author: HENNESSY, J. SCHALLER, J.,

text:
    STATE OF CONNECTICUT v. RICHARD RODRIGUEZ
    (13900)
    Heiman, Schaller and Hennessy, Js.

      Argued February 16
    decision released September 26, 1995

      KentDrager, assistant public defender, for the appellant (defendant).

      Nancy Gillespie, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Richard Rodriguez, appeals from the judgment of conviction, rendered after a trial by jury, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), one count of conspiracy to commit robbery in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-136, one count of burglary in the third degree in violation of General Statutes § 53a-103, one count of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-103, two counts of kidnapping in the first degree in violation of General Statutes §§ 53a-92 (a) and 53a-8, two counts of larceny in the second degree in violation of General Statutes §§ 53a-123 (a) and 53a-8, and one count of larceny in the third degree in violation of General Statutes §§ 53a-124 (a) and 53a-8. The defendant claims that the trial court improperly (1) denied his motion to suppress evidence, (2) found that there was sufficient evidence to support his convictions, (3) ruled on the admissibility of certain statements of the deceased victim, and (4) instructed the jury on intoxication in relation to the state’s burden of proving specific intent. The defendant also claims that his due process rights were violated by (5) prosecutorial misconduct and (6) the imposition of improper sentences for his conspiracy conviction. Because we find that the trial court improperly denied the defendant’s motion to suppress, we reverse the judgment of conviction.

The jury could reasonably have found the following facts. On December 2, 1991, Aimee Harris and William Harris, residents of 2330 Shepard Avenue in the town of Hamden, were victims of a robbery in their home perpetrated by two men wearing masks, one of whom was armed with a gun. During the course of the robbery, the victims had property taken from their persons as well as their home. In addition, the robbers bound the Harrises with neckties. Within minutes after the robbers left, the victims freed themselves and called 911. The Hamden police arrived shortly thereafter, and broadcast the details of the robbery over the police radio.

As Sergeant John Kennelly of the Hamden police department approached the area of the robbery, he observed a red car’ parked on the shoulder of the road approximately twenty-five feet from the Harris driveway. Standing next to the passenger side of the car was Daniel Garrison, whom Kennelly had known for many years. A white female, later identified as Carol Orsene, was sitting in the driver’s seat of the car and a Hispanic male, with dark hair and a mustache, was in the backseat. Kennelly spoke briefly with Garrison, warning him to leave the area because of a problem, and proceeded to the Harris home.

Later that evening, the defendant was arrested on unrelated charges. He was then identified by Kennelly as the Hispanic male from the red car parked near the Harris driveway. The next day the defendant was arraigned on charges relating to the robbery at the Harris home. He was convicted after a jury trial and this appeal followed.

I

The defendant first claims that the trial court improperly denied his motion to suppress evidence. The following additional facts are relevant to our discussion of this issue. Approximately twenty-five minutes after hearing the broadcast description of the peipetrators, Hamden police officer Gary Komoroski was patroling Shepard Avenue. He observed a man in the middle of the roadway, wearing jeans, and waving his hands at cars in an apparent attempt to get a ride. Komoroski drove past the man, pulled into the parking lot of a fire station, and waited for the man to approach the cruiser. When he approached, Komoroski got out of the cruiser and questioned him, thinking he might be a motorist in distress.

Upon questioning, Komoroski learned that the man did not know what town he was in, that he claimed to be on his way to Hartford from New Haven although Shepard Avenue was not a direct route between these locations, and that he had been put out of a car by two people whose names he did not know. Komoroski calculated that someone traveling on foot could have covered the distance between the Harris house and the fire station in the time that had elapsed since the robbery. On the basis of these facts, Komoroski radioed the officers at the Harris home to inform them that he was detaining a robbery suspect.

While waiting for someone to come from the Harris home, Komoroski decided to cite the man for the infraction of reckless use of a highway. See General Statutes § 53-182. Komoroski asked the man if he had any identification and, without checking his pockets, the man responded that he did not. Komoroski then either asked him to check his pockets for identification or told him to empty his pockets. The man emptied his pockets onto the trunk of Komoroski’s cruiser, and among the items was an identification card from a needle exchange program, a rubber glove, and a tin foil packet. The tin foil packet contained a glassine envelope of white powder, which the man stated was baking powder used in freebasing cocaine. Komoroski then arrested the man, who has been identified as the defendant in this case, for possession of drug paraphernalia and placed him in the cruiser.

Within a few minutes, Kennelly arrived at the fire station parking lot, looked into Komoroski’s cruiser, and immediately recognized the defendant as the Hispanic male he had seen in the backseat of the red car near the Harris driveway when he first responded to the reported robbery. Kennelly got into Komoroski’s car, read the defendant Miranda warnings, and questioned him. The defendant admitted that he had been in the backseat of the red car earlier in the evening. The defendant said the car had been pulled over near the Harris house so he and his companions could use cocaine. The defendant told Kennelly that he had argued with Garrison and had been forced to get out of the car. The defendant then changed his story to say that after the car was pulled over he remained in the car to use cocaine while Garrison and his female companion left the car and walked up the Harris driveway.

At this time, Officer Nicholas Guerrera of the Hamden police, who had arrived at the scene during Kennelly’s questioning, transported the defendant to the Harris house for a show-up identification. At the Harris home, the lighting was arranged so that the Harrises could see the defendant but the defendant could not see them. The Harrises were unable to identify the defendant as one of the perpetrators. Guerrera then transported the defendant to the Hamden police station. During the ride the defendant stated, “the old man and old woman couldn’t pin me for this.”

The next morning, the defendant was transported from the Hamden police station to a cell at the geographical area seven courthouse to await arraignment. Upon arrival, the sheriffs booked the defendant before assigning him to a cell. During the booking process, Deputy Sheriff William Joseph Benson noticed a ring on the defendant’s pinky finger and asked him to remove the ring and to place it on the booking desk. The defendant removed the ring from his finger and placed it in his mouth. After the defendant repeatedly refused to produce the ring, Detective Thomas Rhone of the Hamden police department obtained a search and seizure warrant allowing X rays to be taken of the defendant in order to locate the ring. When Rhone initiated the transport of the defendant to a hospital for X rays, the defendant produced the ring and turned it over to Rhone. Later that morning, the ring was shown to Aimee Harris who identified it as one of the rings taken from her home during the robbery. On the afternoon of December 3,1991, the defendant was arraigned for possession of drug paraphernalia and robbery.

The defendant claims that the trial court improperly denied his motion to suppress the following: (1) all items taken from his person on the evening of December 2, 1991, (2) all oral statements made by him after he was detained and arrested by Komoroski on December 2, 1991, (3) all oral statements made by him during the transport to and from the Harris home on December 2, 1991, (4) the ring seized while the defendant was in custody at the geographical area seven courthouse, and (5) a tape-recorded statement made by the defendant on December 3, 1991. We agree.

Although both the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution evince a clear preference for arrests pursuant to a warrant; State v. Heinz, 193 Conn. 612, 617, 480 A.2d 452 (1984); State v. Federici, 179 Conn. 46, 51-52, 425 A.2d 916 (1979); a warrantless arrest can be made in a public place if the arresting officer has probable cause to believe a felony has been committed by the suspect. State v. Conley, 31 Conn. App. 548, 554-55, 627 A.2d 436, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993); see General Statutes § 54-lf (b). “Probable cause means more than mere suspicion. There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed.” (Internal quotation marks omitted.) State v. Conley, supra, 555; quoting State v. Velez, 215 Conn. 667, 672, 577 A.2d 1043 (1990); State v. Hunter, 27 Conn. App. 128, 133-34, 604 A.2d 832 (1992).

Our review of the trial court’s finding of probable cause in connection with a motion to suppress is not plenary. “We will not disturb a trial court’s conclusions [in denying a motion to suppress] unless they are legally and logically inconsistent with the facts.” State v. Conley, supra, 31 Conn. App. 554; see also State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991). “Our analysis involves a two-pronged inquiry. ‘First, where the court’s legal conclusions are challenged, we must decide if they are legally and logically correct, and if they are supported by the facts set forth in the memorandum of decision. State v. Zindros, [189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984)]. Second, if the factual basis of the court’s decision is challenged, we must determine whether the facts in the memorandum are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Id.’ ” State v. Conley, supra, 553-54.

The trial court denied the motion to suppress on the ground that “[a]ll of [the] circumstances when viewed in their totality . . . establish a reasonable articulable set of facts which were sufficiently specific to detain the defendant.” The trial court enunciated the following factors as supporting its finding of probable cause: (1) there had been a broadcast report of the recent robbery; (2) the defendant committed an infraction of reckless use of a highway; (3) the defendant behaved suspiciously when first observed by the police; (4) the defendant did not know where he was and gave an implausible story about the route he was traveling; (5) the defendant could not give the names of the people with whom he claimed to have been traveling who had put him out of their car; (6) Komoroski properly calculated that the defendant was within walking distance of where the burglary occurred; (7) the defendant was heading away from the scene of the burglary; (8) the defendant gave Komoroski a false name; (9) the defendant said he had no identification without checking; (10) the identification card in the defendant’s pocket was not reliable; (11) the defendant had a rubber glove in his pocket; (12) the defendant had a packet of white powder in his pocket; (13) Kennelly immediately recognized the defendant as having been in the car near the Harris driveway with another man, when the perpetrators had been reported to be two males; (14) when questioned by Kennelly the defendant changed his story about what he had been doing and where he had been going; and (15) after being unable to see the victims at the show-up, the defendant made the statement that “the old man and the old woman” could not pin the burglary on him.

The trial court based its decision on the validity of the initial detention. It was not the initial detention, however, but the subsequent search that led to the initial arrest of the defendant for possession of drug paraphernalia. While the initial detention may have been justified, the trial court expressly declined to rule on the constitutionality of Komoroski’s search of the defendant’s pockets,

The defendant argues that the trial court’s express refusal to rule on the constitutionality of the search is legally and logically inconsistent with the court’s denial of the motion to suppress. The defendant asserts that because the arrest resulted from an unjustified search, the fruits of both the search and the arrest should have been suppressed. Although we conclude that the search was in fact unjustified, the state contends that such a conclusion does not require reversal of the trial court’s ruling on the motion to suppress.

The state asks us to affirm the trial court’s denial of the motion to suppress on the ground that the search of the defendant’s pockets was not essential to the determination that probable cause existed to arrest the defendant for the Harris robbery. The state argues that probable cause to arrest the defendant for the Harris robbery existed as soon as Kennelly arrived at Komor-oski’s cruiser and recognized the defendant as the person from the red car parked near the Harris driveway. This argument is slightly off focus, however, because it asks us to assess the existence of probable cause to arrest the defendant for the Harris robbery at a point in time after the defendant was actually arrested. This we cannot do.

The state relies on State v. Carter, 189 Conn. 611, 458 A.2d 369 (1983), for the principle that the suppression of evidence resulting from an illegal detention is not required if there was probable cause to support the arrest at some time prior to when the evidence was obtained. We do not find Carter to be apposite. In Carter, the defendant was detained in connection with a recent burglary in the immediate vicinity. During this detention it was established that the defendant was wearing running shoes with a tread similar to that of a footprint outside the recently burglarized home. The police officers detaining the defendant decided to bring him to the scene of the burglary to compare the tread of his running shoes to the footprint. Our Supreme Court declined to rule on whether the transport of the defendant would have been within the scope of an investigatory detention and held that because there was probable cause to arrest the defendant prior to the transport, the evidence flowing from the transport did not need to be suppressed, even though the officers did not intend to arrest the defendant prior to the transport. Id., 618-19.

This case is not like Carter because the defendant was arrested prior to Kennelly’s identification. The state claims that the chain of events leading to probable cause for the Harris robbery “was wholly independent of the purportedly illegal search and custodial arrest for possession of drug paraphernalia.” The trial court, however, made no findings to support this claim, and we cannot speculate as to what might have happened had the initial arrest not taken place, including whether there might have been probable cause for a lawful arrest at some later time. See State v. Reagan, 209 Conn. 1, 8-9, 546 A.2d 839 (1988). We will review the existence of probable cause to arrest the defendant for the Harris robbery only as of the time of the arrest for possession of drug paraphernalia.

A great number of the facts found by the trial court to support the finding of probable cause flow from the search of the defendant’s pockets or are otherwise irrelevant to the determination of probable cause at the time of the defendant’s arrest. First, Komoroski had no way of knowing that the defendant had given a false name at the time of his arrest. Additionally, the identification card for the needle exchange program, the rubber glove, and the packet of white powder are the items we cannot consider without a finding that they were lawfully seized. Finally, Kennelly’s identification of the defendant, and the statements made by the defendant to Kennelly and Guerrera cannot be used to support a finding of probable cause for an arrest prior to the time the identification and statements were made.

The facts left for our determination of whether probable cause existed to arrest the defendant in connection with the Harris robbery are those numbered (1) through (7), and (9): (1) there had been a broadcast report of the recent robbery; (2) the defendant committed an infraction of reckless use of a highway; (3) the defendant behaved suspiciously when first observed by the police; (4) the defendant did not know where he was and gave an implausible story about the route he was traveling; (5) the defendant could not give the names of the people with whom he claimed to have been traveling who had put him out of their car; (6) Komoroski properly calculated that the defendant was within walking distance of where the burglary occurred; (7) the defendant was heading away from the scene of the burglary; and (9) the defendant said he had no identification without checking.

These properly considered factors, viewed in their totality, do not support a finding that there was probable cause to arrest the defendant for either possession of narcotics paraphernalia or the Harris burglary. “The quantum of evidence necessary to establish probable cause exceeds mere suspicion .... [T]here is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.” (Internal quotation marks omitted.) State v. Magnotti, 198 Conn. 209, 213, 502 A.2d 404 (1985). Although Komor-oski’s suspicions were appropriately raised by the defendant’s conduct in the vicinity of the recent robbery, we cannot find that these suspicions rose to the level of probable cause without consideration of the factors flowing from the arrest for possession of narcotics paraphernalia.

We conclude that the trial court improperly denied the defendant’s motion to suppress each of the following: (1) all items taken from his person on the evening of December 2, 1991; (2) all oral statements made by him after he was detained and arrested by Komoroski on December 2, 1991; (3) all oral statements made by him during the transport to and from the Harris home on December 2, 1991; (4) the ring seized while the defendant was in custody at the geographical area seven cell block; and (5) a tape-recorded statement made by the defendant on December 3, 1991. This conclusion does not automatically require a reversal of the defendant’s conviction. In certain circumstances we have held that, because a fourth amendment violation was harmless beyond a reasonable doubt, the resulting conviction could be affirmed. See, e.g., State v. Shifflett, 199 Conn. 718, 508 A.2d 748 (1986). We find, however, that this is not such a case.

“The ‘ “harmlessness of an error depends upon its impact on the trier and the result’ ”... and the test is whether ‘there is a reasonable possibility that the improperly admitted evidence contributed to the conviction.’ Schneble v. Florida, 405 U.S. 427, 432, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972).” (Citations omitted.) State v. Shifflett, supra, 199 Conn. 751-52; see also State v. Daugaard, 231 Conn. 195, 212, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995); State v. Santiago, 224 Conn. 325, 333, 618 A.2d 32 (1992). The strength of the evidence that should have been suppressed is such that we cannot conclude that it did not contribute to the defendant’s conviction. Thus, the defendant was entitled to suppression of the evidence enumerated in his motion to suppress, and the case must be remanded for a new trial.

II

The defendant next claims that there was insufficient evidence to support “all or at least some of his convictions.” We review this claim, despite our conclusion that the defendant is entitled to a new trial because if the evidence is in fact insufficient the defendant would be entitled to an acquittal. State v. Wolff, 37 Conn. App. 500, 507, 657 A.2d 650 (1995); State v. Trujillo, 12 Conn. App. 320, 337, 531 A.2d 142, cert. denied, 205 Conn. 812, 532 A.2d 588 (1987).

In reviewing sufficiency claims, this court first considers 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 thus established and the reasonable inferences to be drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the properly admitted evidence established guilt beyond a reasonable doubt. State v. Joyner, 225 Conn. 450, 455, 625 A.2d 791 (1993); State v. Fields, 31 Conn. App. 312, 326-27, 624 A.2d 1165, cert. denied. 226 Conn. 916, 628 A.2d 989 (1993). Our review of a claim of insufficiency of the evidence encompasses all of the evidence adduced at trial, including evidence determined to have been admitted improperly. Here, we conclude that the evidence was sufficient for the jury to find the defendant guilty of each of the crimes charged, even without reliance on the evidence that should have been suppressed.

A

The defendant was convicted of two counts of larceny in the second degree, and one count of larceny in the third degree. “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.” General Statutes § 53a-119. The defendant was charged with committing larceny in the second degree by obtaining property from the persons of Aimee Harris and Richard Harris. See General Statutes § 53a-123 (a) (3). He was charged with committing larceny in the third degree by obtaining property with a value of greater than $1000. See General Statutes § 53a-124 (a) (2).

The jury could reasonably have found that the two perpetrators entered the Harris home and then separated. One of the perpetrators remained with Aimee Harris and obtained property from her person, including a ring. The other perpetrator remained with her husband and obtained property from his person, namely a ring and watch. The jury could further have found that the value of all the property taken was greater than $1000. Therefore, the jury could reasonably have con-eluded that the three charged counts of larceny took place, as well as a count of burglary in the third degree.

The defendant challenges these convictions, as well as his two convictions for robbery in the first degree, arguing that the state failed to prove that he was one of the perpetrators who entered the Harris home on December 2, 1991. The defendant bases his argument on the following facts: the Harrises could not identify him immediately after the robbery, he did not match the description given of a large Caucasian man, he was not dressed as described by the Harrises, Aimee Harris did not identify this assailant’s accent as Hispanic, Orsene did not recognize the defendant as the “Rodriguez” accompanying her and Garrison in the red car, and Orsene did not see the defendant enter the Harris home.

Our review of the record indicates that the state presented sufficient evidence from which the jury could infer that the defendant entered the Harris home with Garrison on December 2,1991. Aimee Harris stated that one of the intruders had been wearing a dark jacket, baggy pants and white sneakers, and when the defendant was arrested he was wearing a dark leather jacket and white sneakers. Orsene testified that “Rodriguez” had been picked up by Garrison on the street where the defendant’s father lived. Orsene also testified that “Rodriguez” and Garrison went up the Harris driveway shortly before the robbery, and her observations from the car both before and after the robbery tended to prove that “Rodriguez” had entered the Harris home with Garrison. Despite the fact that Orsene did not identify the defendant as “Rodriguez” from the evening of December 2, 1991, the jury could reasonably infer that the defendant was “Rodriguez” based on Kennedy's testimony that the defendant had been in the red car with Garrison and Orsene.

Construing all these facts in the light most favorable to sustaining the verdict, we conclude that the jury could reasonably have found beyond a reasonable doubt that the defendant was one of the intruders at the Harris home on December 2,1991. Because the jury could reasonably have concluded that the defendant was one of the intruders, and that these intruders committed the charged larcenies, the evidence is sufficient to sustain the defendant’s larceny and burglary convictions.

B

The defendant also claims that the evidence was insufficient to prove that a gun found in the vicinity of the robbery and admitted into evidence as state’s exhibit DD was the gun used in the incident and that, therefore, the evidence was insufficient to establish that the perpetrators were armed with a deadly weapon as required by General Statutes § 53a-134 (a) (2). Robbery occurs when a larceny is effectuated by one who “uses or threatens the immediate use of physical force upon another person . . . .” General Statutes § 53a-133. The defendant was charged with robbery in the first degree under the theory that “he or another participant in the crime . . . [was] armed with a deadly weapon . . . .” General Statutes § 53a-134 (a) (2). When the deadly weapon involved is a firearm, proof that the firearm is operable is an essential element of the crime charged. General Statutes § 53a-3 (6); State v. Hawthorne, 175 Conn. 569, 572, 402 A.2d 759 (1978). The defendant concedes in his brief that the state offered evidence sufficient for the jury to find beyond a reasonable doubt that state’s exhibit DD was an operable gun. The question that remains is was the evidence sufficient to prove that this gun was that used in the Harris robbery.

The jury could reasonably have found the following facts relevant to this claim. On the evening of December 2, 1991, Orsene accompanied Garrison and the defendant to the Harris home in a red car. Upon their arriving in the vicinity of the Harris home, Garrison drove up the driveway to the house, turned around, and drove back down to the road. At this time, Garrison and the defendant got out of the car and Orsene moved to the driver’s seat. Garrison said to Orsene, “Give me the gun,” and Orsene responded, “Get it yourself.” Garrison then reached into the car and removed an item from under the backseat.

Orsene drove away from the Harris driveway on Shepard Avenue to a store where she could turn around. Orsene then returned to the area of the Harris driveway and there she saw police vehicles with lights activated. Orsene drove past the driveway, turned around and drove back, and continued to pass by the Harris driveway until she saw Garrison and the defendant coming out of the woods. Garrison was carrying a bag. As Garrison and the defendant got into the car, Kennelly stopped to talk to Garrison, and warned him to leave the area. Orsene drove the car away from the Harris driveway. Orsene turned the car onto another street and pulled over so that Garrison could move to the driver’s seat and Orsene moved to the front passenger seat.

After being picked up by Orsene, Garrison appeared nervous and was yelling. Soon after taking the wheel, he told the defendant to get out of the car and the defendant was dropped off at a V-shaped intersection. At this point, Garrison threw the bag he had been carrying out of the car window and continued to drive. Garrison decided to throw the gun out of the car, and Orsene rolled down the passenger window. Garrison threw the gun out Orsene’s window about one minute after dropping off the defendant. This was the only time Orsene saw the gun and she described it as a big, thick silver gun with a white handle.

At trial, Orsene was shown a handgun marked as state’s exhibit DD for identification. Orsene could not identify this gun as that she had seen Garrison throw out the car- window, although she did testify that it was of the same size and shape. Orsene stated that state’s exhibit DD had the same silver barrel and was of the same thickness as the gun she had seen Garrison throw out the car window, but that exhibit DD had a black handle instead of the white handle she recalled. At this time, the trial court ruled that state’s exhibit DD could not be admitted into evidence because there was no connection between the gun and the case against the defendant.

Later, Detective John Riordan of the Hamden police department testified that on the evening of December 2,1991, while the Hamden police were investigating the robbery, the gun marked state’s exhibit DD was found in the woods near the scene of the defendant’s arrest. The gun was found one to two feet off the road, approximately 100 feet from the firehouse where Komoroski arrested the defendant. After this testimony the trial court admitted the gun into evidence over the defendant’s objection.

On the basis of these facts, the jury could reasonably infer that the gun found in the woods off Shepard Avenue had been thrown out of the red car by Garrison, and that Garrison threw it out of the car because he had used it in the course of the Harris robbery. Riordan also testified that state’s exhibit DD had been subject to ballistics tests and that it was operable. The defendant concedes in his brief that this evidence was sufficient for the jury to find beyond a reasonable doubt that the gun was operable.

We conclude that this evidence was sufficient for the jury to find that a robbery in the first degree was committed at the Harris home. The defendant contends, however, from this evidence, he cannot be found guilty of two counts of robbery in the first degree. The defendant posits that because he remained in a room alone with Aimee Harris, while Garrison, who possessed the gun, was alone in another room with Richard Harris, two separate and unconnected larcenies by robbery occurred and that he is, at most, criminally liable for only one of them. Viewing the events of December 2, 1991, in this light, the defendant asserts that he was the sole unarmed participant in the robbery of Aimee Harris, and that he was not a participant in Garrison’s armed robbery of Richard Harris. We disagree.

Our Supreme Court has previously held that activity occurs “in the course of’ a robbery if it occurs “during the continuous sequence of events surrounding the taking or attempted taking, even though some time immediately before or after . . . .” State v. Ghere, 201 Conn. 289, 297, 513 A.2d 1226 (1986); State v. Gordon, 185 Conn. 402, 410-11, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). In this case, the jury could reasonably have found that each robbery occurred in the context of a single sequence of events involving two participants, one of whom was armed with a deadly weapon. It is immaterial that Garrison, the armed participant, was in another room at the time Aimee Harris surrendered her property to the defendant. It is also immaterial that at the time Garrison was obtaining property from Richard Harris the defendant was in a different room. The entire sequence of events involved two intruders who separated within the Harris home to complete the robbeiy of each occupant more efficiently. Thus, each intruder was a participant in each robbery, and the jury could reasonably have found the defendant guilty of both counts of robbeiy in the first degree.

C

We turn now to consideration of the sufficiency of the evidence to support the defendant’s remaining convictions for conspiracy and kidnapping.

The defendant was charged with both conspiracy to commit robbeiy in the third degree and conspiracy to commit burglary in the third degree. “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” General Statutes § 53a-48 (a). As discussed previously, the evidence was sufficient for the jury to conclude that the defendant committed both burglary in the third degree pursuant to § 53a-103 and robbery in the third degree pursuant to § 53a-136. The jury could also have reasonably believed, relying on Orsene’s testimony, that the defendant acted pursuant to an agreement with Garrison in committing these crimes. Therefore, we conclude that the evidence was sufficient to establish the defendant’s guilt in connection with each of the conspiracy charges.

The defendant was also charged with two counts of kidnapping in the first degree. “A person is guilty of kidnapping in the first degree when he abducts another person and ... he restrains the person abducted with intent to . . . accomplish or advance the commission of a felony . . . .” General Statutes § 53a-92 (a) (2) (B).

The jury could reasonably have found that after entering the Harris home, the defendant and Garrison restrained and removed property from the persons of both Aimee Harris and Richard Harris. Furthermore, the evidence reveals that in the course of the robbery both Aimee and Richard Harris were bound with neckties. From these facts, the jury could reasonably have concluded that the defendant was hable, either as an accessory or as a principal, for the kidnapping of both Aimee Harris and Richard Harris.

We conclude, therefore, that even without consideration of the evidence that should have been suppressed, the evidence was sufficient to establish the defendant’s guilt in connection with each crime charged.

Ill

The defendant next claims that the trial court made improper evidentiary rulings concerning certain statements of the deceased victim. We consider these claims because they are likely to arise on retrial. The defendant first argues that the trial court improperly admitted into evidence a statement Richard Harris made to his wife immediately following the robbery. The defendant then argues that the trial court improperly excluded from evidence a tape-recorded statement Harris made to the police several hours after the robbery. We disagree with each claim.

The following additional facts are necessary for our discussion of these issues. Immediately after the robbers left their home, Aimee Harris and Richard Harris began to free themselves from the neckties used to tie them during the robbeiy. As soon as she was free, Aimee Harris dialed 911 from the telephone in the den of their home. At this time, Richard Harris was still working to remove the bonds from his legs. Aimee Harris gave her name and address and reported that she and her husband had been robbed in their home by two men. The 911 operator asked whether a gun was involved. Aimee Harris stated that she had not seen a gun but that she would ask her husband. Aimee Harris called out to her husband, who was still in the bedroom area, asking if there had been a gun. Richard Harris replied that he had seen a gun.

At trial the state called Aimee Harris as a witness but was unable to call Richard Harris who died on December 21, 1991. When Aimee Harris testified as to her husband’s statement that there had been a gun, the defendant objected on the ground of hearsay. The state argued that the statement was admissible under the spontaneous or excited utterance exception. The trial court overruled the defendant’s objection.

The defendant attempted to introduce into evidence a tape recording of an interview between Riordan and Richard Harris, claiming that it was a spontaneous utterance. When the trial court refused to admit the tape-recorded interview on that basis, the defendant argued that the recording should be admitted under the catchall exception to the hearsay rule. The trial court again sustained the state’s objection to the admission of the tape recording.

A

We first address the trial court’s admission into evidence of Richard Harris’ statement that there was a gun involved in the robbery. The trial court properly ruled that this statement was within the spontaneous utterance exception to the hearsay rule. “In Perry v. Haritos, 100 Conn. 476, 124 A. 44 (1924), our Supreme Court recognized the spontaneous utterance exception to the hearsay rule. This exception allows otherwise inadmissible statements into evidence to prove the truth of the matter asserted if it is proven that (1) the declaration follows some startling occurrence, (2) the declaration refers to the occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication by the declarant. State v. Stange, 212 Conn. 612, 616-17, 563 A.2d 681 (1989); Perry v. Haritos, supra, 484.

“As a preliminary matter, the trial judge must determine whether an utterance qualifies under this exception to the hearsay rule, and that decision will not be disturbed on appeal unless it constitutes an unreasonable exercise of discretion. State v. Stange, supra [212 Conn. 616-17]; State v. Chesney, 166 Conn. 630, 638, 353 A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324, 42 L. Ed. 2d 280 (1974); Perry v. Haritos, supra [100 Conn. 484].” State v. Cayouette, 25 Conn. App. 384, 387, 594 A.2d 1020 (1991).

The defendant concedes that the robbery was a startling occurrence, that Richard Harris had an opportunity to observe the occurrence, and that the statement in question concerned that occurrence. The defendant argues, however, that “the event was over for Richard Harris when he and his wife heard the intruders leave and his wife contacted the police” and, therefore, that Richard Harris had an opportunity to reflect on his response that there was a gun, thereby making the spontaneous utterance exception inapplicable. We are not persuaded.

The requirement that a spontaneous utterance be made “under such circumstances as to negative the opportunity for deliberation and fabrication” by the declarant; Perry v. Haritos, supra, 100 Conn. 484; does not preclude the admission of statements made after a startling occurrence as long as the statement is made under the stress of that occurrence. See, e.g., State v. Stange, supra, 212 Conn. 618-20; State v. Cayouette, supra, 25 Conn. App. 388. In a particular case, the determination of whether such a statement was made under the stress of that occurrence is best left to the sound discretion of the trial court after weighing all material facts. State v. Cayouette, supra, 388.

Here, the declarant was a frail elderly man who was robbed in his home and bound by the perpetrators. While he was freeing himself, or immediately thereafter, he was asked if the robbers had a gun and immediately responded in the affirmative. The trial court could reasonably have concluded, as it did, that his response was made without opportunity to reflect on the startling event or to fabricate a response, thereby qualifying as admissible under the spontaneous utterance exception to the hearsay rule.

B

We next turn to the defendant’s claim that the trial court improperly refused to admit into evidence the tape recording of Riordan’s interview with Richard Harris. Considering the factors outlined previously, we conclude that the trial court acted reasonably in determining that the tape-recorded interview, made three and one-half hours after the robbery, was not made under the stress of the startling occurrence and thus was not admissible as a spontaneous utterance. We also conclude that the trial court did not abuse its discretion in declining to admit the tape-recorded interview under the residual exception to the hearsay rule.

When a hearsay statement does not fall neatly into one of the established exceptions to the hearsay rule, it may nevertheless be admissible if it can be established that (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by guarantees of reliability and trustworthiness equivalent to those supporting other hearsay exceptions. State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985); State v. Acquin, 187 Conn. 647, 680,448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983). As with other evidentiary matters, the trial court has broad discretion in ruling on the applicability of the residual exception. State v. Tyson, 23 Conn. App. 28, 35, 579 A.2d 1083, cert. denied, 216 Conn. 829, 582 A.2d 207 (1990); State v. Erhardt, 17 Conn. App. 359, 367, 553 A.2d 188 (1989). We will reverse the trial court’s refusal to admit evidence under the residual exception only upon a showing of a clear abuse of discretion. State v. Erhardt, supra, 367.

Here, the trial court ruled that Richard Harris’ tape-recorded interview was not admissible under the residual exception to the hearsay rule because the defendant could not establish the reliability and trustworthiness of Harris’ statements. The trial court noted that he was very ill at the time of the robbery and died three weeks later. The trial court expressed concern that Richard Harris might have been on medication, or that the stress of the event might have impaired his powers of observation and communication. In light of these observations by the trial court, we conclude that there was no abuse of discretion in the trial court’s refusal to admit Richard Harris’ statement to Riordan into evidence.

IV

We do not consider the defendant’s remaining claims regarding jury instructions, prosecutorial misconduct and improper sentencing because our resolution of the suppression issue is dispositive of the appeal.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to suppress and for a new trial.

In this opinion HEIMAN, J., concurred.

SCHALLER, J.,

concurring and dissenting. I agree with parts II, III, and IV of the majority opinion. I disagree, however, with the result reached in part I of the opinion, in which the majority concludes that the case must be remanded for a new trial. Accordingly, I respectfully dissent.

I take issue with the majority’s disposition of the state’s claim of inevitable discovery. The majority declines to consider this claim because the trial court made no findings on this issue, and “we cannot speculate as to what might have happened if the initial arrest had not taken place, including whether there might have been probable cause for a lawful arrest at some later time.” The majority concludes that this court would be required to engage in fact finding concerning the investigatory detention as well as probable cause.

I believe, to the contrary, that, in light of 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), the conclusion that the warrantless search of the defendant lacked probable cause does not require us to exclude the evidence unlawfully seized. Rather, it is appropriate to “remand the case to the trial court for further proceedings to determine whether the evidence illegally seized can be admitted under the ‘inevitable discovery’ exception to the exclusionary rule adopted by the United States Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). State v. Badgett, supra, 432-33.” State v. Miller, 29 Conn. App. 207, 235, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993).

“Under the inevitable discovery rule, evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means. [Nix v. Williams, supra, 467 U.S. 444.] To qualify for admissibility, the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation. United States v. Cherry, 759 F.2d 1196, 1205 (5th Cir. 1985); United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1985). In Nix v. Williams, supra, 443, the United States Supreme Court observed that the operation of the exclusionary rule in situations where the police would have inevitably discovered the evidence by legal means already initiated would put the state in a worse position than it would have been in if no police misconduct had transpired. ‘Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place.’ Id., 447.” (Emphasis in original.) State v. Badgett, supra, 200 Conn. 433.

In light of Nix v. Williams, supra, 467 U.S. 431, I would remand the case to the trial court to determine whether the inevitable discovery doctrine applies under the circumstances of this case. See State v. Badgett, supra, 200 Conn. 433-34; State v. Miller, supra, 29 Conn. App. 236. “Among the factors to be considered are: (1) whether [a search incident to a lawful arrest or] an inventory search would have been justified under the circumstances; (2) whether such a search would have been conducted according to standard [Hamden] police operating procedures; and (3) whether a search pursuant to these procedures would have uncovered the [the items taken from the defendant’s person on the evening of December 2, 1991, and the ring seized on December 3,1991].” State v. Badgett, supra, 434; see United States v. Robinson, 414 U.S. 218, 236, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); United States v. Gale, 952 F.2d 1412, 1416 (D.C. Cir. 1992); United States v. Gorski, 852 F.2d 692, 696-97 (2d Cir. 1988).

Accordingly, I concur in parts II, III, and IV of the majority’s opinion, and dissent from part I.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       The defendant also claims that the trial court improperly admitted into evidence a gun found in the area where the defendant was arrested. Because our conclusion that the evidence was sufficient to sustain the defendant’s convictions of robbery in the first degree addresses this claim, we do not address it separately. See footnote 9.

       In the original memorandum of decision the court did not specify whether the search of the defendant’s pockets was voluntary. In response to our request for an articulation pursuant to Practice Book § 4183 (10), the trial court found both that Komoroski asked the defendant to “check his pockets” and that he asked the defendant to “empty his pockets.” While the trial court stated in its articulation that the defendant emptied his pockets freely and voluntarily, this conclusion is inconsistent with and not supported by the trial court’s finding that Komoroski asked the defendant to “empty his pockets.” See State v. Fields, 31 Conn. App. 312, 325, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993).

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

       The trial court’s decision provides: ‘Tie was then asked if he had—if he would check again for identification. Whether he was asked to empty his pockets or he did so voluntarily or whatever, an identification card came out which the officer construed as not being reliable anyway and that too is another item.” This language is not unambiguous. We adopt the understanding shared by the defendant and the state, which is that the trial court failed to rule on the constitutionality of the search of the defendant’s pockets.

       For this reason, we also do not consider the state’s claim of inevitable discovery, raised for the first time on appeal, which would require us to find facts to support the initiation and continuation of an investigatory detention as well as probable cause for the defendant’s arrest in connection with the Harris burglary. We can perceive no basis in this record for a conclusion that “the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constituíional violation.” (Emphasis in original.) State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Thus, this case does not present an appropriate instance for remand to the trial court to determine whether the inevitable discovery exception to the exclusionary rule applies. Compare id., 433-34; see State v. Billias, 17 Conn. App. 635, 637 n.3, 555 A.2d 448 (1989).

       In its brief, the state directs us to additional facts relevant to the determination of probable cause: Komoroski knew one of the perpetrators had a mustache; Komoroski knew the report of two Caucasian perpetrators could be unreliable due to the pantyhose masks; Komoroski knew the perpetrators might have worn M.C. Hammer-type pants over jeans in order to alter their appearance quickly; Kennelly had decided that Garrison fit the description of one of the perpetrators before he viewed the defendant in Komoroski’s cruiser. In this case, however, the trial court conscientiously detailed the facts that the state had established in the suppression hearing. In such a situation “we are not free to add facts which are not found and which are not undisputed. See State v. Perez, 181 Conn. 299, 302-303, 435 A.2d 334 (1980).” State v. Martin, 2 Conn. App. 605, 614, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 706, 86 L. Ed. 2d 721 (1985).

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit .a crime therein.”

       The defendant also claims that the trial court improperly admitted state’s exhibit DD into evidence because there was no evidence connecting the gun to this case. Our discussion of the sufficiency of the evidence that the defendant was guilty of robbery in the first degree is also dispositive of this claim.

        The trial court could reasonably have concluded that the testimony of Orsene and Riordan was sufficient to allow the jury to reasonably infer that the gun found by Riordan was the same gun Garrison had thrown out of the car and that the gun had been used in the robbery committed by Garrison and the defendant. Thus, state’s exhibit DD was relevant because it could be construed to “establish a fact in issue or to corroborate other direct evidence in the case.” (Internal quotation marks omitted.) State v. Greene, 209 Conn. 458, 477-78, 551 A.2d 1231 (1988). Although the jury could also have concluded that the gun was found coincidentally and had no connection to the Harris robbery, this possibility affects the weight of the evidence and not its admissibility. State v. Joly, 219 Conn. 234, 252, 593 A.2d 96 (1991). The admission into evidence of state’s exhibit DD, as well as evidence that the gun was operable, was well within the broad discretion of the trial court. See State v. Pina, 185 Conn. 473, 476-77, 440 A.2d 962 (1981); State v. Gilchrist, 25 Conn. App. 104, 108-10, 593 A.2d 507, cert. denied, 220 Conn. 905, 593 A.2d 970 (1991).

       The defendant argues that it was inconsistent for the state to admit the statement made about the gun and suppress the tape-recorded interview. In light of the different times and conditions of the making of each statement, we see no merit to the claim that the same conclusion must be made as to their admissibility.

       The state raised on appeal the claim that the inevitable discovery exception to the exclusionary rule applies. It is not necessary that this claim be raised at trial in order to warrant appellate review. State v. Badgett, 200 Conn. 412, 432 n.10, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); but see State v. Billias, 17 Conn. App. 635, 637 n.3, 555 A.2d 448 (1989). In Billias, we cited the failure of the state to raise the claim at trial as one of the grounds for not granting review. In addition, here, the claim appeared in the state’s preliminary statement of issues and was fully briefed. See State v. Billias, supra, 637. Moreover, a remand being necessary, I do not reach the conclusion that there is no basis in the record for finding that “the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation.” (Emphasis in original.) State v. Badgett, supra, 433; see State v. Billias, supra, 637 n.3. Unlike Billias, therefore, this case does present an appropriate instance for remand to the trial court to determine whether the inevitable discovery exception to the exclusionary rule applies. State v. Badgett, supra, 433-34; State v. Miller, 29 Conn. App. 207, 235-36, 614 A.2d 1229 (1992), aff'd, 227 Conn. 363, 630 A.2d 1315 (1993).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SOUTHINGTON ’84 ASSOCIATES v. SILVER DOLLAR STORES, INC., ET AL.
    (13997)
    O’Connell, Foti and Heiman, Js.
    Argued September 14
    decision released October 24, 1995

      Joseph R. Crispino, for the appellants (defendants).

      Francis X. Drapeau, with whom, on the brief, was John D. Ward, for the appellee (plaintiff).
   PER CURIAM.

The defendants, lessees of commercial property, appeal from a judgment awarding damages for rent owed to the plaintiff rendered following a hearing in damages before the trial court. The issues raised by the defendants are all factual and cannot be retried on appeal. See New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 38 Conn. App. 709, 713, 662 A.2d 818 (1995)

Although the parties initially waived oral argument before this court, our examination of the record and briefs disclosed the presence of a serious issue of law that had not been briefed. Plain error review under Practice Book § 4185 is warranted because the unaddressed issue implicates interests of fundamental justice. Lynch v. Granby Holdings, 230 Conn. 95, 99, 644 A.2d 325 (1994). The unbriefed issue concerns the power of a trial court to render judgment for an amount in excess of the sum stated in the plaintiffs amount in demand. The parties were given notice and ordered to file supplemental briefs. See id.; LoSacco v. Young, 210 Conn. 503, 509-10, 555 A.2d 986 (1989).

The following facts are pertinent to our resolution of this appeal. In compliance with General Statutes § 52-91 and Practice Book § 131 the plaintiff annexed to its complaint a statement that the amount “in demand is more than Two Thousand Five Hundred Dollars ($2,500.00) but less than $15,000.00 exclusive of interest and costs.” (Emphasis added.) Despite this statement of the amount in demand, the trial court rendered judgment for the plaintiff in the amount of $146,588.57, attorney’s fees of $3767 and costs of $849.10.

Our decision in the present case is controlled by Davis v. Naugatuck, 15 Conn. App. 185, 543 A.2d 785 (1988). Following a thorough, detailed analysis, this court held that the trial court improperly awarded damages in excess of the amount sought in the statement of the amount in demand. Id., 189-93. We reaffirm our decision in Davis, and hold that the trial court in this case improperly awarded damages in excess of $15,000.

The judgment is reversed as to the award of damages and the case is remanded with direction to modify the judgment so that it totals no more than $15,000 plus costs.

       The defendants raised the following issues: whether the trial court improperly found that (1) the plaintiff had made reasonable efforts to mitigate damages, (2) the plaintiffs construction activities breached the lease, and (3) the defendant Louis Ursini, president and chief executive officer of Silver Dollar Stores, Inc., executed the lease in his individual capacity.

       Practice Book § 4185 provides in relevant part: “The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       General Statutes § 52-91 provides in relevant part: “The first pleading on the part, of the plaintiff shall be known as the complaint and shall contain ... on a separate page of the complaint, a demand for the relief, which shall be a st atement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs. . . .”

       Practice Book § 131 provides: “The first pleading on the part of the plaintiff shall be known as the complaint. It shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall include the information required by Gen. Stat. §52-91. . . .”


author: DUPONT, C. J.

text:
    VERONICA D. VIETS v. ROBERT G. VIETS
    (14503)
    Dupont, C. J., and Foti, Heiman, Spear and Hennessy, Js.
    Considered September 20
    decision released October 24, 1995

      Charlotte Croman, in support of the motion.
   DUPONT, C. J.

In this appeal from a judgment dissolving the parties’ marriage, the plaintiff has filed a motion for review of the trial court’s denial of a motion for articulation. The dispositive issue is whether any relief requested in a motion for review of the denial of a motion for articulation is warranted when the motion for review is timely, but the trial court has previously denied three similar motions for articulation, and the movant did not seek review of any of those denials. We conclude that relief should be denied.

The trial court dissolved the parties’ marriage and awarded the plaintiff permanent periodic alimony in the amount of $300 per week, the interest of the defendant in the marital property and $20,000 as a property division.

After appealing from the court’s judgment, the plaintiff, on March 9,1995, moved the trial court to articulate the factual and legal bases for its conclusions regarding each party’s earning capacity, alimony, the transfer of the defendant’s interest in the marital property and the plaintiffs claims as to her poor health. The motion also sought articulation of the reason why the court did not value the defendant’s business. The trial court denied that motion on March 20, 1995. The plaintiff did not seek review of the trial court’s order.

The plaintiff moved for articulation a second time on May 17, 1995. The second motion for articulation again raised the issues of each party’s earning capacity, alimony, valuation of the defendant’s business and the transfer of the defendant’s interest in the marital property. The second request for articulation, however, raised for the first time the court’s order directing the defendant to pay the plaintiff $20,000 as a property division. The trial court denied this motion on May 25, 1995. The plaintiff again failed to move for this court’s review of the denial of her second motion for articulation.

On June 6, 1995, after receiving portions of the transcript, the plaintiff filed a “supplemental motion for articulation” seeking clarification of the court’s conclusion regarding the defendant’s income in light of certain testimony. The trial court denied that motion on June 9,1995, and the plaintiff again failed to move for review with this court.

The plaintiff moved for articulation a fourth time on July 10, 1995. In this fourth articulation request, the plaintiff claimed that the trial court failed to review the necessary statutory criteria in rendering the judgment in this case. This motion sought articulation of the court’s conclusions concerning alimony, the $20,000 property division, each party’s earning capacity, the transfer of the defendant’s interest in the marital property and the valuation of the defendant’s business. The trial court denied this request on July 19, 1995, and the plaintiff moved for the first time for this court’s review of that decision.

“It is the responsibility of the appellant to provide an adequate record for review.” Practice Book § 4061. In order to ensure an adequate record for review, the appellant may move for articulation pursuant to Practice Book § 4051. Lockwood v. Professional Wheelchair Transportation, Inc., 37 Conn. App. 85, 90, 654 A.2d 1252, cert. denied, 233 Conn. 902, 657 A.2d 641 (1995). “An articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification.” State v. Wilson, 199 Conn. 417, 435, 507 A.2d 1367 (1986).

“When a party is dissatisfied with the trial court’s response to a motion for articulation, he [or she] may, and indeed under appropriate circumstances he [or she] must, seek immediate appeal of the rectification memorandum to this court via a motion for review.” (Internal quotation marks omitted.) Buchetto v. Haggquist, 17 Conn. App. 544, 549, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989); see also Practice Book § 4054. Although motions for articulation and motions for review of the denial of articulations are appropriate in some instances; see DeLuca v. DeLuca, 37 Conn. App. 586, 588, 657 A.2d 690 (1995); such motions should not be used to delay or obstruct the appellate process.

Because a motion for articulation challenges the clarity of the trial court’s decision, any ambiguities and deficiencies that may exist in the court’s decision are usually apparent at the time the decision is rendered, and should, therefore, be addressed in one motion for articulation. If the appellant is of the opinion that the trial court, in denying the motion for articulation, has prevented the appellant from providing this court with an adequate record for review, the appellant should file a motion for review under Practice Book § 4054 within ten days of the issuance of notice of the denial.

In this case, the plaintiff has filed four motions for articulation that are all similar in content. Furthermore, the motions for articulation each raise alleged ambiguities and deficiencies that were all apparent at the time the court’s decision was rendered. The plaintiff could and should have raised all of these issues in her first motion for articulation. Instead, the plaintiff filed four separate and similar motions to address the same basic issues.

The plaintiffs failure to move for review of the trial court’s denial of her first three motions for review warrants denial of any relief. Because all of the motions for articulation raised the same issues, the plaintiff is essentially moving for review of a decision that should have been challenged within ten days of the denial of the first motion for articulation.

The relief requested in the plaintiffs motion for review is denied.

In this opinion the other judges concurred.

       The plaintiffs fourth motion is entitled a motion for clarification. Despite the title, it is clear from the substance of the motion that the plaintiff was again seeking articulation from the trial court.

       Practice Book § 4051 provides in relevant part: “Any motion . . . seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues .... The action of the trial judge as regards such a correction or addition may be reviewed by the court in which the appeal is pending under Sec. 4054. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based. . . .”

       Practice Book § 4054 provides in pertinent part: “Any party aggrieved by the action of 1he trial judge as regards . . . articulation under Sec. 4051 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court . . . and the court may, upon such a motion, direct any action it deems proper. ...”

       The filing of unnecessary or unwarranted motions, or the filing of any papers that unduly delay the progress of an appeal may subject offenders to appropriate discipline and sanctions, after a hearing. Practice Book § 4184.

       We do not overlook the possibility of a motion for further articulation when the trial court’s response to the articulation request, other than a denial, is not adequate for appellate review. Practice Book § 4051; see also Holmes v. Holmes, 32 Conn. App. 317, 320-21, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993).


text:
    CYNTHIA GROSCH v. DOUGLAS R. GROSCH
    (12496)
    Lavery, SchaUer and Hennessy, Js.
    Submitted October 2
    decision released October 24, 1995

      Joseph A. Hourihan, with whom, on the brief, was Joan Keating-McKeon, for the appellant (plaintiff).

      Paul Litman, for the appellee (defendant).
   PER CURIAM.

The plaintiff appealed this dissolution matter on three grounds: (1) Did the court improperly deviate from the uniform support guidelines; (2) did the court incorrectly determine the value of the defendant’s pension; and (3) did the court improperly grant the defendant’s motion for attorney’s fees to defend the appeal. This court affirmed the judgment on January 24, 1995. Grosch v. Grosch, 36 Conn. App. 946, 652 A.2d 1067 (1995).

The plaintiff petitioned for certification to appeal from the Appellate Court decision. The Supreme Court granted the petition and remanded the case for reconsideration in light of Krafick v. Krafick, 234 Conn. 783, 663 A.2d 365 (1995). Grosch v. Grosch, 235 Conn. 901, 665 A.2d 904 (1995). The Supreme Court’s decision in Krafick pertains solely to pension benefits, the second issue in the plaintiffs appeal.

The following facts are pertinent to the issue of pension benefits. In Grosch, the trial court found the value of the pension included only the defendant’s contributions to the plan, $20,000. The trial court adopted the reasoning of a decision of the Colorado Court of Appeals; In re Marriage of Camarata, 43 Colo. App. 317, 318, 602 P.2d 907 (1979); which stated that benefits in excess of contributions are “contingent upon the husband’s survival and terminated at his death . . . and had no cash surrender value, loan value, redemption value, lump sum value, or value realizable after death.” The Colorado decision on which the trial court relied held that a party’s “expectancy of future payments [is not] marital property.” Id. In Grosch, the trial court also refused to assign a value to future payments pursuant to the pension plan.

In Krafick, the Supreme Court decided that future payments of a pension constitute marital property, set forth proper methods for determining and equitably dividing the value of the future payments, and held that a trial court must consider the value of future payments. Krafick v. Krafick, supra, 234 Conn. 806. The court held that it is an abuse of a trial court’s discretion “to reject present value or any value for vested pension benefits merely because the asset is nonliquid, thereby effectively removing this property interest from the scales in determining an equitable division of all of the property before the court.” Id.

The trial court’s decision and reasoning in Grosch directly contravenes our Supreme Court’s decision in Krafick. In dissolution matters, the disruption of one element of the financial orders necessarily “place[s] in doubt the propriety of other financial orders that the trial court may have deemed equitable in relation to the entire distribution scheme.” Wolf v. Wolf, 39 Conn. App. 162, 174, 664 A.2d 315 (1995).

The judgment is reversed as to all financial matters and the case is remanded for further proceedings consistent with this opinion.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. ROBERTO MORALES
    (11565)
    Foti, Lavery and Heiman, Js.
    Submitted September 7
    decision released October 31, 1995

      Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      Donald A. Browne, state’s attorney, with whom, on the brief, was John Smriga, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

This matter is before us on remand from our Supreme Court. State v. Morales, 232 Conn. 707, 657 A.2d 585 (1995). The defendant originally appealed to this court from the judgment of conviction, rendered after a trial to the court, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), and threatening in violation of General Statutes § 53a-62 (a) (l).

In his original appeal to us, the defendant asserted that (1) the trial court improperly denied his motion to dismiss for lack of a speedy trial, (2) he was deprived of his right to due process and a fair trial under the state constitution by the unavailability of exculpatory evidence, and (3) he was deprived of his right to due process by the prosecution’s use of evidence from a previous plea bargain that was withdrawn. State v. Morales, 33 Conn. App. 184, 186, 634 A.2d 1193 (1993). We resolved all of the issues raised by the appeal and affirmed the judgment of the trial court.

Our Supreme Court granted certification limited to the following issues concerning the defendant’s claim that his right to due process was violated by the unavailability of potentially exculpatory evidence:

“1. Did the Appellate Court properly conclude that under the circumstances of this case, the proper test for ruling on the defendant’s motion to dismiss, under article first, § 8, of the Connecticut constitution, was the test articulated in Arizona v. Youngblood, [488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)]?
“2. If the answer to question (1) is yes, did the Appellate Court properly conclude, under the circumstances of this case, that: (a) a motion to dismiss was a proper remedy for the alleged failure of the state to preserve potentially exculpatory evidence; and (b) a different standard would apply to a motion to suppress evidence based on the same conduct of the state?” State v. Morales, 228 Conn. 928, 640 A.2d 116 (1994).

In answering those questions, our Supreme Court rejected our adherence to “the litmus test of bad faith on the part of the police, which the United States Supreme Court adopted under the federal constitution in Youngblood.” State v. Morales, supra, 232 Conn. 726. In lieu of that test, our Supreme Court held that “in determining whether a defendant has been afforded due process of law under the state constitution, the trial court must employ the Asherman balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: ‘the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.’ State v. Asherman, [193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U. S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985)].” State v. Morales, supra, 232 Conn. 726-27.

Because we followed Youngblood, we did not, in the original appeal, address the claim of the defendant that the trial court had imperfectly applied the Asherman balancing test. Accordingly, having determined the proper test, the Supreme Court remanded the matter to us to determine whether the trial court properly applied the balancing test. Id., 730.

“The trial court could reasonably have found the following facts. On December 30, 1990, the victim was at the Pembroke Grill on Pembroke Street in Bridgeport. She left the grill at approximately 11:45 p.m., walked down Pembroke Street and turned left onto East Main Street. While on East Main Street, she heard someone following her. She stopped at a phone booth and was approached by the defendant. The defendant, who had a Spanish accent, asked if she was calling the police. She said no and pretended to call her boyfriend. A person in a tow truck then pulled up next to the phone booth. The victim asked the driver to give her a ride because she believed the defendant was going to hurt her, but he refused, stating that the defendant was his relative. The driver and the defendant then began to talk to each other. Meanwhile, the victim began to walk down Seymour Street toward Kossuth Street. On Seymour Street, she again saw the defendant following her. She walked down Kossuth Street toward the thruway. When the victim reached an Interstate 95 underpass, the defendant grabbed her and punched her in the mouth. He then pulled out a knife, placed it at her neck and pulled her beneath the underpass and through a gate. The defendant pushed the victim down on her knees, told her not to move or say anything and to keep her head down or he would kill her. The defendant dropped the knife and told the victim to unbutton and unzip her pants. The defendant then pulled off her pants and underwear, got behind her and, while holding her around the neck, bit her ‘on [the] butt.’ The defendant then ‘put his thing in [her] butt.’ He bit her neck and jumped off of her while telling her to keep her head down or he would kill her, and he ‘wiped his penis off on [the victim’s] jacket.’ The defendant then pulled off her necklaces and bracelet and walked away. The victim then walked down Stratford Avenue and stopped a car that she recognized as belonging to a friend. The friend drove the victim to the Bridgeport police station. The police called an ambulance that transported the victim to Park City Hospital for treatment. After treatment, she gave a statement to Detective Annie Osika about the incident and turned over her jacket to the police.

“In the spring of 1991, while a passenger on a bus, the victim saw the defendant standing on the corner of Stratford Avenue and East Main Street. She stayed on the bus for a few stops, then disembarked and called the police. The police transported the victim back to where she had seen the defendant. She identified him as her attacker, and he was arrested on March 11,1991.” State v. Morales, supra, 33 Conn. App. 186-87.

“On May 22, 1991, the trial court granted the defendant’s motion for discovery and inspection of certain items. The motion requested the disclosure of ‘exculpatory information and materials.’ The jacket was unavailable at trial because the Bridgeport police had returned it to the victim prior to the defendant’s arrest.” Id., 191. At trial, the defendant moved to dismiss the charges against him because the Bridgeport police department had failed to preserve the victim’s jacket as evidence. The trial court denied the defendant’s motion to dismiss.

The defendant claims that his right to due process was violated because of the unavailability of the victim’s jacket and, therefore, that his motion to dismiss should have been granted. In determining whether the defendant has been afforded due process of law under our state constitution, the trial court was required to apply the Asherman balancing test. State v. Morales, supra, 232 Conn. 727. “In this case, the record is clear that the trial court, in deciding the defendant’s motion to dismiss, attempted to apply a balancing test quite similar to the [Asherman test].” Id., 730. In his appeal to this court, the defendant argues that, although the trial court applied a balancing test, it did not apply that test correctly. Thus, in order to determine whether the defendant’s right to due process has been violated, it is our task to review the trial court’s application of the Asherman balancing test in its denial of the defendant’s motion to dismiss. See id.

We begin our analysis by defining our scope of review. “Facts found by the trial court will not be disturbed unless the finding is clearly erroneous. Practice Book § 4061; State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). Conclusions drawn from those underlying facts must be legal and logical. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983).” State v. Geisler, 222 Conn. 672, 693, 610 A.2d 1225 (1992). Where the trial court examines an underlying set of facts and draws a legal conclusion from those facts, that legal conclusion is subject to plenary review by an appellate court. See Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 14, 664 A.2d 719 (1995); Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995); State v. Torres, 230 Conn. 372, 379, 645 A.2d 529 (1994).

Here, the trial court examined the underlying facts and applied the Asherman balancing test in ruling on the defendant’s motion to dismiss. “[W]hether those facts constituted a violation of the [defendant’s right to due process] is a mixed determination of law and fact that requires the application of legal principles to the historical facts of the case. . . . Whether the historical facts as found by the [trial] court constituted a violation of the [defendant’s right to due process] is subject to plenary review by this court, unfettered by the clearly erroneous standard.” (Citation omitted; internal quotation marks omitted.) Davis v. Warden, 32 Conn. App. 296, 301, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993); see also Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995). In our examination of the facts and the record in this case, we find that the trial court properly applied the Asherman balancing test in denying the defendant’s motion to dismiss.

With regard to the first Asherman factor, namely, the materiality of the potentially exculpatory evidence, our courts have held that “ ‘[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” State v. Baldwin, 224 Conn. 347, 365, 618 A.2d 513 (1993), quoting United States v. Bagley, 473 U.S. 667, 681-82, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Here, we do not find that such a reasonable probability exists. The trial court found, and we agree, that it is purely speculative whether scientific tests could have been effectively performed on the jacket had it been recovered, and even if such tests could have been performed, whether such tests would have produced scientifically useful evidence. See State v. Asherman, supra, 193 Conn. 726; State v. Leroux, 18 Conn. App. 223, 234-35, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989). Even if we assume that the perpetrator wiped his penis on the victim’s jacket after he assaulted her, we are left to speculate as to whether the jacket became stained, whether the stain would have indicated semen or some other substance, whether the substance would have been uncontaminated and sufficient in amount to conduct scientific testing, and whether the testing would have been effective to demonstrate that the defendant could not have been the perpetrator.

In further examining the materiality of potentially exculpatory evidence under the Asherman test, a critical factor that our courts have considered is the defendant’s lack of interest in the evidence. State v. Baldwin, supra, 224 Conn. 365; see also State v. Harden, 175 Conn. 315, 327, 398 A.2d 1169 (1978). “The fact that a defendant failed to request the evidence goes to the issue of materiality and whether the defendant deemed it significant.” State v. Morales, supra, 232 Conn. 712 n.7. The trial court found, and we agree, that the defendant’s lack of interest in the jacket prior to his motion to dismiss is quite remarkable. “The defendant’s counsel conceded that [prior to trial] both he and prior defense counsel knew then of the existence of potential semen stains, but failed to ask specifically that the police produce the jacket.” Id., 712. “The police returned the jacket to the victim on February 13,1991, approximately one month before the defendant was arrested on March 11, 1991. A public defender was appointed to represent the defendant at his arraignment on that day. The defendant, however, did not take any procedural step specifically regarding the jacket until he moved to dismiss the state’s case at the end of the state’s presentation of evidence at trial on April 27, 1992, more than one year later. Thus, although the state is properly faulted for returning the jacket to the victim, the defendant is not entirely without fault. It is at least possible that, had the defendant asked for the return of the jacket for testing as early as March, 1991, when the defendant was arrested and counsel was appointed to represent him, or, at the latest, in February, 1992, when his special public defender was appointed, the jacket could then have been retrieved from the victim.” Id., 734-35 (Borden, J., concurring).

The second Asherman factor we must consider is “the likelihood of mistaken interpretation of [the missing evidence] by witnesses or the [trier of fact].” State v. Asherman, supra, 193 Conn. 724. In examining this factor, it is of great significance that the case was tried to the court as opposed to a jury. We find this factor to weigh heavily against the defendant. “This is especially true in light of the fact that the trial was before [the court] and not before a jury, which decreased the likelihood that the trier of fact would draw an improper inference from the evidence or the lack of evidence.” State v. Ricketts, 37 Conn. App. 749, 762, 659 A.2d 188, cert. denied, 234 Conn. 913, 660 A.2d 355 (1995). Thus, the possibility that the court, as trier of fact, misinterpreted the missing evidence in this case is minimal.

In balancing the third Asherman factor, “the reason for the unavailability of the evidence, our cases have focused on the motives behind the destruction of the evidence.” State v. Leroux, supra, 18 Conn. App. 231. In examining such motives, “our courts have considered such factors as whether the destruction was deliberate and intentional rather than negligent ... or done in bad faith or with malice ... or with reckless disregard . . . or calculated to hinder the defendant’s defense, out of other animus or improper motive, or in reckless disregard of the defendant’s rights.” (Citations omitted; internal quotation marks omitted.) State v. Grillo, 23 Conn. App. 50, 56, 578 A.2d 677 (1990). Here, the circumstances concerning the loss of the jacket are as follows. “Sometime early in 1991, the victim, who did not have another winter jacket, sought to have the police return the jacket they had seized. The police, after repeated requests from the victim, finally returned her jacket on February 13, 1991, some six weeks after she had been attacked.” State v. Morales, supra, 232 Conn. 711. This was almost one month before the defendant was arrested on March 11, 1991. In considering the previously stated facts, the trial court found, and we agree, that while the police department may have been negligent in returning the jacket to the victim, there was certainly no evidence of bad faith or an intention to harm the potential defendant in the case, let alone this defendant. Infact, attrial, “[t] he defendant did not argue that the police, in returning the jacket to the victim, had acted in bad faith or that they had any motive for doing so other than accommodating the victim.” Id., 712. Thus, the trial court properly found that the reason for the unavailability of the jacket did not significantly tip the Asherman scale in favor of the defendant.

In further examining the third Asherman factor, we emphasize that when the evidence at issue was destroyed, the case was only in its investigatory stage. State v. Leroux, supra, 18 Conn. App. 232. At the time the police returned the jacket to the victim, and “ ‘thus negligently lost potentially valuable evidence, they had at least as great an interest in preserving the evidence as did the person later accused of the crime. Indeed, at that time it was more likely that the evidence would have been useful to the police—who were still conducting an investigation—and to the prosecutor—who would later bear the burden of establishing guilt beyond a reasonable doubt—than to the defendant. In cases such as this . . . the State has a strong incentive to preserve the evidence.’ At the least, therefore, courts should be very cautious in dismissing a case where no more than police negligence led to the loss or destruction of evidence during the investigatory phase, because as a matter of policy there is slight need for such a severe sanction.” Id., 232, quoting Arizona v. Youngblood, supra, 488 U.S. 59.

Finally, we must consider the fourth Asherman factor, the prejudice to the defendant caused by the unavailability of the evidence. “In a case such as this, where the crucial issue for which the evidence would have been offered was the identity of the assailant, the court must weigh the factors in that light. If, for example, the evidence could have been tested to demonstrate immutable characteristics of the assailant, then the prejudice factor would weigh heavily in favor of the defendant.” State v. Morales, supra, 232 Conn. 727. As we have already stated, however, we are left only to speculate as to whether the jacket could have been beneficial to the defendant’s case. “[I]t is pure speculation whether . . . testing of the [jacket] would have yielded exculpatory evidence.” State v. Leroux, supra, 18 Conn. App. 234-35.

“In [further] measuring the degree of prejudice to an accused caused by the unavailability of evidence [under Asherman], the trial court properly may evaluate the strength or weakness of the state’s case, as well as the corresponding strength or weakness of the defendant’s case.” State v. Morales, supra, 232 Conn. 727 n.22. Here, the trial court, as finder of facts, was aware of the underlying strengths and weaknesses of each side’s case, and was fully able to assess the potential prejudicial effect of the unavailability of the jacket. In examining the potential prejudice to the defendant, the trial court had before it the following. “The only evidence linking the defendant to the crimes charged was the testimony of the victim identifying him as her assailant. According to that testimony, she had several opportunities to view the defendant. The first was at the phone booth, where he first approached and conversed with her. The second was as she was walking on the street and he was following her; she looked at him face to face as he was ‘across the street’ from her while she walked in the middle of the road. The third was when, according to her testimony, he punched her in the mouth before sexually assaulting her. The fourth was shortly after the attack, while she was in a car1 being driven by her girlfriend’s husband, who had been passing by and picked her up and drove her to the police station. The fifth was some time after the assault, when, according to her testimony, she was riding on a bus and saw the defendant on the sidewalk; the victim was with her boyfriend, but told him not to accost the defendant, to ‘just leave it alone.’ The sixth was at the time of the defendant’s arrest, when she saw the defendant on the corner of Stratford Avenue and East Main Street ....

“The victim positively identified the defendant in the courtroom as her assailant. Furthermore, in her written statement to the police on the day after the assault, she described the defendant as follows: ‘He was P/R [Puerto Rican] male about 30 or 31 years old about 5 [feet] 7 [inches] tall [medium] build, he had brown eyes and brown hair. His hair was curly and short to his head. He was top heavy and had skinny legs. He had a mustache that came below his top lip. He had short stubby hands and his nails were all black like he was a mechanic, his finger nails were all covered with grease. He had a wedding band on his left hand that was diamond cut and it had three stars in it. His front teeth were straight but he had like a fang in the middle of the front teeth.’. . . Her testimony was consistent with this description. She described the defendant’s tooth as ‘like a fang. It was like it came in the middle of his mouth, straight down in the middle of his two front teeth.’ A photograph of the defendant, taken on March 8, 1991, is consistent with this description, particularly indicating a mustache that falls below the outer edges of the defendant’s lips, and a distinctively pointed tooth in the center between his two top teeth. The victim identified this photograph as indicating what she meant by her description of the defendant’s front tooth.

“On the other side of the ledger, the victim’s credibility was not unassailable. She had been convicted of failure to appear in the first degree, larceny in the second degree, larceny in the first degree and larceny in an unspecified degree. Furthermore, before encountering the defendant, she had been drinking in a bar for approximately three and one-half hours, and had consumed five or more drinks consisting of ‘forty-three liquor and milk.’ Although she denied being drunk, she admitted that she was ‘feeling good.’

“There were, moreover, some inconsistencies in her testimony. Although she testified that she had never seen the defendant before, she told the police in her statement that, when he had approached her at the phone booth he had told her his name, that he knew her father, and that he knew that her father had been shot, which was in fact true. Also, although she testified that the defendant had punched her in the mouth, causing ‘bad’ bleeding, the hospital report did not confirm that injury. Furthermore, although she testified that the defendant had penetrated her anally, and not vaginally, and had described the assault that way to both the police and the examining physician, the nurse’s notes also indicated her having reported a vaginal penetration.

“Ultimately, the trial court, having heard all of the evidence, believed the victim’s identification of the defendant. In finding that the state had proven ‘beyond a reasonable doubt . . . that the defendant was responsible for the attack,’ the court stated: ‘Her description was a very accurate and detailed one. There was plenty of opportunity, both outside the restaurant, at the phone booth and subsequently, for her to have seen this individual. The court heard her testimony, watched her as she identified the defendant very, very quickly and very adamantly as the person that was responsible.’ ” (Emphasis in original.) State v. Morales, supra, 232 Conn. 731-34 (Borden, J., concurring).

It is “the absolute right and responsibility of the [trier of fact] to weigh conflicting evidence and to determine the credibility of the witnesses.” State v. Reddick, 33 Conn. App. 311, 333, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). In examining the strengths and weaknesses of the state’s and the defendant’s cases, “[w]e afford great deference to findings of fact consistent with guilt unless they are improbable and unconvincing.” State v. Wolff, 29 Conn. App. 524, 529, 616 A.2d 1143 (1992). In our review of the facts of this case in light of those principles, we find that the trial court properly could have concluded that the defendant suffered little prejudice as a result of the unavailability of the victim’s jacket.

In weighing the four factors of the Asherman test, we conclude that the trial court properly “balance [d] the totality of the circumstances surrounding the missing evidence”; State v. Morales, supra, 232 Conn. 727; in denying the defendant’s motion to dismiss and, therefore, that the defendant’s right to due process of law under article first, § 8, of the Connecticut constitution was not violated.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides in pertinent part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilfy of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-62 provides in pertinent part: “(a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

       We note that the trial court cited the balancing test set forth in State v. Leroux, 18 Conn. App. 223, 230-31, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989), as the basis for its denial of the defendant’s motion to dismiss. The test set forth in Leroux is identical to the test set forth in Asherman. Our Supreme Court, however, has denominated the balancing test as “the Asherman test”; State v. Morales, supra, 232 Conn. 720; and we will do the same.

       See footnote 4.

       In Baldwin, our Supreme Court used this definition of materiality in applying the Asherman balancing test to the question of whether the trial court properly admitted testimony concerning lost evidence. State v. Baldwin, supra, 224 Conn. 365. The Asherman balancing test has been used by our courts in considering whether testimony concerning lost or destroyed evidence should be admitted; State v. Marra, 222 Conn. 506, 516, 610 A.2d 1113 (1992); State v. McIver, 201 Conn. 559, 565, 518 A.2d 1368 (1986); State v. Boucino, 199 Conn. 207, 229, 506 A.2d 125 (1986); State v. Hamele, 188 Conn. 372, 381, 449 A.2d 1020 (1982); as well as in considering whether the underlying prosecution should be dismissed due to the loss or destruction of evidence. State v. Gonzalez, 206 Conn. 213, 224, 537 A.2d 460 (1988); State v. Harden, 175 Conn. 315, 326-27, 398 A.2d 1169 (1978); State v. Grillo, 23 Conn. App. 50, 55-56, 578 A.2d 677 (1990); State v. Leroux, 18 Conn. App. 223, 230-31, 557 A.2d 1271, cert. denied, 212 Conn. 809, 564 A.2d 1072 (1989).

       The victim’s statements to the police and at trial do not support the contention that a fully testable amount of semen existed on the victim’s jacket after the assault. In the victim’s statement to the police, which was entered as a full exhibit at trial, she stated that the defendant ejaculated “in my ass,” and that after he finished assaulting her he “wiped his dick on my coat.” The victim did not indicate to the police that any amount of ejaculate remained on the defendant’s penis when he wiped it on her jacket, nor did she describe the nature of the substance, if any, that the defendant wiped on her jacket, or whether such substance originated from his body or from her body. On direct examination, the victim merely indicated that the defendant penetrated her “butt” with his penis, bit her neck, jumped off of her and told her to keep her head down and not move or he would come back and kill her. She made no mention at all on direct examination as to whether the victim ejaculated in her anus or whether he wiped his penis on her jacket. On cross-examination, the victim equivocated as to the nature of the substance the defendant wiped on her jacket. The following colloquy took place at trial on cross-examination:
      “[Defense Counsel]: The sex that you say that he forced upon you, you’re saying he did it in your backside, your anus?
      “[Victim]: Yes.
      “Q. Did he have sex with you either in your mouth or your vagina?
      “A. No.
      “Q. You indicated that when he finished—do you know if he came or not?
      “A. Yes. Well, right before he got off me he bit me on my neck, so I figured he was finished. And then he wiped his penis off on my jacket.
      “Q. You don’t know for certain, then, whether he came or not?
      “A. Yes, I do. It was all over my jacket.
      “Q. Well, sennet,king was all over your jacket?
      “A. Yes.”