text:
    STATE OF CONNECTICUT v. JESUS ROMERO
    (AC 18953)
    Zarella, Pellegrino and O’Connell, Js.

      Argued May 9
    officially released August 22, 2000

      Patrick F. Caruso, with whom were Peter W. Hull and, on the brief, Charles D. Ray, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom were CaraF. Eschuk, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Opinion

ZARELLA, J.

The defendant, Jesus Romero, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (2) and 53a-49, one count of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-147, § l, and one count of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. On appeal, the defendant claims that the trial court improperly admitted certain constancy of accusation testimony that was (1) made long after the events complained of, (2) no longer constant due to an intervening recantation, (3) beyond the scope permitted by State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc), and (4) in violation of the state and federal constitutions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim was born on March 4,1987. The defendant was the boyfriend of the victim’s mother. In 1989, the defendant lived with the mother and continued to live with the family for six years. The mother had one child with the defendant.

When the victim was five years old, the defendant began sexually abusing her. Between 1993 and 1995, the defendant on several occasions had the victim perform oral sex on him. On one occasion in 1994, the defendant attempted to have sexual intercourse with the victim, but was unsuccessful. During these incidents, the mother was not home.

The victim initially did not report these activities to anyone. In August, 1996, however, the victim told her mother about the defendant’s conduct. At this time, the defendant was not residing with the mother and the victim. The mother then contacted the police. Lieutenant Kathleen Wilson of the Waterbury police department interviewed the victim, who disclosed the details of the defendant’s conduct, including that the defendant had a mole on his penis. Photographs submitted at trial confirmed this distinguishing mark as did the testimony of the victim, the victim’s mother and the defendant. Moreover, the mother, as well as the defendant, testified that there was no innocent way that the victim could inadvertently have observed the defendant. In October, 1996, the police arrested and charged the defendant with risk of injury to a child, sexual assault in the first degree and attempt to commit sexual assault in the first degree.

On or about June, 1997, the victim’s family moved to New Hampshire. At this time, the victim recanted her allegations to her mother. The mother took the victim to see Sidney Horowitz, a psychologist. During her meeting with Horowitz, the victim again recanted her allegations against the defendant. At trial, the victim testified that she had recanted because she had felt bad for her half-brother, who was the defendant’s son.

In 1997, the victim told a friend, Y, about the defendant’s conduct. The victim then informed her mother that her original allegations against the defendant were true. Y testified as a constancy of accusation witness regarding the victim’s complaint.

On July 7 and 8, 1998, the court granted motions by the defendant for judgment of acquittal of one count of attempt to commit sexual assault in the first degree and one count of risk of injury to a child. On July 10, 1998, the jury returned a verdict of guilty on the remaining five counts. On September 11,1998, the court sentenced the defendant to a total effective sentence of twenty-five years imprisonment, suspended after fifteen years, and twenty-five years probation. This appeal followed. Additional facts will be set forth as they become relevant in the context of the defendant’s claims.

I

The defendant claims first that the trial court improperly admitted into evidence Y’s testimony under the constancy of accusation doctrine because the victim’s statements to her were made “long” after the defendant was arrested and charged. We disagree.

“[A] trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Citation omitted; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997).

The constancy of accusation doctrine was an extension of the fresh complaint rule. See State v. Troupe, supra, 237 Conn. 297. The fresh complaint rule, adopted in State v. De Wolf, 8 Conn. 93, 100 (1830), stated that “on an indictment for rape . . . such evidence is received to [show] constancy in the declarations of the witness. If a female testifies, that such an outrage has been committed on her person, an [inquiry] is, at once, suggested, why it was not communicated to her female friends.” State v. Kinney, 44 Conn. 153 (1876), expanded the rule to allow the state to introduce testimony concerning the details of the complaint. “Why has the rule been adopted that in prosecutions for rape . . . the public prosecutor may show that the woman on whom the assault was made complained of it to her friends? It is simply because such a course would be natural if the crime had been committed, but very unnatural if it had not been.” Id., 156.

Before modifying the constancy of accusation doctrine in Troupe, the court allowed “the state to introduce the fact . . . and . . . details of the complaint once the victim [had] testified regarding the alleged sexual assault and the identity of the person or persons to whom a complaint had been made.” State v. Troupe, supra, 237 Conn. 297. In Troupe, our Supreme Court concluded that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator .... Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes.” Id., 304. Furthermore, “[b]efore the evidence may be admitted . . . the victim must first have testified concerning the facts of the sexual assault and the identity of the person ... to whom the incident was reported.” Id., 304-305.

In the present case, Y’s testimony concerning the victim’s statements to her is not inadmissible on the ground that the statements were made a long time after the victim first complained about the assault. Our Supreme Court has stated that “[a] delayed report . . . was not subject to exclusion on the ground that it had not been made at a ‘natural’ time.” State v. Parris, 219 Conn. 283, 291, 592 A.2d 943 (1991). Moreover, “[wjhatever delay took place between the time of the attack and the time the victim first told witnesses of it does not affect the admissibility of the evidence, but merely presents a question of fact for the trier as to the weight to be given it.” State v. Brigandi, 186 Conn. 521, 529, 442 A.2d 927 (1982). The delay, therefore, in the victim’s statements to Y does not make Y’s testimony inadmissible, but rather, is a factor to be considered by the trier of fact.

The defendant also claims that the constancy of accusation doctrine is inapplicable to a victim’s statements to a witness made after a victim’s recantation because the statements are not made in the “natural” course. Our Supreme Court has stated that prior court decisions “did not condition the admission of constancy evidence upon a court’s finding that the victim’s statements had been made at a ‘natural’ time.” State v. Parris, supra, 219 Conn. 289. Furthermore, “the term ‘natural’ as employed in our prior caselaw was not connected to any preliminary issue of admissibility for the trial court’s resolution.” Id., 290. Rather, “[t]hat term merely represents the phenomenon of human behavioral expectations that lends corroborative force, on one hand, to a sexual assault victim’s report, of the fact of the incident and its details to another, and lends impeaching force, on the other hand, to the victim’s failure to make such a report or include particular details in the report made.” Id.

Accordingly, we follow the Supreme Court’s assertions in Parris that the admission of constancy of accusation evidence is not conditioned on the victim’s statements to the witness being made at a “natural” time. The defendant’s claim, therefore, is rejected.

II

The defendant next argues that the victim’s recantation caused a break in the chain of constant accusation, thereby rendering her subsequent corroborative statements inadmissible as a matter of law. Because the defendant did not properly preserve this claim at trial, we decline to review it.

After other constancy witnesses had testified and recantation evidence had been admitted, the defendant objected to the admission of Y’s constancy testimony. The defendant objected on the ground that Y’s testimony was unreliable, irrelevant and should not exceed the scope of Troupe. The defendant further objected that Y’s testimony was immaterial, unnecessary to remove juror bias and impermissible because Y was a child. On appeal, the defendant now raises for the first time the claim that the victim’s recantation “broke” the chain of constant accusation, rendering Y’s testimony inadmissible as constancy evidence.

“Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. . . . To permit a party to raise a different ground on appeal than was raised during trial would amount to ‘trial by ambuscade,’ unfair both to the trial court and to the opposing party.” (Internal quotation marks omitted.) Remington Investments, Inc. v. National Properties, Inc., 49 Conn. App. 789, 801-802, 716 A.2d 141 (1998). “We have consistently refused to consider evidentiary rulings not properly preserved. Where the issue raised for the first time on appeal is a matter of state evidentiary law, rather than of constitutional significance, this court will deny the defendant appellate review.” State v. Smith, 46 Conn. App. 600, 609, 700 A.2d 91, cert. denied, 243 Conn. 935, 702 A.2d 642 (1997). Because the defendant’s evidentiary claim was raised for the first time on appeal, we decline to review it.

Ill

The defendant also claims that the trial court improperly admitted certain constancy of accusation evidence by Y that exceeded the scope of testimony permitted under Troupe. We disagree.

The following additional facts are necessary to the determination of this issue. Prior to Y’s testimony, the court properly charged the jury concerning the constancy of accusation doctrine.

The state then called Y, a twelve year old girl, to testify as a constancy of accusation witness. During direct examination, Y testified as to how she knew the victim and how the victim had told her that the victim had been sexually assaulted. More specifically, Y testified that “[s]he told me she had been molested” by “her stepfather” and “[s]he said that she had to touch him, and ... he touched her.” Y also stated that the victim was nervous and crying when she told Y about the assault. The state proceeded to ask if Y said anything to the victim about “telling the truth to grownups,” and Y initially answered, “Yeah,” but then stated that she did not understand the question. The state further asked if Y had told the victim what “she should do about telling the police,” but Y could not remember.

The defendant first claims that Y’s testimony about the victim’s demeanor when she recounted the assault to Y should not have been admitted because of its prejudicial quality. The defendant failed to object properly to this testimony at trial.

“This court is not bound to consider claims of law not made at the trial. . . . [T]o preserve an evidentiary ruling for review, trial counsel must object properly.” (Citations omitted; internal quotation marks omitted.) State v. Bush, 249 Conn. 423, 427, 735 A.2d 778 (1999). “Our rules of practice make it clear that when an objection to evidence is made, a succinct statement of the grounds forming the basis for the objection must be made in such form as counsel desires it to be preserved and included in the record. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.” (Citations omitted; internal quotation marks omitted.) Id., 427-28. “We consistently have stated that we will not consider evidentiary rulings where counsel did not properly preserve a claim of error by objection.” (Internal quotation marks omitted.) Remington Investments, Inc. v. National Properties, Inc., supra, 49 Conn. App. 800. Because the defendant failed to preserve his claim properly by articulating the basis for his objection to this evidentiary ruling, we decline to review this claim.

The defendant’s claim that the trial court improperly admitted Y’s testimony concerning “telling the truth” to adults is also unavailing. The transcript clearly reveals that although Y initially answered affirmatively to the state’s question whether Y had told the victim about “telling the truth” to adults, when the next question was asked, Y answered that she was confused about the state’s prior question. Accordingly, Y’s testimony did not reveal anything about encouraging the victim to tell the truth to adults. The admission of this evidence, therefore, does not violate the rule set forth in Troupe. We reject the defendant’s claim.

IV

The defendant’s final claim is that by admitting Y’s constancy of accusation testimony, the trial court violated the defendant’s rights under the confrontation clause of the sixth amendment to the federal constitution and under article first, § 8, of the Connecticut constitution. We disagree.

Although the defendant failed to raise this claim at trial, he now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, a defendant “can prevail on a claim of constitutional error not preserved at trial 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.” (Emphasis in original.) Id., 239-40. Further, “[i]n the absence of any one of these conditions, the defendant’s claim will fail.” Id., 240.

Under the first prong of Golding, the record before us is adequate for review. The defendant, however, has failed to meet the second prong of Golding because his claim is not one of constitutional magnitude. In Connecticut, it is well established that the constancy of accusation doctrine does not violate a defendant’s sixth amendment right to confrontation. See State v. Troupe, supra, 237 Conn. 293; State v. Lindstrom, 46 Conn. App. 810, 816, 702 A.2d 410 (“[o]ur Supreme Court has held that the constancy of accusation doctrine does not violate the right to confrontation”), cert. denied, 243 Conn. 947, 704 A.2d 802 (1997). Our Supreme Court in Troupe explained that a “fundamental tenet of confrontation clause jurisprudence . . . [is] that the clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” (Internal quotation marks omitted.) State v. Troupe, supra, 292.

In the present case, the defendant “has put a constitutional tag on a nonconstitutional evidentiary ruling.” (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). Accordingly, because the defendant’s claim is not one of constitutional magnitude, we decline to afford review under Golding.

A plain error review of the record is equally unavailing. The record reveals that the defendant had an opportunity to cross-examine Y regarding her testimony, but declined. Moreover, the court properly charged the jury on the use and purpose of constancy of accusation evidence, and three times stressed that Y’s testimony was only to be used for corroborative purposes. On the basis of our review of the record, we conclude that the admission of Y’s constancy testimony did not affect the fairness, integrity or public confidence in judicial proceedings. The admission of Y’s testimony, therefore, does not constitute plain error. We therefore reject the defendant’s constitutional claims under either standard.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       Count six of the substitute information charged the defendant with risk of injury to a child for acts that allegedly occurred between July 1, 1995, and October 31,1995. Section 53-21 was amended in 1995, the effective date of the amendment being October 1, 1995. General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-147, § 1, provides in relevant part: “Any person who . . . has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       In count seven of the state’s substitute information, the defendant was charged with risk of injury to a child for acts that allegedly occurred between June 1 and September 30, 1993. General Statutes (Rev. to 1993) § 53-21 provides in relevant part: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       She did not inform her mother of the sexual abuse because she thought her mother would be upset with her. In addition, the defendant had told her she would be in “big trouble” if she told anyone.

       The defendant’s attorney raised the following objection at trial: “I don’t think it’s in any way relevant or admissible in any way to have this other young lady testily .... My point is that if this witness is going to testily about anything other than the limited things permitted in Troupe, I don’t think it’s permissible. ... I just don’t think it’s material. . . . What I’m saying is, it is immaterial because it is not proving anything. The only thing that a constancy witness should be allowed to prove under the constancy case is to remove this bias jurors have regarding the lack of a fresh report. That’s not the case here. . . . [F]or the purpose of a constancy witness, I think at the very least it should be an adult, not another child.”

       The court provided the following jury instructions: “We have a hearsay rule that you can’t have someone come in and testify as to what somebody else said. We also have a number of exceptions to that rule, and one of them is in the particular case where there are charges of a sexual nature. In these particular cases, we allow people to testify as to what someone told them .... That evidence is allowable in our courts to corroborate the testimony of [the victim]. It’s not testimony that that’s the truth, but, it’s the truth that she did say that to them. . . .” The court then repeated to the jury that “[t]he evidence is, again, admitted solely to corroborate her testimony in court, and is to be considered by you only in determining the weight and credibility you will give to her testimony.” The court further added that constancy witnesses cannot testify as to all of the details, but can only give “general statements just to confirm and corroborate that [the victim] did say those to them.”

       Prior to Y’s testimony, the court allowed the state to ask one question concerning what Y had told the victim about “telling the truth” to adults or in regard to the “pursuit of this case.”

       The defendant merely objected to the state’s question without providing a basis for his objection.

       The defendant’s treatment of the state constitutional claim is limited to a footnote citing the six prong test of State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), but no further analysis is provided. Because the defendant has not sufficiently briefed the state constitutional claim, we therefore decline to address it.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DONALD FIDDELMAN v. POPCORN REDMON
    (AC 18920)
    Foli, Ilennessy and Zarella, Js.
    Argued April 28
    officially released August 22, 2000

      Popcorn Redmon, pro se, the appellee (defendant).

      Kathleen A. Hogan, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Popcorn Redmon, appeals from postjudgment orders effectuating portions of a dissolution of marriage judgment relating to the disposition of the former marital home owned by Redmon and the plaintiff, Donald Fiddelman. The plaintiff contends that intervening events have rendered the appeal moot. We agree and dismiss the appeal.

The parties were divorced in 1991 and the dissolution judgment provided that the parties’ jointly owned home was to be sold, and that the defendant was to be paid $250,000 from the proceeds. Claiming that the defendant’s refusal to cooperate had hindered a sale, the plaintiff filed a motion in 1998 seeking, among other things, that the ownership of the home be transferred solely to him, but that the requirements of the original judgment regarding payment to the defendant continue. The plaintiff also sought orders concerning the removal of the defendant’s personal property, which was still in the home. The trial court ordered that ownership of the home be vested solely in the plaintiff and that the defendant still receive the money to which she was originally entitled, and entered orders concerning the disposition of the defendant’s personal property. The defendant now appeals from those orders.

The plaintiff contends that intervening events have rendered the appeal moot. He claims that on June 18, 1999, new orders entered as to the removal of the defendant’s personal property, which have superseded those challenged in this appeal, and that the new orders have been carried out by the defendant. In addition, the marital home has been sold.

“Since mootness implicates subject matter jurisdiction; Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988); it can be raised at any stage of the proceedings. See Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134-35, 566 A.2d 703 (1989). We have consistently held that we do not render advisory opinions. If there is no longer an actual controversy in which we can afford practical relief to the parties, we must dismiss the appeal. Sadlowski v. Manchester, [supra, 583], . . . Board of Education v. New Haven, 221 Conn. 214, 216, 602 A.2d 1018 (1992). . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists. . . . Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 439 n.3, 685 A.2d 670 (1996).” (Citation omitted; internal quotation marks omitted.) Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 240 Conn. 1, 6-7, 688 A.2d 314 (1997).

In the present case, the order concerning the removal of the defendant’s property from which she has appealed has been modified, and the property has now been removed by the defendant. No practical relief can therefore be afforded on the defendant’s claim. In addition, the sale of the home has now been completed, and a closing has taken place. The order from which the defendant appeals concerns only the method of selling the home. Accordingly, because of the sale of the home, no relief can be afforded and the appeal is dismissed as moot.

The appeal is dismissed.

       This court affirmed the dissolution judgment and ordered it modified in Fiddelman v. Redmon, 31 Conn. App. 201, 623 A.2d 1064, cert. denied, 226 Conn. 915, 628 A.2d 986 (1993), and affirmed a modification in Fiddelman v. Redmon, 37 Conn. App. 397, 656 A.2d 234 (1995).


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. WILLIAM HOLMES, JR.
    (AC 18790)
    O’Connell, C. J., and Zarella and Dupont, Js.

    Argued February 14
    officially released August 22, 2000

      Jeremiah Donovan, special public defender, for the appellant (defendant).

      Peter A. MeShane, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Stephanie Pillar and Patrick Fryer, certified legal interns, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

O’CONNELL, C. J.

The defendant, William Holmes, Jr., appeals from the judgment of conviction, rendered after a jury trial, of one count of murder in violation of General Statutes § 53a-54a. The defendant claims that the trial court improperly (1) denied his request to order the state either to grant immunity to a witness or, in the alternative, to counsel the state to dismiss the charge and (2) permitted the state to introduce evidence of a subsequent crime committed by the defendant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 2, 1995, Linda Alexander lived at 30 Chapel Street in New London. On that day, Joseph Thompson was found dead on her bathroom floor, having been killed by a single gunshot wound to the head. The police seized two cigar blunts and a nine millimeter spent shell casing in the bathtub.

That evening, the defendant was involved in the shooting death of Wade Denson in Brooklyn, New York. The following day, September 3, 1995, Brooklyn detectives went to a Brooklyn apartment in an attempt to apprehend the defendant for Denson’s murder. As the detectives were attempting to enter the apartment, the defendant and his brother fled out a back window and, after a short chase, were apprehended. While they were being pursued by the detectives, a nine millimeter handgun fell from the defendant’s pants. The detectives seized the weapon.

Soon after his arrest, the defendant provided the Brooklyn detectives with two statements. The first statement pertained to the shooting death of Denson in Brooklyn. In that statement, the defendant stated that he, Denson and a third person were smoking a blunt. When the blunt was passed to Denson, he dropped it on the floor. The defendant told Denson that he must pick it up and pass it without taking his turn. Denson refused to comply and took his turn anyway. The defendant then pointed the nine millimeter handgun at him. Although the defendant did not recall firing the gun, he fled the apartment immediately after the incident, and Denson was found dead from a gunshot wound a few hours later.

The second statement concerned the shooting death of Thompson, which had occurred in New London just a few hours before Denson was killed in Brooklyn. In his statement, the defendant mentioned that he remembered pointing his gun at Thompson but did not remember it going off. The jury could have found from the testimony of one of the detectives, that the defendant, Ronald Gadsen and Thompson were smoking a blunt in Alexander’s bathroom when Thompson dropped it. Although blunt smoking protocol required that he pass it without taking his turn, Thompson disregarded the custom and took his turn anyway. This angered the defendant and caused him to point the handgun at Thompson. The defendant did not remember firing the gun, but after the incident he and Gadsen immediately left for New York.

The defendant’s version of the events is that the shooting was completely accidental. He claims that he wanted to show his friends his gun and as he pulled it out of his pants to show it to them, it discharged, killing Thompson. Not knowing what to do, he and Gadsen ran out of the house and made their way to New York.

I

The defendant first claims that the state should have granted immunity to Gadsen or, in the alternative, dismissed the pending murder charge. We disagree.

The defendant informed the court that he expected that Gadsen would refuse to answer questions regarding the incident and that any invocation of Gadsen’s fifth amendment privilege against self-incrimination should be invalid. The defendant contended that if the court allowed Gadsen to invoke his fifth amendment privilege, the state should either offer immunity to secure Gadsen’s testimony or, in the alternative, dismiss the case against the defendant. The defendant claimed that if Gadsen’s testimony were introduced, it would confirm his description of the shooting as accidental. The trial court allowed Gadsen to invoke his fifth amendment privilege.

There is no authority for an order compelling the state to grant immunity to a defense witness or, in the alternative, to have the charge against the defendant dismissed. The defendant concedes that in Connecticut and many other jurisdictions, the prosecution is under no duty to grant immunity to a defense witness if the prosecutor does not want to do so. State v. McIver, 201 Conn. 559, 566-68, 518 A.2d 1368 (1986); State v. McLucas, 172 Conn. 542, 561, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977); State v. Simms, 170 Conn. 206, 210-11, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976); see also United States v. Turkish, 623 F.2d 769, 777 (2d Cir. 1980), cert. denied, 449 U.S. 1077, 101 S. Ct. 856, 66 L. Ed. 2d 800 (1981).

The defendant in effect seeks to overrule established Supreme Court precedent. This can not be done. “It is not within our function as an intermediate appellate court to overrule Supreme Court authority.” State v. Fuller, 56 Conn. App. 592, 609, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298 (2000). Accordingly, the trial court properly refused to order the state to grant the witness immunity or to dismiss the case.

II

The defendant next claims that the trial court improperly admitted evidence that the defendant committed a subsequent homicide. We disagree.

At trial, the state offered evidence concerning Den-son’s death, and the court admitted it over the defendant’s objection. “As a general rule, evidence of [other] misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . Exceptions to the general rule exist, however, if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect. . . .

“The primary responsibility for making these determinations rests with the trial court. We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Torres, 57 Conn. App. 614, 621-22, 749 A.2d 1210, cert. denied, 253 Conn. 927, 754 A.2d 799 (2000).

Under the first prong of our analysis, our examination of the evidence reveals that the court properly admitted the evidence of Denson’s murder because the evidence could be considered relevant on the issue of intent. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 257, 745 A.2d 800 (2000).

It was reasonable for the court to accept the evidence presented by the state concerning the defendant’s blunt smoking protocol and his role in Denson’s shooting. That evidence showed that both Denson and Thompson were killed under similar circumstances, that is, the defendant shot them for violating his blunt smoking rules. The defendant claimed that the shooting was accidental. Under these circumstances, the evidence that the defendant shot Denson for violating smoking protocol was relevant to the defendant’s intent in shooting Thompson. That evidence demonstrated that the defendant had shot Thompson intentionally and it was not accidental.

“Having determined that the court properly found the challenged evidence to be relevant, we must next review whether the court abused its discretion in weighing the probative value of the evidence against its prejudicial effect. . . . Relevant evidence of . . . uncharged misconduct that is prejudicial in nature is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused. . . . Because of the difficulties inherent in [the probative-prejudicial] balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Torres, supra, 57 Conn. App. 623-24. The court was aware of the potentially prejudicial effect of the evidence and carefully instructed the jury that the evidence was offered and might be considered by it for the sole purpose of deciding the intent of the defendant. Clearly, the fact that the defendant engaged in similar misconduct in Brooklyn only hours after the New London murder, is highly probative on the issue of his intent to commit a criminal act. The trial court, therefore, did not abuse its discretion when it admitted the evidence regarding the Denson murder.

The judgment is affirmed.

In this opinion the other judges concurred.

       At trial, a blunt was defined as a hollowed-out cigar with marijuana placed inside of it.

       The admission of this evidence is the subject of the second issue on appeal.

       The court, however, did provide the jury with a cautionary instruction.


author: FOTI, J.

text:
    SAVINGS BANK OF ROCKVILLE v. DAVID J. VICKERS, JR., ET AL.
    (AC 19852)
    Foti, Spear and Zarella, Js.

      Argued April 27
    officially released August 22, 2000

      Bruce S. Beck, for the appellant (named defendant).

      Kerry A. Tarpey, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, David J. Vickers, Jr., appeals from the judgment of the trial court granting the motion by the plaintiff, Savings Bank of Rockville, for a deficiency judgment. The defendant claims that the court improperly (1) refused to permit him to make a motion at the deficiency judgment hearing, (2) placed the burden of proof on him as to whether the plaintiff had complied with the terms of a stipulation into which the parties had entered, (3) allowed the plaintiff to pursue the deficiency judgment when it had failed to comply with the stipulation and (4) found that the plaintiff sustained its burden of proof that it complied with the terms of the stipulation. The defendant also raises the equitable doctrine of unclean hands and claims that the plaintiff is estopped from pursuing its motion for a deficiency judgment. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In October, 1995, the plaintiff initiated an action to foreclose a mortgage of certain real property owned by the defendant and on November 22, 1995, filed a motion for judgment of strict foreclosure. On December 4,1995, the defendant filed a motion for foreclosure by sale, which was granted on December 11, 1995. The sale occurred in March, 1996, and, following a contested hearing, was approved by the court in April, 1996.

Thereafter, the defendant filed a request for production and a motion to open the judgment approving the sale. The defendant’s motion included a claim that the plaintiff was in possession of other appraisals that had not been disclosed to the court. On November 14,1996, the court held a hearing and denied the defendant’s motion to open the judgment. As to the defendant’s request for production, the court granted the motion conditioned on the plaintiffs filing a motion for a deficiency judgment against the defendant.

On November 25, 1996, the defendant appealed from the judgment. That appeal was resolved by a settlement stipulation dated June 13, 1998. On June 22, 1998, the plaintiff filed a motion for a deficiency judgment. A hearing on that motion was held on April 26, 1999. On May 27, 1999, the court granted the motion and, in a memorandum of decision, found the deficiency to be $40,000. The defendant now appeals from that judgment.

I

The defendant claims first that the court improperly refused to allow him to make a motion at the deficiency judgment hearing. We disagree.

This claim is based on a colloquy that occurred between the court and the defendant’s counsel at the commencement of the April 26, 1999 hearing. Before any witnesses were called, the court requested that each party give a brief overview of the arguments they intended to make at trial. The plaintiffs counsel complied with the court’s request. The defendant’s counsel, claiming that he did not believe he was obligated to give an overview of his case, refused to comply with the court’s request. Thereafter, a brief dialogue ensued in which the court made further attempts to discern a general overview of the defendant’s position, and the defendant’s counsel steadfastly refused to provide the court with an offer of proof.

As the plaintiffs counsel called the first witness to testify, the defendant’s counsel asked the court, “Is this going to be a problem, having you hear the case . . . ?” The court replied, “I think I resent that question. Now,- enough of this. I’ve asked you a question [and] you refuse to answer. I didn’t pursue it with you, and I think I should pursue it with you, but I’m going to jump over that and we’re going to proceed. Now, please sit down.” The defendant’s counsel attempted to continue the discussion and eventually stated, “I think I’d like to have something on the record reflect that I would like to make a motion, and I’m apparently not being permitted to do so.” Immediately thereafter, the court stated, “Swear this witness in.”

In support of his argument that the court improperly refused to allow him to make a motion, the defendant cites Ahneman v. Ahneman, 243 Conn. 471, 484, 706 A.2d 960 (1998), for the proposition that the court has a duty to determine every question which may arise in a cause of action. In Ahneman, the trial court refused to consider certain postjudgment financial motions that were before it. Our Supreme Court noted that except in rare instances, a trial court may not decline to exercise its jurisdiction by refusing to consider certain motions. Id.

We conclude that Ahneman is inapposite to the defendant’s claim because the defendant here did not make a proper motion. Because no motion was properly before the court, it cannot be claimed that the court refused to consider a motion. Practice Book § 5-2 provides in relevant part: “Any party intending to raise any question of law which may be the subject of an appeal must . . . state the question distinctly to the judicial authority on the record before such party’s closing argument . . . .” It is clear from the record that the defendant failed to make a proper motion and, thus, Ahneman does not apply.

We further disagree with the defendant’s claim that it was incumbent on the court to initiate further discussion when it heard that the defendant may have been interested in making a motion. It was the defendant’s responsibility to make any motions, and he was certainly free to have done so. There is no evidence in the record to support his claim that he was prevented from making a motion. In the time that it took the defendant’s counsel to comment that he was being prevented from making a motion, he just as easily could have made a motion. From the discourse between the court and the defendant’s counsel, it is evident that the court, recognizing that the defendant’s counsel was unwilling to provide an overview of his defense, chose to drop the discussion of that matter and to move ahead with the trial. The court has inherent authority to regulate the trial of cases before it. See Savenelli v. First National Supermarkets, Inc., 5 Conn. App. 436, 438, 499 A.2d 434 (1985). We find no evidence that the court abused its authority.

II

The defendant next claims that on the issue of proving that the plaintiff complied with the terms of the stipulated settlement, the court improperly shifted the burden of proof to the defendant. We disagree.

In support of his claim, the defendant again points to the colloquy between the court and the defendant’s counsel, during which the court asked for an offer of proof. This request, according to the defendant, suggests that the court impermissibly shifted the burden of proof from the plaintiff to the defendant. We do not accept the inference suggested by the defendant that the court’s request for an offer of proof indicated an intent to shift the burden of proof to the defendant. In fact, a careful review of the transcript of the colloquy reveals that the court in no way intended to shift the burden of proof.

The defendant also points to language in the court’s memorandum of decision in which the court noted that “[t]he defendant offered no testimony or exhibits to refute the evidence of the plaintiff. . . . While the defendant [argues that the plaintiff violated the stipulated agreement] in his brief of law, he has not established his position by way of cross-examination or direct evidence.” The defendant claims that this language suggests that the court improperly placed the burden of proof on him as to whether the plaintiff had complied with the stipulation.

We are unpersuaded by the defendant’s argument. In its memorandum of decision, the court found that the plaintiff, through its witnesses, showed that it had complied with the terms of the stipulation. The court’s reference to the defendant’s failure to produce any evidence to the contrary merely served to emphasize the fact that the plaintiffs evidence was uncontroverted. Our review of the memorandum of decision as a whole reveals nothing that would suggest that the court improperly shifted the burden of proof to the defendant.

Ill

In his third and fourth claims of error, the defendant argues that (1) the court should not have allowed the plaintiff to pursue the deficiency judgment because the plaintiff failed to comply with a condition precedent imposed by the settlement stipulation and (2) the court improperly found that the plaintiff sustained its burden of proof that it had complied with the settlement stipulation. Because these two issues are closely related, we will analyze them together.

A

The portion of the settlement stipulation that is at issue here involves the defendant’s right to receive appraisals that had been obtained by the plaintiff. The relevant provision of the stipulation states: “In the event the Plaintiff seeks a deficiency judgment against the Defendant, the Defendant shall be entitled to any other appraisals that may have been obtained by the Plaintiff pursuant to the order of Superior Court Judge Harry Hammer.” The defendant argues that this portion of the settlement stipulation created a condition precedent that the plaintiff failed to satisfy.

Interpretation of a contract is a matter of law, and our review is plenary. See Empire Paving, Inc. v. Milford, 57 Conn. App. 261, 265, 747 A.2d 1063 (2000). Upon review of the language of the settlement stipulation, read in conjunction with Judge Hammer’s order, we conclude that the settlement stipulation does not impose a condition precedent requiring the plaintiff to furnish the defendant with all of its appraisals prior to the plaintiffs filing a motion for a deficiency judgment. The agreement provides that the defendant would not be entitled to discovery as to the plaintiffs appraisals until such time as the plaintiff decided to file a motion for a deficiency judgment. Contrary to the defendant’s tortured inteipretation of the settlement stipulation, the plaintiff was not required to provide the defendant with its appraisals until the plaintiff filed a motion for a deficiency judgment.

B

After the plaintiff filed a motion for a deficiency judgment, however, the plaintiff was required by the settlement stipulation to provide the defendant with any appraisals in its possession. The plaintiff also was required to satisfy several other terms of the settlement stipulation. The court found that the plaintiff satisfied the terms of the settlement stipulation. “The court’s findings of fact are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.” Breiner v. State Dental Commission, 57 Conn. App. 700, 704, 750 A.2d 1111 (2000). At trial, the plaintiff produced two witnesses whose testimony established that the terms of the settlement stipulation were satisfied by the plaintiff. We conclude that there is sufficient evidence in the record to support the court’s conclusion that the plaintiff satisfied its burden of proof that it complied with all of the terms of the settlement stipulation.

IV

The defendant’s final claim is that the plaintiff has “unclean hands” and is estopped from pursuing its motion for a deficiency judgment. The defendant previously raised this claim, and it was been resolved by order of the court, Hammer, J., and the settlement stipulation. The defendant, therefore, is precluded from raising this claim here.

The basis for the defendant’s claim is that during the April 15, 1996 hearing to confirm the sale of the property, the plaintiff failed to inform the court that it was in possession of another appraisal. At that hearing, the court approved the sale. Thereafter, the defendant filed a motion to open the judgment in which he raised the issue of the plaintiffs failure to disclose the other appraisal that was in its possession. Along with the motion to open the judgment, the defendant filed a request for production of the other appraisal. At the November 14, 1996 hearing, the court denied the defendant’s motion to open. The court also ordered that should the plaintiff decide to pursue a deficiency judgment against the defendant, the plaintiff was to furnish the defendant with any other appraisals in its possession.

Subsequently, the defendant filed an appeal with this court, claiming that because the plaintiff had not disclosed the existence of the other appraisal, the trial court, should have opened the judgment. The defendant later withdrew this appeal pursuant to the settlement stipulation. The settlement stipulation provided that in the event that the plaintiff filed a motion for a deficiency judgment against the defendant, the plaintiff would provide the defendant with any other appraisals in its possession. As previously discussed, the plaintiff provided the defendant with a copy of the other appraisal and complied with the terms of the settlement agreement.

The issue of the other appraisal and whether the plaintiff was required to disclose it to the defendant was resolved by the settlement stipulation. In exchange for dropping his appeal of the court’s refusal to open the judgment approving the sale of the property, the defendant received, among other things, the assurance that the plaintiff would provide the defendant with the other appraisal in the event that the plaintiff pursued a deficiency judgment. The plaintiff satisfied the terms of the settlement stipulation, and the defendant is now precluded from raising a claim that already has been effectively resolved. See Ven Nguyen v. DaSilva, 10 Conn. App. 527, 531-32, 523 A.2d 1369, cert. denied, 204 Conn. 803, 528 A.2d 1151 (1987); see also 15A AmJur. 2d 796-97, Compromise and Settlement § 24 (1976) (“valid compromise and settlement operates as a merger of, and bars all right to recover on, the antecedent claim or right of action included therein. The compromise agreement is substituted for the antecedent claim or right, and the rights and liabilities of the parties are measured and limited by the terms of the agreement”).

The judgment is affirmed.

In this opinion the other judges concurred.

       The deficiency judgment was rendered against and is challenged in this appeal by only the named defendant, David J. Vickers, Jr. We refer to him in this opinion as the defendant.

       At the time of the hearing to confirm the sale of the property, the plaintiff had provided the defendant with only one appraisal. At the hearing, the defendant’s counsel stated that the defendant was, in fact, satisfied with that appraisal because the home was appraised at a value much higher than the mortgage debt.

       The defendant claimed that the court (1) improperly approved the sale, (2) improperly refused to grant his mol ion for discovery in conjunction with his motion to open the judgment and (3) should have granted his motion to open the judgment on the basis of the plaintiffs failure to disclose the existence of another appraisal in its possession and on the basis of the court’s not having had the benefit of reviewing another appraisal.

       At one point in the discussion, the court asked the defendant’s counsel if he would prefer to make an offer of proof without any of the witnesses present. The defendant’s counsel answered that he believed that he was not required to put forth any offer of proof and that he did not want to do so.

       The following colloquy occurred:
      “[Defendant’s Counsel]: Well—
      “The Court: Mr. Beck, that’s enough from you. Sit down. . . . “[Defendant’s Counsel]: Am I—
      “The Court: Mr. Beck, sit down please.”

       The following colloquy occurred:
      “[Defendant’s Counsel]: I think the burden of proofs on the plaintiff. . . . [T]hey have the burden of proof and my client has the right to dispute that evidence.
      “The Court: I understand that, Mr. Beck, but I am asking you by way of an offer of proof. I asked them, they told me what their position is, and I’d like to know from you what is your defense to this.”

         The settlement stipulation is dated June 18,1997. On November 14, 1996, the parlies appeared before Judge Hammer on a motion for discovery. At the hearing, Judge Hammer granted the defendant’s motion for discovery conditioned on the plaintiffs filing a motion for a deficiency judgment Judge Hammer’s order subsequently was incorporated into the settlement stipulation.

       At the November 14, 1996 hearing, Judge Hammer told the defendant that with respect to his motion for discovery of all the appraisals in the plaintiffs possession, ‘I am granting your motion for discovery conditionally on the motion for deficiency judgment being filed. ... I am granting the motion, but it is conditional on the motion having been filed.”

       The terms of the settlement stipulation that the defendant claims were not complied with include (1) the plaintiff was to make certain repairs to the property, (2) the defendant was to be given notice of and the opportunity to inspect the repairs, (3) the plaintiff was to take certain steps to market the property and (4) as discussed above, the plaintiff was to provide the defendant with any appraisals in its possession after the plaintiff filed a motion for a deficiency judgment against the defendant.

       This appeal raised essentially the same issue of “unclean hands” that the defendant now attempts to revive.


text:
    STATE OF CONNECTICUT v. KEVIN SOTO
    (AC 19308)
    Foti, Mihalakos and Pellegrino, Js.

      Submitted on briefs June 5
    officially released August 22, 2000

      Louis S. Avitabile, special public defender, filed a brief for the appellant (defendant).

      John A. Connelly, state’s attorney, and Christopher T. Godialis and Robin Lipsky, assistant state’s attorneys, filed a brief for the appellee (state).
   Opinion,

FOTI, J.

The defendant, Kevin Soto, appeals from the 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) denied his motion in arrest of judgment in which he had claimed that the verdict was legally inconsistent as a matter of law and (2) excluded evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 22, 1996, officers from the Waterbury police department were dispatched to 49 Ridgewood Street where they discovered the body of the victim, Hector Nieves, who had been stabbed and cut approximately 125 times. They had been directed to the scene by a 911 emergency telephone call made by a male caller who had identified himself only as “Michael.” On the following day, the defendant, a friend of the victim, was interviewed, and he denied any knowledge of the murder. On the next day, after listening to the 911 tape, the defendant admitted that he had made the call and that the voice on the tape was his. After being advised of his Miranda rights and having waived those rights, the defendant named Jose Colon as the person who had committed the murder. The defendant did not admit that he was present or that he had participated in the murder.

Following Colon’s questioning by the police, the police again spoke to the defendant and he admitted at that time that he had been present and had been involved in the murder. Thereafter, the defendant gave a signed written statement wherein he described how he and Colon had planned only to scare the victim because the victim had disrespected both of them in public. He indicated that he had given his buck knife to Colon, who, after waving it around, gave it back to him. The defendant then cut Nieves on the side of the neck. At trial, the defendant testified that they had been smoking marijuana and had cut the victim on the neck, but that Colon had pulled out a big knife, which was an antique Pakistani sword, and began stabbing Nieves, at which time the defendant left. The defendant then went to the house of his girlfriend, Edith Santos, and told her that Colon had just killed Nieves.

I

The defendant first claims that the court should have granted his postverdict motion in arrest of judgment. He argues that while not inconsistent as a matter of fact, the verdict is inconsistent as a matter of law because it was based on a legal impossibility, that is, two people cannot aid and abet one another to commit murder without the two first having made at least an implied agreement to commit the crime. Therefore, one cannot be guilty of aiding and abetting murder without first having committed the crime of conspiracy to commit murder.

“It is axiomatic that a juiy verdict may not be overturned on the ground that a conviction on one count is factually inconsistent with an acquittal on another count.” State v. Jacques, 53 Conn. App. 507, 523-24, 733 A.2d 242 (1999). “Consistency in the verdict is not necessary.” (Internal quotation marks omitted.) State v. Martin, 189 Conn. 1, 6, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983).

We do not agree with the defendant that the jury’s verdict was inconsistent as a matter of law and based on a legal impossibility. “The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements. Such verdicts are legally inconsistent if the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). . . . [T]he defendant was convicted of one offense and acquitted of the other. [Because the court is] not dealing with a situation in which the defendant is convicted of two offenses, and one conviction negates the other, the verdicts are not legally inconsistent in the usual sense. . . .

“Where the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration. State v. Manning, [162 Conn. 112, 123, 291 A.2d 750 (1971)], quoting State v. Keating, 151 Conn. 592, 596, 200 A.2d 724 (1964), cert. denied sub nom. Josephs. Connecticut, 379 U.S. 963, 85 S. Ct. 654, 13 L. Ed. 2d 557 (1965). If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other. See State v. Manning, supra, 123-24. State v. Milner, 46 Conn. App. 118, 122-23, 699 A.2d 1022 (1997).” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 244-45, 745 A.2d 800 (2000). A conviction of the defendant for conspiracy requires proof of an agreement, whereas to convict him as an accessory to murder proof of such an agreement is not necessary. Section 53a-48 (a), the statute governing conspiracy liability, and General Statutes §§ 53a-8 and 53a-54a (a), which govern liability for murder as an accessory, contain different elements, and consequently a conviction of one crime is not inconsistent on its face with an acquittal of the other. See State v. DeCaro, supra, 252 Conn. 245. Accordingly, the defendant’s claim must fail.

II

The defendant next alleges that the court improperly excluded from evidence statements of Colon that showed Colon’s intentions, motivations and state of mind during the murder and that constituted statements made against Colon’s penal interest.

During the trial, the defendant attempted to have three witnesses testify that Colon had told them that he had murdered Nieves because he had been told by his parents that Nieves had disrespected his family and had touched his sister inappropriately during a party at his house. The court did not allow the proffered testimony because it was irrelevant and inadmissible hearsay. We agree that the evidence the defendant sought to have presented before the jury was both irrelevant and inadmissible as hearsay.

“It is well established that a ‘trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.’ ” Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn. App. 699, 706, 700 A.2d 1179 (1997). “The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” State v. Beliveau, 237 Conn. 576, 586, 678 A.2d 924 (1996). “Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995).

The defendant was charged with aiding and abetting Colon in murdering Nieves. The factual issues relevant to such a charge were whether Colon killed Nieves, whether the defendant intended to aid Colon in murdering Nieves and whether the defendant intended to murder Nieves. The reason why Colon killed Nieves and what Colon’s state of mind was during or after the murder were not relevant to the defendant’s case. What Colon may have said about his own motive or state of mind was irrelevant as to whether the defendant had aided in the commission of the murder.

The defendant concedes that the excluded evidence is hearsay, but claims that it was admissible under either the “state of mind” or the “statement against penal interest” exception to the hearsay rule. We do not agree. Because Colon’s state of mind was not a relevant factual issue in the defendant’s case, the “state of mind” exception; Conn. Code Evid. § 8-3 (4); does not apply. See State v. Cato, 21 Conn. App. 403, 408, 574 A.2d 240, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990) (“[a]n out-of-court statement made after the completion of a criminal act is not admissible under the state of mind exception as to the intent or motive underlying that completed act”). Further, the statements involve “double” hearsay, or hearsay within hearsay, that is, Colon’s statements to the witnesses constituted the first layer of hearsay, and what he had told the witnesses that his parents had said to him was the second layer of hearsay. As such, the statements do not qualify under the exception even if they were against his penal interest and in some way relevant in this case. See Conn. Code Evid. § 8-7; see also State v. Lewis, 245 Conn. 779, 802, 717 A.2d 1140 (1998) (“[w]hen a statement is offered that contains hearsay within hearsay, each level of hearsay must itself be supported by an exception to the hearsay rule in order for that level of hearsay to be admissible”).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; 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 aprosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       The defendant was found not guilty of a second count charging him with the crime of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a).

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

       The defendant also filed two other postverdict motions that are not part of this appeal, namely, a motion for a new trial and a motion for judgment of acquittal.

       The defendant was charged in a substitute information with murder in violation of General Statutes § 53a-54a (a) and conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a). Subsequently, in a bill of particulars the state alleged that the defendant was an accessory to murder in that he had aided in causing the death of the victim and that he had conspired with another to commit murder.

       Moreover, the defendant does not argue that the statements made by Colon’s parents to Colon were offered not for the truth of what was said, but rather to show why Colon acted as he did, and thus were admissible as nonhearsay.

       The record indicates that Colon had already been convicted of murder at the time of the defendant’s trial.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. TERRANCE NEWTON
    (AC 18231)
    Schaller, Hennessy and Zarella, Js.

      Argued March 30
    officially released August 22, 2000

      Mark Diamond, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, -with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Terrance Newton, appeals from the judgment of conviction, rendered after a jury trial, of arson in the first degree in violation of General Statutes §§ 53a-8 and 53a-lll (a) (2), arson in the first degree in violation of General Statutes §§ 53a-111 (a) (4) and 53a-8 and conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48 and 53a-lll (a) (4). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a new trial, (2) denied his motion for a judgment of acquittal due to the insufficiency of evidence, (3) admitted a statement made by him as an admission of a party opponent, (4) violated his right of confrontation and (5) denied his motion for a speedy trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 23, 1996, an unoccupied house located at 16 Clover Place in New Haven was set on fire. Earlier that morning, Katherine Hutchings observed the defendant and Rufus Spearman together carrying a large bucket or jug between the houses located at 16 and 18 Clover Place. When Hutchings asked them what they were doing, she received no response. While returning from shopping, Hutchings heard a “big boom.” She rounded the corner onto Clover Place and saw the fire at 16 Clover Place. She also saw the defendant and Spearman running away and noticed that the defendant’s coat was on fire. The defendant shed the coat and continued running. As Hutchings continued down Clover Place, she passed the defendant’s coat as it hung smoldering on a fence.

Edith Hunter, who lived at 18 Clover Place, also heard a “big boom.” Hunter ran from her kitchen to her front porch and saw the defendant stumbling and running off the porch of 16 Clover Place wearing a smoldering coat. Around that time, Napoleon Gunn, an off-duty firefighter, noticed smoke billowing from the roof of the house at 16 Clover Place. Gunn shouted to a passerby to call 911 as he attempted to enter the burning house. The New Haven fire department responded immediately and when Lieutenant James Robinson arrived, he found a “tremendous volume of fire” that not only engulfed the house at 16 Clover Place, but also ignited the home next door. Robinson believed that the sheer volume of the fire in such a short period of time indicated that it was the work of an arsonist. He also testified that a fire fueled by an accelerant posed an increased risk of injury to firefighters because it causes the fire to bum hotter and faster.

Meanwhile, firefighter Michael Mineri of the central headquarters firehouse was driving an aerial tower tmck to the fire when his tmck was struck by a motorist. The truck veered onto a sidewalk and struck a pedestrian. Mineri injured his hand and his back and had to be taken to a hospital. The collision also caused James Stacey, a firefighter and passenger in the fire truck, to bounce off the front windshield and to be taken to the hospital as well.

The firefighters who went into the burning house detected a strong odor of gasoline, despite the fact that they were wearing air masks. The firefighters fought the fire until one of them fell through the floor. After the firefighters rescued the one who had fallen, they tried to retreat and realized that the fire had surrounded them. They were able to escape only after a second group of firefighters came up to the second floor to rescue them.

New Haven Fire Marshal Frank Dellamura also responded to the fire. He discovered four or five areas where gasoline had been poured but did not ignite, which was probably because the mixture of gasoline to available oxygen was too rich. In other rooms, Della-mura found six or seven plastic milk containers that were partially melted with scorch marks near them. Dellamura opined that the fire was the result of an arsonist who had attempted to cause an explosion and to bum the house down. Dellamura also opined that because the fire originated in several areas, it must have been set by more than one person.

I

The defendant claims first that the court improperly denied his motion for a new trial because of newly discovered evidence that Hutchings lied in court when she identified the defendant. The defendant’s motion stated: “Pursuant to Connecticut Practice Book § 902 [now § 42-53] and State v. Myers, 242 Conn. 125, 698 A.2d 823 (1997), Defendant hereby requests a new trial based on the discovery of new evidence.” The state argues that the defendant’s motion for a new trial was not cognizable under the rule of practice cited by the defendant and that it was untimely.

The court, after hearing the arguments from counsel, denied the motion. The court did not address the state’s arguments that the motion for a new trial was untimely and had been brought under an incorrect section of the Practice Book, but rather decided that on the basis of the arguments presented it could not tell whether the evidence could not have been discovered earlier. In addition, there was other evidence that was sufficient to place the defendant at the scene.

“[0]ur standard of review of the trial court’s denial of a motion for a new trial is limited to a determination of whether, by such denial, the court abused its discretion. State v. Rothenberg, 195 Conn. 253, 264, 487 A.2d 545 (1985). State v. Leavitt, 8 Conn. App. 517, 524, 513 A.2d 744, cert. denied, 201 Conn. 810, 516 A.2d 886 (1986). As a reviewing court considering the trial court’s decision granting or denying a motion for a new trial, we must be mindful of the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided.” (Internal quotation marks omitted.) Munson v. United Technologies Corp., 28 Conn. App. 184, 194-95, 609 A.2d 1066 (1992).

“A party is entitled to a new trial on the ground of newly discovered evidence if such evidence is, in fact, newly discovered, will be material to the issue on a new trial, could not have been discovered and produced, on the trial which was had, by the exercise of due diligence, is not merely cumulative and is likely to produce a different result. . . . New trials are not granted upon newly discovered evidence which discredits a witness unless the evidence is so vital to the issues and so strong and convincing that a new trial would probably produce a different result. . . . The basic question which the trial court has to decide is whether upon all the evidence an injustice had been done. In deciding this question, the court has the exercise of a sound legal discretion, and its action cannot be disturbed unless this discretion has been abused.” (Citations omitted.) Turner v. Scanlon, 146 Conn. 149, 163, 148 A.2d 334 (1959).

The court was not persuaded that the proffered evidence could not have been discovered prior to or during trial. Moreover, there was other identification evidence placing the defendant at the scene making it unlikely that a new trial would produce a different result. Under the circumstances as presented here, we can not conclude that the court abused its discretion in denying the defendant’s motion for a new trial.

II

The defendant next claims that the court improperly denied his motion for judgment of acquittal. Specifically, he makes four separate claims that at the close of the prosecutor’s case there was insufficient evidence presented to prove him guilty of the crimes charged beyond a reasonable doubt.

“When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict.” (Internal quotation marks omitted.) State v. Jones, 34 Conn. App. 807, 811, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994). The test is whether the jury “reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) Id.; see also State v. Diaz, 237 Conn. 518, 541, 679 A.2d 902 (1996). Whether the evidence is wholly or partially circumstantial does not diminish its probative force. State v. Jones, supra, 811. We have repeatedly held that the inquiry by this court “into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks omitted.) Id. We conclude that there was sufficient evidence for the jury to conclude as it did.

A

The defendant’s first claim is that there was insufficient credible evidence that he was involved in setting the house on fire. Specifically, he claims that the only two witnesses who testified against him were not believable.

As an appellate court, we cannot retry the case or evaluate the credibility of witnesses. State v. Baldwin, 224 Conn. 347, 367, 618 A.2d 513 (1993); State v. Rivera, 30 Conn. App. 224, 231, 619 A.2d 1146, cert. denied, 225 Conn. 913, 623 A.2d 1024 (1993). It is not our function to determine if the jury was correct in its evaluation of the credibility of the various witnesses. State v. Robinson, 213 Conn. 243, 256, 567 A.2d 1173 (1989). The issue is whether there was sufficient evidence before the jury from which it reasonably could have found the intent necessary under the statute. We conclude that there was.

The evidence presented at trial overwhelmingly supports the conclusion that the defendant started the fire or caused the explosion. It was uncontroverted that on the morning of October 23, 1996, the house located at 16 Clover Place in New Haven was set afire and an explosion related to the fire took place. From the testimony of fire officials it was clear that a large quantity of gasoline intentionally was used to set the fire. Hutchings saw the defendant with another man walking between the houses located at 16 and 18 Clover Place carrying a large bucket or jug with a handle. Hunter also heard the explosion, ran to her front porch and saw the defendant stumbling and running off the porch at 16 Clover Place wearing a smoldering coat. Hutchings saw that the building at 16 Clover Place was on fire and saw the defendant running between the houses on Clover Place wearing a coat that was on fire.

Although the defendant attacked the accuracy and motives of the two witnesses, the jury reasonably could have found on the basis of the facts presented and the reasonable inferences drawn therefrom that there was sufficient and credible evidence presented at trial that the defendant was involved in setting the house on fire. We conclude that the jury could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt, and, therefore, the court properly denied the motion for judgment of acquittal.

B

The defendant next claims that the evidence was insufficient to support a conviction of arson in the first degree in violation of § 53a-111.

Count one of the information charged the defendant with a violation of § 53a-111 (a), which provides in relevant part that “[a] person is guilty of arson in the first degree when, with intent to destroy or damage a building ... he starts a fire or causes an explosion, and ... (2) any other person is injured, either directly or indirectly . . . .” The state based this charge on the injuries sustained by Stacey and Mineri, the firefighters who were injured en route to the fire. To support his claim of insufficient evidence, the defendant points to the comments by the commission to revise the criminal statutes relating to § 53a-lll, which state in relevant part: “This section is aimed at the situation where, when the fire or explosion is started, a person is in or near the building and is thus placed in great danger. . . .” Commission to Revise the Criminal Statutes, Penal Code Comments, General Statutes (1971), p. 37. The defendant claims that there was no evidence that people were in the building when the fire started and therefore there is insufficient evidence of arson in the first degree.

The defendant relies on the wrong version of § 53a-111. That statute, as amended by Public Acts 1979, No. 79-570, § 3, effective October 1, 1979, eliminated the requirement that the injuries be sustained at the time the fire or explosion is started and while a person is in or near the building. The defendant’s claim is based on the statute as it existed prior to this amendment and the comments relating thereto, which are not applicable here. The statute is unambiguous and in plain language imposes liability if anyone is injured, “either directly or indirectly” by a defendant’s intentional actions. Here, there is sufficient evidence for a reasonable jury to find that Stacey and Mineri were injured indirectly by the defendant’s actions when the fire truck they were driving to the fire was struck by a motorist.

C

The defendant next argues that there was no testimony or evidence presented that firemen or peace officers at the scene faced a substantial risk of bodily injury within the meaning of § 53a-lll (a) (4), from the fire that the defendant is alleged to have started. This argument fails because the testimony of Heinz clearly demonstrates that the firefighters who had fought the fire at 16 Clover Place faced a substantial risk of bodily injury. Thomas Heinz, of the New Haven fire department, while fighting the fire, pulled a fellow firefighter to safety after he had fallen through a hole in the floor that had been caused by the fire. In addition, Heinz and others needed to be helped by other firefighters when they became trapped and were surrounded by fire. The evidence clearly supports a finding that the firefighters faced a substantial risk of bodily injury from the fire.

D

The defendant also claims that the evidence was insufficient, to support the jury’s verdict on count one because the injuries sustained by Stacey and Mineri when their fire truck was struck by a motorist were neither substantial nor foreseeable. He claims that the firelighters who were injured did not suffer foreseeable injuries because they were injured in an unexpected accident, their injuries were not intended by him and the injuries were not substantial.

Section 53a-lll (a) (2) does not require that the defendant possess the intent to injure the firefighters. It requires proof that the defendant, with the intent to destroy or damage a building, started a fire or caused an explosion and “any other person is injured . . . indirectly . . . .” The statute also does not require that the injuries be foreseeable or substantial. The defendant has not provided compelling arguments and has not cited any relevant precedent to support his position. The defendant’s claim therefore fails.

Ill

The defendant contends that the court improperly denied his motion to suppress a statement that he had made to the police. He claims that the court improperly allowed that statement to be introduced at trial despite the fact that he had objected to its admission into evidence on the ground of hearsay.

The following facts are necessary for our resolution of this claim. Detective John Bashta of the fire investigation unit of the New Haven police department interviewed the defendant and asked him if he could remember what he had been doing at the time of the fire. The defendant said that he was with a female getting high on the morning of the fire. At trial, when Bashta was asked what the defendant’s response was when asked what he was doing at the time of the fire, the defendant objected on the grounds that anything he may have said was hearsay and because the testimony would be prejudicial. The court overruled the objection and concluded that the statement was an alibi for the defendant and therefore was relevant, and that its probative value outweighed any prejudicial impact.

“[T]he vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial. State v. Stepney, 191 Conn. 233, 251, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). There is no requirement that the statement of a party necessarily be against the party’s interest either when made or offered in order to be admissible. C. McCormick, Evidence (3d Ed.) § 262; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.5.1.” (Internal quotation marks omitted.) State v. Rosado, 218 Conn. 239, 250-51, 588 A.2d 1066 (1983). We agree with the court that the statement made by the defendant to the police as to his whereabouts on the morning of the fire was tantamount to being an alibi and was relevant to the matter before the court. The court acted properly in this matter.

IV

The defendant claims that the court improperly prevented him from questioning a key witness about her veracity and motive for testifying to show that the witness had intentionally misidentified him. Specifically, the defendant claims that he was prevented from showing a course of conduct, common plan and scheme in that the witness had previously given testimony in other cases, including three arson cases and one homicide case, in exchange for money. Additionally, the defendant claims that the court improperly prevented him from questioning the witness about her testimony in a prior case involving a fire at a restaurant and from exploring her past criminal record and drug abuse.

The following additional facts are necessaiy for the resolution of this claim. The state filed a motion in limine seeking to restrict the defendant’s cross-examination of Hutchings as to whether she was a police informant. Defense counsel objected and the court allowed him to question the witness with respect to this issue out of the presence of the juiy. During the course of voir dire, the court permitted defense counsel to inquire extensively into the relationship that Hutch-ings had with the police.

After voir dire was completed, the court ruled in part that “the fact that she did give information to the police in three other arson matters, that you may inquire into . . . and that she did use crack cocaine years ago, that is out; and whether she has been involved in robberies, her answer is no, and that ends that, so that is out; and the police looking the other way, you have to ask the police that question, not her, so that is out.”

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . State v. Colton, [227 Conn. 231, 248-49, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996)]. The primary interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); and an important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985). In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) .... State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992). In determining whether cross-examination was unduly restricted, the entire cross-examination must be examined. State v. Asherman, 193 Conn. 695, 721, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Once the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment, restrictions on the scope of cross-examination are within the sound discretion of the trial judge. State v. Jones, 205 Conn. 638, 670, 534 A.2d 1199 (1987).” (Internal quotation marks omitted.) State v . Valentine, 240 Conn. 395, 407-408, 692 A.2d 727 (1997).

We have examined the transcript in detail and conclude that the defendant was permitted to cross-examine Hutchings sufficiently to satisfy his right to confrontation. Defense counsel elicited, before the jury, the fact that Hutchings had acted as an informant for the police on numerous occasions, that she had given the police information about other arsons and a homicide, that she had been paid by the police to do work for them on many occasions and that she had smoked marijuana recently. We conclude that the defendant’s cross-examination of Hutchings was sufficient to comport with the constitutional standards embodied in the confrontation clause.

Moreover, the court did not abuse its discretion in excluding the details of the information that had been given to the police concerning the other arsons and the homicide. To allow questions concerning the witness’ detailed recitation of her knowledge of the other arsons and the homicide, which were not related to the present case, would have resulted in a mini-trial. It would have unnecessarily lengthened the trial of the defendant and diverted the focus of the jurors from the matter before them. We conclude that the court did not abuse its discretion in limiting the defendant’s cross-examination of Hutchings regarding such facts.

V

The defendant’s final claim is that the court should have granted his motion for a speedy trial. This claim has no merit.

On September 16, 1997, the defendant, pro se, filed a motion for a speedy trial. On September 17, 1997, the court denied the motion as untimely and informed the defendant that he could file another motion after September 24, 1997. On September 26, 1997, the defendant filed a second motion for a speedy trial. The court held a hearing on the motion, at which the defendant was represented by a different attorney than his trial attorney, Lawrence S. Hopkins. The court determined that Hopkins was unable to attend the proceedings because he was trying another matter. In addition, Hopkins was scheduled to begin a different trial representing a defendant who had filed a speedy trial motion that took precedence over the defendant’s speedy trial motion in this case. Under these circumstances, the court found good cause to delay the defendant’s trial until Hopkins was available. The court explained its decision to the defendant and stated, “When the case in Bridgeport finishes, he’s going to come directly here to try your case. Okay?” The defendant stated, “All right, thank you.”

Pursuant to Practice Book § 43-41, if “a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice, on motion of the defendant filed after the expiration of such thirty day period . . . .” If at the time of a speedy trial hearing an attorney “is then engaged in another criminal trial, the court has the inherent power to suspend the running of that period for a reasonable time until the attorney becomes available, and . . . neither the statute nor the rules of practice precludes the exercise of that power.” State v. Brown, 242 Conn. 389, 405, 699 A.2d 943 (1997). Here, the court found good cause to delay the commencement of the defendant’s trial until immediately after his attorney concluded a different trial. See Practice Book § 43-41 (“[w]hen good cause for delay exists, the trial shall commence as soon as is reasonably possible . . . .”). Accordingly, the court acted properly in extending the defendant’s trial date. See State v. Brown, supra, 405.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the time the defendant filed his motion, Practice Book § 42-53 had replaced § 902. Practice Book § 42-53 provides: “Motion for New Trial; In General, (a) Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice. Unless the defendant’s noncompliance with these rules or with other requirements of law bars his or her asserting the error, the judicial authority shall grant the motion:
      “(1) For an error by reason of which the defendant is constitutionally entitled to a new trial; or
      “(2) For any other error which the defendant can establish was materially injurious to him or her.
      “(b) If the trial was by the court and without a jury, the judicial authority, with the defendant’s consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment..”

       The new evidence was that Pricilla Lacey, a friend of Hutchings, who placed the defendant at the scene of the arson, was told by Hutchings that, she was home in bed when the fire had occurred and that the reason she had testified that the defendant was at the arson scene was to collect the reward offered in the case.

       Practice Book § 42-53 provides for the granting of a motion for a new trial in the interests of justice, for constitutional error or for other materially injurious error. “A motion for a new trial under Practice Book § 902 [now § 42-53] is limited to trial errors, and cannot be based upon newly discovered evidence. . . . The defendant must bring a petition under § 904 [now § 42-55] if he wishes to seek a new trial based upon newly discovered evidence.” State v. Jones, 205 Conn. 723, 730, 535 A.2d 808 (1988).
      The defendant argues that although the motion stated that it was made pursuant to the Practice Book § 902, because it was made on the basis of the discovery of new evidence and that was what he had argued before the court, the motion was in effect made pursuant to Practice Book § 904, now § 42-55, which governs motions for a new trial based on newly discovered evidence. Practice Book § 42-55 provides in relevant part: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52-270. . . .”

       In accordance with Practice Book § 42-54, a motion for a new trial, “[u]nless otherwise permitted by the judicial authority in the interests of justice . . . shall be made within five days after a verdict or finding of guilty or within any further time the judicial authority allows during the five-day period.” The defendant argues that motions made pursuant to Practice Book § 42-55; see footnote 3; maybe made within three years of judgment pursuant to General Statutes § 52-582, and, therefore, his motion was timely.

       After the state had rested at trial, counsel for the defendant stated, “Your Honor, I just have the standard motion for judgment of acquittal ... no reasonable juror could come to the conclusion or come to a verdict of guilty. So I would simply stand on that, and leave it to the court.” The court stated that Ihe motion was denied without further comment.
      In his brief, the defendant states that he had moved for a judgment of acquittal pursuant to Practice Book § 42-51, which governs motions for acquittal on a verdict of guilty. The proper motion under the circumstances should have been a motion for a judgment of acquittal at the close of the prosecution’s case pursuant to Practice Book § 42-41. Because the motion addressed to the court was the “standard motion for judgment of acquittal,” we will treat the statement in the defendant’s brief as transcription error.

       General Statutes § 53a-111 provides: “(a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.”

       Although the defendant states that no suppression hearing was held in connection with his motion to suppress, there is nothing in the record that supports his claim that he filed a motion to suppress or made a request for a suppression hearing. At trial, defense counsel objected, on the basis of hearsay, to the introduction into evidence of a statement made by the defendant to the police. The court held a hearing outside the presence of the jury and overruled the objection.

       The defendant’s trial commenced on November 10, 1997. The defendant did not bring the speedy trial matter to the court’s attention again nor did he file a motion to dismiss on the basis of a speedy trial violation.

       See General Statutes § 54-82m.