consider the dying declaration, an issue seen more in law school classrooms and bar examination halls than in actual practice. Its rationale was explained by Chief Baron Eyre in Rex v. Woodcock, 1 Leach 500, 502, 168 Eng. Rep. 352 (K.B. 1789): “Now the general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.”

The dying declaration is admissible in evidence as an exception to the hearsay rule. “ [A] victim’s statement may be admissible, in a criminal prosecution for the victim-declarant’s death ... as a dying declaration if (1) the declarant was conscious of impending death and (2) the statement concerns the cause of death or the circumstances surrounding the death.” (Citation omitted.) State v. Onofrio, 179 Conn. 23, 43-44, 425 A.2d 560 (1979); In re Jose M., 30 Conn. App. 381, 391, 620 A.2d 804, cert. denied, 225 Conn. 921, 625 A.2d 821 (1993); Conn. Code Evid. § 8-6 (2).

At issue in this appeal is whether a party may impeach the testimony of a dying declarant by introducing evidence of the declarant’s prior convictions. The defendant claims that he was so entitled and that the court improperly excluded that evidence.

Professor Wigmore states that “[t]he dying declaration being in effect a testimonial statement made out of court . . . the declarant is open to impeachment and discrediting in the same way as other witnesses .... Thus, impeachment by . . . conviction of crime ... is allowable . . . .” (Citations omitted.) 5 J. Wigm-ore, Evidence (3d Ed. 1940) § 1446, pp. 246-47. Commentators have consistently agreed with that statement. As one has stated, “dying declarations are no more sacred against attack than is other testimony; the deceased is no more immune than a living witness from impeachment.” B. Kliks, “Impeachment of Dying Declarations,” 19 Or. L. Rev. 265, 266 (1940).

Other states agree. In Commonwealth v. Moses, 436 Mass. 598, 602-603, 766 N.E.2d 827 (2002), the Supreme Judicial Court of Massachusetts held that “[i]t was error to deny the defendant the opportunity to impeach [the dying declarant’s] credibility by evidence that would have been admissible if [the declarant] had testified, namely, evidence of his prior convictions.” Similarly, in People v. Ricken, 242 App. Div. 106, 109-10, 273 N.Y.S. 470 (1934), the Appellate Division of the New York Supreme Court stated that “[h]ad the declarant appeared in person as a witness upon the trial, such conviction could properly have been shown. The situation is not changed by the fact that he is not personally present. It strengthens the claim of the defendant to the right of impeachment. He has been deprived of his strongest arm of defense — cross-examination, and to now deprive him of the benefits of impeachment would be carrying the exception to unwarranted limits. Dying declarations are to be regarded as any other testimony in the case and the same tests are to be applied to ascertain their credibility.”

Section 6-7 (a) of the Connecticut Code of Evidence permits a party to impeach testimony through the introduction of prior convictions. Our Supreme Court has interpreted General Statutes § 52-145 as allowing the use of a witness’ prior conviction to impeach credibility when the conviction was for a crime punishable by imprisonment in excess of one year. State v. Geyer, 194 Conn. 1, 10, 480 A.2d 489 (1984). Section 8-8 of the Connecticut Code of Evidence provides in relevant part: “When hearsay has been admitted in evidence, the credibility of the declarant may be impeached ... by any evidence that would be admissible for those purposes if the declarant had testified as a witness. ...” We agree with the great weight of authority that prior convictions may be used to impeach the testimony of a dying declarant. The defendant was therefore entitled to seek to introduce such evidence to impeach the dying declarant.

II

Because a dying declaration may be impeached by the victim’s criminal record, is the defendant correct in his claim that the court’s denial of his motion to introduce the dying declarant’s prior convictions violated his sixth amendment right of confrontation? A court’s decision on a motion to introduce a witness’ criminal record, offered to attack his credibility, will be upset only if the court abused its discretion. State v. Harrell, 199 Conn. 255, 261, 506 A.2d 1041 (1986); State v. Vitale, 76 Conn. App. 1, 6, 818 A.2d 134, cert. denied, 264 Conn. 906, 826 A.2d 178 (2003).

Our Supreme Court has held that “the state’s use of hearsay evidence against an accused in a criminal trial is limited by the confrontation clause of the sixth amendment.” State v. Merriam, 264 Conn. 617, 633, 835 A.2d 895 (2003). Essential to that right is the ability to cross-examine. See Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). Cross-examination has been described as “the greatest legal engine ever invented for the discovery of truth . . . .” (Internal quotation marks omitted.) California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970). For that reason, “[e]very criminal defendant must be provided with the opportunity fairly and fully to confront and cross-examine adverse witnesses.” State v. Maldonado, 193 Conn. 350, 356, 478 A.2d 581 (1984). “In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 60, 612 A.2d 755 (1992).

In the present case, the dead victim’s voice echoed through the courtroom, identifying the defendant as his assailant. The defendant’s only effective means of confronting that witness’ credibility was through the introduction of prior convictions. A dying declarant, as with any other witness, must be subjected to the crucible of confrontation, for “the defendant has the right to explore every facet of relevant evidence pertaining to the credibility of those who testify against him.” (Internal quotation marks omitted.) State v. Rodriguez, 180 Conn. 382, 393-94, 429 A.2d 919 (1980).

The defendant sought to introduce the victim’s prior convictions, but was not permitted to do so. We apply the abuse of discretion standard to determine whether the court was correct in excluding the record of the victim’s prior convictions. See State v. Harrell, supra, 199 Conn. 261. To do so, we must examine the victim’s convictions by applying the factors set forth in § 6-7 (a) of the Connecticut Code of Evidence: “In determining whether to admit evidence of a conviction, the court shall consider: (1) The extent of the prejudice likely to arise, (2) the significance of the particular crime in indicating untruthfulness, and (3) the remoteness in time of the conviction.” The record of convictions, however, was not marked as an identification exhibit, nor was an offer of proof made. Thus, this court, like the trial court, has no knowledge of the details of the victim’s convictions. We are therefore unable to evaluate the extent of the prejudice likely to arise, the significance of the particular crimes in indicating untruthfulness and the remoteness in time of the convictions; see

State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982); Conn. Code Evid. § 6-7 (a); nor are we in a position to balance the probative value of the prior convictions against their prejudicial impact. See State v. Harrell, supra, 262.

“A claim on appeal cannot be based on an assumption that the trial court acted improperly. . . . Without an adequate record on which to review the rulings of the trial court, this court must assume that the trial court acted properly.” (Citation omitted.) State v. James L., 26 Conn. App. 81, 85-86, 598 A.2d 663 (1991). Because the record does not contain the details of the declarant’s convictions, we are unable to review the convictions by the standard of admissibility set forth in § 6-7 (a) of the Connecticut Code of Evidence. Accordingly, we cannot determine if the court acted improperly.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant did not seek articulation of the ruling.

       See, e.g., 2 F. Wharton, Criminal Evidence (14th Ed. Torcía 1986) § 333, pp. 376-77 (“A dying declaration is subject to impeachment. It may be impeached in any way that the declarant’s testimony could have been impeached if he had lived and testified under oath. Thus, the declarant may be impeached in any way that the law authorizes a living witness to be impeached.”); 2 Jones on Evidence (6th Ed. 1972) § 9:2, p. 190 (“such declarations are pure hearsay and open to all the objections which may be urged against that class of testimony”); B. Kliks, “Impeachment of Dying Declarations,” 19 Or. L. Rev. 265, 276 (1940) (“rule is well established that one may impeach a dying declaration and lessen its effect by showing that the deceased had been convicted of a crime, and may introduce the record of conviction for that purpose”).

       Connecticut Code of Evidence § 6-7 (a) provides: “For the purpose of impeaching the credibility of a witness, evidence that a witness has been convicted of a crime is admissible if the crime was punishable by imprisonment for more than one year. In determining whether to admit evidence of a conviction, the court shall consider:
      “(1) The extent of the prejudice likely to arise,
      “(2) the significance of the particular crime in indicating untruthfulness, and
      “(3) the remoteness in time of the conviction.”

       General Statutes § 52-145 (b) provides: “A person’s interest in the outcome of the action or his conviction of crime may be shown for the purpose of affecting his credibility.”

       The defendant also contends that the denial violated his right of confrontation under article first, § 8, of our state constitution. The defendant has provided no independent state constitutional analysis for his claim. Thus, we limit our review to the defendant’s federal constitutional claim. See State v. Merriam, 264 Conn. 617, 631 n.17, 835 A.2d 895 (2003).


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    TYLER SPRAGUE v. LINDON TREE SERVICE, INC., ET AL.
    (AC 23706)
    Lavery, C. J., and DiPentima and MihaLakos, Js.

      Argued September 22
    officially released December 30, 2003

      Dominick C. Statile, with whom was Robert K. John, for the appellants (defendants).

      James K. Kelley, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendants, Lindon Tree Service, Inc. (Lindon), and its workers’ compensation insurance carrier, One Beacon Insurance Company, appeal from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) that the plaintiff, Tyler Sprague, sustained compensable injuries that arose out of and in the course of his employment with Lindon. On appeal, the defendants claim that the board improperly affirmed the commissioner’s finding that the plaintiff suffered a personal injury within the meaning of General Statutes § 31-275 (16) (A). We disagree and affirm the decision of the board.

The commissioner found the following pertinent facts. The plaintiff, a licensed forest practitioner, commenced employment with London in January, 1999. Lin-don clears trees around power lines for the Connecticut Light and Power Company and for various municipalities.

The plaintiff was hired as a “ground man” by Lindon to, among other things, gather brush to feed into a wood chipper and to stack lengths of wood. The plaintiff also operated a fifteen to twenty pound chain saw between forty and forty five horns per week as part of his duties. On September 8, 1999, the plaintiff worked with Lin-don’s owner, William Bibeault. They planned to cut eight trees that day. Rain fell steadily, causing the wood to be soaked with water and to be heavier than normal. After cutting down the trees, the plaintiff chipped brush and partially cut tree trunks with a chain saw to make the wood light enough to drag. Toward the end of the day, the plaintiffs back began to hurt. He assumed that he had pulled a muscle and did not report the pain to Bibeault.

That evening, the plaintiff rested at home, as his back pain worsened. The next morning, he awakened to severe pain that radiated throughout his lower back, buttocks and the top of his leg. The plaintiff, nevertheless, continued to work. He orally reported his back pain to Lindon. The plaintiffs back pain did not subside, and he saw his physician on September 10, 1999. The plaintiffs physician ordered a magnetic resonance imaging test that indicated that the plaintiff had a ruptured disc. The physician referred him to Wells Jacobson, a specialist, whom the plaintiff saw on October 6, 1999. Jacobson, an orthopedic surgeon, confirmed that the plaintiff had a ruptured disc and preliminarily con-eluded that it was a work-related injury. Jacobson subsequently referred the plaintiff to a second orthopedic surgeon, W. Jay Krompinger. In an April 3,2000 appointment, Krompinger confirmed that the plaintiff had suffered a ruptured disc and recommended surgery. Despite his progressively worsening back condition, the plaintiff continued to work for Lindon until December, 1999, when he stopped working for several weeks before returning for light duty assignments for an additional two months. In March, 2000, the plaintiff left his employment with Lindon.

On the basis of the foregoing findings, the commissioner concluded that the plaintiffs ruptured disc arose out of and in the course of his employment with Lindon and ordered it to reimburse the plaintiff for any out of pocket medical expenses, and to pay for any future medical care related to his compensable injury. The board affirmed the commissioner’s findings and conclusion, and this appeal followed.

At the outset, we set forth our standard of review. “When the decision of a commissioner is appealed to the boar d, the board is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. . . . The commissioner has the power and duty, as the trier of fact, to determine the facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Our scope of review of the actions of the board is similarly limited.” (Citations omitted; internal quotation marks omitted.) Smith v. Connecticut Light & Power Co., 73 Conn. App. 619, 624, 808 A.2d 1171 (2002). “The role of this court is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 193, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999).

In the present case, the defendants claim that the plaintiff did not meet his burden of proof because he failed to demonstrate the requisite causal connection between his injury and his employment. Specifically, the defendants argue that the plaintiff’s injury falls outside the meaning of personal injury in § 31-275 (16) (A) because there was no specific accidental injury that may be definitely located as to the time when and place where the accident occurred.

“Entitlement to workers’ compensation benefits does not attach upon a mere request for payment. There must be an injury that (1) arose out of the plaintiffs employment and (2) occurred in the course of his employment. ... An injury [a]rising out of and in the course of his employment means an accidental injury happening to an employee . . . while he has been engaged in the line of his duty in the business or affairs of the employer upon the employer’s premises .... To come within the course of employment, an injury must occur within the period of employment and at a place where the employee may be while he is reasonably fulfilling the duties of the employment.” (Citation omitted; internal quotation marks omitted.) Id. “Injury” is defined by § 31-275 (16) (A) as an “accidental injury which may be definitely located as to the time when and the place where the accident occurred, [and] an injury to an employee which is causally connected with his employment . . . .”

The defendants argue that because the plaintiff could not cite a specific event in which he hurt his back and because the injury could be accounted for by alternative explanations other than the ones credited by the commissioner, the plaintiff did not sustain a compensable injury. Our cases do not require such absolute certainty concerning the specific moment of injury. Our Supreme Court has stated that the proof of an accidental injury that can be definitely located both as to time and place “does not require that the time be fixed by a stopwatch or the place by a mathematical point.” Stier v. Derby, 119 Conn. 44, 49-50, 174 A. 332 (1934).

The commissioner heard the plaintiff testify that he hurt his back on the afternoon of September 8, 1999, and then detail the nature of the work the plaintiff did and the circumstances surrounding the onset of the back pain he began to feel that afternoon. The commissioner also heard contrary testimony detailing the various activities in which the plaintiff participated and his preexisting back pains that could constitute causes of the back injury that were not work related. The commissioner was well within her discretion as the trier of fact to find the plaintiffs testimony more persuasive and to credit his testimony over that of the defendants. “[T]he power and duty of determining the facts rests on the commissioner, who is the trier of fact. . . . This authority to find the facts entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” (Citations omitted; internal quotation marks omitted.) Gibbons v. United Technologies Corp., 63 Conn. App. 482, 485, 777 A.2d 688, cert. denied, 257 Conn. 905, 777 A.2d 193 (2001).

The defendants argue further that the expert medical opinion evidence showing an association between the plaintiffs injury and his employment merely was speculative and, hence, could not provide an adequate basis for the commissioner to find that the plaintiffs back pain was work related. We note, however, that our Supreme Court has held that expert medical opinion is not necessary to show the causal connection between injury and work in cases in which the commissioner could have concluded that it was more likely that an injury occurred from the type of work in which the plaintiff was engaged than from some unknown cause. See Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572, 574, 41 A.2d 451 (1945). Only when the theory of cause and effect showing the association between injury and work involves complex medical issues outside common knowledge and ordinary human experience must the commissioner turn to expert testimony to resolve such issues and to confirm by expert opinion the association between injury and work. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151-52, 291 A.2d 743 (1972); Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 449, 774 A.2d 992 (2001).

The plaintiff testified that it was a particular day of lifting heavy wood and brush for Lindon on September 8, 1999, that caused his back injury. It is sufficiently within common knowledge and ordinary human experience that the lifting of heavy objects, such as wood and brush soaked with water, may cause lower back injury, including a ruptured disc, and therefore it was unnecessary for the commissioner to turn to expert testimony to find that such work was the cause of the plaintiffs injury.

Furthermore, the commissioner had in the record before her expert medical opinion that showed a high probability of a causal connection between the plaintiffs ruptured disc and his employment. The commissioner was within her province as the trier of fact to credit all, some or none of that expert medical opinion evidence, both concerning the nature of and likely cause of the plaintiffs injury. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. . . . The trier may accept or reject, in whole or in part, the testimony of an expert.” (Citation omitted.) Tartaglino v. Dept. of Correction, supra, 55 Conn. App. 195. “[I]t is the commissioner’s duty to evaluate the weight of the medical evidence and the credibility of witnesses . . . and the commissioner’s conclusions cannot be reversed simply because the plaintiffs own evaluation of the findings causes him to reach a contrary conclusion. Unless the factual findings on which the commissioner bases his conclusion are clearly erroneous, or there is no evidence in the record to support the conclusion, the conclusion must stand.” (Citation omitted.) D’Amico v. Dept. of Correction, 73 Conn. App. 718, 725, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003).

Jacobson testified in his deposition that the plaintiffs ruptured disc was caused more likely than not by the plaintiffs day of hauling heavy brush for Lindon. Krom-pinger also testified in his deposition and in the commissioner’s medical evaluation that the plaintiffs ruptured disc was caused by his work for Lindon. We conclude that there was ample medical opinion in evidence to support the commissioner’s conclusion that there was a causal connection between the plaintiffs ruptured disc and his employment with Lindon.

On the basis of our review, we conclude that the board properly affirmed the commissioner’s determination that the plaintiff suffered an accidental injury that was specifically located as to the time and the place of its occurrence.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Jacobson later testified in a sworn deposition that the plaintiffs back injury more likely than not was a work-related injury.

       General Statutes § 31-275 (16) (A) provides: “ ‘Personal injury’ or ‘ipjury’ includes, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupation disease.”


text:
    STATE OF CONNECTICUT v. GUADALUPE LEON-ZAZUETA
    (AC 23251)
    Lavery, C. J., and Dranginis and McLachlan, Js.
    Argued October 17
    officially released December 30, 2003

      Peter A. Kelly, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene R. Calistro, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Guadalupe Leon-Zazueta, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation General Statutes § 21a-278 (b) and possession of narcotics in violation of General Statutes § 21a-279 (a). On appeal, the sole question is whether there was sufficient evidence for the jury to conclude that the defendant had constructive possession of the narcotics to support his conviction. We answer the question in the affirmative and, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant lived in the third floor apartment of a three-family house on 133 Springdale Avenue in Meriden. He shared his apartment with his friend, Omar Ramos, Ramos’ girlfriend, Norma Rodriguez, and Rodriguez’s two young children. On August 1, 2001, before leaving for work, the defendant asked Rodriguez to sign for several packages he was expecting to arrive that day so that they could be received in his absence. The defendant did not inform Rodriguez of the contents of the packages.

On July 30, 2001, two days prior to the defendant’s conversation with Rodriguez, two detectives with the parcel interdiction team of the narcotics division of the San Bernardino County sheriffs department intercepted two suspicious packages while conducting a random parcel inspection at a Mail Boxes Etc. in Ran-cho Cucamonga, California. The packages were addressed to the defendant at 133 Springdale Avenue, Meriden, under the names “Guadalupe Leon” and “Lup-ita Leon.” Finding a reasonable and articulable suspicion that the packages contained narcotics, the detectives inspected the packages with a drug sniffing canine that gave a positive alert on the two packages. The detectives obtained a search warrant and opened the packages. The packages contained a total of four pounds of a substance that tested positive for cocaine.

As part of a controlled delivery coordinated with state and federal authorities in Connecticut, the San Bernardino sheriffs department repackaged the cocaine. On August 1, 2001, an officer disguised as a delivery person took the two packages to the defendant’s third floor apartment. Rodriguez answered the door and signed “G. Leon” for the packages, as the packages were addressed to the defendant. Rodriguez placed the packages unopened in an unlocked closet in the living room of the defendant’s apartment. Within minutes of the delivery, the police entered the apartment. Finding only Ramos, Rodriguez and Rodriguez’s two children, the police advised Ramos and Rodriguez of their Miranda rights and placed them under arrest.

Police searched the defendant’s apartment pursuant to a warrant and discovered, in addition to the two unopened packages that had been delivered by the officer, two cardboard boxes on the floor of the defendant’s bedroom closet. One box had the remnant of a label showing most of the defendant’s last name while the other box had the same Rancho Cucamonga zip code on it as was listed for the sender of the two packages involved in the controlled delivery. The search of the defendant’s bedroom also uncovered a large knife with a blade longer than twelve inches, an open box of plastic sandwich bags, an open box of baking soda, a large pan and a professional mini digital scale, among other narcotics related items. On the same day as the controlled delivery, the defendant was informed of his rights and interviewed at his place of employment. He was informed that there would be a warrant for his arrest sought. He was arrested two days later. After his conviction, this appeal followed. Additional facts will be set forth as necessary.

The sole issue that the defendant raises on appeal is whether there was sufficient evidence produced at trial to show that he had the requisite possession of the cocaine that was mailed to his residence for the jury to convict him of possession of narcotics with intent to sell by a person who is not drug-dependent in violation § 21a-278 (b) and possession of narcotics in violation of § 21a-279 (a). Specifically, the defendant argues that there was insufficient evidence to prove that he had constructive possession of the cocaine mailed to his residence. We are not persuaded.

At the outset, we set forth our standard of review. “In reviewing [a] sufficiency [of evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the 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. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . .

“While . . . every element [must be] proven beyond a reasonable doubt in order to find 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. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. Harris, 60 Conn. App. 436, 444-45, 759 A.2d 1040, cert. denied, 255 Conn. 907, 762 A.2d 911 (2000).

“ [T] o prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where, as here, the cocaine was not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) State v. Jimenez, 73 Conn. App. 664, 667, 808 A.2d 1190, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002). “To mitigate the possibility that innocent persons might be prosecuted for . . . possessory offenses and to assure that proof exists beyond a reasonable doubt, it is essential that the state’s evidence include more than just a temporal and spatial nexus between the defendant and the contraband.” State v. Brunori, 22 Conn. App. 431, 436-37, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990).

Although there was no physical evidence placing the defendant in his apartment at the time the cocaine was delivered and seized, the state presented sufficient evidence to support the inference that he knew of the cocaine’s presence, and of the related processing and packaging materials in his apartment and exercised control over them.

The evidence demonstrated that the two packages containing cocaine arrived at the defendant’s residence at the time he expected them. Rodriguez, who lived in the defendant’s apartment, testified that the defendant had asked her to sign for two packages he expected to be delivered to him that day. Rodriguez accepted both packages on his behalf as requested. She placed the defendant’s packages, unopened, in an unlocked closet where the defendant could retrieve them on his return from work. Both packages were addressed to the defendant’s residence at 133 Springdale Avenue in Meriden. One package was addressed to the defendant by name, “Guadalupe Leon.” The second package was addressed to “Lupita Leon.” “Lupita” is derived from the defendant’s first name, and he admitted that “Lupita” was his daughter’s nickname.

There also was other evidence that buttressed the inference of the defendant’s constructive possession of the cocaine. The evidence showed that the defendant had items associated with drug processing and packaging in his locked bedroom, including a professional mini digital scale, an open container of baking soda, a pan and an open box of sandwich bags. The evidence also revealed the presence of two cardboard boxes with the remnants of address labels in the defendant’s bedroom closet, one showing most of the defendant’s name, “ada-lupe,” and the other showing the same Rancho Cuca-monga zip code as was listed for the sender of the two boxes involved in the controlled delivery. Additional evidence from a Federal Bureau of Investigation pen register log indicated that the defendant’s telephone was used to call or to receive calls from the telephone of a large scale drug dealer in California on twelve occasions during March, 2001.

The jury reasonably could have concluded that the defendant was in constructive possession of the cocaine on the basis of the reasonable inferences drawn from the evidence presented. “It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. . . . We do not sit as [an additional] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Citation omitted; internal quotation marks omitted.) State v. Young, 56 Conn. App. 831, 835, 746 A.2d 795, cert. denied, 253 Conn. 904, 753 A.2d 939 (2000). “The [jury] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Gonzales, 74 Conn. App. 580, 592, 814 A.2d 384, cert. denied, 263 Conn. 915, 821 A.2d 771 (2003).

Construing the evidence and the reasonable inferences drawn therefrom in the light most favorable to sustaining the verdict, there was sufficient evidence to support the jury’s verdict. We conclude, therefore, that the evidence was sufficient to support a conclusion that the defendant constructively possessed the cocaine mailed to and subsequently found in his apartment.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The defendant was found not guilty of a third charge, possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277 (c).


author: PETERS, J.

text:
    DANIEL R. PEKERA, ADMINISTRATOR (ESTATE OF CHARLENE WALKER), ET AL. v. DAVID PURPORA ET AL.
    (AC 23546)
    Lavery, C. J., and McLachlan and Peters, Js.

      Argued October 20
    officially released December 30, 2003

      John D. Jessep, for the appellants (plaintiffs).

      Jeffrey R. Bobbin, with whom, on the brief, was Kevin M. Smith, for the appellee (defendant Allan Rodrigues).
   Opinion

PETERS, J.

In this case, the prolonged refusal of a hospital patient to consent to a medical procedure called endotrachial intubation resulted in her death. A malpractice complaint alleged that an attending pulmo-nologist negligently had performed and managed the patient’s intubation. The principal issue is whether this complaint should be construed to encompass an allegation that the pulmonologist had failed to inform the patient of the risk of death if she was not immediately intubated. Concluding that such a construction was improper, the trial court granted the pulmonologist’s motion for summary judgment. We agree and affirm its judgment.

The plaintiffs, Daniel R. Pekera, the administrator of the estate of the decedent, Charlene Walker, and the decedent’s husband, Earl Walker, filed a sixteen count malpractice complaint naming five physicians, two professional coiporations and Griffin Hospital as defendants. The complaint alleged that each of them negligently had engaged in conduct that caused the decedent (patient) to suffer injury and to die at Griffin Hospital on April 6,1996. Except for those counts alleging malpractice by the defendant Allan Rodrigues, a pulmonologist, the plaintiffs have now withdrawn their complaint against the defendants.

The malpractice allegations against the defendant were set out in five specifications in count nine of the plaintiffs’ complaint. During pretrial proceedings, however, the plaintiffs withdrew each allegation except that stated in paragraph 5 (c) of count nine, namely, that the defendant “failed to timely intubate and properly manage the plaintiffs decedent’s pulmonary condition

The defendant fled a motion for summary judgment on two grounds. He asserted that (1) the plaintiffs’ expert witness had not substantiated the plaintiffs’ claim of malpractice as stated in paragraph 5 (c) of count nine, and (2) the plaintiffs were not entitled to amend their complaint to conform to the expert’s opinion that the defendant improperly had failed to inform the patient of the consequences of her refusal to be intubated.

In their reply, the plaintiffs contested each of the defendant’s claims. They argued that paragraph 5 (c) of count nine, as drafted, encompassed a claim of failure to inform because, like the alleged failure to intubate in a timely manner, it arose out of the same factual circumstances. If that argument was unpersuasive, the plaintiffs requested the court’s permission “to amend [their] complaint to include specific language relating to that claim so that the relation back analysis can be applied with a specific allegation.”

The trial court granted the defendant’s motion. It concluded that paragraph 5 (c) of count nine neither expressly nor impliedly charged the defendant with failure to inform the patient of the risks of refusal to consent to intubation. It further concluded that it did not need to address the possibility of an amendment of the complaint because “there is no complaint left to amend.”

In their appeal from the judgment in favor of the defendant, the plaintiffs claim that the court (1) construed their complaint too narrowly and (2) should have permitted them to amend their complaint to include an allegation of failure to inform. We disagree.

I

Our review of a trial court’s grant of a motion for summary judgment proceeds along a well charted path. We undertake such review to ascertain whether the moving party, on undisputed facts, is entitled to judgment as a matter of law. See, e.g., Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003).

The undisputed facts establish that, on April 5, 1996, the patient was admitted to Griffin Hospital because she was suffering from severe diabetic ketoacidosis and pneumonia. The defendant, a pulmonologist, was asked to examine the patient in the early hours of the following day. The defendant immediately determined that she needed an endotrachial intubation in order to receive ventilatory support. He also immediately summoned her husband to the hospital to discuss the seriousness of the patient’s condition with him.

The patient repeatedly refused to be intubated, despite repeated efforts to persuade her to do so, both by the defendant and her husband. When, at the urgent importuning of her husband, she finally consented to this procedure, she was promptly intubated, but it was too late. She died an hour later.

In paragraph 5 (c) of count nine of the malpractice complaint, the plaintiffs alleged that these facts demonstrated that the defendant negligently had “failed to timely intubate and properly manage the [patient’s] pulmonary condition . . . .” The plaintiffs could not proceed with this claim without the support of expert testimony. See Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990); Harlan v. Norwalk Anesthesiology, P.C., 75 Conn. App. 600, 613, 816 A.2d 719, cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003).

In his deposition, the plaintiffs’ expert witness, Daniel M. Goodenberger, a pulmonologist, did not fault the timeliness of the intubation. He did not question the defendant’s decision not to intubate the patient without her consent. It was, however, his view that the patient would have consented to the intubation earlier if the defendant had been more forceful in explaining to her the seriousness of her condition. Goodenberger stated that in his experience, “when patients are told that the alternative to a procedure such as this is death . . . they will accept it.” According to the expert, the defendant’s care had been substandard because the defendant had not appreciated the seriousness of the patient’s condition as soon as he should have and therefore had not advised the patient adequately of the risk of declining intubation.

The plaintiffs argue that the trial court improperly granted the defendant’s motion for summary judgment because their expert’s testimony provided a sufficient basis for a trial on paragraph 5 (c) of count nine. Like the court, we are not persuaded.

The linchpin of the plaintiffs’ argument is that a claim of negligent failure to perform a timely intubation encompasses a claim of negligent failure to provide adequate information to a patient when, as here, the two claims allegedly are causally connected. In their view, the patient’s intubation was untimely, as the complaint alleged, as a result of the defendant’s failure to overcome the patient’s resistance to intubation in a timely fashion.

The trial court rejected this argument. It held that paragraph 5 (c) alleged negligence in the timing of the patient’s intubation and in the management of the pulmonary condition and nothing else. It observed that, in other cases alleging malpractice, plaintiffs have pursued claims of misconduct and claims of failure to inform in separate counts. “Under the facts here,” it held, “the plaintiff[s] simply failed to plead the specification that [the defendant] did not adequately inform the [patient] of the risks of refusal.”

We agree with the court that, although a malpractice complaint may include claims both for failure to perform and for failure to inform, the two claims are not identical. The closest analogous case is Williams v. Chameides, 26 Conn. App. 818, 603 A.2d 1211, cert. denied, 221 Conn. 923, 608 A.2d 689 (1992), which also involved malpractice claims arising out of a fatal delay in the performance of a needed hospital procedure, in that case, a heart shunt operation. In Williams, we characterized a claim for failure to perform and a claim for failure to inform of the risks of delay as separate and distinct. Id., 821; see also Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 706-707 n.4, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991).

The distinction between a duty to exercise due care in the performance of requisite medical procedures and a duty to exercise due care in informing a patient of medical risks is not merely linguistic. It reflects, instead, the fundamental difference between the appropriate performance of professional skills and the proper engagement of a patient in decision making about his or her professional care. As our Supreme Court held in Logan v. Greenwich Hospital Assn., 191 Conn. 282, 292-93, 465 A.2d 294 (1983), a physician has the duty “to provide the patient with that information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.”

The duty to inform is, therefore, a crucial aspect of the principle of informed consent. That principle, in turn, arises, out of a patient’s common-law right of self-determination and constitutional right to privacy. In McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 709-10, 553 A.2d 596 (1989), our Supreme Court honored the firmly expressed wish of a patient that, if she were ever in a vegetative state, her life should not be prolonged artificially. Similarly, in this case, the defendant had a duty to honor the firmly expressed wish of the patient that she not be intubated. He properly declined to intubate her as long as she refused to consent to that procedure.

Respect for a patient’s autonomy does not, of course, foreclose a physician’s duty to attempt to inform the patient of the risks of forgoing medical intervention. Had the defendant been charged with a breach of that duty, the plaintiffs might well have been entitled to a trial on its merits.

We agree, however, with the trial court’s conclusion that the plaintiffs’ complaint of medical malpractice did not encompass a claim of failure to inform. The court properly granted the defendant’s motion for summary judgment on its merits.

II

The trial court also addressed and rejected the plaintiffs’ suggestion that they should be permitted to amend their complaint to allege that the defendant negligently had failed to inform the patient of the urgency of intubation. In the court’s view, because it had rendered summary judgment for the defendant on all remaining counts, “there [was] no complaint left to amend.” “Accordingly,” the court held, “[it did] not have to address the question, discussed by the parties, of whether the statute of limitations bars the plaintiff[s] from amending [their] complaint to allege a cause of action for ‘informed refusal.’ ”

On appeal, the plaintiffs contend that the court improperly declined to consider an amendment to the complaint. We agree with the defendant that the plaintiffs’ arguments in favor of amendment are not well founded.

First, as a matter of fact, the plaintiffs have not confronted the significance of their failure to file a request to amend. The defendant’s motion for summary judgment alerted them to the risk that their complaint, as drafted, would be construed to allege only a failure to intubate the patient in a timely manner. Indeed, they discussed the possibility of an amendment in their response to the defendant’s motion. We know of no authority for the proposition that discussion of a possible amendment obviates the actual filing of a request to amend.

Second, as a matter of law, even if the court’s ruling were to be construed as a refusal of an implied request to amend, the plaintiffs have not addressed the court’s discretionary control over amendments to complaints. “Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An appellate] court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion.” (Internal quotation marks omitted.) Berlin Batting Cages, Inc. v. Planning & Zoning Commission, 76 Conn. App. 199, 211, 821 A.2d 269 (2003). In the absence of a persuasive argument for abuse of discretion, the court’s resolution of the amendment issue cannot be faulted.

The judgment is affirmed.

In this opinion the other judges concurred.

      The term “endotrachial intubation” is defined as “passage of a tube through the nose or mouth into the trachea for maintenance of the airway . . . for maintenance of an imperiled airway.” T. Stedman, Medical Dictionary (26th Ed. 1995) p. 887.

       The eight counts filed by the administrator named as defendants not only Griffin Hospital, but also physicians David Puipora, David Moll, Allan Rodrigues, Howard Quentzel, and Jeanne Kuslis and two professional corporations, Clinical Center for Neoplastic Diseases, P.C., and Valley Medical Associates, P.C. The eight counts filed by Earl Walker against the same defendants sought recovery for loss of consortium.

       We refer in this opinion to Rodrigues as the defendant.

       At oral argument in the trial court, the court properly inquired into why the plaintiffs had “sued a great number of doctors, which imposes personal and societal costs, and not pursued these claims.” The court record shows that the plaintiffs had filed a certificate of good faith, as required by General Statutes § 52-190a. The court accepted the representation of the plaintiffs’ counsel that there was an evidentiary basis for the plaintiffs’ decision to sue everyone that had participated in the patient’s care.

       Count ten was a claim for loss of consortium by Earl Walker. It relied on the same allegations of misconduct that were pleaded in count nine.


author: PER CURIAM.

text:
    ARTHUR COLE v. COMMISSIONER OF CORRECTION
    (AC 23736)
    Lavery, C. J., and Flynn and Bishop, Js.
    Submitted on briefs November 21
    officially released December 30, 2003

      Brian D. Russell, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Michele C. Luk-ban, assistant state’s attorney, and Linda N. Howe, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Arthur Cole, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus and denying his petition for certification to appeal to this court. On appeal, the petitioner claims that the habeas court (1) abused its discretion when it denied his petition for certification to appeal and (2) improperly found that he was not denied the effective assistance of appellate counsel. Specifically, the petitioner contends that his appellate counsel was ineffective in failing to petition for certification to appeal to the Supreme Court following this court’s affirmance of his conviction. We dismiss the petitioner’s appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. The petitioner was convicted, following a jury trial, of two counts of accessory to robbery in the first degree with a firearm in violation of General Statutes §§ 53a-8 and 53a-134 (a) (4), two counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4), and two counts of larceny in the second degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-123 (a) (3). The conviction was affirmed on appeal. State v. Cole, 57 Conn. App. 559, 749 A.2d 662 (2000).

The petitioner subsequently filed a second amended petition for a writ of habeas corpus in which he alleged that his appellate attorney, Avery S. Chapman, rendered ineffective assistance of counsel in that he failed (1) to communicate and to keep the petitioner informed of the status of the appeal, (2) to discuss with the petitioner the merits of the appellate issues before writing the appellate brief, (3) to raise the issues of sufficiency of the evidence and the trial court’s denial of the petitioner’s motion to dismiss, and (4) to petition the Supreme Court for certification to appeal after the Appellate Court affirmed his conviction.

A hearing was held at which the petitioner and Chapman testified. At the conclusion of the hearing, the habeas court, in an oral decision, found that the petitioner had failed to prove that Chapman was deficient in any respect in the handling of the petitioner’s appeal. The court subsequently issued a written memorandum of decision in which it reiterated its earlier conclusion. In its written decision, the court specifically stated that “[t]he petitioner ha[d] failed to prove that a petition for certification probably would have been granted by the Supreme Court, and, if granted, that the Supreme Court probably would have reversed the decision of the Appellate Court.” The court, therefore, dismissed the habeas petition and denied the petition for certification to appeal. The petitioner then filed the present appeal.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Bewry v. Commissioner of Correction, 73 Conn. App. 547, 548, 808 A.2d 746 (2002), cert. denied, 266 Conn. 918, 837 A.2d 801 (2003). “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. . . . If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his [underlying] claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Citation omitted; internal quotation marks omitted.) Bewry v. Commissioner of Correction, supra, 73 Conn. App. 549.

After reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. See id., 549-50. Additionally, the petitioner has failed to sustain his burden of persuasion that the court’s denial of his petition for certification to appeal was a clear abuse of discretion or that some type of injustice has been done. See id., 550; see also Simms v. Warden, supra, 230 Conn. 612.

The appeal is dismissed.


author: FOTI, J.

text:
    STEPHEN PRESCOTT ET AL. v. CITY OF MERIDEN ET AL.
    (AC 23556)
    Foti, Schaller and Dranginis, Js.
    Argued October 30
    officially released December 30, 2003

      Lori Welch-Rubin, with whom was David Johnson, for the appellants (plaintiffs).

      Lisa K. Titus, with whom were Thomas R. Gerarde and, on the brief, Melinda A. Powell, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff Stephen Prescott appeals from the trial court’s judgment granting the defendants’ motion for summary judgment in this personal injury action in which the plaintiff sustained an injury while attending a high school football game. On appeal, the plaintiff claims that the court improperly concluded that he did not qualify for the identifiable person-imminent harm exception to the doctrine of governmental immunity. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs appeal. On November 26, 1998, the plaintiff attended a high school football game at Platt High School’s field in Meriden to watch his son play. Rain was falling that morning, and the weather forecast predicted the same for the time of the game. When the plaintiff arrived at the public field, the bleacher seats, which were temporarily erected, already were “wet and muddy” from the rain and from the other spectators walking on them. Prior to the end of the game, as the plaintiff was descending the bleachers from his seat, he fell, injuring himself.

On November 24, 2000, the plaintiff filed a complaint, claiming negligence on the part of the defendants. Specifically, the plaintiff alleged that the defendants (1) allowed the bleachers to be used during heavy rain, (2) did not postpone the game due to the heavy rain, (3) allowed the bleachers to be used in the rain without a nonskid surface or stairs, (4) did not provide bleachers with handrails and (5) did not inspect the bleachers.

On December 27,2000, the defendants filed an answer and special defense in which they claimed that the plaintiff was comparatively negligent. On November 2, 2001, the defendants amended their answer and special defense, adding the doctrine of governmental immunity as a special defense.

The defendants then filed a motion for summary judgment on June 18, 2002, claiming that all counts of the plaintiffs complaint were barred by the doctrine of governmental immunity. On July 5, 2002, in his objection to the defendants’ motion for summary judgment, the plaintiff argued that the identifiable person-imminent harm exception to governmental immunity applied. On September 25, 2002, the court granted the defendants’ motion for summary judgment, concluding that, as a matter of law, the plaintiff was not an identifiable person, but rather a member of the general public attending the football game. The plaintiff appeals from that judgment.

We begin our analysis by setting forth the applicable standard of review. “Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Citation omitted; internal quotation marks omitted.) Tryon v. North Branford, 58 Conn. App. 702, 706, 755 A.2d 317 (2000).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the defendants as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Id., 706-707.

In his appeal, the plaintiff claims that the court improperly concluded, as a matter of law, that he was not an identifiable person subject to imminent harm so as to come within an exception to the doctrine of governmental immunity. We do not agree.

“The doctrines that determine the tort liability of municipal employees are well established. Although municipalities are generally immune from liability in tort, municipal employees historically were personally hable for their own tortious conduct. . . . The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act. . . . The word ‘ministerial’ refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” (Citations omitted; internal quotation marks omitted.) Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994).

The plaintiff concedes that any duty owed to him by the defendants was discretionary in nature. To succeed in his claim of liability, therefore, the plaintiff must be entitled to recover within one of the exceptions to a municipal employee’s qualified immunity for discretionary acts. Our Supreme Court has recognized three exceptions: “first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.” (Internal quotation marks omitted.) Id.

The only exception to the qualified immunity of a municipal employee for discretionary acts that is of relevance to the present case is the exception permitting a tort action in circumstances of imminent harm to an identifiable person. That exception has been construed to apply not only to identifiable individuals, but also to narrowly defined identified classes of foreseeable victims. Id., 646. Whether the plaintiff comes within a class of identifiable persons is a question of law for the court to decide absent unresolved factual issues material to the applicability of the defense. See Purzycki v. Fairfield, 244 Conn. 101, 108 n.4, 708 A.2d 937 (1998).

“The [identifiable person-imminent harm] exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state.” (Internal quotation marks omitted.) Tryon v. North Branford, supra, 58 Conn. App. 710. Our courts have, however, applied that exception in a series of cases involving injuries to schoolchildren. See Purzycki v. Fairfield, supra, 244 Conn. 101; Burns v. Board of Education, supra, 228 Conn. 648-49; Colon v. Board of Education, 60 Conn. App. 178, 184-85, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000). From those cases, our courts have determined that “schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims.” Purzycki v. Fairfield, supra, 109.

This court also has applied that exception to a firefighter in Tryon v. North Branford, supra, 58 Conn. App. 702. In Tryon, the plaintiff firefighter was waiting in a staging area to march in a firefighters parade when a dog that was in the parade bit her. Id., 704. In concluding that the plaintiff was an identifiable person, this court stated that she was “not a member of the general public attending a parade but a firefighter in uniform in the staging area one block away from the site of the parade when the dog bit her.” Id., 710.

In the present case, the plaintiff argues that he was an identifiable victim because of public policies encouraging parental involvement in school functions. Specifically, the plaintiff argues that, because parents are encouraged to take part in those activities, he was an identifiable victim at the football game. We do not agree.

The plaintiff was a member of the general public who voluntarily attended a public function at a municipal athletic field. Having a son playing in the game motivated the plaintiff to attend, but that did not compel the plaintiff to be there. He had the same right to attend as any member of the public and was exposed to the same conditions as anyone else who attended the game. Because the decision to attend the game rested solely within the plaintiffs discretion, we cannot properly conclude that it was foreseeable that he would attend and that he consequently was an identifiable victim. “The adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society.” Shore v. Stonington, 187 Conn. 147, 157, 444 A.2d 1379 (1982). We therefore conclude that the court correctly determined that the plaintiff was not an identifiable person for purposes of the identifiable person-imminent harm exception to governmental immunity.

The judgment is affirmed.

In this opinion the other judges concurred.

       Anne Prescott, Stephen Prescott’s wife, also a plaintiff in this matter, sought damages for loss of consortium. Although Anne Prescott is an appellant, we will use the term “plaintiff’ to refer to Stephen Prescott only.

       The defendants are (1) the city of Meriden, (2) Richard Katz, director of athletics for Platt High School, (3) Mark Zebora, director of the department of parks and recreation for the city of Meriden, (4) Elizabeth Ruocco, director of the department of education for the city of Meriden and (5) the department of education for the city of Meriden. The complaint alleged that the defendant city of Meriden was liable to the plaintiff for the negligence of its employees pursuant to General Statutes § 7-465.

       Because the facts are to be construed in the light most favorable to the nonmoving party, the court accepted those facts, which were contained in Stephen Prescott’s affidavit dated June 20, 2002, for the purpose of ruling on the defendants’ motion for summary judgment. See Tryon v. North Branford, 58 Conn. App. 702, 706, 755 A.2d 317 (2000).

       The defendants filed a request for leave to amend on November 2, 2001, which was granted without objection pursuant to Practice Book § 10-60.

       Because we conclude that the court, on the basis of the pleadings and evidence, properly concluded that the plaintiff was not an “identifiable person,” we need not address whether there was “imminent harm.”


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. KATHLEEN WYATT
    (AC 23440)
    Lavery, C. J., and Dranginis and McLachlan, Js.

      Argued October 17
    officially released December 30, 2003

      Daniel J. Krisch, special public defender, with whom were Sarah J. Healy, legal intern, and, on the brief, Wesley W. Horton, and Barbara Ellis and Julia K. Ulrich, legal interns, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James R. Turcotte, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Kathleen Wyatt, appeals from the judgment of conviction, rendered after a trial to the court, of several charges stemming from a drunken driving accident that claimed the life of the operator of a motorcycle and seriously injured his passenger. The defendant claims on appeal that the court (1) deprived her of a fair trial by hearing testimony as to her blood alcohol content (BAC) prior to ruling on her motion in limine to preclude that very evidence and (2) violated the constitutional prohibition against double jeopardy by imposing consecutive sentences for certain charges that are lesser included offenses. We affirm the judgment of the trial court.

On the basis of the evidence adduced at trial, the court reasonably could have found the following facts. On October 24,1999, with Diane Valiquette as a passenger, Clark Smith was operating his motorcycle in the southbound lane of Hanover Street in Meriden. The defendant, who had been traveling northbound, made a left turn into a gasoline station near the intersection of Hanover Street and Main Street. The defendant’s vehicle and the motorcycle collided. The impact of the collision threw both Smith and Valiquette from the motorcycle, causing Smith to suffer serious head injuries that ultimately were fatal. Valiquette also suffered serious injuries, but survived. The defendant was not injured.

Shortly after the collision, Paul Rowen, an officer with the Meriden police department, arrived on the scene and spoke briefly with the defendant. He then asked her to perform three standard field sobriety tests, to which she consented. The defendant’s performance on all three tests indicated that she was intoxicated. Rowen arrested the defendant and transported her to the Meriden police station. After permitting the defendant to telephone her attorney, Rowen requested that the defendant submit to a Breathalyzer test, to which she consented. The test was conducted with a Breathalyzer machine, an Intoxilyzer 5000. The defendant twice provided an insufficient sample of air for a complete test. During the second attempt, however, the defendant provided enough air for the machine to calculate an intermediate reading of her BAC. That intermediate reading appeared on the screen in front of Rowen, but did not appear on the slip that the Intoxilyzer printed.

I

The defendant first claims that the court improperly heard testimony regarding the intermediate results of the Breathalyzer test, resulting in prejudice to her that implicated her right to a fair trial. The defendant asserts that she preserved that claim for appeal by means of a motion in limine, which sought to preclude the intermediate Intoxilyzer readings from evidence. We disagree that the defendant’s motion in limine sufficed to preserve her claim for appeal.

The defendant filed a motion in limine, pursuant to Practice Book § 42-15, to preclude any testimonial evidence related to the intermediate Intoxilyzer readings of her BAC. In her motion in limine, she argued that the testing was incomplete and that even if the intermediate readings constituted a completed test, a second Breathalyzer test was not performed, causing the readings not to conform to the requirements of General Statutes § 14-227a. In response to the motion in limine, the state requested a hearing pursuant to State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), regarding the admissibility of such testimony despite the nonconformity with the statutoiy requirements. The state claimed that the intermediate results possessed a sufficient indicia of scientific reliability of BAC to be relevant to the question of the defendant’s intoxication. Pursuant to Practice Book § 42-15, the court and the parties agreed that the court would reserve judgment on the defendant’s motion in limine until it conducted a Porter hearing regarding the intermediate readings. The Porter hearing was scheduled for April 26, 2002.

The trial commenced on April 23, 2002. The court heard the substance of the testimony that was the subject of the defendant’s motion in limine prior to conducting the Porter hearing. After conducting the Porter hearing, the court concluded that even though the intermediate results would be admissible under Porter, their nonconformity with the strict requirements of § 14-227a (b) required their exclusion from the trial. The court reasoned that, although the strict requirements of § 14-227a (b) were not incorporated explicitly into General Statutes § 53a-56b, those requirements needed to be met to introduce evidence of Breathalyzer test results.

The defendant claims that her motion in limine preserved for appeal her objection to the court’s hearing any testimony regarding the Intoxilyzer’s intermediate readings. Her motion in limine, however, did not address that issue. The motion in limine sought only to preclude evidence from the case-in-chief. The court, in fact, granted the motion. The defendant’s motion in limine, however, did not address the court’s hearing the evidence outside the state’s case-in-chief. The motion, therefore, did not preserve the defendant’s claim that the court’s mere knowledge of the intermediate Intoxi-lyzer readings was prejudicial to her.

In the alternative, the defendant claims that Rowen’s testimony regarding the intermediate readings prejudiced the court and brought into question the ultimate fairness of the trial. The defendant, therefore, requests review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We will review the claim, but conclude that the defendant waived her claim of prejudice at trial. The defendant is unable to satisfy the third prong of Golding, which requires that a constitutional violation clearly existed and that she clearly was denied a fair trial. See State v. Arluk, 75 Conn. App. 181, 191-92, 815 A.2d 694 (2003); State v. Cooper, 38 Conn. App. 661, 676, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996).

The following facts demonstrate that the defendant waived any claim that by hearing the testimony regarding the Intoxilyzer’s intermediate readings, the court was so prejudiced that it denied her a fair trial. As a consequence of filing her motion in limine, the discussion surrounding the motion and the state’s request for a Porter• hearing, the defendant was aware that the court was going to conduct a hearing to determine the admissibility of the Intoxilyzer’s readings. The defendant knew at the time Rowen testified that she was in the midst of a trial in which the court that was to rule on the admissibility of the evidence also was the trier of fact. Prior to eliciting Rowen’s testimony regarding the Intoxilyzer’s intermediate readings, the prosecutor warned the defendant that the evidence was about to be presented, i.e., “Now, this is an area where I am going to be getting into the observations of the officer relative to the machine . . . .” That statement followed a previous warning from the prosecutor that he was planning to elicit testimony related to the Porter hearing scheduled for the following day. The prosecutor stated: “I am going to come to a point where I am going to ask him about his observations as to the Intoxilyzer; that portion of it will relate to the hearing tomorrow and the admissibility of that evidence, of the officer’s observations of any readings on the Intoxilyzer.” (Emphasis added.)

The prosecutor’s statements informed the defendant that the court would learn of the test results prior to determining their admissibility. Nonetheless, the defendant failed to object to Rowen’s testimony that was the subject of the motion in limine itself at the time the prosecutor informed the court and the defendant that the testimony was imminent, and when Rowen actually testified as to his observations of the Intoxilyzer readings. The defendant also failed to request that the court disqualify itself from ruling on the admissibility of the evidence after hearing Rowen’s testimony. By failing to object at the appropriate time, the defendant implicitly waived any claim as to the denial of her right to a fair trial that could result from the court’s learning the test results. “A defendant must avail himself of the opportunity to make an objection and if he does not avail himself of the opportunity, he must be holden to a waiver of the objection.” (Internal quotation marks omitted.) State v. Tate, 59 Conn. App. 282, 285, 755 A.2d 984, cert. denied, 254 Conn. 935, 761 A.2d 757 (2000). Because she implicitly waived her constitutional claim at trial by failing to object to the testimony concerning the test results when the prosecutor explicitly drew attention to the testimony, the defendant cannot satisfy the third prong of Golding, and her claim, therefore, must fail.

II

The defendant next claims that the court improperly imposed consecutive sentences for her conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs and reckless driving because they are lesser offenses included within manslaughter in the second degree with a motor vehicle and manslaughter in the second degree, of which she also was convicted. The defendant claims that the imposition of consecutive sentences on those charges violates the constitutional prohibition against double jeopardy. We disagree.

Although the defendant failed to preserve her claim for appeal, we will review it under Golding, as the record is adequate for review and the claim is of constitutional magnitude alleging a violation of a fundamental right. See State v. Laws, 37 Conn. App. 276, 289, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995). The defendant’s claim, however, fails to satisfy the third prong of Golding because the constitutional prohibition against double jeopardy is not implicated by imposing consecutive sentences in this instance.

We first address the defendant’s claim that operating a motor vehicle while under the influence of liquor or drugs is a lesser offense included within manslaughter in the second degree with a motor vehicle. This court previously addressed the issue in State v. Lonergan, 16 Conn. App. 358, 366, 548 A.2d 718 (1988), aff'd, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990), in which we concluded that the two offenses were not the same offense for double jeopardy purposes under the test established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Blockburger provides 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.” Id., 304.

“In applying the Blockburger test, it is clear that the offenses charged here do not constitute the ‘same’ offense. Although the alleged violations arose out of the same act, each offense requires proof of a fact that the other does not. A conviction of manslaughter in the second degree with a motor vehicle . . . requires proof of (1) operation of a motor vehicle (2) while . . . [under the influence of intoxicating liquor or drug or both] (3) which causes the death of another person. General Statutes § 53a-56b .... A conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs, requires proof of (1) operation of a motor vehicle (2) on a public highway or on one of the other designated areas (3) while under the influence of intoxicating liquor or drugs. General Statutes § 14-227a ....

“While these two offenses share certain elements, each contains an element that the other does not. A conviction for operating a motor vehicle while under the influence of alcohol must be supported by proof that the defendant operated a motor vehicle on one of the locations specified in the statute; such a geographical element is not pertinent to a conviction for manslaughter with a motor vehicle while intoxicated. A conviction for manslaughter with a motor vehicle while intoxicated must be supported by proof that another person died as a result of the defendant’s intoxication; such a death element is not pertinent to a conviction for operating a motor vehicle while under the influence of alcohol. For these reasons, the two offenses are not the same under the Blockburger test.” (Citations omitted.) State v. Lonergan, supra, 16 Conn. App. 366-67.

“Our analysis of double jeopardy claims does not end, however, with a comparison of the offenses. The Blockburger test is a rule of statutory construction, and because it serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent.” (Internal quotation marks omitted.) State v. Kirsch, 263 Conn. 390, 421, 820 A.2d 236 (2003). The legislative history of both § 53a-56b and § 14-227a is silent regarding the legislature’s intent of precluding or permitting the prosecution of one offense when the state has commenced the prosecution of the other offense for the same conduct. “Therefore, we are left with silence on the issue, from which we do not determine legislative intent.” Id., 420.

The defendant’s claim that reckless driving is a lesser offense included within manslaughter in the second degree likewise must fail. In applying the Blockburger test, the offenses charged clearly do not constitute the same offense. A conviction of reckless driving requires proof of (1) operation of a motor vehicle (2) on a public highway or on one of the other designated areas (3) in a manner that is reckless having regard to the width, traffic and use of the highway. General Statutes § 14-222 (a). A conviction of manslaughter in the second degree requires proof of (1) recklessness on the part of the defendant (2) that causes the death of another person. General Statutes § 53a-56. Although both of the offenses require reckless conduct, a conviction for reckless driving must be supported by proof that the defendant operated a motor vehicle and operated that vehicle in one of the areas designated by the statute; neither the operation of a motor vehicle nor the geographical location is an element of manslaughter in the second degree. A conviction of manslaughter in the second degree must be supported by proof that another person died as a result of the defendant’s reckless conduct; such a death element is not required for a conviction of reckless driving.

Under the Blockburger test, therefore, manslaughter in the second degree and reckless driving are not the same offense. Moreover, the legislative history of both § 53a-56 and § 14-222 is silent regarding the legislature’s intent of precluding or permitting the prosecution of one offense when the state has commenced the prosecution of another offense for the same conduct. We therefore conclude that manslaughter and reckless driving are not the same offense.

The judgment is affirmed.

In this opinion the other judges concurred.

       As to flic deceased operator, Clark Smith, the defendant was convicted of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1), misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a) and manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b (a). As to Smith’s passenger, Diane Valiquette, the defendant was convicted of assault in the second degree in violation of General Statutes § 53a-60 (a) (3) and assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d (a). The defendant also was convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1), reckless driving in violation of General Statutes § 14-222 (a) and making an improper turn in violation of General Statutes § 14-242 (a).

       General Statutes § 14-227a (b) provides in relevant part: “[EJvidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided ... (5) an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed . . . .”

       For the same reason, the defendant cannot prevail on a claim of plain error. “Just as a valid waiver calls into question the existence of a constitutional violation depriving the defendant of a fair trial for the purpose of Golding review, a valid waiver also thwarts plain error review of a claim.” State v. Corona, 69 Conn. App. 267, 274, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002).

       We resolve the defendant’s claims on federal constitutional grounds. Although the constitution of Connecticut does not include a specific double jeopardy provision, the due process guarantee of article first, § 8, of our'state constitution has been held to provide protection against double jeopardy. See State v. Morris, 49 Conn. App. 409, 418, 716 A.2d 897, cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).

       In reaching its decision in Lonergan, this court applied an additional test to determine whether two offenses implicated the double jeopardy clause when those offenses are charged in successive prosecutions as opposed to being charged in the same prosecution. State v. Lonergan, supra, 16 Conn. App. 367. Our Supreme Court later invalidated that additional test for successive prosecutions pursuant to United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). Our Supreme Court, following Dixon, recognized the Blockburger test as “the exclusive test for determining whether two offenses are the same offense for double jeopardy purposes.” State v. Alvarez, 257 Conn. 782, 795, 778 A.2d 938 (2001).