author: Norcott, J. Stoughton, J.,

text:
    State of Connecticut v. Thomas Hall
    (5398)
    Borden, Stoughton and Norcott, Js.

      Argued October 19, 1988
    decision released February 21, 1989

      Sydney T. Schulman, with whom, on the brief, was Otto Witt, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, was Dennis O’Connor, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant, Thomas Hall, was charged with murder in violation of General Statutes § 53a-54a and, after a trial to a jury, was convicted of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). On March 11, 1985, the defendant was sentenced to a prison term of not less than ten nor more than twenty years. On this appeal, he claims that the trial court erred (1) in denying his motion to dismiss which he based on the state’s failure to effect a timely arrest, (2) in not instructing the jury on the defense of self-defense with respect to the lesser included offense of manslaughter in the second degree, (3) in refusing to admit certain prior convictions of the victim, (4) in refusing to admit descriptions of the victim’s violent habits, specific acts and reputation for carrying a gun, and (5) in refusing to instruct the jury on criminally negligent homicide. We find error.

The jury reasonably could have found the following: On January 27, 1981, the defendant was involved in an altercation with James “Bro” Robinson at the VIP Lounge in Hartford. The fight inside the bar moved outside where the defendant fired six gunshots into Robinson in rapid succession. The entire incident occurred within a few moments, the shots were fired almost at the instant Hall and Robinson exited the VIP Lounge, and there was no evidence presented as to which of the shots were the fatal ones. The defendant left the scene immediately after the shooting. Other facts relevant to the issues in this appeal will be discussed, infra.

I

Before reaching the principal claim of error relating to the defendant’s trial, we address his contention that the trial court erred in denying his pretrial motion to dismiss the murder charge because of prearrest delay.

The defendant argues that the three and one-half year period required to locate him violated both his due process rights and his sixth amendment right to a speedy trial. He claims that his sixth amendment right arose as of the date the arrest warrant issued, and that his fourteenth amendment due process rights were violated by the unavailability of witnesses due to the delay.

The undisputed facts relevant to this claim are as follows. Shortly after the shooting on January 27, 1981, the defendant drove to Hartford Hospital to obtain emergency medical care for lacerations. He immediately left the hospital without giving any substantive information about his wounds and without paying. He and his girlfriend then drove to her home in New Britain where the defendant had been living. The defendant packed and left for another friend’s house in New Britain. Several weeks later, he moved to Oregon where he resided until his arrest. It is clear that although the police asked the defendant’s mother to have him contact them, the defendant never did so; nor did he ever inquire about the extent of Robinson’s injuries.

At trial, several Hartford police officers testified as to the efforts made to locate the defendant after the shooting. The immediate efforts of the police included the following: (1) interviews with the victim’s girlfriend and the defendant’s mother; (2) a surveillance of the defendant’s mother’s residence and the housing project where the defendant was reported to have been living with his girlfriend; (3) a records check on the defendant’s mother’s surname, Vandeberg, that revealed the alias “Hall”; (4) the distribution of the defendant’s mug shots to Hartford police officers; (5) the entry of all vital information on the defendant and his vehicle into the National Crime Information computer; and (6) the acquisition of an arrest warrant for the defendant on January 28, 1981.

Additionally, the principal investigating officer, Peter Darby, checked with the state police of each of the New England states and requested that they run checks on any of the defendant’s relatives living there. The police also conducted periodic surveillances of a Bloomfield residence where it was believed the defendant’s father lived. In April, 1981, the police discovered the defendant’s car being driven in New Britain by a man who had purchased the vehicle from the defendant’s girlfriend. Thereafter, Darby followed many leads in the New Britain area in an attempt to locate the defendant. All efforts were unsuccessful, and the police then considered the case “inactive.”

In the summer of 1984, the defendant’s employer, a bus company in Oregon, conducted a background check on him through the National Crime Information computer. The Hartford police were alerted, and the defendant was arrested on June 15, 1984. Waiving extradition, he was returned to Connecticut.

We turn first to the defendant’s claim that his sixth amendment right to a speedy trial was violated by the delay in arresting him. The issuance of an arrest warrant in and of itself does not trigger the sixth amendment right to a speedy trial of a person not yet arrested. State v. Crawford, 202 Conn. 443, 452 n.13, 521 A.2d 1034 (1987). “Absent a formal charge, the sixth amendment right to a speedy trial does not extend to the period prior to the arrest. United States v. Marion, 404 U.S. 307, 321, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971).” State v. Crawford, supra, 453 n.13. The delay in this case relates to the period of time before the defendant was arrested or formally charged by information or indictment. Accordingly, the sixth amendment provides no basis for his claim.

With respect to the defendant’s alternative claim that the prearrest delay violated his fourteenth amendment due process rights, we again disagree. “In order to establish a due process violation because of preaccusation delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the reasons for the delay were wholly unjustifiable, as where the state seeks to gain a tactical advantage over the defendant.” State v. Morrill, 197 Conn. 507, 522, 498 A.2d 76 (1985). “[T]he due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” United States v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977); see also United States v. Marion, supra. “In considering whether an excessive delay requires the dismissal of an indictment, a court must first determine whether the defendant suffered actual prejudice because of the delay. United States v. Carrath, 699 F.2d 1017, 1019 (9th Cir. 1983), cert. denied, 464 U.S. 1038, 104 S. Ct. 698, 79 L. Ed. 2d 164 (1984).” (Emphasis added.) United States v. Horowitz, 756 F.2d 1400, 1405, (9th Cir. 1985), cert. denied, 474 U.S. 822, 106 S. Ct. 74, 88 L. Ed. 2d 106 (1985).

From our careful review of the record before us, we find nothing from which we can conclude (1) that the reasons for the delay were unjustifiable or occasioned by the police so as to give them a tactical advantage over the defendant, or (2) that the delay resulted in prejudice to the defendant. The defendant’s arguments relating to this claim ignore the obvious role the defendant himself played in the delay about which he so vigorously protests. Under the circumstances of this case, we conclude that the three and one-half year delay between the incident and the defendant’s arrest did not violate his right to due process of law.

II

We now turn to the dispositive issue in this case. The defendant argues that he was entitled to a jury instruction on the defense of self-defense with respect to the lesser included offense of manslaughter in the second degree, and that the trial court erred in refusing to give his requested instruction. The court did submit manslaughter in the second degree to the jury as a lesser included offense, but specifically instructed the jury that the defense of self-defense did not apply to that offense. The state contends that the trial court did not err and bases its claim on the following grounds: (1) there was insufficient evidence at trial to warrant a self-defense instruction; (2) the self-defense instruction is inconsistent with the elements of manslaughter in the second degree; (3) the court’s instruction on self-defense for murder and manslaughter in the first degree was sufficient in that the jury’s rejection of self-defense, as evidenced by the defendant’s conviction of manslaughter in the first degree, renders the failure to instruct on manslaughter in the second degree academic; and (4) the defendant’s requested instruction was an erroneous statement of Connecticut law. We will address these issues in the order in which the state has presented them.

A

SUFFICIENCY OF THE EVIDENCE

A defendant is entitled to the requested instruction of self-defense under General Statutes § 53a-19 whenever there is sufficient evidence at trial to raise a reasonable doubt concerning justification. State v. Cassino, 188 Conn. 237, 243, 449 A.2d 154 (1982); see also State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986); State v. Folson, 10 Conn. App. 643, 646-47, 525 A.2d 126 (1987). The state has the burden of disproving the defense beyond a reasonable doubt. General Statutes § 53a-12 (a); State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982).

We first review the evidence presented at trial in the light most favorable to the defendant’s claim that he was entitled to the instruction. State v. Fuller, supra, 275; State v. Folson, supra, 647. We find that the evidence provided a sufficient basis for the self-defense instruction. At trial, there was evidence presented to the jury that the defendant, confronted with an acknowledged violent person during a rapidly escalating verbal and physical altercation, fired six gunshots into the victim as that altercation spilled into the street. The defendant testified that the victim was armed with a gun, that he was fearful for his life, that he was trying to protect himself and that he did not intend to kill the victim. “ ‘[A] defendant is “entitled to have instructions presented related to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . .” United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).’ United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir. 1976).” State v. Fuller, supra, 278; see also State v. Folson, supra, 646. Against this standard, the evidence of justification was sufficient for the trial court to have presented the theory of self-defense for consideration by the jury.

B

INCOMPATIBILITY OF MANSLAUGHTER IN THE SECOND DEGREE AND SELF-DEFENSE

Our next inquiry focuses on the state’s claim that the defense of justification is inconsistent with the elements of manslaughter in the second degree. The state’s argument evinces the difficulty involved in determining the defendant’s state of mind regarding two interrelated concepts, the justifiability of action required for the defense and the unjustifiability of risk required for commission of the crime. Our Supreme Court has dealt with a similar problem regarding a jury’s determination of a defendant’s state of mind for the purpose of establishing lesser included offenses in homicide cases. In State v. Rodriguez, 180 Conn. 382, 399-407, 429 A.2d 919 (1980), the court recognized the extremely difficult task a jury has in distinguishing among the elusive concepts of the culpable states of mind required for the various levels of homicide. To address this situation, the court dispensed with the requirement of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), that an instruction on a lesser included offense need be given only when “it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser.” The court in Rodriguez concluded that, in a homicide prosecution, an offense that would be a lesser included offense but for its requirement of a less culpable state of mind than that required for the greater, will be deemed a lesser included offense. State v. Rodriguez, supra.

In State v. Fuller, supra, 280, our Supreme Court considered the issue of whether the defense of duress was inconsistent with the element of intent required for robbery in the first degree. The court stated that the inconsistency argument “raises broad philosophical issues concerning the nature of voluntary action for purposes of criminal responsibility and the appropriate conditions for holding a person morally blameworthy.” Id. Focusing again on the elusive concept of the accused’s state of mind, the court held that “[a] jury should not be called upon to resolve such an esoteric philosophical question at the expense of the defendant” without an appropriate instruction on duress. Id.

In Rodriguez, the court recognized a jury’s difficulty in determining the culpable state of mind of the defendant from among those required for the various levels of homicide, and in Fuller the court recognized the jury’s difficulty in determining the voluntariness of action required for criminal responsibility for purposes of determining the defense of duress. In this case, we similarly recognize the difficulty a jury has in weighing the justifiability of risk and action inherent in the crime of manslaughter in the second degree and the concept of self-defense. Our Supreme Court resolved the difficulty in Rodriguez by eliminating the second prong of Whistnant in homicide prosecutions, and in Fuller by requiring that the court instruct the jury on the defense of duress. The gravamen of the reasoning in these cases is that, in matters involving such esoteric concepts, the jury should have the benefit of as much information and instruction as will aid them in arriving at a just verdict. We find that the nature of the evidence in this case that entitled the defendant to an instruction on self-defense; part A, supra; involves the same difficulties addressed in Fuller and Rodriguez. We conclude, therefore, that the trial court should have instructed the jury on self-defense with respect to the lesser included offense of manslaughter in the second degree.

C

SUFFICIENCY OF THE TRIAL COURT’S INSTRUCTION ON

SELF-DEFENSE TO MURDER AND MANSLAUGHTER IN THE FIRST DEGREE

We next address the question of whether the trial court’s failure to instruct the jury on self-defense to manslaughter in the second degree is academic because the instruction on self-defense for murder and manslaughter in the first degree was sufficient. We begin our analysis of this argument by noting that the trial court specifically instructed the jurors that they were not to consider self-defense for manslaughter in the second degree.

The state contends, however, that the question of whether the court should have instructed the jury on self-defense for manslaughter in the second degree is academic because the jury presumably followed the court’s instructions to consider the lesser offenses only if it found the defendant not guilty of each of the greater offenses. Thus, it argues, in finding the defendant guilty of manslaughter in the first degree, the jury rejected self-defense without even considering the lesser offense. We disagree.

In State v. Monte, 131 Conn. 134, 136-37, 38 A.2d 434 (1944), our Supreme Court rejected the principle that, in a case in which the evidence warrants an instruction on a lesser included offense, the failure to give such an instruction is harmless error when the jury found the defendant guilty of the greater offense. The court recognized that jury verdicts are often the product of “open-minded discussions and an honest weighing of the opinion of others”; id., 136; which necessitates the giving of the whole panoply of possible verdicts. The crux of the court’s reasoning in Monte was that “[i]n the effort of a jury to reach a verdict with which each member can conscientiously agree, the situation presented where the alternative is between finding a defendant guilty as charged or not guilty may be quite different from one where, under the charge of the court, they have the further choice of finding him guilty of some lesser offense embraced within the information. From the standpoint of the actual process by which juries arrive at verdicts, a failure to submit to them the lesser offense as a permissible basis for their verdict may work a very serious harm to the defendant.” Id., 136-37. Therefore, when the jury has been denied the opportunity to consider all the possibilities of lesser included crimes, conviction of the greater offense does not render the failure to give the lesser included offense academic or harmless. Id. See also State v. Whistnant, supra.

Given this precedent, we must determine whether the failure to instruct the jury on self-defense for a lesser included offense is academic or harmless when the jury has convicted the defendant of the greater offense and has thereby rejected the defense that was raised as a justification for the defendant’s actions. Analyzing this question pursuant to the Monte and Whistnant reasoning, we conclude that the jury should have been given the opportunity to consider self-defense with regard to the lesser included offense of manslaughter in the second degree. Because it is settled that a jury should be given the entire range of possible verdicts in a case in which the evidence warrants the giving of the lesser included offenses, it follows that defenses that are supported by a reasonable construction of the evidence should be given along with those same lesser charges. We are not persuaded by the argument that, in cases in which the defendant is convicted of the greater offense, the failure to give warranted instructions on the lesser included offenses is not harmless, while the failure to give similarly warranted instructions on corresponding defenses is harmless.

Additionally, “[t]he defense of self-defense is raised by way of justification, and when such defense is asserted ‘the state shall have the burden of disproving such defense beyond a reasonable doubt.’ General Statutes § 53a-12.” State v. Holloway, 11 Conn. App. 665, 670, 528 A.2d 1176 (1987). By refusing to instruct the jury on self-defense, the trial court failed to instruct the jury on the state’s burden of disproving the defense on the charge of manslaughter in the second degree, and, accordingly “left the jury without a knowledge of the law which it could apply to the facts relevant to that charge.” Id., 671. A specific offense and its justification, if any, must be considered together. State v. Cavros, 196 Conn. 519, 528-29, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985). In this case, the state bore the burden of proof on the charge of manslaughter in the second degree and the burden to disprove the defense of self-defense. See State v. Miller, supra, 663; State v. Fletcher, 10 Conn. App. 697, 707-708, 525 A.2d 535 (1987). We conclude that, under the facts of this case, the trial court erred in failing to provide the jury with the proper instructions, thus precluding it from determining whether the state met these burdens.

D

defendant’s erroneous instruction REGARDING SELF-DEFENSE

Because we have found error that requires a new trial, we limit our examination of the next claim of error to whether the trial court erred in rejecting the defendant’s requested instruction on self-defense that was based on Brown v. United States, 256 U.S. 335, 41 S. Ct. 501, 65 L. Ed. 961 (1921). In this regard, we conclude, for the purposes of the new trial, that the trial court did not err. In State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984), our Supreme Court rejected the “heat of passion” or “excessive force” type of charge that was at issue in the Brown decision, in favor of a subjective-objective test. The trial court was correct in refusing to give the defendant’s requested instruction.

We discuss the remaining issues raised by the defendant as they also are likely to arise in the new trial.

Ill

The defendant claims that the trial court erred in excluding evidence of prior convictions of the victim. At trial, in order to support his self-defense claim, the defendant offered a list of the victim’s convictions, dating from 1957 through 1980, and ranging in severity from breach of peace to manslaughter. After examining the record of convictions, the trial court ruled that only a few could be described as crimes of violence. The court further ruled that the convictions were lacking in probative value and were too remote in time and too dissimilar in nature to the events at issue to be admissible. In deciding to exclude this evidence, the court paid particular attention to the victim’s 1967 conviction for manslaughter, and concluded that even this conviction was too remote and cumulative.

In Connecticut, when an accused has claimed self-defense, he “may show that the deceased was the aggressor by proving the deceased’s alleged character for violence.” State v. Miranda, 176 Conn. 107, 114, 405 A.2d 622 (1978); see also State v. Gooch, 186 Conn. 17, 21, 438 A.2d 867 (1982); State v. Delgado, 13 Conn. App. 139, 149, 535 A.2d 371 (1987). The defendant may prove the victim’s character by evidence of the deceased’s crimes of violence, but “the accused is not permitted to introduce the deceased’s entire criminal record into evidence in an effort to disparage his general character . . . . ” State v. Miranda, supra. “The trial court has very broad discretion in ruling on the admissibility of evidence”; State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987); and “ ‘[t]he determination of the relevancy and remoteness of evidence is within the sound discretion of the trial court.’ State v. Maldonado, 193 Conn. 350, 365, 478 A.2d 581 (1984).” State v. Miller, supra. We will not disturb the trial court’s ruling on an evidentiary matter unless the court has clearly abused its discretion. State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985).

Our review of the record reveals that during the course of the trial, the jury heard extensive testimony regarding Robinson’s violent, aggressive nature, independent of his criminal record. A great part of that testimony came from police officers as well as from the defendant. The trial court was correct in finding that Robinson’s violent nature was undisputed, and that evidence of his manslaughter conviction was cumulative. There was ample other evidence from which the jury could have inferred that Robinson was the aggressor and that the defendant’s fear of him was reasonable. Because we have determined that the evidence was cumulative, we need not reach the issue of whether the trial court was correct in finding that the conviction was too remote to be probative. We conclude that the trial court’s refusal to admit evidence of Robinson’s manslaughter conviction was not error.

IY

The defendant’s next claim of error is somewhat related to the prior convictions claim. He contends that the. trial court erred in excluding evidence of the victim’s violent habits, reputation for carrying a gun, and specific violent acts. We disagree.

It is axiomatic that in a homicide prosecution in which the accused has claimed self-defense, “[ejxcept where character is directly in issue, a person’s violent character may not be established by evidence of specific acts.” State v. Gooch, supra; State v. Miranda, supra, 112. In the present case, the undisputed violent character of Robinson was not in issue. We find from our review no basis upon which we should recognize an exception to the rule precluding admission of evidence of the victim’s specific acts of violence.

The defendant also contends that the trial court erred in prohibiting him from questioning police officers and other witnesses as to whether the defendant had a reputation for carrying a gun. The defendant claims that the victim’s reputation for carrying a firearm was clearly relevant to his self-defense claim. The trial court ruled that the proffered testimony would be cumulative to the already abundant evidence before the jury demonstrating that Robinson was a violent man. We agree.

At the trial, the defendant testified that Robinson owned a gun, had fired it at a gambling game on another occasion, and had a gun on the night of the incident in question. The defendant’s girlfriend also testified that Robinson had a gun on the night he was shot. If a claimed error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling that was probably harmful to him. State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). We conclude that the defendant has not carried this burden and, therefore, it was not error for the court to exclude testimony relative to Robinson’s general reputation for carrying a gun.

V

The defendant’s final claim is that the trial court erred in denying his request to instruct the jury on the lesser included offense of criminally negligent homicide in violation of General Statutes § 53a-58. The defendant filed a timely request to charge prior to closing arguments, and he duly took exception to the court’s refusal to give his requested instruction.

A lesser included offense instruction must be given when: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without first having committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, supra. The trial court rejected the defendant’s requested instruction because it found that the Whistnant requirements were not met. On appeal, the defendant contends that he established all four prongs of Whistnant, while the state argues that the requested instruction failed to satisfy the first and third prongs.

The state first argues that our review of this claim should go no further than an examination of the first prong of Whistnant because the defendant’s requested instruction failed to comply with Practice Book § 852 (now § 854). This section requires that a request to charge set forth “the facts supported by the evidence to which the proposition would apply.” The state contends that the defendant’s request failed to refer to any facts whatsoever. The first prong of Whistnant requires that the defendant request “an appropriate instruction” in compliance with the rules of practice. State v. Ostroski, 201 Conn. 534, 558, 518 A.2d 915 (1986); State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986). Our Supreme Court has defined an appropriate instruction under Whistnant as one containing “ ‘ “a complete statement of the essential facts as would have justified the court in charging in the form requested.” Michaud v. Gagne, 155 Conn. 406, 410, 232 A.2d 326 (1967), quoting Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925).’ State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984).” State v. McIntosh, supra, 160.

The defendant’s requested instruction made only one reference to the facts in the following language: “The situation referred to in this case is only the situation commencing with the fight inside the VIP Lounge between Mr. Hall and Mr. Robinson and ending with the shots outside the VIP Lounge. Of course, again, if you find that the risk that Mr. Hall took in firing the shots at that time was justifiable as self-defense or was not a gross deviation from the standard of care that a reasonable person would use, then you must find Mr. Hall not guilty of criminally negligent homicide.”

The defendant’s request drew the trial court’s attention to the crucial, relevant factual scenario so that the court could justifiably have given the requested instruction. The request is not the type of “omnibus request,” absent any factual basis, that our Supreme Court has recently condemned. State v. Ostroski, supra, 558-59; State v. McIntosh, supra, 159; see also State v. Martin, 15 Conn. App. 58, 65, 544 A.2d 231, cert. denied, 209 Conn. 806, 548 A.2d 440 (1988). From our review of the record, we conclude that the defendant’s instruction satisfied the first prong of Whistnant.

Our next inquiry is whether the trial court erred in finding that the defendant did not meet the remaining Whistnant requirements. General Statutes § 53a-45 (c) provides in pertinent part that the “jury before which any person indicted for murder . . . is tried may find him guilty of homicide in a lesser degree than that charged.” “ ‘Whether an accused may avail himself of this statutory privilege by means of a jury instruction is governed by the principles set forth in State v. Rodriguez, [supra], 399-400, and State v. Whistnant, [supra].’ State v. Falby, 187 Conn. 6, 28, 444 A.2d 213 (1982).” State v. Casey, 201 Conn. 174, 188, 513 A.2d 1183 (1986). Under Rodriguez, for the purposes of satisfying the second prong of Whistnant in a homicide case, “an offense that would be a lesser included offense but for its requirement of a less culpable state of mind than that required for the greater, will be deemed a lesser included offense.” State v. Rodriguez, supra, 407. Our Supreme Court adopted this reasoning in Rodriguez because, in a homicide prosecution, the state of mind of the accused is often “the most significant and, at the same time, the most elusive element of the crime charged.” Id., 404. The trial court’s conclusion that it need not give an instruction on criminally negligent homicide because the defendant’s testimony excluded the state of mind required for the commission of the crime constituted a determination that the defendant had not met the second prong of Whistnant. This conclusion was erroneous because it is just such a situation that is covered by the Rodriguez exception.

The Rodriguez court did not hold, however, that a lesser degree of homicide than that charged will always be the subject of a lesser included offense instruction because the third and fourth prongs of Whistnant must still be satisfied. State v. Rodriguez, supra, 407-408. Thus, unless there was no disputed evidence at trial reasonably susceptible to a conclusion that the defendant could have committed the lesser crime, the defendant was entitled to an instruction on criminally negligent homicide.

In resolving the matter of the defendant’s requested instruction on the lesser included offense, the question before the trial court should have been limited to whether the evidence at trial was such that a jury reasonably could have found that the defendant acted with criminal negligence in causing Robinson’s death by failing to perceive a substantial and unjustifiable risk of the occurrence of that death from his actions. See State v. Burge, 195 Conn. 232, 244, 487 A.2d 532 (1985); see also State v. Maselli, 182 Conn. 66, 73, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981). Considering the evidence presented at trial in a light most favorable to the accused; State v. Morin, 180 Conn. 599, 609, 430 A.2d 1297 (1980); we conclude that the evidence could have permitted the jury to find that the defendant acted with criminal negligence, as opposed to recklessness or intent to kill, in causing Robinson’s death. The defendant’s testimony regarding his actions during the altercation with Robinson was but one piece of a puzzle from which the jury, after accepting or rejecting it, could have concluded that he was guilty of criminally negligent homicide. It was error for the trial court to take this consideration away from the jury by failing to give the requested instruction.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion Borden, J., concurred.

Stoughton, J.,

dissenting. I am unable to agree with part II of the majority opinion. I disagree with the conclusion of the majority that on the facts of this case the trial court committed harmful error in failing to instruct the jury that if they reached the lesser included offense of manslaughter in the second degree, they might consider that the actions of the defendant were justified by principles of self-defense.

The defendant was charged with murder in violation of § 53a-54a, and the court instructed the jury on the charge of murder, and also on first degree manslaughter and second degree manslaughter as lesser included offenses. The jury was not required to find the defendant either guilty as charged or not guilty, but was given the further choice of finding him guilty of some lesser offense embraced within the information. State v. Monte, 131 Conn. 134, 137, 38 A.2d 434 (1944). The jury was instructed on self-defense as applied to both murder and manslaughter in the first degree, but was instructed not to consider self-defense as to manslaughter in the second degree. Because the defendant was found guilty of manslaughter in the first degree, the jury necessarily rejected his claim of self-defense. When the jurors were instructed that they might consider manslaughter in the second degree, the defendant received the full benefit of the principle which permits the jury to consider lesser offenses in the open-minded discussion and honest weighing of opinion which lead to a verdict with which each member can conscientiously agree. State v. Monte, supra, 136.

It does not seem to me that the defendant would have benefited by an instruction that if they reached consideration of manslaughter in the second degree, which they did not do, the jurors might then find the defendant not guilty of that offense by reason of self-defense. They might well have been reluctant to find him not guilty if their only choices were between guilty as charged or not guilty. The benefit to the defendant is derived from the alternative given the jury to find him guilty of a lesser charge. Accordingly, I conclude that any error in failing to instruct the jurors that they might consider self-defense to the lesser included offense of manslaughter in the second degree was harmless beyond a reasonable doubt.

       Although the defendant’s statement of the issue alleges violations of both the state and federal constitution, he does not advance any argument for the treatment of the issue under the state constitution. We therefore consider only the federal claim. See State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988).

       In August, 1981, the defendant was issued a valid Oregon driver’s license. In addition, he was employed under his own name and social security number.

       The defendant’s arguments that the delay prohibited him from locating possible eyewitnesses, and caused a certain defense eyewitness’s failure to recall the identity of the aggressor in the altercation, are without merit. “Mere assertions that the testimony of a missing witness might have been useful, or that witnesses’ memories may have faded with the passage of time is [sic] not ‘proof of actual prejudice’ required by United States v. Marion. ” United States v. Horowitz, 756 F.2d 1400, 1405 (9th Cir.), cert. denied, 474 U.S. 822, 106 S. Ct. 74, 88 L. Ed. 2d 106 (1985).

       General Statutes § 53a-19 provides: “use of physical force in DEFENSE OF person, (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       General Statutes § 53a-56 (a) provides in pertinent part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . . ”
      General Statutes § 53a-3 (13) provides that “[a] person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

       The defendant’s requested instruction on self-defense reads as follows: “If a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground. Detached reflection cannot be demanded in the presence of a pointed gun. Therefore, it is not a condition of self-defense that one in that situation should pause to consider whether a reasonable man might think it isn’t possible to retreat or disable his assailant rather than to kill him. Neither is it necessarily a condition of asserting self-defense that a person in such position must stop after each shot to survey the situation to determine if another shot is necessary. Self-defense may be found in this case, even when six shots were fired by Mr. Hall at Mr. Robinson, if you find that the six shots followed close upon each other while the heat of conflict was on, and if Mr. Hall believed that he was fighting for his life. Authority: Brown v. United States, 256 U.S. 335, 343, 344 (1921); Rowe v. United States, 164 U.S. 546, 558.”

       Our review of the list of Robinson’s many convictions leads us to conclude that the only conviction deserving of the trial court’s close scrutiny was Robinson’s manslaughter conviction in 1967. Accordingly, we will limit our review of this claim of error to that conviction.

       The defendant has not briefed his argument relating to the victim’s violent habits beyond a mere assertion of the claim. “ ‘ “Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” ’ Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 250 n.3, 524 A.2d 610 (1987), quoting Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984).” Morning Star Holding Co. v. Kostopoulos, 12 Conn. App. 593, 595, 533 A.2d 569 (1987).

       General Statutes § 53a-58 provides in pertinent part: “(a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person, except where the defendant caused such death by a motor vehicle.”
      General Statutes § 53a-3 (14) provides in pertinent part that “[a] person acts with‘criminal negligence’with respect to a result or circumstance . . . when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Keith Bryant
    (6342)
    Borden, Daly and O’Connell, Js.
    Argued October 13, 1988
    decision released February 28, 1989

      Stephen V. Moran, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom was Elpedio Vitale, deputy assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), sexual assault in the second degree in violation of General Statutes § 53a~71 (a) (1), sexual assault in the third degree in violation of General Statutes §§ 53a-72 (a) (1) (A) and 53a-72 (a) (1) (B), and risk of injury to a child in violation of General Statutes § 53-21. The defendant claims the court erred (1) in refusing to declare a mistrial on the ground that the state had suppressed exculpatory evidence, (2) in excluding character evidence, and (3) in denying the defendant’s motion for mistrial after the examining physician had stated her diagnosis. We find no error.

The jury could reasonably have found the following facts. On the day in question, the victim, a fourteen year old, eighth grade student, walked to a classmate’s home after school, and remained there until approximately 8:30 p.m. At that time, the victim and her classmate left the classmate’s home intending to walk together to the victim’s home. Shortly after leaving the house, they encountered the defendant whom they had met briefly that' afternoon. The defendant offered to escort the victim the rest of the way and the classmate returned to her own house. After walking a short distance, the defendant told the victim that he knew a shortcut through a park. Soon after entering the park, the defendant threw the victim to the ground and sexually assaulted her.

I

The defendant claims error in the denial of his motion for a mistrial filed on the ground that the state had failed to disclose exculpatory material. On the last day of trial, the defendant’s sister was testifying concerning the victim’s reputation for truth and veracity. In an offer of proof, in the absence of the jury, she stated that the victim had stolen money from the state’s attorney’s office. In addition, after defense counsel’s summation, he informed the court that the defendant’s mother had stated to him that a friend of the victim had told her that the victim had stolen money from the prosecutor during the course of the trial. He then moved for a mistrial claiming that the state had failed to disclose the theft as exculpatory material. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The state’s attorney replied that he did not feel the theft information came within the scope of Brady or its progeny.

It is rudimentary that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, supra, 87. “[T]he rubric of exculpatory information includes information affecting the credibility of witnesses.” State v. Simms, 201 Conn. 395, 405, 518 A.2d 35 (1986).

To demonstrate a Brady violation, the defendant must meet a three prong test: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972). The first prong of the Brady test is eliminated in Connecticut by General Statutes § 54-84c which imposes a continuing duty on the state to disclose all exculpatory information regardless of a request by the defendant.

“Suppression” is a word of art and failure to disclose all material which is arguably exculpatory does not constitute “suppression” requiring Brady sanctions. Our courts have frequently held that if the defendant or his counsel are aware of exculpatory material or learn of exculpatory material during trial, in time to make use of it, there is no “suppression” in the Brady sense. State v. Simms, supra, 407; State v. Reddick, 197 Conn. 115, 121, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Altrui, 188 Conn. 161, 177, 448 A.2d 837 (1982); State v. Perez, 181 Conn. 299, 309, 435 A.2d 334 (1980); State v. Johnson, 14 Conn. App. 586, 598, 543 A.2d 740, cert. denied, 209 Conn. 804, 548 A.2d 440 (1988).

In the present case, the defendant was obviously aware of the alleged theft during trial because he proffered evidence of it through a witness before resting his case. Thus, he had knowledge of it in time to make effective use of it or to request a sanction less drastic than a mistrial, such as a continuance or recess to investigate the information further.

We conclude that the defendant has not sustained his burden of showing that a Brady violation occurred. Accordingly, the trial court did not abuse its discretion in refusing to declare a mistrial.

II

The defendant also claims that the trial court erred in excluding a defense witness’s testimony concerning the victim’s reputation for truth and veracity in the community.

The defendant called his sister to the stand and inquired, “Now, do you know the reputation for truthfulness of [the victim]?” She responded affirmatively. The state objected, claiming that the defendant failed to lay a foundation for this testimony. In an offer of proof, in the absence of the jury, the witness testified that she had lived in the Fair Haven section of New Haven for seven to eight years and that the victim had spent a lot of time in that area. She claimed to know a Cynthia Johnson who is acquainted with the victim and claimed that Johnson had told her that the victim had stolen $50 from Johnson and $150 from the state’s attorney’s office during the course of the trial. (See section I, supra.) In response to questions by the defendant’s attorney concerning the victim’s reputation, the defendant’s sister stated, “She’s lying, she’s lying on the defendant.” The defendant’s attorney continued, “Well, you have to answer the question. You have had some occasion to form an opinion as to what her reputation is for truthfulness?” She replied, “Yes, it is very bad.”

In excluding this witness’s opinion of the victim’s reputation, the court stated that the defendant had failed to lay an adequate foundation. Reputation evidence represents the community’s belief as to the character or disposition of a person. State v. Blake, 157 Conn. 99, 104, 249 A.2d 232 (1968). It may be elicited only from a witness who has had the opportunity to know, and who does know, the general reputation of the individual at issue. Id.; State v. Egan, 9 Conn. App. 59, 63, 514 A.2d 493, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). It is within the trial court’s discretion to disallow reputation evidence when the proponent fails to provide a sufficient foundation. State v. Cox, 7 Conn. App. 377, 386, 509 A.2d 36 (1986).

Here, the witness’ testimony disclosed that she was relying exclusively on the statements of one individual as a basis for her purported knowledge of the victim’s reputation in the community. There is no indication that she had ever discussed the victim’s reputation with any other persons. Consequently, her remarks are no more than bald assertions of an interested party. Hence, we cannot conclude that the trial court erred in excluding this testimony for lack of a sufficient foundation.

Ill

The defendant next argues that the trial court erred in denying his motion for mistrial filed after the state’s expert witness had testified that her diagnosis of the victim’s condition was “rape.” The witness was a physician who had examined the victim at Yale-New Haven Hospital on the night of the crime. The trial court had just ruled that the physician could answer a question concerning her diagnosis of the patient because the question and the anticipated reply concerned the results of medical findings from the examination. The trial court did not foresee that the answer would include an opinion of the circumstances under which any sexual contact may have taken place. This ruling was correct. The physician, however, did not restrict her answer to medical findings but unexpectedly concluded her answer with the statement that “I have a diagnosis of rape.” This answer is clearly inadmissible.

“The testimony of the doctor regarding whether the intercourse was consensual went beyond the scope of permissible expert testimony because it involved an opinion based on factors outside the realm of [her] professional expertise.” State v. Apostle, 8 Conn. App. 216, 232, 512 A.2d 947 (1986). The trial court struck the physician’s response and in addition gave the jury a curative instruction to the effect that the offending portion of the answer should be disregarded.

At the conclusion of the physician’s direct examination the defendant moved for a mistrial. The court properly ruled that the issue of whether the sexual contact constituted sexual assault was the ultimate issue for the jury’s determination. Considering its curative instruction adequate, however, the court denied the motion.

When a jury has heard inadmissible evidence, curative instructions are given great weight on appeal and absent any indication to the contrary we presume the jury followed the judge’s instructions. State v. Melillo, 17 Conn. App. 114, 119-20, 550 A.2d 319 (1988). The trial court has broad discretion in ruling on a motion for mistrial and it is the defendant’s burden to show that the challenged remark was prejudicial in light of the entire proceedings. Id. The defendant has not sustained this burden; thus we conclude that the trial court did not abuse its discretion in refusing to declare a mistrial.

There is no error.

In this opinion the other judges concurred.

       “ ‘[E]vidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceedings would have been different.’ ” State v. Milner, 206 Conn. 512, 539 n.13, 539 A.2d 80 (1988), quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985).

       “[General Statutes] Sec. 54-86c. disclosure of exculpatory INFORMATION OR material, (a) Not later than thirty days after any defendant enters a plea of not guilty in a criminal case, the state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in charge of the case shall disclose any exculpatory information or material which he may have with respect to the defendant whether or not a request has been made therefor. If prior to or during the trial of the case, the prosecutorial office discovers additional information or material which is exculpatory, he shall promptly disclose the information or material to the defendant.” (Emphasis added.)

       At trial, the defendant expressly stated that this information was not offered as specific acts of misconduct, but solely for the purpose of proving the victim’s reputation in the community.


author: Stoughton, J.

text:
    Denise Seery v. Yale-New Haven Hospital et al. Thomas Guckian v. Yale-New Haven Hospital et al.
    (6376)
    Borden, Stoughton and Norcott, Js.
    Argued October 19, 1988
    decision released February 28, 1989

      Joseph D. Garrison, for the appellants (plaintiffs).

      William J. Doyle, with whom were Kenneth Rosenthal and, on the brief, S. Robert Jelley, for the appellees (defendants).
   Stoughton, J.

This is an appeal by the plaintiffs from the judgments rendered on verdicts that the trial court directed the jury to return in favor of all defendants.

One of the plaintiffs, Denise Seery, was a nurse anesthetist employed by Yale-New Haven Hospital. In November, 1982, she instituted an action claiming that she had been constructively discharged on or about March 29, 1981, and that the constructive discharge was tortious and retaliatory in contravention of the pub-lie policy of this state and in violation of the covenant of good faith and fair dealing in her contract of employment. The other plaintiff, Thomas Guckian, was employed by the hospital as an anesthesiologist. In January, 1983, he instituted an action claiming that certain action taken by the defendant hospital amounted to a tortious, retaliatory discharge in contravention of the public policy of the state and in violation of the covenant of good faith and fair dealing in his contract of employment. The defendants are the hospital, Yale University and its school of medicine, and certain officers of the corporate defendants. The two cases were tried together by agreement of the parties.

The plaintiffs claim that the trial court erred (1) in granting the defendants’ motion for directed verdicts, and (2) in ruling that the plaintiffs could not recover damages for pain and suffering. Each of the plaintiffs moved the trial court to set aside the verdict and for a new trial, and each of the motions was denied.

Generally, a trial court should direct a verdict only when a jury could not reasonably and logically reach any other result, and in reviewing the action of the trial court we review the evidence in the light most favorable to the party against whose interest the verdict was directed. Daley v. Gaitor, 16 Conn. App. 379, 384, 547 A.2d 1375 (1988).

The plaintiffs offered evidence from which the jury might have found that in December, 1971, Seery began employment on the staff of the hospital. One month later, Guckian was hired by the hospital. The plaintiffs previously had worked together at a different hospital. In October, 1979, the plaintiffs were assigned to the hospital’s one day surgery unit for operations not requiring overnight care, and, for the following year and one-half, they were the only persons responsible for anesthesiology services on that unit. In February, 1980, Seery received a written reprimand from Luke Kitahata, chief of anesthesiology, for refusing to cover for a nurse anesthetist on another hospital unit. Seery filed a grievance and, after a meeting with Seery and Guckian, the hospital instituted a new reporting structure that was more satisfactory to them.

In July, 1981, a second anesthesiologist, E-Fun Tsai, was assigned to the one day surgery unit to help with the increased number of patients. Tsai was returning to the hospital after a six month leave of absence. Tsai and the hospital had agreed to the leave of absence following a January, 1981 incident in which Tsai had needed assistance in administering anesthesia because, as she admitted, on that day she had ingested two prescription sedatives. This incident followed reported episodes in October, 1977, and October, 1980, in which Tsai admitted that her ingestion of prescription sedatives had interfered with her duties. The hospital was aware of these incidents, but did not notify the state department of health. During the six month leave of absence, the hospital insisted that Tsai seek psychiatric treatment, which she did. A report filed by her psychiatrist recommended that she be placed on daytime clinical duties. Pursuant to this report, Tsai was assigned to the one day surgery unit on the condition that she continue psychiatric treatment. The assignment was also conditioned on the approval of Guckian, who was told to monitor Tsai.

On November 9, 1981, Seery claimed that she was subjected to an unprovoked physical and verbal attack by Tsai. Tsai claimed that Seery was the aggressor.There were no witnesses to this incident. On November 12, both Seery and Tsai received letters reprimanding them equally for unprofessional conduct and warning them that any repetition would result in “severe disciplinary action up to and including discharge.” These letters were placed in their respective personnel files.

Seery strenuously protested and, after speaking with Lawrence Pickett, the chief of staff, she obtained a meeting with Kitahata and other hospital administrators, and demanded that the letter be removed. The hospital refused to remove the letter, and, thereafter, Seery pursued the hospital’s grievance procedure and obtained legal counsel. Her lawyer wrote a letter demanding that the letter be removed and adding that if her demands were not met she would “go public.” On or about November 13, Seery called Joseph Camilleri of the Professional Standard Review Organization (PSRO), which is a federal organization that monitors the quality of care given to Medicare patients, to complain that there was a doctor at Yale-New Haven Hospital who might be impaired. Camilleri, who was the medical director and executive director of the PSRO, relayed this complaint to Pickett. Seery had another meeting with Pickett during which Pickett told her that she could either bring a lawsuit or make a complaint to the division of medical quality assurance of the department of health. Pickett informed Seery that he was currently serving on the division’s complaint panel. When Seery asked him if she would be wasting her time in filing a complaint, Pickett made no response.

In January, 1982, Seery contacted the department of health and spoke with a hearing officer. She explained that there was a physician at the hospital who was possibly impaired. The hearing officer stated that he knew Pickett and would tell him that Seery was going to file a complaint. Seery received complaint forms in February, but did not file the complaint until April 28. Although she filled out the forms in February, she did not file them immediately because she hoped Pickett would begin a proper internal investigation. She filed the complaint after it became apparent that an investigation would not come to pass, and after she had resigned from the hospital staff.

In February, 1982, Seery pursued the hospital’s three-step grievance procedure. At the first level, she met with Kitahata, Robert I. Schrier, vice-chairman of the anesthesiology department, Guckian, and hospital administrators, Thomas Reilly and Lawrence Perlstein. At this meeting, Seery stated that she was there to rescue her reputation and that she wanted the written warning removed from her file and a written apology from Tsai. At the meeting, Tsai made an oral apology and Schrier agreed to remove the warning from the file in three months. Seery stated that she did not accept this offer because she refused to accept any blame for the incident and she wanted a written apology from Tsai.

Seery then pursued the second step of the grievance process and put the grievance in writing and sent it to the vice-president of the department, Bruce Kominske. Seery received a written response in which Kominske stated that he found the warning letter to be appropriate and that it would be inappropriate to force Tsai to reiterate her apology in writing.

Seery still was not satisfied. At the third step, Seery met with the hospital’s executive vice-president, Joseph Zaccagnino. Guckian attended this meeting as Seery’s advisor. At this meeting, both Guckian and Seery attacked the credibility of Tsai’s version of the altercation by referring to her history of personal problems. In addition, Guckian recounted two recent cases in which he questioned Tsai’s medical judgment. Under questioning, Guckian admitted that he had neither investigated nor taken corrective action with respect to these two cases even though he was the anesthesiologist in charge of the unit. Zaccagnino then initiated an investigation on behalf of the hospital.

Also in February, the hospital denied Seery’s request for a leave of absence from March 1 to March 5. The hospital claimed it denied Seery’s request because Guckian had already been scheduled to be away for the same period and the hospital did not want to be shorthanded. Seery was absent despite the denial of her request. She had sought the leave for two reasons: because she desired treatment for a medical problem; and because Tsai would be left in charge of the unit while Guckian was away. When Seery returned, she received another letter of reprimand. She testified that she felt that the hospital was paving the way for her dismissal. A few days later, on March 29, she learned that Guckian would be going on an extended leave of absence. Because she felt that she would be left under the direction of Tsai, Seery immediately resigned. Seery testified that she felt the conditions would be intolerable because Tsai was not in control of herself and was not in a condition to control the unit.

Following the February meeting with Seery and Zaccagnino, at which Guckian had questioned Tsai’s medical judgment, Zaccagnino had initiated an investigation by the hospital. A meeting was held on March 25, between Guckian, Kitahata, and other hospital officials. Guckian refused to submit any written documentation concerning his allegations about Tsai because, as he testified at trial, he did not want to be misinterpreted and thereby accused of calling Tsai incompetent. He acknowledged that the two incidents involved no more than a matter of judgment. Guckian testified that all he wanted was to have the hospital investigate the possibility that Tsai was impaired. As a result of this meeting, Kitahata and another doctor were assigned to supervise and monitor Tsai’s work.

On March 30, Guckian went on an approved three week medical leave of absence. When he failed to return to work after that period, the hospital asked him to submit disability forms and medical documentation. Guckian testified that on April 23 he had called Kitahata and told him that he and Seery could not participate in this brand of medicine until the matter had been resolved to their satisfaction. He said that Kitahata’s response was that Kitahata was not going to rehire Guckian and Seery, and that he told Kitahata that they were not asking to be rehired. On May 5, the hospital requested that Guckian submit medical verification by May 10. On May 20, the hospital sent a letter stating that if it did not receive any communication by May 28, it would assume that Guckian no longer wished to continue his employment. This letter was not delivered. On June 25, Guckian was notified by letter that the hospital considered him to have resigned voluntarily on May 28. With this letter, the hospital sent the letter of May 28. Guckian testified that he never made any written response to these letters and that from late May until mid-June he was on vacation in Ireland.

Meanwhile, on April 2, the hospital had concluded that there was no basis for any concern about either Tsai or the two incidents reported by Guckian. About this time, Kitahata wrote a memorandum that was supportive of Tsai. On April 29, Pickett, in response to this memorandum, wrote a letter to Kitahata in which he stated “I wonder if it isn’t Dr. Guckian we should think about terminating.”

The plaintiffs contend that they put forth sufficient evidence for a jury to decide reasonably and legally that they had been discharged in violation of public policy. See Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980); Girgenti v. Cali-Con, Inc., 15 Conn. App. 130, 137, 544 A.2d 655 (1988). In Sheets, our Supreme Court recognized “a common law cause of action in tort for discharges ‘if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.’ ” (Emphasis in original.) Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986). Sheets is an exception to the general rule that an “at will” employee may be terminated for any reason. See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 562-63, 479 A.2d 781 (1984).

In an action under Sheets v. Teddy’s Frosted Foods, Inc., supra, the former employee has the burden of pleading and proving that his or her dismissal occurred for a reason that violates public policy. Morris v. Hartford Courant Co., supra, 679; Girgenti v. Cali-Con, Inc., supra. The Sheets exception has been narrowly construed and requires proof on the part of the former employee that the discharge was for a demonstrably improper reason. See Morris v. Hartford Courant Co., supra, 678-79; Girgenti v. Cali-Con, Inc., supra.

Seery’s complaint alleged that she had been “constructively discharged” in violation of public policy. The hospital maintains that it did not discharge Seery, but rather that she voluntarily resigned.

“Constructive discharge occurs when an employer renders an employee’s working conditions so difficult and intolerable that a reasonable person would feel forced to resign.” Neale v. Dillon, 534 F. Sup. 1381, 1390, aff’d, 714 F.2d 116 (2d Cir. 1982). See generally, annot., Constructive Discharge — Title VII, 55 A.L.R. Fed. 418. A claim of constructive discharge must be supported by more than the employee’s subjective opinion that the job conditions have become so intolerable that he or she was forced to resign. Neale v. Dillon, supra; Beye v. Bureau of National Affairs, 59 Md. App. 642, 649, 477 A.2d 1197, 1201 (1984).

“Normally, an employee who resigns is not regarded as having been discharged, and thus would have no right of action for abusive discharge.” Beye v. Bureau of National Affairs, supra. Through the use of constructive discharge, the law recognizes that an employee’s “voluntary” resignation may be, in reality, a dismissal by the employer. See id.

A constructive discharge in and of itself will not entitle an at will employee to prevail on a cause of action brought under Sheets, however, because the employee must still prove that the dismissal, in whatever form, occurred for a reason violating public policy. See Morris v. Hartford Courant Co., supra, 679.

In its memorandum of decision, the trial court noted that the complaint did not allege that the hospital had violated any statute or regulation, but that the plaintiffs had offered into evidence a copy of General Statutes § 20-13d. The court stated that it presumed that the plaintiffs’ theory of the case was based upon § 20-13d. The court directed a verdict for the hospital on the ground that the plaintiffs had failed to produce any evidence that Tsai’s ability was impaired during the time she was employed in the one day surgery unit. The court refused to consider as evidence any of the incidents that occurred before Tsai joined the one day surgery department. The court found that the only evidence offered to support the allegation that Tsai was impaired was evidence of the Tsai-Seery fight, and evidence of the two incidents mentioned by Guckian. The two incidents were investigated by hospital staff and determined to be unrelated to any impairment due to drug use, and Guckian conceded that they were matters of judgment. The dispute with Tsai was investigated by Kitahata after Guckian himself took no action. Kitahata found that the cause of this incident could not be determined.

The plaintiffs’ complaints were virtually identical and each alleged that “the plaintiff became aware that one of the anesthesiologists employed in the One-Day Surgery Department had a history of serious drug abuse and showed signs of volatile behavior consistent with the continued abuse. It became increasingly apparent to the Plaintiff that this drug problem had the potential to greatly hinder and did in fact hinder ability to perform duties as an anesthesiologist and it was becoming unsafe for said doctor to continue performing said duties unless under the constant scrutiny of other professionals on the staff. Hence, said doctor’s presence in the Department seriously undermined the effectiveness and efficiency of the Department . . . . ” (Emphasis added.)

We agree with the trial court that the complaint alleged that Tsai was impaired sometime during the period from July, 1981, when Tsai was assigned to the one day surgery unit, to March, 1982, and that the defendants had violated public policy by failing to report that impairment pursuant to General Statutes § 20-13d. The plaintiffs did not allege that the hospital had violated any other public policy.

“ ‘The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. Board of Education v. Commission on Human Rights & Opportunities, 177 Conn. 75, 77, 411 A.2d 40 (1979); Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint. Kawasaki Kisen Kaisha, Ltd. v. Indomar, Ltd., 173 Conn. 269, 272, 377 A.2d 316 (1977); Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969); Nash Engineering Co. v. Norwalk, 137 Conn. 235, 239, 75 A.2d 496 (1950). “A plaintiff may not allege one cause of action and recover upon another. Facts found but not averred cannot be made the basis for a recovery.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); Schaller v. Roadside Inn, Inc., 154 Conn. 61, 65, 221 A.2d 263 (1966).’ Francis v. Hollauer, 1 Conn. App. 693, 694-95, 475 A.2d 326 (1984).” Savin v. National Personal Consultants, Inc., 4 Conn. App. 563, 566-67, 495 A.2d 1109 (1985).

The plaintiffs were bound by the allegations of their complaint to prove that Tsai was impaired during the time she worked with Seery on the one day surgery unit. Stripped of the earlier Tsai episodes, the evidence that remained before the jury consisted of only the two incidents mentioned by Guckian, and the fight. Guckian’s testimony made it clear that he did not consider Tsai to be incompetent. Even if the jury might have accepted the claim that the plaintiffs were discharged, they could not reasonably and legally have concluded from this evidence that Tsai was impaired at the time of the discharges. We agree with the trial court that “because there was no credible evidence that the physician in question was impaired, during the time period pleaded,” the defendants were not guilty of violating public policy. Although under Sheets v. Teddy’s Frosted Foods, Inc., supra, the violation of public policy does not depend upon a statutory violation, the plaintiffs directed the trial court to no other public policy violations. In the absence of a public policy violation, there is no cause of action under Sheets. See Morris v. Hartford Courant Co., supra, 680-81.

The trial court did not err in directing a verdict in favor of the defendants.

In light of this holding, we need not consider the plaintiffs’ claim that the court erred in ruling that they were ineligible for damages for pain and suffering.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs have not addressed contract violation claims in their brief. Hence, any such claims are deemed abandoned and will not be reviewed. Ernst Steel Corporation v. Reliance Ins. Co., 13 Conn. App. 253, 260, 536 A.2d 969 (1988).

       Guckian went on to testify that he had received letters after April 23, from Kitahata and the hospital concerning his return to work, and that on May 10, he and Kitahata discussed his vacation which had been scheduled for May 27. He stated that Kitahata agreed that he could start this vacation a few days earlier.
      This testimony suggests that Kitahata believed that Guckian was still employed by the hospital and raises a question about what Kitahata said to Guckian. We note that in his testimony, Kitahata said that he told Guckian that he would not rehire Seery.

       Generally, an agreement for permanent employment or for an indefinite period is terminated at will by either party without incurring liability. Fisher v. Jackson, 142 Conn. 734, 118 A.2d 316 (1955). Neither party suggests that the plaintiffs were anything but “at will” employees.

       General Statutes § 20-13d provides in pertinent part: “(a) The state society or any county society or any physician or hospital shall within thirty days, and the board or any individual may, file a petition when such society, physician or hospital or said board or individual has any information which appears to show that a physician is or may be unable to practice medicine with reasonable skill or safety for any of the reasons listed in section 20-13c. Petitions shall be filed with the department of health services on forms supplied by the department, shall be signed and sworn and shall set forth in detail the matters complained of.
      “(b) Any health care facility licensed under section 19a-493 which terminates or restricts the staff membership or privileges or any physician shall, not later than fifteen days after the effective date of such action, notify the department of such action.”


author: Foti, J.

text:
    Catherine Buchetto v. Benjamin J. Haggquist
    (6001)
    Spallone, Norcott and Foti, Js.
    Argued November 15, 1988
    decision released February 28, 1989

      Stefan Underhill, with whom, on the brief, was James F. Stapleton, for the appellant-appellee (plaintiff).

      Warren P. Joblin, for the appellee-appellant (defendant).
   Foti, J.

The plaintiff appeals from the judgment rendered by the trial court, in accordance with the attorney trial referee’s report, granting her alimony and child support arrearages. The plaintiff claims the trial court erred (1) in denying her reimbursement for college expenses for her two children, (2) in denying her support arrears for her daughter, and (3) in denying her prejudgment interest. The defendant filed a cross appeal and claims the trial court erred (1) in affording res judicata effect to a prior finding of the court, (2) in incorrectly determining the existence of alimony arrearage, and (3) in incorrectly determining the amount of alimony and support due. We find error on the appeal and no error on the cross appeal.

The pertinent facts are as follows. On May 23,1975, the parties obtained a dissolution of their marriage in New York. The divorce decree, which incorporated the parties’ separation agreement, required the defendant to make the following payments: (1) $200 per month alimony; (2) $115 per month child support for each of the parties’ two children until each attained the age of twenty-one; and (3) college expenses for the children “if he is financially able” to contribute. The defendant remained current on his obligations through April 1, 1979. On October 6, 1980, the plaintiff registered the New York judgment in the Superior Court for the judicial district of Fairfield, and initiated a contempt proceeding against the defendant for nonpayment of his support and alimony obligations. On June 25,1981, the court, Geen, J., rendered judgment for the plaintiff finding the total arrearages as of that date to be $12,248 for both alimony and support. As to the defendant’s future payments, the court ruled, pursuant to the parties’ negotiated agreement, that the defendant would make a single payment of $150 per month until the youngest child reached the age of twenty-one. According to the agreement, the $12,248 in arrearages would be forgiven on the condition that the defendant not default on any future payments. On November 6,1981, the defendant moved to modify his alimony obligation. On November 20, 1981, at a hearing on the defendant’s motion, the defendant asked the court, Zarrilli, J., to suspend his alimony payments due to his unemployment. The trial court granted the motion and suspended the original alimony payment of $200 per month during the defendant’s unemployment, but continued, at the defendant’s suggestion, the support payment of $115 per month for the parties’ son. No reference was made by the parties or the court to the daughter’s support payments or to the fact that the alimony and support payments had been modified to $150 a month. The plaintiff has made payments totalling $6505.47 toward the children’s college education. The defendant has not reimbursed her for any part of these payments.

On March 11,1985, the plaintiff brought the present action to collect the arrears from April 1, 1979, to April 1,1983, amounting to $16,273 plus accrued interest and seeking reimbursement for the children’s college expenses. The matter was tried before an attorney trial referee who filed a finding of facts and a proposed decision on March 2,1987. Both parties filed objections to the acceptance of the finding of facts but neither filed a motion to correct those findings. The trial court accepted the finding of facts and, on March 27, 1987, rendered judgment in accordance with the report.

I

The Plaintiff’s Appeal

The plaintiff’s first claim is that the court erred in failing to award her reimbursement for monies she expended for her children’s college expenses, totalling $6505.47. We are unable to review this claim because the plaintiff has not presented us with an adequate record.

The following background is relevant to our decision not to review this claim. According to the attorney trial referee’s report, the divorce decree included a provision that required the defendant to "provide adequate funds for the higher education of the children if he is financially able to do so. ” (Emphasis added.) In discussing this provision, the trial referee stated that this language “appears to be more expression of intent rather than an affirmative legal obligation.” (Emphasis added.) With respect to this provision, therefore, the trial referee did not make a finding as to whether it created an obligation that the defendant contribute to his children’s college expenses. The referee concluded that, regardless of whether this provision created an affirmative legal obligation, the plaintiff had not sustained her burden of proving that the defendant had the ability to make such payments and, therefore, was not entitled to reimbursement. The plaintiff’s claim on appeal is that the referee erred in placing the burden of proof on her. In her brief, she asserts, without presenting any supportive authority, that the defendant was obligated under the terms of the separation agreement to pay the costs of their children’s college expenses. She then goes on to brief her principal issue on appeal arguing that the defendant has the burden to prove his inability to pay.

The determination of who has the burden of proof on the issue of reimbursement for college expenses necessarily requires a finding as to whether the separation agreement obligated the defendant to pay such expenses. It is common sense that if the education provision was merely a statement of hopeful intent by the parties, the defendant’s obligation to pay his children’s college expenses would be merely a moral and not a legal one. This being the case, there would be no reason to address the question of upon whom the burden of proof should be placed. The trial court did not make an express finding on this issue nor did the parties brief this claim.

The question of the interpretation of a separation agreement is a question of fact for the trier. Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985). For this court to review a finding of a trial court to determine whether it erred in interpreting a contract, we need an actual finding by the court. It is the responsibility of the parties to present this court with an adequate record for review. Barnes v. Barnes, 190 Conn. 491, 493, 460 A.2d 1302 (1983). Our rules provide a procedure for clarifying the record when rulings of the trial court are unclear. Practice Book § 4051. While it is‘true that the plaintiff did file a motion for articulation in this case, she did not specifically request clarification of the issue in question. In fact, her motion was simply a vague request to clarify the entire decision. The trial court responded by merely adopting the trial referee’s findings. The plaintiff did not request further articulation; Practice Book § 4061; nor did she file a motion for review of the trial court’s articulation. Practice Book § 4054. 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.” Barnes v. Barnes, supra, 493 n.2. Because it is the appellant’s responsibility to provide this court with an adequate record for review; Practice Book § 4061; State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989); “ under normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.’ Carpenter v. Carpenter, 188 Conn. 736, 739n, 453 A.2d 1151 (1982).” Barnes v. Barnes, supra, 494. We, therefore, decline to review this claim because the plaintiff has not provided us with an adequate record.

The plaintiff next claims that the trial court erred in failing to award her support payments for her daughter pursuant to the separation agreement from November, 1981, until she reached the age of twenty-one. We find error.

Discussion of this issue requires an examination of the history of and prior judgments in this case. Under the New York judgment, the defendant was obligated to pay $115 per month per child until each attained the age of twenty-one. The plaintiffs original motion for contempt was heard before Judge Geen in February, 1981. Prior to the hearing, the parties negotiated a settlement. In reporting the settlement to the court, counsel for the plaintiff stated: “Now, I am almost embarrassed to come before the court to tell you what the settlement is. But, what has happened is this, that Mr. Haggquist is to make a payment, even though the existing order is $115 a month for each child, and $200 alimony for Mrs. Haggquist, she is willing to accept the sum of $150 a month beginning the first of July until the youngest child” reached the age of twenty-one. With respect to the arrearages, the plaintiff stated that under the agreement she would forgive them unless the defendant “fails to make these $150 payments, then that would revive the arrearages.” When the court queried the plaintiff as to why she would accept such an unbeneficial arrangement she stated: “I would love to collect it, but it is impossible .... Because I would be in court just about every week. I have a life to live.” Judgment was rendered in accordance with this settlement. A review of the full transcript of that proceeding shows that, although the question of the amount of arrearages was never agreed upon, the court did find an amount that, even if incorrect, was not appealed. The court accepted what purported to be an agreement between the parties, which benefited the defendant, and ordered him to pay a total of $150 a month beginning July 1,1981, and ending May 28,1985, when the youngest child reached the age of twenty-one.

The attorney referee found that it was unclear whether Judge Geen’s order terminated the defendant’s support obligation to his daughter. After carefully reviewing the transcript of the hearing before Judge Geen, we conclude that this finding by the referee was clearly erroneous. Practice Book § 4185. Because nothing further was specified, the order of $150 per month total support represented unallocated alimony and support, and that unallocated amount was for the support of both children. The transcript of this proceeding reveals that this judgment did not terminate the defendant’s obligation to support his daughter.

In November, 1981, the defendant filed a motion for modification of his alimony obligations. Subsequently, the plaintiff filed a motion for contempt for the defendant’s failure to meet his support obligations. On November 20, a hearing was held on the defendant’s modification motion before Judge Zarrilli, at which time neither party accurately represented the actual facts of the prior judgment to the court. At that hearing, the defendant, without mentioning the prior order, asked the court to suspend only his alimony payments, which he represented were $200 per month. He stated he would continue to pay “support in the amount of $115 per month for the son.” (Emphasis added.) The defendant did not mention his daughter. The plaintiff vaguely addressed the prior Connecticut proceeding and incorrectly referred to payments “under the agreement and on the arrearages,” of “the total amount of $115.” The court was never told the correct amount of the prior judgment of $150 per month or that the amount represented a combination of alimony and support for both children. The court was informed only that two such payments were made and no others. The court ordered a suspension of the alimony payment of $200 per month, and a continuation of the “support” payment of $115 per month for the period during which the defendant remained unemployed. From this record, it is apparent that the court accepted the inaccurate representations of both counsel.

The trial referee found that it was unclear whether Judge Zarrilli’s modification order had terminated the defendant’s support obligation to his daughter. On the basis of this finding, he concluded that he would “treat the case as the parties presented it in the earlier case” and declined to order arrears for the daughter. We disagree with the underlying rationale of this analysis that the parties, by their inaccurate representations, and the trial court, by its subsequent order based on these inaccuracies, could, by implication, terminate the daughter’s support. Because the effect of the trial court’s action in this case was to terminate the daughter’s rights and annul her arrears, and because this is a foreign judgment, we must apply the law of New York to resolve this issue. General Statutes § 46b-71 (b). Under New York law, when a party is obligated to pay child support and wishes to avoid payments, that party must make an affirmative request to the court and demonstrate his or her reasons for needing such relief. N.Y. Dom. Rel. Law § 236 (9) (b) (McKinney 1986). “Unless and until such a modification is made, the party is responsible for the current amount . . . . ”N.Y. Dom. Rel. Law § 244 commentary (McKinney 1986). In this case, the defendant’s request for modification only included his wife’s alimony. The defendant did not seek suspension, modification or termination of the daughter’s support, and there is nothing in Judge Zarrilli’s decision to suggest that he even considered the daughter’s support. Therefore, Judge Zarrilli’s decision did not affect the daughter’s support and the defendant’s obligations to his daughter, therefore, continued. We conclude that the attorney referee’s adoption of the parties’ inaccurate representations, and his finding that such misrepresentations could terminate the daughter’s support, were clearly erroneous. Practice Book § 4061.

The effect of the court’s action in this case was to annul the daughter’s arrears. Under New York law a trial court may not reduce or cancel arrears “unless the facts and circumstances constituting good cause are set forth in a written memorandum of decision.” N.Y. Dom. Rel. Law § 236 (9) (b) (McKinney 1986). The record is devoid of any specific finding by the trial court as required by this statute. The trial referee’s denial of arrears for the daughter was based on his finding that the defendant’s obligation to support his daughter had, by implication, been terminated by the parties’ inaccurate representations to Judge Zarrilli. As explained above, this proposition is untenable, and therefore does not constitute good cause for denying the plaintiff’s arrears. The plaintiff is therefore entitled to arrears for support payments for her daughter for eighteen months at the rate of $115 per month or a total increase in the judgment of $1840.

The plaintiff next assigns as error the trial court’s denial of an award of interest. We find no abuse of discretion. “The determination of whether or not interest is to be recognized as a proper element of damage, is one to be made in view of the demands of justice rather than the application of any arbitrary rule.” Bernhard v. Rochester German Ins. Co., 79 Conn. 388, 398, 65 A. 134 (1906). The allowance of prejudgment interest is an equitable determination that is within the discretion of the trial court. West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 321, 541 A.2d 858 (1988). The plaintiff recognized the court’s discretionary and equitable powers to award interest, but has cited no legal authority for the proposition that she is entitled to interest as a matter of right. A careful review of the record reveals no abuse of judicial discretion in refusing to award interest.

II

The Defendant’s Cross Appeal

The defendant’s first assignment of error in his cross appeal is that the trial court erred in giving res judicata effect to the June, 1981 ruling of the court, Geen, J., and therefore refusing to modify the arrearages to account for the defendant’s unemployment prior to June 25,1981. We find this contention without merit.

Because the defendant’s request was one for modification of arrears, we again look to New York law to resolve this issue. General Statutes § 46b-71. Under New York law, once a judgment granting arrears is entered, it is final and not modifiable. N.Y. Dom. Rel. Law § 244 (McKinney 1986).

We decline to review the defendant’s other claims in his cross appeal because he has not presented us with any legal authority or analysis in support of his claims. “Assignments of error which are merely mentioned and not briefed beyond a statement of a claim will be deemed abandoned and will not be reviewed by this court.” Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984), citing Cheney v. Strasburger, 168 Conn. 135, 142, 357 A.2d 905 (1975).

There is error in part on the plaintiff’s appeal and no error on the defendant’s cross appeal. The judgment is affirmed except as to damages on unpaid support; the case is remanded with direction to render judgment for the plaintiff on her complaint for an additional amount of $1840 representing unpaid support payments for the daughter for eighteen months at $115 per month.

In this opinion the other judges concurred.

       The attorney trial referee was correct when he stated: “This case presents a confusing and conflicting record involving two prior hearings on a registered foreign decree in which it does not appear that information given to the court was complete and accurate.”

       Although the arrearages are represented in the attorney trial referee’s report as totalling $12,248, the amounts claimed were $6648 for support and $5800 for alimony, which actually total $12,448.

       The plaintiff made the following motion for articulation:
      “Pursuant to Practice Book § 3082, the plaintiff hereby requests that the court (Lewis, J.) articulate the reason for its decision dated March 27,1987, entering judgment upon the finding of fact.

        “The reason this articulation is requested is that this matter has been appealed, and the appellant requires a decision by the trial court upon which the Appellate Court may act in determining such appeal.”

       We note that in addition to the plaintiffs failure to have the trial court’s conclusions properly clarified, the plaintiff has not provided us with a copy of the actual separation agreement. Therefore, even if we were inclined to review this claim, review is impossible without that document. It is the appellant’s responsibility to make sure that this court has all essential documents by either designating them as part of the record or placing them in the appendix. Practice Book § 4013.

       Counsel for the plaintiff stated: “I did later proceed and apply for a rule to show cause to hold Mr. Haggquist in contempt and in June of this year, we did agree to, that a lowering of the amount that he should pay, under the agreement and on the arrearages, whatever, the total amount of $115, which he paid for one month. Then he paid for another month, $115 and then for whatever reasons, would later come into the picture, he did not continue to pay.
      “I realize that at the present time, I am powerless because of his unemployment to seek any contempt remedy to enforce his paying of either that order or the pending order or the past arrearages.
      “So, I must state for the record that I am objecting to the — any consideration of the motion to modify at this time.”

       In reporting Ms decision, Judge Zarrilli stated: “Under the circumstances, the motion to modify is granted as follows. The alimony payment of $200 per month is suspended during the period of unemployment of the defendant as hereinafter stated. However, the support payment of $115 per month shall continue. It is the order of the Court that this matter be reviewed 90 days from today or sooner in the event the defendant becomes re-employed.”

       Pursuant to General Statutes § 46b-71, a foreign judgment that has been properly obtained and filed in a court of this state where enforcement is sought, “shall be enforced and otherwise in the same manner as a judgment of a court of this state.” If the action sought is for modification, suspension, to set aside, alter or amend such judgment, however, the substantive law of the foreign state will control.

       New York Domestic Relations Law § 244 provides: “Where a spouse in an action for divorce, separation or annulment, or declaration of nullity of a void marriage, or a person other than a spouse when an action for an annulment is maintained after the death of a spouse, defaults in paying any sum of money as required by the judgment or order directing the payment thereof, such direction shall be enforceable pursuant to section fifty-two hundred forty-one or fifty-two hundred forty-two of the civil practice law and rules. Upon application the court shall make an order directing the entry of judgment for the amount of arrears of child support together with costs and disbursements. The court shall make an order directing the entry of judgment for the amount of arrears of any other payments so directed, together with costs and disbursements, unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears. The court shall not make an order reducing or cancelling arrears unless the facts and circumstances constituting good eause are set forth in a written memorandum of decision. The application for such order shall be upon such notice to the spouse or other person as the court may direct. Such judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments. The relief herein provided for is in addition to any and every other remedy to which a spouse may be entitled under the law; provided that when a judgment for such arrears or any part thereof shall have been entered pursuant to this section, such judgment shall thereafter not be subject to modification under the discretionary power granted by this section; and after the entry of such judgment the judgment creditor shall not hereafter be entitled to collect by any form of remedy any greater portion of such arrears than that represented by the judgment so entered. Such judgment shall provide for the payment of interest on the amount of any arrears if the default was willful, in that the obligated spouse knowingly, consciously and voluntarily disregarded the obligation under a lawful court order. Such interest shall be computed from the date on which the payment was due, at the prevailing rate of interest on judgments as provided in the civil practice law and rules.” (Emphasis added.)