author: Heiman, J.

text:
    State of Connecticut v. Ramon Burgos
    (13628)
    O’Connell, Heiman and Speak, Js.

      Argued December 5, 1994
    decision released April 4, 1995

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

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Jonathan Benedict, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that the trial court improperly (1) instructed the jury on (a) the concurrence principle, (b) the defense of extreme emotional disturbance and (c) the effect of intoxication on intent, and (2) precluded the defendant from offering evidence of extreme emotional disturbance and intoxication at the hearing in probable cause.* * We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant and the victim, Evelyn Padin, had a relationship for approximately nine years before her death on September 29, 1991. They met when they were sixteen years old and the victim gave birth to the first of their four children at age seventeen.

During the summer of 1991, the defendant discovered that the victim was having an affair with a man called “Camacho.” When the defendant confronted the victim about her infidelity, a fight resulted and the victim asked the defendant to leave. The defendant moved into his mother’s apartment in Bridgeport. His brother, Luis Burgos, and his mother’s boyfriend, Luis Angel Zamot, also lived there.

During September, 1991, the defendant and the victim attempted to reconcile. On September 28, 1991, they spent the day with their four children at the defendant’s mother’s apartment. That evening, they began to argue again about the victim’s infidelity. In the course of the argument, the victim called the defendant a “cabrone,” Spanish for a man who is aware of his wife’s infidelity and stays with her. The defendant became enraged and left the apartment around 8 p.m. He went to a local store where he ran into Zamot, and they drank beer together.

At approximately 9 p.m., the defendant and Zamot returned to the defendant’s mother’s apartment. The defendant’s brother, Luis, arrived home at approximately the same time. Zamot and Luis ate dinner and went into their bedrooms. The victim put the four children to bed in the defendant’s room. Soon, the defendant and the victim resumed arguing and the defendant again decided to leave.

At about 11:30 p.m., the defendant returned to the apartment and he and the victim again began to argue. The defendant began crying and his mother noticed that he had been drinking but “not that much.” When the defendant’s mother joined Zamot in their bedroom, the defendant asked the victim to go to bed with him. The victim refused and started for the kitchen. She told the defendant that she was leaving him for Camacho, and the defendant blocked her way. He told the victim that he would kill her before he let her go anywhere.

The defendant’s mother heard a loud noise coming from the kitchen and went to investigate. The victim was holding onto her neck with her hand and asked the defendant’s mother to call an ambulance. The defendant blocked her way to the telephone. The defendant’s mother ran back to her bedroom to awaken Zamot to help. The victim then headed into Luis’ room and screamed for him to wake up and help her. Luis saw that the victim was covered with blood and attempted to restrain the defendant from hurting her further, but the defendant slipped from his grasp.

The defendant walked into the living room and grabbed his mother. Luis ran from his room and pushed the defendant away from their mother and told her to wait in the kitchen. Meanwhile, the defendant went to Luis’ room and closed the door. Luis opened the door and saw the defendant kicking the victim, who was lying on the floor near Luis’ bed. Luis stopped the defendant and asked him to leave. The defendant stated, “Now I killed her and I [am] going to turn myself in. . . . The bitch got what she deserved.” He then asked Luis to get him some clothing and money.

When Zamot awoke, he attempted to leave the apartment to call the police. The defendant threatened him with a bloody bat and said that no one was going to leave the house. The defendant changed his clothes and told his family that if he had not killed her, he would be “back to finish the job.” He also told his family that they would never see him again.

Luis walked with the defendant to the train station where the defendant took a taxi to go to New Haven. When the defendant reached West Haven, he asked the driver to return him to Bridgeport where he was apprehended by the police.

The victim was found covered with blood, lying on the floor of Luis’ bedroom. Two broken kitchen knives were found on the floor beside her body and the bloody bat was found in the kitchen. An autopsy revealed that the victim suffered numerous stab wounds, one of which severed the carotid artery. In addition, the autopsy revealed that the victim had suffered several severe blows to the head that resulted in a skull fracture and bruising of the brain. The medical examiner determined that either the stab wound to the carotid artery or the blunt trauma to the head could have caused the death of the victim.

I

The defendant first claims that the trial court incorrectly instructed the jury on (a) the concurrence principle, (b) the defense of extreme emotional disturbance and (c) the effect of intoxication on intent. We disagree.

We begin by setting forth our standard of review of claims of improper jury instructions and then turn to a separate analysis of each of the defendant’s claims. “When we review jury instructions, we are obligated to view the charge itself in the context of the whole trial.” State v. Patterson, 35 Conn. App. 405, 417, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). “[JJury instructions are not to be subjected to microscopic examination with an eye toward discovering possible inaccuracies. . . . Rather, the entire charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” (Citations omitted.) State v. Williams, 27 Conn. App. 654, 672, 610 A.2d 672, cert. denied, 223 Conn. 914, 614 A.2d 829 (1992).

“Jury instructions need not be exhaustive, perfect or technically accurate. . . . Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991); State v. Wolff, [29 Conn. App. 524, 531, 616 A.2d 1143 (1992)]; Lemonious v. Burns, 27 Conn. App. 734, 740, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 823 (1992). To pass constitutional muster, jury instructions must be correct in law, adapted to the issues in the case and sufficient to guide the jury in arriving at a verdict. State v. Wolff supra, 531. The test that we apply to any part of the charge is whether the charge as a whole presents the case to the jury in such a manner that no injustice is perpetrated. State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980); State v. Andrews, 29 Conn. App. 533, 540, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993).” (Internal quotation marks omitted.) State v. Patterson, supra, 35 Conn. App. 417-18.

A

The defendant first asserts that the trial court’s instructions on the issue of intent violated the “concurrence principle.” The defendant argues that the trial court’s instructions allowed the jury to convict the defendant of murder even if he did not possess the intent to kill at the time that the fatal injury was inflicted. The defendant also asserts that the charge as given improperly allowed the jury to base its verdict on the most culpable state of mind possessed by the defendant during the entire incident rather than the defendant’s state of mind at the very moment he inflicted the injury that lead to the victim’s death. We disagree.

The following additional facts are necessary to a resolution of this issue. During the initial instructions to the jury, the trial court stated that in order to convict the defendant of a particular crime, the jury had to find that he harbored the requisite intent at the time that he committed the acts that resulted in the victim’s death. The defendant did not except to this charge.

During deliberations, the trial court received a note from the jury asking whether the relevant mental state was that which existed at the beginning or the end of the act. The trial court responded that the relevant intent was that which the defendant harbored when he initiated the assault on the victim. The trial court also informed the jury that intent could change at any time during the course of committing the act. The trial court further stated that in order to find the defendant guilty of manslaughter, the jury had to find that the defendant did not intend to kill the victim. The defendant failed to except to the trial court’s response to the jury’s inquiry.

We are not bound to review claims of error in jury instructions if the party raising the claim did not either submit a written request to charge or promptly except to the charge after it was delivered. Practice Book § 852. The defendant filed no request to charge on the issue of the required concurrence of the act and intent to commit a particular crime. He objected to neither the initial charge nor the trial court’s response to the jury’s question regarding the relevant time at which to consider intent.

The defendant, however, claims to be entitled to extraordinary review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because the concurrence requirement is an essential element of the offense of murder. Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. “The first two conditions of Golding are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852 (1994); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).” State v. Walker, 33 Conn. App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994).

We will review the defendant’s claim as the record is adequate and the alleged violation is of constitutional magnitude because it involves intent, which is an essential element of the crime of murder. State v. Hinton, 227 Conn. 301, 308, 630 A.2d 593 (1993). We conclude, however, that the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial.

The trial court repeatedly informed the jury that the state had the burden of proving that the defendant harbored the requisite intent at the time of the commission of the acts that resulted in the victim’s death. It is not reasonably possible that the jury was misled by the trial court’s response to its inquiry about when that intent had to be formed. The trial court’s instructions, when viewed as a whole, informed the jury that, in order for it to convict the defendant, the jury had to find that he had the requisite intent at the time that he committed the assault on the victim and precluded the jury from improperly convicting the defendant on the basis of intent formed after the acts were committed.

B

The defendant also asserts three claimed improprieties in the trial court’s instructions on the affirmative defense of extreme emotional disturbance. The defendant claims that the charge given incorrectly (1) defined “extreme” as “the greatest intensity away from the normal state of the defendant,” (2) characterized that defense as a modifier of intent rather than as an excuse that lessens culpability, and (3) required the jury to focus only on the “cold, hard facts” of the case rather than to attempt to understand sympathetically whether the defendant’s situation put him under an extreme emotional disturbance. We conclude, however, that this claim has not been properly preserved for our review.

The defendant filed only a general request to charge seeking an instruction to the jury on the affirmative defense of extreme emotional disturbance. He did not request that the charge contain any specific language or points of law. No definition of “extreme” was offered by the defendant to the trial court, nor was that defense defined as one that lessens culpability rather than modifies intent. The defendant did not request that the jury be instructed against viewing the case as a set of “cold, hard facts” in light of the emotional content of the defense. After the instructions were read to the jury, the defendant failed to object or to except to those instructions in any way.

Although the claim was not properly preserved before the trial court; see Practice Book § 852; the defendant again claims review under State v. Golding, supra, 213 Conn. 233, or the plain error doctrine. Practice Book § 4185. Our Supreme Court has determined, however, that improper jury instructions concerning the defense of extreme emotional disturbance are not constitutional in nature and therefore do not merit the extraordinary review provided by Golding. State v. Foreshaw, 214 Conn. 540, 546, 572 A.2d 1006 (1990); State v. Suggs, 209 Conn. 733, 751, 553 A.2d 1110 (1989).

Nor will we afford plain error review. “Practice Book § 4185 provides that this court may in the interests of justice notice plain error not brought to the attention of the trial court. Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Foreshaw, supra, 214 Conn. 546. This is not such a case because the instruction as given does not contain any glaring misstatements that could have misled the jury.

C

The defendant’s final claim concerning the jury charge concerns the trial court’s instructions on intoxication. The defendant asserts that the instructions unconstitutionally diluted the state’s burden of proving intent beyond a reasonable doubt. In support of this claim, the defendant claims that the instruction improperly (1) instructed the jury to consider intoxication only if it was so severe that the defendant was not capable of forming the requisite intent and (2) prohibited the jury from considering whether any intoxication less than total intoxication had an effect on the state’s ability to prove specific intent beyond a reasonable doubt. We again disagree.

Although the defendant requested that the trial court charge the jury on the issue of intoxication, his request was merely general in terms and did not propose specific language or points of law to be included in the charge.* Nor did the defendant except to the charge as given. The defendant again claims review under State v. Golding, supra, 213 Conn. 233. “We [will] review this claim because it alleges that there was a shifting or diminishing of the state’s burden of proof and that there was constitutional error in the instructions on intent, which constitutes a violation of a fundamental constitutional right.” State v. Brown, 35 Conn. App. 699, 703, 647 A.2d 17, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994), citing State v. Stevenson, 198 Conn. 560, 567-72, 504 A.2d 1029 (1986).

Viewing the charge as a whole, we cannot say that the jury was mislead as to the state’s burden of proof on the issue of intent and the relationship of intoxication to that burden. The trial court began its instruction with the statutory definition of intoxication and then addressed that portion of the statute that provides that intoxication is not a defense to a criminal prosecution but may be considered to negate the requirement of intent. See General Statutes § 53a-7. The trial court repeatedly instructed the jury that the state continued to have the burden of proving beyond a reasonable doubt that the defendant harbored the specific intent required by each crime. In fact, the trial court specifically informed the jury, on more than one occasion, that the defendant had no burden to disprove the state’s case. The trial court was also careful to instruct the jury to “look at the whole situation and see whether it has a bearing on the existence of the requisite intent in this case.” The defendant’s claim that the jury’s consideration of intoxication evidence was improperly limited is without merit. See State v. Stevenson, supra, 198 Conn. 572; State v. Fernandez, 27 Conn. App. 73, 84-85, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992); State v. Williams, 25 Conn. App. 456, 459-60, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991).

We conclude that the trial court’s instructions on the law of intoxication, when viewed as a whole, did not mislead the jury or deprive the defendant of a fair trial. “The court’s statement, contrary to the defendant’s claim, that voluntary intoxication was significant only when it has proceeded so far as to have affected the operation of the mind of the accused and made him incapable for the time being of forming a rational intent or of controlling his will, was correct not only in the context of this charge on intoxication, but as a statement of law.” State v. Stevenson, supra, 198 Conn. 570.

II

The defendant next claims that the trial court improperly precluded him from offering evidence of extreme emotional disturbance and intoxication at the hearing in probable cause. We disagree.

The following facts are necessary to the resolution of this issue. A hearing in probable cause was held on November 7, 1991, pursuant to General Statutes § 54-46a. The state presented testimony by Detectives Eugene Redmond and Richard Herlihy of the Bridgeport police department and Luis Burgos. The defendant was given an opportunity to cross-examine each witness and did ask several witnesses about whether the defendant showed signs of intoxication and whether the defendant had indicated that he was upset about the victim’s infidelity. On cross-examination of Luis Burgos, the defendant asked if the witness knew whether the victim had had sex with the defendant’s step-brother, Victor Castro. On the state’s objection, the defendant informed the trial court that the question was relevant to the issue of his defense of extreme emotional disturbance. The trial court sustained the state’s objection.

At the close of the state’s evidence, the trial court made an initial finding of the existence of probable cause. The defendant was then given an opportunity pursuant to General Statutes § 54-46a (b) to make a specific offer of proof to present evidence sufficient to rebut that initial finding. The defendant’s offer of proof included a proposal to introduce the testimony of his mother and Zamot regarding the defendant’s intoxication and his reaction to the victim’s infidelity. The trial court found that the evidence offered would not be sufficient to rebut its finding of probable cause and prohibited the defendant from calling the witnesses.

We review claims that a trial court improperly prohibited a defendant from introducing evidence to rebut a finding of probable cause as we do ordinary evidentiary rulings. In re Michael B., 36 Conn. App. 364, 381, 650 A.2d 1251 (1994). “Our analysis of challenges to the evidentiary rulings by a trial court is guided by a well settled standard of review. It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Curry v. Burns, 33 Conn. App. 65, 68, 633 A.2d 315 (1993).” (Internal quotation marks omitted.) In re Michael B., supra, 381.

“Under § 54-46a (b) ... if the court finds probable cause based on the state’s evidence, then the accused may make a specific offer of proof to rebut the finding of probable cause. In re Keijam T., [221 Conn. 109, 126, 628 A.2d 562 (1992)]. The accused gains the right to present that evidence only ‘if the court determines [in its discretion] that such evidence would be sufficient to rebut the finding of probable cause.’ General Statutes § 54-46a (b); In re Keijam T., supra, 126; State v. Zaporta, 36 Conn. App. 250, 252, 650 A.2d 582 (1994). The purpose of this procedure is to exclude evidence that, even if believed, would not undermine the court’s antecedent finding of probable cause while, at the same time, safeguarding the accused’s interest in attempting to persuade the court that, despite the state’s evidence, probable cause is lacking. In re Keijam T., supra, 126.” In re Michael B., supra, 36 Conn. App. 381-82.

Here, the court determined that the evidence sought to be introduced was not sufficient to rebut its finding of probable cause. Evidence that tends to negate intent or to reduce culpability may be relevant to a defendant’s guilt, but will not necessarily rebut a finding of probable cause that an offense has been committed and that it was committed by the accused. See General Statutes § 54-46a (a). The court did not abuse its discretion in not admitting the proffered evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The defendant’s claim concerning the absence of the trial judge from the bench during the voir dire was withdrawn in his reply brief. See State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994).

       The trial court’s initial instructions on intent were as follows: “Now, intent. I’ve told you this is a specific intent crime. The intent must be demonstrated to have existed in the mind of the actor at the time of the acts complained of. A person acts intentionally with respect to a result — this is a statutory definition in this case, [it] controls me and you. A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, murder, when his conscious objective is to cause such a result or to engage in such conduct. Intentional conduct is purposeful conduct rather than conduct that is accidental or inadvertent.”

       The note from the jury read: “When it comes to deciding between manslaughter and murder, do you make the decision the moment the accused started to hit her; his state of mind then? Or does it go until the very end; his state of mind at the end of the act? Please clarify?”

       The trial court’s response to the jury’s inquiry stated: “In order to convict the accused of murder, you would have to find that he had the intent to take the life of Evelyn Padin at the time he initiated any assault upon her. You must also recognize that an intent can change instantly in the mind of an actor during the course of conduct.” In clarifying and comparing the levels of intent required for murder and manslaughter the trial court further stated that “in considering [the offense of manslaughter], you would have to find that there was never an intent to kill.”

       Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       In addition to the initial charge on intent set forth in footnote 4, the trial court stated the following when discussing the specific charge of murder: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person. There are two elements, each of which the state must prove beyond a reasonable doubt in order to sustain a conviction here. I say two because identification is not an issue in this case. The accused admits that he is the one who was present committing the acts complained of. What those acts result in is up to you. First, this defendant had at the time, in his mind, the intent to cause the death of Evelyn Padin. And second, that acting with that intent, he caused the death of that person by inflicting stab wounds as indicated in the evidence in this case.
      “To summarize, in order for you to convict the accused, the state must have proven beyond a reasonable doubt that the defendant had the intent to cause the death of another, Evelyn Padin. And acting with that intent, he did in fact cause the death of Evelyn Padin.”

       The defendant’s request to charge on the issue of extreme emotional disturbance stated only: “The defendant requests that the court charge the jury on the affirmative defense of extreme emotional disturbance pursuant to § 53a-54a (a) Connecticut General Statutes and § 53a-55 (a) Connecticut General Statutes.”

       The defendant alleges that his rights to due process were abridged in violation of article first, §§ 8 and 9, of the constitution of Connecticut and the fourteenth amendment to the constitution of the United States. The defendant does not, however, claim that the state constitution affords any greater protection than that provided by the federal constitution. We need not, therefore, conduct a separate analysis under the Connecticut constitution.

       The defendant’s request merely stated: “The defendant requests that the court charge the jury on intoxication as a factor in determining if a reasonable doubt exists on the element of specific intent to kill.”

       The trial court’s instructions on the relationship between intent and intoxication are as follows: “Consider everything you’ve heard from anybody bearing on the question of intoxication. You will recall that there was evidence offered by the defendant and others that he was intoxicated. Others for sure. . . . It’s for you to determine how often, how much. But look for the evidence on that. Look for the evidence. I don’t suggest it either way, but you have to look for it. And then, of course, the evaluation of other people about seeing him and whether they recognized at the time, from their history together, do they qualify ... [if they are] able to give opinions about another person’s conduct, if they have a basis to reach that opinion.
      “The law of intoxication and how it relates to the issue of intent: Our statute, insofar as [it] is relevant here, says that intoxication is not, understand, is not a defense to a criminal charge. But in any prosecution for an offense, evidence of the defendant’s intoxication may be offered by the defendant whenever it is relevant to negate an element of the crime charged. Intoxication here means a substantial disturbance of mental and physical capacities resulting from the introduction of substances into the body, including alcohol.
      “As applied here, it means that if you find that the defendant was so intoxicated that he was not mentally able to even form the intent to commit the crime, then the intent element of the crime charged would not be proven and you would be required to acquit the defendant of that charge. This does not mean, however, that the defendant has the burden of proving that he was too intoxicated to form the intent required as an element of the crime. The state retains the burden of proof, beyond a reasonable doubt, on this issue of intent as on all other elements of the crime.
      “The simple fact alone, however, that the defendant may have been intoxicated at the time the crime was committed is not enough for you to find for the defendant on this issue. You must, if you are to find for the defendant on this issue, find that while he was committing the physical assault upon the victim, if you find that fact proven that he was so intoxicated that his mind was incapable of forming the intent to do so, it is only if you find that his intoxication was to this degree and with this result that you should consider it. If, however, you find that he was not intoxicated or that he was intoxicated but not so extremely so that he could not form the required intent, you should disregard the evidence of his intoxication and not consider it in his defense.
      “The defense interjects, through the questions put to witnesses, the presence of alcohol in the case and the claim that the defendant’s intent would be modified by the consumption of alcohol in the person of the defendant. The state says there’s alcohol in the case for the evidence produced here, but relies on your view of the entire facts and circumstances including statements made by the accused at the time to his mother, to his . . . girlfriend .... So you have to look at the whole situation and see whether it has a bearing on the existence of the requisite intent in this case. Whether or not the defendant was so intoxicated that he could not, and did not, form the required intent is a question of fact. Whether it is otherwise, is also a question of fact for you to determine.”

       General Statutes § 54-46a provides: “(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at Ms own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”

       The following colloquy took place between counsel and the trial court regarding the defendant’s question to Burgos:
      “The Defendant: Now, do you know whether or not Ms. Padin ever had sex with Victor Castro?
      “The State: That’s objected to, if Your Honor please.
      “The Defendant: Your Honor, I claim it. It goes—

        “The State: It’s entirely immaterial.
      “The Defendant: It’s not. It goes — one of the things that the state has to establish here, Your Honor, is intent. That — granted they don’t have to prove intent beyond a reasonable doubt, but they do have to put evidence on there of that in an effort to convince the court that there is reason to believe that this gentleman committed the crime of murder.
      “Now, clearly if there is evidence that a witness can provide to refute that issue and — then I think — I think that it certainly is relevant because it would go to whether or not he had the intent to kill or whether or not he was suffering from an extreme emotional disturbance. And if the court is convinced of that, then there is no probable cause for this murder.
      “The Court: I don’t think the sexual conduct of the victim would negate the defendant’s intent.
      “The Defendant: Well, no. Certainly — I’m sorry. I’m sorry to interrupt Your Honor. You were talking. I’m sorry.
      “The Court: No, that’s it. So, I’m going to sustain the objection.
      “The Defendant: Okay. Exception, please, Your Honor. And if I could just have the court’s permission, just to revisit that issue just briefly.”
      “The Court: All right.
      “The Defendant: It’s not the sexual conduct of the victim that negates intent, but it is whether that conduct occurred and what effect it had on him. And so his reaction to that conduct is what’s relevant. And that would be the reason for getting there. It’s not — it’s—
      “The Court: Not for probable cause purposes . . . but that might be admissible in a full-blown trial, should there be a defense along those lines. But certainly for probable cause the past sexual conduct of the victim here, given the testimony so far by all of the witnesses, I don’t believe is relevant.
      “The Defendant: All right. Thank you very much for listening to me, Your Honor. Exception please, Your Honor.”

       The trial court stated: “All right. Well, the — again, pursuant to the statute, § 54-46a (b), having found probable cause, the defendant is entitled to make a specific offer of proof, including the names of witnesses who would testify and produce evidence. And that section goes on to state: ‘The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.’ And what I will find, that given the proffer, even if that evidence were presented to the court, that would not be sufficient to rebut the finding of probable cause which I’ve made.
      “And, again, without reiterating all of the evidence presented, in that regard I would simply point out the testimony of the defendant’s brother, Luis Burgos, who testified as to the circumstances he observed on the night in question. And aside from his observations of the victim, the defendant’s actions as related by Luis Burgos, telling Mr. Burgos and their mother to get out of the room, menacing each with a bat, telling the mother that he would kill her, the defendant’s having told [Zamot], mother, and Luis Burgos that he would kill them if they called the police, the defendant’s having thereafter gone over to the victim and kicked her three times in the head, and further relating oral statements to Luis Burgos identifying the fact that he was tired of being called a cabrone as the reason that he did it. In light of that testimony, I will find that, again, even if that proffered testimony by the defendant were presented, it is not sufficient to rebut my finding of probable cause based on the evidence which has been presented.”


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    First Federal Savings and Loan Association of Rochester v. Gail Connelly Pellechia et al.
    (13550)
    Dupont, C. J., and Heiman and Schaller, Js.
    Argued January 13
    decision released April 4, 1995

      Mary C. Duffy, with whom were Ann M. Siczewicz and, on the brief, Stuart D. Rosen, for the appellant (plaintiff).

      David Eric Ross, for the appellee (named defendant).
   Schaller, J.

The plaintiff, First Federal Savings and Loan Association of Rochester (First Federal), appeals from the judgment of the trial court denying its motion for a deficiency judgment pursuant to General Statutes § 49-14 (a). We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. The plaintiff began a foreclosure action against the defendants in May, 1991. On December 2,1991, the trial court rendered judgment of strict foreclosure in favor of the plaintiff, and set a law day of December 23,1991, for the defendant, as owner of the equity of redemption. Title to the premises vested in the plaintiff on December 24,1991. On January 23, 1992, the plaintiff filed its motion for a deficiency judgment. The defendant objected to the plaintiff’s motion, and the trial court sustained the defendant’s objection and denied the motion on March 27, 1992. The plaintiff appealed from the denial of its motion for a deficiency judgment. We reversed and remanded the case to the trial court for further proceedings. First Federal Savings & Loan Assn. of Rochester v. Pellechia, 31 Conn. App. 260, 624 A.2d 345, cert. denied, 227 Conn. 923, 632 A.2d 701 (1993).

On remand, the plaintiff reclaimed its motion for a deficiency judgment. The defendant objected to the motion, asserting that the motion was untimely under § 49-14 (a). On April 12,1994, the trial court sustained the defendant’s objection and denied the plaintiff’s motion for a deficiency judgment, concluding that the motion was untimely under § 49-14 (a). The plaintiff appeals from this determination.

The plaintiff claims that the trial court improperly denied its motion for a deficiency judgment and sustained the objection of the defendant in violation of § 49-14 (a). We disagree.

The issue presented on appeal is whether the thirty day period for filing a motion for a deficiency judgment is calculated from the last law day, in this case December 23, 1991, or the day on which title vests, December 24,1991. We conclude that the statute clearly and unambiguously provides that the critical time is the day of “expir[ationj” or the end of the time limited for redemption — the last law day, namely, December 23, 1991.

“A basic tenet of statutory construction is that when a statute ... is clear and unambiguous, there is no room for construction.” (Internal quotation marks omitted.) State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992); Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988). Section 49-14 (a) provides in relevant part: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment.” The statute is clear on its face that the expiration of the time limited for redemption is the event that activates the thirty day period within which to file for a deficiency judgment.

The word “after” means “[ljater, succeeding, subsequent to, inferior in point of time or of priority or preference. Subsequent in time to.” Black’s Law Dictionary (6th Ed. 1990). According to the statute, the thirty day period within which to file a motion for a deficiency judgment begins to run “after” the redemption period has ended. The time limited for redemption expired at midnight on December 23, 1991. Because the redemption period expired on December 23,1991, the period within which to file a deficiency judgment commenced on the following day, December 24,1991.

“The word within [as used in § 49-14 (a)] is of critical importance. The meaning of within is not longer in time than; Webster’s New International Dictionary (2d Ed.); not later than; 69 C.J. 1315; 45 Words & Phrases (Perm. Ed.), p. 378. The word within is almost universally used as a word of limitation, unless there are other controlling words in the context showing that a different meaning was intended.” (Internal quotation marks omitted.) Royce v. Freedom of Information Commission, 177 Conn. 584, 586-87, 418 A.2d 939 (1979). No different meaning was intended in § 49-14 (a). The statute clearly identifies the day on which the time limited for redemption expires as the activating day.

The plain language of § 49-14 (a) requires that December 23,1991, the date on which the time limited for redemption expired, be excluded from the calculation, and the following day, December 24, 1991, be counted as the first day of the thirty day period. “It is well settled that the day of the act from which a future time is to be ascertained is to be excluded from the computation.” Infante v. Porath, 29 Conn. App. 465, 468, 615 A.2d 1073 (1992), citing Lamberti v. Stamford, 131 Conn. 396, 397-98, 40 A.2d 190 (1944). Under § 49-14 (a), “the day of the act from which a future time is to be ascertained” or the activating day is the day on which the time limited for redemption expired. Any party to a mortgage foreclosure, therefore, may file a motion for a deficiency judgment at any time within thirty days after the last day for redemption has expired. In this case, excluding the day on which the time limited for redemption expired, the first full day of the period was December 24,1991, and the final day was January 22, 1992.

This determination is consistent with Connecticut case law interpreting similar statutory time limitations. In Lamberti v. Stamford, supra, 131 Conn. 396, for example, the statute at issue, General Statutes (1930 Rev.) § 1420, provided that a person injured by means of a defective road must provide written notice of the injury to the city clerk “within ten days thereafter.” Id., 397. Relying on the rule that “the day of the act from which a future time is to be ascertained is to be excluded from the computation,” the court excluded the day of the injury, December 15, and fixed the tenth day thereafter, December 25, as the final day on which valid notice could have been filed with the clerk. Id., 397-98.

Further support for our interpretation is found in Norwich Land, Co. v. Public Utilities Commission, 170 Conn. 1, 3, 363 A.2d 1386 (1975), which involved the interpretation of the time limitation under General Statutes (Rev. to 1975) § 16-35. That statute required that an appeal be taken “within thirty days after the filing of such order” by the commission. General Statutes (Rev. to 1975) § 16-35. In calculating the thirty day period, our Supreme Court excluded the day on which the commission filed its order, December 19, thereby holding that this was the activating day, and the calculation began with the following day. The thirtieth day fell on January 18, thus, the filing on January 20 was untimely. Id., 3.

Two cases, Royce v. Freedom of Information Commission, supra, 177 Conn. 584, and Hanson v. Dept. of Income Maintenance, 10 Conn. App. 14, 521 A.2d 208 (1987), interpreting the limitations period of General Statutes (Rev. to 1977 and Rev. to 1985) § 4-183 (b) provide additional support for our interpretation of the limitations period in this case. In Royce, the date of mailing of the notice of the final decision was October 13, 1977. Our Supreme Court held that “[accordingly, October 13,1977, is the date to be used as the basic starting point for determining the critical issue of whether service was made ‘within thirty days after mailing of the final decision of the agency.’ ” Royce v. Freedom of Information Commission, supra, 586. Consequently, the court concluded that service on November 14,1977, would have been too late, because thirty-one days would have elapsed. In Hanson v. Dept. of Income Maintenance, supra, 14, notice of the decision was mailed on May 3, 1985. We concluded that the plaintiff’s appeal was untimely, having been filed thirty-one days after the mailing of notice of the decision. In both Royce and Hanson, the day the notice of decision was mailed was determined to be the day of the act from which a future time is to be ascertained. Thus, it was excluded from the calculation as the activating day, and the following day was counted as the first day in the computation. This is consistent with our conclusion in the present case. See also Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 535, 582 A.2d 1174 (1990). In Winslow, the Supreme Court concluded that October 28,1988, the day notice was received was the activating day under the time limitation of General Statutes (Rev. to 1987) § 31-293.* * The court excluded it from its calculation in determining that a filing on November 30, 1988, was untimely, being thirty-three days after receipt of the notice.

We recently dealt with a time limitation in Infante v. Porath, supra, 29 Conn. App. 465, involving the four month limitation set forth in Practice Book § 377. Practice Book § 377 provides in relevant part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed.” The trial court had rendered judgment on April 29, 1991. Infante v. Porath, supra, 468. On appeal, we held that the plain language of Practice Book § 377 required that the date of judgment not be included in the calculation, so that the time period started to run on April 30, 1991. Id., 467.

The language of § 49-14 (a) is strikingly similar to the language of the statutes discussed above. Our interpretation of the time limitation in this case is consistent with the decisions in those prior cases interpreting similar language.

We conclude that the final law day on which a party can redeem is the expiration date for the time limited for redemption. That day is the activating date for the thirty day period within which to file a motion for a deficiency judgment. That day, therefore, must be excluded from the calculation of the thirty day period. The day following the last law day is the day on which title vests and is the first day in the calculation of the thirty day period.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-14 provides in relevant part: “(a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. ...”

       The defendant Harold R. Connelly is the record owner of the subject property by virtue of a quitclaim deed from the named defendant. As used in this opinion, the term defendant refers to the named defendant.

       In the first appeal, we held that a typographical error in the docket number on the plaintiff’s motion for a deficiency judgment was a circumstantial defect and did not negate the filing of the motion on January 23,1992.

       General Statutes (Rev. to 1985) § 4-183 provides in relevant part: “(b).... Copies of the petition shall be served upon the agency and all parties of record within thirty days after mailing of such notice . . . .” This version of § 4-183 was effective until July 1, 1989.

       General Statutes (Rev. to 1987) § 31-293 (a) provides in pertinent part: “If either such employee or such employer brings such action against such third person, he shall forthwith notify the other, in writing, by personal presentation or by registered or certified mail, of such fact and of the name of the court to which the writ is returnable, and the other may join as a party plaintiff in such action within thirty days after such notification, and, if such other fails to join as a party plaintiff, his right of action against such third person shall abate . . . .”

       The issue involved in Maresca v. DeMatteo, 6 Conn. App. 691, 506 A.2d 1096 (1986), differs from the issue in this case. In Maresca, the issue was whether the computation of the period in which to file a motion for a deficiency judgment runs from the expiration of the law day for the owner of the equity of redemption or from the expiration of all the law days, including those of subsequent encumbrancers. The measuring event, not the method of counting, was the issue. The holding in Maresca is quite clear and quite limited: “As General Statutes § 49-14 (a) would not be triggered until title became absolute in the plaintiff as of May 1, 1984, the motion was timely filed.” Id., 694. It appears that the calculation was incorrect because May has thirty-one days, but that issue was never addressed by the court.


author: Spear, J.

text:
    Florence Krondes et al. v. William O’Boy, Sr., et al.
    (12682)
    O’Connell, Foti and Spear, Js.
    Argued January 5
    decision released April 4, 1995

      Andrew F. Fink, for the appellants-appellees (defendants).

      Ridgely W.. Brown, with whom was Benjamin E. Gershberg, for the appellee-appellant (plaintiff).
   Spear, J.

The defendants, William O’Boy, Sr., and William O’Boy, Jr., appeal from a judgment rendered in favor of the plaintiff in the amount of $259,896 on the plaintiff’s complaint of breach of a contract to sell certain real estate. The defendants claim that the trial court (1) improperly denied their motions for directed verdicts because (a) a counteroffer by O’Boy, Sr., was never accepted by the plaintiff and, therefore, there was no contract, (b) there was no agreement as to the identity of the parties to the contract and (c) O’Boy, Jr., could not have formed a contract with James Krondes because James Krondes died before O’Boy, Jr., signed the alleged contract, and (2) improperly instructed the jury that it could consider whether O’Boy, Sr., conditioned his acceptance of the plaintiff’s offer on the change that he made in the proposed contract. The plaintiff’s cross appeal asserts that the trial court improperly denied her motion to set aside the verdict for the defendants on the fraud count of the plaintiff’s complaint. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff, Florence Krondes, and her husband, James Krondes, entered into negotiations to purchase certain real estate from the defendant O’Boy, Sr. The property had been damaged by fire, and O’Boy, Sr., was to renovate the property as part of the agreement. The total agreed upon price was $550,000. The Krondeses forwarded a proposed contract, signed by them, and a check in the amount of $49,500 to O’Boy, Sr., in late January or early February, 1986. O’Boy, Sr., crossed out the words “such partition” from the following sentence in the proposed contract: “This shall include exterior stucco, interior floor, ceiling and wall finishing, new exterior front and rear doors for middle section, bathrooms in each of the three units and such partition work as purchaser requires.” O’Boy, Sr., signed the document and returned it to the Krondeses’ attorney sometime in February, 1986. At that time, O’Boy, Sr., owned an undivided one-half interest in the property with his son, O’Boy, Jr.

For approximately one year after O’Boy, Sr., signed the document, Florence Krondes and O’Boy, Sr., were in contact regarding the progress of the construction work on the property. Such discussions continued after James Krondes died on May 8,1986. Florence Krondes and O’Boy, Sr., also discussed the extension of the Krondeses’ mortgage commitment that was necessitated by the delay in construction.

On March 14, 1987, O’Boy, Sr., conveyed his interest in the property to O’Boy, Jr. On March 30, 1987, O’Boy, Jr., signed the document that had previously been signed by the Krondeses and O’Boy, Sr. The document was signed in the presence of O’Boy, Sr., Florence Krondes and the Krondeses’ attorney with the full knowledge of O’Boy, Sr.

In August, 1987, the O’Boys conveyed the property to Paul Featherton, and, thereafter, Florence Krondes brought suit against both O’Boys in her individual capacity and as executrix of the estate of James Krondes. The jury returned verdicts for the plaintiff on the breach of contract counts but not the fraud count, and the court rendered judgment thereon. This appeal and cross appeal ensued.

The defendants admitted in their original answer that O’Boy, Sr., had entered into a contract for the sale of the property. Shortly before trial, the defendants retained new counsel and filed an amended answer that put the plaintiff to her proof as to the existence of a contract. The original answer was put into evidence as an exhibit for the plaintiffs. The jury returned answers to interrogatories with the verdict stating that it found an agreement between the Krondeses and both O’Boys. The jury also specifically found that although O’Boy, Jr., had “defrauded the plaintiff” by his statements or conduct, the plaintiff Florence Krondes had not relied on such statements or conduct to her detriment. The jury answered no to the interrogatory that asked whether O’Boy, Sr., had defrauded the plaintiff.

I

The defendants claim that the trial court improperly denied their motions for a directed verdict. They argue, on the basis of three alternative theories, that no contract existed between the Krondeses and O’Boy, Sr., or between either of the Krondeses and O’Boy, Jr. After the verdict was rendered, the defendants filed timely motions to set aside the verdict and for judgment notwithstanding the verdict in accordance with their motions for directed verdict.

“At the outset, we note the appropriate standard of review. In considering the trial court’s denial of a motion for directed verdict, we view the evidence in the light most favorable to the prevailing party. . . . Nevertheless, a verdict will be set aside and judgment directed if we find that the jury could not reasonably and legally have reached their conclusion.” (Citations omitted; internal quotation marks omitted.) Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988). “A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion.” (Internal quotation marks omitted.) Gore v. People’s Savings Bank, 35 Conn. App. 126, 129, 644 A.2d 945, cert. granted, 231 Conn. 923, 648 A.2d 162 (1994).

A

The defendants first argue that no contract existed because the counteroffer by O’Boy, Sr., was never accepted by the Krondeses. Viewing the evidence in the light most favorable to the plaintiff, we conclude that the jury could have found that a contract existed between the Krondeses and O’Boy, Sr. The jury reasonably could have found that the acts of Florence Krondes manifested assent to and acceptance of the counteroffer by O’Boy, Sr. Manifestation of assent to a contract “may be made wholly or partly by written or spoken words or by other acts or by failure to act.” (Emphasis added; internal quotation marks omitted.) Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981). In this case, discussions between Florence Krondes and O’Boy, Sr., concerning the progress of the construction work on the site and the extension of the Krondeses’ mortgage commitment was evidence that the parties had mutually assented to a contract. “In order to form a binding and enforceable contract, there must exist an offer and an acceptance based on a mutual understanding by the parties. . . . The mutual understanding must manifest itself by a mutual assent between the parties.” (Citation omitted.) Steinberg v. Reding, 24 Conn. App. 212, 214, 587 A.2d 170 (1991). The conduct of the parties after the document was signed by the Krondeses and O’Boy, Sr., his failure to return the $55,000 deposit and his admission that there was a contract were sufficient evidence from which the jury reasonably could have found mutual assent to a contract.

B

The defendants next claim that they had no contractual obligation because there was no evidence that O’Boy, Sr., ever agreed to O’Boy, Jr.’s becoming a party to the contract. The defendants correctly assert that “the identities of the contracting parties must be reasonably certain.” (Internal quotation marks omitted.) Robert T. Reynolds Associates, Inc. v. Asbeck, 23 Conn. App. 247, 250, 580 A.2d 533 (1990). This proposition does not help the defendants, however, because the evidence left virtually no room for any dispute as to the identities of the parties to the contract. Evidence that O’Boy, Sr., had transferred his interest in the property to O’Boy, Jr., after signing the contract, and that the contract had been presented to and signed by O’Boy, Jr., in the presence and with the knowledge of O’Boy, Sr., was sufficient for the jury to find that O’Boy, Sr., had assented to O’Boy, Jr.’s becoming a party to the contract.

C

The defendants assert that O’Boy, Jr., could not have entered into a contract with James Krondes because James Krondes died on May 8, 1986, and his “offer” expired upon his death. The defendants have failed to present a record that is adequate to review this issue. We cannot ascertain, on this record, whether the plaintiff was acting solely as the executrix of James Krondes’ estate or both as executrix and in her individual capacity when she presented the contract to O’Boy, Jr., for his signature. Practice Book § 4061 provides: “It is the responsibility of the appellant to provide an adequate record for review.” Because the appellant has failed to provide a proper record, we decline to review this claim.

II

The defendants’ last claim is that the trial court improperly instructed the jury that it must decide whether O’Boy, Sr., conditioned his “acceptance of the contract” on the changes he had made to the language of the contract. We decline to review this claim because it is not adequately briefed.

In support of this claim, the defendants refer to one of the two cases cited in their brief, Cavallo v. Lewis, 1 Conn. App. 519, 473 A.2d 338 (1984). They assert in their brief, “As Cavallo teaches, any departure in the terms of an offer invalidates the offer.”

Cavallo v. Lewis, supra, 1 Conn. App. 519, is a per curiam opinion without detailed facts that we could compare to the circumstances here. No other authority or analysis is offered. “We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d 337 (1991); see also Practice Book § 4065; State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987).

III

On the cross appeal, the plaintiff claims that the trial court improperly refused to set aside the verdict for the defendants on the fraud count of the complaint. They assert that the evidence, particularly the testimony by O’Boy, Jr., that he never intended to convey the property to the plaintiffs, overwhelmingly proved fraud.

We review the trial court’s action in granting or denying a motion to set aside a verdict by an abuse of discretion standard. State v. Hammond, 221 Conn. 264, 270, 604 A.2d 793 (1992); Jeffries v. Johnson, 27 Conn. App. 471, 475, 607 A.2d 443 (1992). The jury found that although O’Boy, Jr., had made misrepresentations to the plaintiff by his words and conduct, the plaintiff never relied on such words and conduct. The jury found no misrepresentation by O’Boy, Sr. We conclude that the jury could reasonably have concluded as it did on the fraud count. Therefore, the trial court did not abuse its discretion in denying the plaintiff’s motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff, Florence Krondes, pursued this claim both individually and as executrix of her husband’s estate. For purposes of this opinion, the word plaintiff will refer to Krondes in both capacities.

       This sum brought the plaintiffs total deposit to $55,000. A binder deposit of $5500 had been made earlier.

       It is undisputed that O’Boy, Jr., signed the contract on March 30,1987, nearly one year after James Krondes’ death.

       Even if O’Boy, Jr., were to prevail on this claim, we discern no practical relief that would be available to him in light of our affirmance of the judgment in favor of Florence Krondes, individually, against him. If he prevailed on this claim the amount of the judgment and his liability to pay that amount would not change. The only difference would be that he would be obligated to pay Florence Krondes, individually, rather than individually and as executrix of the estate of James Krondes.

       Even if the defendants are correct, assent to the counteroffer by O’Boy, Sr., could have been found by the jury as discussed in part I of this opinion.


text:
    State of Connecticut v. Theodore Jones
    (12213)
    O’Connell, Lavery and Schaller, Js.
    Argued October 31, 1994
    decision released April 4, 1995

      Thomas Ullmann, public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (3), and one count of failure to appear in the first degree in violation of General Statutes § 53a-172. 3The defendant claims that the trial court improperly (1) admitted into evidence the defendant’s answers to questions reasonably likely to elicit an incriminating response, posed by detectives immediately following the booking procedure, while in custody and without having been given Miranda warnings, in violation of his right against self-incrimination under the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution, 6(2) refused to sever the failure to appear charge, in violation of his constitutional right to present a defense, following a convincing showing of prejudice and the offering of alternative remedies to preserve the economy and expedition of judicial resources and (3) concluded that there was sufficient evidence to establish that the defendant had been legally called in court, an element necessary to sustain the conviction of failure to appear in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 15, 1990, the defendant went with his girlfriend, Beverly Williams, to the Ebony Lounge in Hamden. They were delivering food to Williams’ friend, Bessie Bird, who was working as a bartender at the Ebony Lounge.

An intoxicated man was sitting at the end of the bar, talking to himself and acting strange. Bird refused to continue to serve the intoxicated man, whereupon the man became angry and demanded that he be served. Williams tried to help Bird deal with the inebriated customer. The defendant sat next to Williams as she talked to the intoxicated man. When the intoxicated man made a remark to Williams, the defendant got up as if to hit him and said, “You talking to my woman.” The defendant was stopped by two other patrons, Fred Gray and James Burgess. They told the defendant to stay out of it and let the bartenders handle it. The intoxicated man left soon thereafter.

The defendant and Burgess got into an argument, with Burgess telling the defendant that he should have stayed out of the dispute. The defendant then sat at a table with Williams, where they argued about whether the intoxicated man had called her a “bitch,” as the defendant insisted, or a “witch,” as Williams believed. The defendant and Williams asked Bird which word the man had used.

Burgess overheard the defendant telling Williams and Bird that Burgess should have stayed out of the dispute. Burgess walked over to where the defendant was standing, whereupon the defendant pushed him. Burgess pushed the defendant back.

A fistfight started between the defendant and Burgess. After being knocked to the floor, the defendant took a pearl-handled knife with a four inch blade out of his pocket and cut Burgess on the face. Bird and Williams tried unsuccessfully to intervene. The defendant wielded the knife toward Burgess and said, “Come on, I’ll cut you again.” Gray attempted to intervene, but the defendant threatened to cut him also. The defendant then left the bar.

Burgess was taken to a hospital. His facial wounds required numerous stitches and caused permanent scarring. Later that evening, the defendant telephoned Bird at the Ebony Lounge and apologized for the incident. That same night, the police took statements from Bird, Gray, and Burgess, all of whom knew the defendant by the name “Blue.” Bird telephoned Williams at the request of the police, and it was established that the individual known as Blue was Roosevelt Smith.

On August 21, 1990, the police went to Williams’ home, where they thought the defendant lived, but they did not find him there. On October 30,1990, the police returned to Williams’ residence with a warrant charging Roosevelt Smith with first degree assault in the Ebony Lounge incident. The police found the defendant in a bedroom closet and arrested him. During the booking procedure at the police station, the defendant told the police his name was Roosevelt Smith, and he signed the fingerprint cards with that name.

On October 31, 1990, the defendant was arraigned as Roosevelt Smith in Meriden Superior Court and was assigned a public defender. He was released on a promise to appear. On November 14, 1990, the defendant was notified through a written notice of transfer, which he signed as Roosevelt Smith, that his case was being transferred to the Superior Court in New Haven for November 27,1990. When his case was called on that date, the defendant did not appear.

On February 11, 1991, the Hamden police went to Williams’ address with a warrant for the rearrest of Roosevelt Smith for failure to appear. They found the defendant there, and arrested him. During the booking procedure, the defendant gave his name as Roosevelt Smith, and he signed the fingerprint cards as Roosevelt Smith.

When the police ran the name Roosevelt Smith through their computer files, they received the name Theodore Jones as an alias. When the defendant was asked about the discrepancy in names, he stated that he used the name Roosevelt Smith in the Ebony Lounge incident, and that his name was Theodore Jones. As a result of the false signature given on the fingerprint cards, the defendant was charged with and arrested for the crimes of forgery, criminal impersonation, and interfering with a police officer. The defendant pleaded guilty to forgery in the third degree in violation of General Statutes § 53a-140 and was sentenced to six months incarceration, suspended, with one year conditional discharge.

I

The defendant first claims that the trial court improperly denied his motion to suppress his answers to questions, posed by detectives immediately following the booking procedure, that were reasonably likely to elicit incriminating responses. The defendant had been asked those questions while in custody and without having received Miranda warnings, in violation of his right against self-incrimination under the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We disagree.

The following additional facts are necessary for resolution of this matter. Outside the presence of the jury, the state proffered the testimony of Detective John Riordan of the Hamden police department. Riordan testified that during the booking procedure on the assault charge, the defendant represented himself as Roosevelt Smith. The defendant signed his fingerprint card as Roosevelt Smith.

On February 11,1991, the defendant was rearrested for his failure to appear in court on November 27,1990, when the assault case was called. The warrant was issued in the name of Roosevelt Smith.

During the booking procedure on the failure to appear charge, the defendant again signed the fingerprint cards as Roosevelt Smith. Riordan noticed that the defendant was having difficulty spelling Roosevelt. Riordan ran the name Roosevelt Smith through the police computer files and received information that Roosevelt Smith had an alias of Theodore Jones. When Riordan asked the defendant about the discrepancy in his name, the defendant acknowledged that his name was Theodore Jones, and that he had used the name Roosevelt Smith in the assault investigation.

The state wanted to use Riordan’s testimony about the defendant's use of the name Roosevelt Smith to show consciousness of guilt on the assault charge, and to show that the defendant knew that his pending case was in the name of Roosevelt Smith on the failure to appear charge. The defendant moved to suppress his statements to Riordan and the fingerprint cards he had signed, arguing that the statements and signatures had been obtained from him while he was in custody and without the benefit of Miranda warnings. The trial court denied the motion to suppress.

As a preliminary matter, we must determine whether this claim was waived by the defendant’s plea of guilty on the forgery charge. The state argues that the unconditional entry of a voluntary plea of guilty “ ‘operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings.’ ” State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991), quoting State v. Madera 198 Conn. 92, 97, 503 A.2d 136 (1985). The authorities cited by the state are distinguishable from this case. In both Niblack and Madera, a plea was entered in the file, followed by an attempt on appeal to challenge a pretrial proceeding in the same case. This was not the situation here.

In this case, no plea was entered in a file that was subject to appeal. In Niblack and Madera, the appeals arose from the case that had been subject to the plea bargain. Here, the plea was entered in the forgery case, not in the assault or failure to appear cases, which are the subject of the appeal. The holdings in Niblack and Madera do not extend to the factual underpinnings in this case.

We now consider whether the trial court properly denied the defendant’s motion to suppress. Custodial interrogation under Miranda includes both express questioning, and “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).

The questions the police asked of the defendant during the booking procedure qualify as custodial interrogation. In Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990), however, a plurality of the Supreme Court recognized a “routine booking question” exception to the requirement of Miranda warnings. The exception encompasses questions that secure “biographical data necessary to complete booking or pretrial services.” (Internal quotation marks omitted.) Id. The court acknowledged that the questions qualify as custodial interrogation but held that questions such as name, address, height, weight, eye color, date of birth, and age fall outside the sweep of Miranda v. Arizona, supra, 384 U.S. 436.

Here, the purpose of the questions was not to elicit an incriminating response. Rather, the purpose was to gather the biographical data necessary to complete the booking procedure. “The information requested here— merely a name — was simply that identification of a suspect necessary for his booking and arraignment.” United States v. Carmona, 873 F.2d 569, 573 (2d Cir. 1989). “Routine questions . . . ordinarily innocent of any investigative purpose, do not pose the dangers Miranda was designed to check . . . ” United States v. Gotchis, 803 F.2d 74, 79 (2d Cir. 1986).

The situation in this case was unlike that in United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983), in which the questions asked “related directly to an element of a crime that . . . [the investigator] had reason to suspect.” Here, the defendant’s true name was not in itself incriminatory. The defendant’s name did not connect him to the assault, nor was it an element of the assault. It was merely used at trial to show consciousness of guilt. Moreover, even had Riordan known the defendant’s name before he began booking him, he could have asked the defendant what his name was. United States v. Carmona, supra, 873 F.2d 573. “Police often know the names of suspects they intend to apprehend .... As a cautionary measure, police usually prudently inquire as to the suspect’s name to ensure that the wrong person is not apprehended.” Id.

The statements by the defendant and the signatures on the fingerprint cards fall within the “routine booking question” exception to the Miranda warning requirement. The trial court’s denial of the defendant’s motion to suppress was proper.

II

The defendant next claims that the trial court improperly denied his motion to sever the charge of failure to appear in the first degree. He argues that the resulting prejudice was beyond the curative power of the trial court’s instructions and deprived him of his right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. We do not agree.

The trial court has the authority to order a defendant to be tried jointly on charges arising from separate informations. General Statutes § 54-57; Practice Book § 829. “The decision of whether to order severance of cases joined for trial is within the discretion of the trial court, and ‘the exercise of that discretion [may] not be disturbed unless it has been manifestly abused.’ ” State v. Boscarino, 204 Conn. 714, 720-21, 529 A.2d 1260 (1987), quoting State v. King, 187 Conn. 292, 299, 445 A.2d 901 (1982).

On appeal, the defendant bears the burden of showing that the joint trial substantially prejudiced him. State v. Grant, 33 Conn. App. 133, 137, 634 A.2d 1181 (1993); State v. Carpenter, 19 Conn. App. 48, 62, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). “Substantial prejudice does not necessarily result from a denial of severance even where evidence of one offense would not have been admissible at a separate trial involving the second offense. A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion, of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly.” State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).

There are several factors that a trial court should consider in determining whether severance is required. “These factors include: (1) whether the charges involved discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial.” (Internal quotation marks omitted.) State v. Jennings, 216 Conn. 647, 658, 583 A.2d 915 (1990). If we find that any of these factors is present, we must decide whether the trial court’s jury instructions cured any prejudice that might have occurred. Applying these factors to the present case, we conclude that joinder did not result in substantial injustice.

First, the charges pending against the defendant involved “discrete, easily distinguishable factual scenarios.” Although the two counts were legally related, the evidence of the assault was admissible on the failure to appear count as evidence on the element of being charged with the commission of a felony; see State v. Candito, 4 Conn. App. 154, 161, 493 A.2d 250 (1985); and the evidence of the defendant’s failure to appear in court was admissible as consciousness of guilt on the assault count. Even if the evidence of one count was not admissible on the other count, severance was not required; State v. Pollitt, supra, 205 Conn. 658; because the state presented its evidence in a clear, comprehensive and straightforward manner, the jury was not likely to become confused. State v. Rose, 29 Conn. App. 421, 431, 615 A.2d 1058, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992).

Second, although assault involves a certain element of violence, the conduct of the defendant in this case was not so brutal or shocking as to create a substantial risk that the jury would treat the evidence cumulatively. State v. Herring, 210 Conn. 78, 97, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). “The physical harm that was inflicted on the victim, although serious, was not disabling”; State v. Jennings, supra, 216 Conn. 659; and does not approach the type of physical harm considered brutal or shocking in Boscarino. State v. Herring, supra, 96.

Third, “the trial was of short duration and the evidence was not complex.” State v. Jennings, supra, 216 Conn. 659. The jury heard the testimony of seven witnesses over three days with the admission of eight exhibits. See State v. Herring, supra, 210 Conn. 97; cf. State v. Boscarino, supra, 204 Conn. 723-24. The complexity and risk of confusion at trial did not approach that involved in Boscarino. State v. Herring, supra, 97. The presentation of evidence was orderly and the jury was not likely to confuse the evidence relevant to each case. State v. Horne, 19 Conn. App. 111, 124, 562 A.2d 43, cert. granted, 213 Conn. 807, 568 A.2d 793 (1989).

“Finally, although ‘ “a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissible] evidence [of other crimes]” ’; State v. Boscarino, [supra, 204 Conn. 724-25], quoting State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980); where the likelihood of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the defendant’s right to a fair trial has been preserved.” State v. Herring, supra, 210 Conn. 97. In this case, the trial court instructed the jury that the defendant was on trial for two distinct offenses that must be considered separately. “The trial court’s instruction further minimized any risk of prejudice that might have been caused by the joinder of the two informations.” State v. Jennings, supra, 216 Conn. 647. We conclude that the trial court did not abuse its discretion in denying the defendant’s motion to sever.

Ill

The defendant’s final claim is that there was insufficient evidence to sustain his conviction for failure to appear. Specifically, he argues that the state failed to present any evidence to prove the essential element that he was legally called to appear in court. We do not agree.

“The standard of review of an insufficiency claim is twofold. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Milardo, 224 Conn. 397, 402-403, 618 A.2d 1347 (1993); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).” (Internal quotation marks omitted.) State v. Harris, 227 Conn. 751, 757, 631 A.2d 309 (1993). “The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Adams, 225 Conn. 270, 276, 623 A.2d 42 (1993).

On the basis of the evidence and the inferences reasonably drawn therefrom, the jury could have concluded beyond a reasonable doubt that the defendant failed to appear pursuant to § 53a-172 (a). For the purpose of our consideration of this offense, we take judicial notice of the file in the trial court. See Krawiec v. Kraft, 163 Conn. 445, 451, 311 A.2d 82 (1972). Upon examination of the promise to appear included therein, we note that on October 31, 1990, the defendant, under oath, signed a promise to appear in the Meriden Superior Court. On November 14,1990, the case was transferred to part A of the New Haven Superior Court, where the case was continued until a hearing on November 27, 1990. The defendant was given notice of the transfer to New Haven and the November 27 continuance date, by virtue of a notice of transfer form, which he signed as Roosevelt Smith. The file indicated that on November 27,1990, the New Haven Superior Court ordered the rearrest of the defendant for failure to appear on that date.

There was no dispute that the defendant had received notice of his obligation to appear in court on November 27,; 1990. The defendant contends that the evidence was insufficient for the jury to have found that he was legally called on November 27, 1990. Although there was no direct evidence that established the defendant was legally called on November 27,1990, the jury could have reasonably inferred that the arrest warrant was issued because the defendant was not in court on the day his case was called. Viewing the evidence in the light most favorable to sustaining the verdict; State v. Turmon, 34 Conn. App. 191, 195, 641 A.2d 138 (1994); we conclude that the evidence was sufficient for a jury reasonably to have inferred that the rearrest warrant was issued on November 27,1990, because the defendant was legally called and failed to appear at New Haven Superior Court as he was required to do.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when ... (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-172 (a) provides: “A person is guilty of failure to appear in the first degree when, while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear.”

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

       The fifth amendment to the United States constitution provides in relevant part: “No person shall be . . . compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .” The fifth amendment is applicable to state criminal prosecutions by virtue of the fourteenth amendment. Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law . . . .”

       General Statutes § 53a-140 (a) provides: “A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, or issues or possesses any written instrument which he knows to be forged.”

       Although the defendant has framed his claim under both the state and federal constitutions, he has not provided an independent analysis of our state constitutional provisions. In the absence of any such analysis by the defendant in this case, we confine our analysis to a discussion of his rights under the federal constitution. State v. Pinnock, 220 Conn. 765, 776 n.3, 601 A.2d 521 (1992); Phillips v. Warden, 220 Conn. 112, 131 n.15, 595 A.2d 1356 (1991).


author: Per Curiam.

text:
    Karen G. deFur v. Patrick deFur
    (13134)
    O’Connell, Landau and Spear, Js.
    Argued February 10
    decision released April 4, 1995

      Edward J. Dolan, with whom, on the brief, was Kent Harvey, for the appellant (plaintiff).

      Francis M. Glynn, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court modifying one of the financial orders entered as part of the judgment that dissolved their marriage on March 27, 1992.

Whether the financial order in question was a modifiable order of child support or part of the nonmodifiable property settlement is at issue. Also at issue is the amount the trial court found as the arrearage in the defendant’s payment of this order. A third issue on appeal concerns the propriety of the trial court’s determination of the justification for the defendant’s reduction in income. We decline review of these issues because we were not presented with an adequate record.

Each of these issues requires a finding of facts by the trial court. Directly on point are this court’s decisions in Gorneault v. Gorneault, 34 Conn. App. 923, 924-25, 642 A.2d 735, cert. denied, 231 Conn. 911, 648 A.2d 152 (1994), and Thoracic & Cardiovascular Associates of New Haven, P.C. v. Sartell, 34 Conn. App. 909, 909-10, 641 A.2d 831 (1994), both of which held: “The plaintiff has failed to present either a written memorandum of decision or a transcribed copy of an oral decision signed by the court, stating its decision on the issues in the case and, if there were factual findings, the factual basis for its decision. The plaintiff, as appellant, has the responsibility to provide this court with an adequate record for review. Practice Book § 4061; DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983); Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); Connecticut Bank & Trust Co., N.A. v. Linsky, 32 Conn. App. 13, 15, 627 A.2d 954 (1993); Augeri v. Planning & Zoning Commission, 24 Conn. App. 172, 178, 586 A.2d 635, cert. denied, 218 Conn. 904, 588 A.2d 1383 (1991). ‘This court recently noted that we cannot render a decision without first having “specific findings of fact to determine the basis of the court’s ruling.” State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993).’ Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993). We have consistently stated that it is the responsibility of the appellant to provide an adequate record for review and we see no reason to depart from that rule.”

In Gallant v. Esposito, 36 Conn. App. 794, 799, 654 A.2d 380 (1995), we discussed in further detail the reasons why we must decline review when we are not furnished with an adequate record for review and noted that “ ‘[u]nder normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.’ J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987); C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 4.1 (a).”

The judgment is affirmed.


author: Hennessy, J.

text:
    Arlyne Fox v. Colony T.V. and Appliance, Inc., et al.
    (12877)
    Foti, Landau and Hennessy, Js.
    Argued January 17
    decision released April 4, 1995

      Peter J. Dank, with whom, on the brief, was Michael P. Bowler, for the appellants (defendants).

      George W. Ganim, Jr., for the appellee (plaintiff).
   Hennessy, J.

The defendants appeal from the trial court’s judgment setting aside the jury’s verdict and ordering a new trial. The defendants claim that the trial court’s action was an abuse of discretion because there was no evidence of jury confusion in the verdict rendered. We disagree and affirm the judgment of the trial court.

The following facts form the basis of this appeal. This negligence action was tried to a jury in April, 1993. At the close of the evidence, the trial court instructed the jury as to the plaintiff’s burden of proof, causation, damages, comparative negligence, and the method of completing either the plaintiff's or the defendant^’ verdict form. During deliberations, the jury submitted a question to the court in a note that read: “We are confused as to which form should be used if, one, fifty percent negligence each; two, no damages, plaintiff’s verdict or defendants’ verdict?” In response, the trial court instructed the jury: “It would be a plaintiff’s verdict form.”

The jury returned with a completed plaintiff’s verdict form that read: “We the jury find the issues in favor of the plaintiff Arlyne Fox and against the defendants Colony T.V. and Appliance, Inc., and Laurel Creagh and therefore find the damages to be as follows: [total damages zero.]” The plaintiffs verdict form further indicated that the negligence attributable to the defendants was 50 percent and the negligence attributable to the plaintiff was 50 percent. The form clearly explained that if the percentage of negligence attributable to the plaintiff was 50 percent or less, the percentage of negligence attributable to the defendant should be multiplied by the total damages found to ascertain the amount of the damage award. Because the jury found zero total damages, however, the final figure of damages awarded was also zero.

The plaintiff filed a timely motion to set aside the verdict and for a new trial, arguing that the verdict was inconsistent and ambiguous. After hearing argument on this motion the trial court granted the plaintiffs motion and rendered judgment ordering a new trial. It is from that judgment that the defendants appeal.

In Connecticut, a jury’s verdict is normally accorded great deference. Balboni v. Stonick, 2 Conn. App. 523, 529-30, 481 A.2d 82 (1984). Nevertheless, it is the trial court’s duty to set aside a verdict when “ ‘it does manifest injustice, and is . . . palpably against the evidence.’ ” Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988). We will not disturb the trial court’s decision to set aside the verdict unless there has been a clear abuse of discretion. Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993).

In determining whether a jury verdict does manifest injustice, “the only practical test is whether the total damages awarded fall somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, prejudice, mistake or corruption. ... A direct showing of partiality, prejudice, mistake or corruption is not required. [I]f the amount awarded shocks the sense of justice as to what is reasonable, then the inferred conclusion is that the jury was misguided in reaching its decision.” (Citations omitted; internal quotation marks omitted.) Malmberg v. Lopez, supra, 208 Conn. 680.

Our Supreme Court has stated that “[a] plaintiff’s verdict with a nominal damage award ordinarily suggests that the jury found that despite the defendant’s liability, the plaintiff failed to prove damages. . . . The jury’s intent in rendering a plaintiff’s verdict with zero damages ... is far less clear.” (Citation omitted.) Id., 681-82. In this situation, it cannot be stated with certainty either that the jury found that the plaintiff had failed to prove any damages or that the jury was confused as to the correct interplay between damages and liability. Id., 682. “[T]he jury’s intent in finding the issues for the plaintiff, but awarding zero damages, is known only to the jurors, and this court’s endorsement of one plausible explanation of the verdict over another would amount merely to speculation.” Id., 683. The appropriate course of action when such an ambiguous verdict is rendered is to order a new trial on all issues. Id., 682; see also Ginsberg v. Fusaro, supra, 225 Conn. 425.

In this case, the jury found in favor of the plaintiff on the issue of liability, yet awarded zero total damages. Because the jury was instructed that the finding of liability involved finding negligence by the defendants, which was a substantial factor in causing the plaintiff’s injuries, a plaintiff’s verdict with zero total damages is inherently ambiguous. Ginsberg v. Fusaro, supra, 225 Conn. 425. The trial court’s decision to set aside the verdict and to order a new trial comports perfectly with our Supreme Court’s holdings in Malmberg and Ginsberg.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants also argue that, because the plaintiff failed to take exception to this jury instruction, the plaintiff waived the right to have the court consider the propriety of this instruction in the motion to set aside the verdict. Our review of the record indicates that the instruction was proper; see General Statutes § 52-572h (b); and that the plaintiffs motion to set aside the verdict challenged the verdict as confusing and ambiguous, not the court’s instruction as to which verdict form to use. There is no merit to this claim.