author: MIHALAKOS, J.

text:
    MARION DAVIS v. FAMILY DOLLAR STORE
    (AC 23127)
    Schaller, Flynn and Mihalakos, Js.
    Argued May 1
    officially released July 22, 2003

      Christopher J. Molyneaux, with whom, on the brief, was Norman J. Voog, for the appellant (plaintiff).

      Leonard M. Isaac, with whom, on the brief, were S. Dave Vatti and James P. Brennan, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The dispositive issue in this case is whether a plaintiff can bring a new action sounding in negligence under our accidental failure of suit statute, General Statutes § 52-592, when the original negligence action was never commenced. We conclude that § 52-592 does not authorize a second suit under the circumstances and that the trial court properly granted the defendant’s motion for summary judgment.

The factual and procedural background of this case is not in dispute. The plaintiff, Marion Davis, was allegedly injured when she slipped and fell on the premises of the defendant, Family Dollar Store, on August 9, 1997. She attempted to commence a negligence action by delivering a writ of summons and complaint to a sheriff on August 6, 1999, to be served on the defendant. Service was never made, however, and the writ of summons and complaint were returned to the plaintiff on February 21, 2000. On September 15, 2000, the present action was served pursuant to § 52-592. The applicable statute of limitations period had expired prior to the service of the September 15, 2000 action.

The defendant filed a motion for summary judgment on September 6, 2001, claiming that § 52-592 did not save the action because no service of process had been attempted in the original action and, therefore, the original action was never commenced. The court granted the defendant’s motion and held that “[i]n the present case, there [was] no prior action, commenced or otherwise, upon which a determination has been made. On August 6,1999, a writ [of] summons and complaint were delivered to the sheriff for service upon the defendant. However, process was not served upon the defendant nor returned to the court.” The court further held that “[n]o proceeding was commenced prior to the initiation of the instant action. Courts which have considered whether an original action was commenced for purposes of § 52-592 recognize that [there] must be a preceding disposition of a prior action.”

The standard of review for deciding a motion for summary judgment is well settled. “Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Billerback v. Cerminara, 72 Conn. App. 302, 305-306, 805 A.2d 757 (2002). “[O]ur review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . [T]he burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Internal quotation marks omitted.) Con tadini v. DeVito, 71 Conn. App. 697, 700, 803 A.2d 423, cert. denied, 262 Conn. 918, 812 A.2d 862 (2002). In accordance with that standard, we must determine whether the court’s interpretation of § 52-592 was clearly erroneous.

We now turn to the issue raised by the plaintiff in her appeal. The plaintiff argues that § 52-592 saves her action because the original action had, in the words of the statute, “failed ... to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . .” (Emphasis added.) General Statutes § 52-592 (a). In other words, the plaintiff asserts that § 52-592 should apply in cases such as the present action in which the plaintiff delivered the complaint in a timely manner to a sheriff and, due to the sheriffs accident, default or negligence, the complaint was not served. We are not persuaded.

Pursuant to State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003) (en banc), “[t]he process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity.” (Citations omitted; internal quotation marks omitted.) Id., 577. “This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning.” (Emphasis in original.) Id., 577-78.

Our courts have interpreted § 52-592 pursuant to the statutory language. We continue to do so because no relevant legislative history exists that has defined, changed or affected our courts’ prior interpretations of the statute. The language of § 52-592 requires a plaintiff to have commenced an original action before the statute can be applied to save a subsequent action. “When a suit has been started seasonably, the statute extends the Statute of Limitations for a period of one year after the determination of the original action.” Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); see Gallo v. G. Fox & Co., 148 Conn. 327, 329, 170 A.2d 724 (1961) (“extension of time provided by it applies to all cases where a suit, seasonably begun, has failed for one or more of the causes stated”).

Although § 52-592 is remedial in nature, “passed to avoid hardships arising from an unbending enforcement of limitation statutes”; (internal quotation marks omitted) Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728, 557 A.2d 116 (1989); “it should not be construed so liberally as to render statutes of hmitation virtually meaningless.” Pintavalle v. Valkanos, 216 Conn. 412, 417, 581 A.2d 1050 (1990). “[B]y its plain language, [§ 52-592] is designed to prevent a miscarriage of justice if the [plaintiff fails] to get a proper day in court due to the various enumerated procedural problems. ... It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes. ... Its purpose is to aid the diligent suitor. ... Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.” (Citations omitted; internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 243-44, 789 A.2d 1142 (2002).

In this case, the plaintiff did not offer any authority to support the proposition that the delivery of process to a sheriff constituted commencement of an “action” within the meaning of § 52-592. Without the existence of a prior action, the plaintiff cannot invoke the protection of § 52-592. “Section 52-592 requires that the initial suit be commenced within the time limited by law. . . . [A]n action is commenced not when the writ is returned but when it is served upon the defendant.” (Citation omitted; internal quotation marks omitted.) Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234 (1974); see Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996) (our Supreme Court “has long held that an action is brought once the writ, summons and complaint have been served upon a defendant”); Consolidated Motor Lines, Inc. v. M & M Transportation Co., 128 Conn. 107, 109, 20 A.2d 621 (1941) (“From a very early date in this state the time when the action is regarded as having been brought is the date of service of the writ upon the defendant. . . . That, in our judgment, is the sounder rule, because only thus is the defendant put upon notice of the purpose of the plaintiff to call upon him to answer to the claim in court.” [Citations omitted.]). Because the writ of summons and complaint were never served on the defendant, the original action did not commence and, therefore, § 52-592 does not authorize another action to be filed or to extend any statute of limitations.

We recognize that there is a split of authority within the Superior Court with respect to that issue. See, e.g., Alagrin v. Vitale, Superior Court, judicial district of New Haven, Docket No. 435748 (May 4, 2001) (actual service, not attempted service, commences action); Battaglia v. Colonial Condominium Assn., Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. 157598 (March 24, 1998) (21 Conn. L. Rptr. 572) (same); see also Dolan v. Germond, Superior Court, judicial district of Fairfield, Docket No. 330461 (April 9, 1997) (process in initial action delivered to sheriff in timely manner but not served on defendant within limitations period; § 52-592 did not apply), aff'd, 47 Conn. App. 924, 703 A.2d 1197 (1997); Estate of Adamec v. Hartford East Elderly Apartments Ltd. Partnership, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 367902 (July 19, 1990) (2 Conn. L. Rptr. 88) (same); but see Crichton v. Noore, Superior Court, judicial district of Waterbury, Docket No. 159031 (March 23, 2001) (attempted service, not actual service commences action); Ahnert v. Tanguay, Superior Court, judicial district of Tolland, Docket No. 066599 (May 18, 1998) (22 Conn. L. Rptr. 180) (same).

“[T]he [plaintiff] must satisfy all of the criteria in § 52-592 in order to prevail . . . .” (Citation omitted.) Vessichio v. Hollenbeck, 18 Conn. App. 515, 519, 558 A.2d 686 (1989). The plaintiff, here, has not fulfilled the requirements of § 52-592. The original action was not commenced, resulting in an unseasonable suit. Although the statute is remedial, the language is clear and unambiguous. Section 52-592 (a) provides in relevant part: “If any action, commenced within the time limited by law, has failed . . . the plaintiff . . . may commence a new action . . . .” (Emphasis added.) Without the commencement of an original action, no action exists for the statute to save.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-592 (a) provides in relevant part: “If any action, commenced within the time limited by law, has failed ... to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed . . . the plaintiff . . . may commence a new action ... for the same cause at any time within one year after the determination of the original action . . . .”

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . . .”

       The plaintiff also claims that the defendant’s motion for summary judgment was improperly filed given that the defendant did not file an affidavit pursuant to Practice Book §§ 17-45, 17-46 and 17-49. The plaintiff argues that absent a supporting affidavit, the motion is invalid. See Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). We, however, find that this claim is without merit. Practice Book § 17-45 provides in relevant part that “[a] motion for summary judgment shall be supported by such documents as may be appropriate, including . . . affidavits . . . .” (Emphasis added.) Section 17-45 does not mandate that an affidavit be attached in all cases. In this case, an affidavit was not necessary because the relevant facts were not being challenged and already were available to the court.

       “Section 52-592 was originally enacted in 1862. In addition to certain other stated grounds, the first version of the statute permitted bringing a new action if ’the writ fails of a sufficient service or return, by any unavoidable accident, or by any default or neglect of the officer to whom it is committed. ’ The first case to construe the statute viewed it as remedial and applied it liberally. . . . The clauses in the statute which set forth the various grounds for commencing a new action appear in the disjunctive and provide alternate bases for instituting a new suit. By its very terms the statute expressly gives the plaintiff the right to bring another action within a year if the prior action was erased for want of jurisdiction.” (Citations omitted.) Broderick v. Jackman, 167 Conn. 96, 98-99, 355 A.2d 234 (1974); see also Public Acts 1979, No. 79-267; Public Acts 1982, No. 82-160, § 251; Public Acts, Spec. Sess., June, 1983, No. 83-29, § 50.

       There is a settled rule of statutory interpretation that where the highest court has interpreted statutory language, such as the date of the commencement of the action, that the legislature is aware of that settled interpretation. When the legislature reenacts Hie statute amending other provisions, there is a presumption that the legislature intended to adopt that settled judicial interpretation. See Martin v. Plainville, 240 Conn. 105, 110, 689 A.2d 1125 (1997).


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    OAKBRIDGE/ROGERS AVENUE REALTY, LLC v. PLANNING AND ZONING BOARD OF THE CITY OF MILFORD
    (AC 23345)
    Flynn, West and McLachlan, Js.

      Argued May 29
    officially released July 22, 2003

      Matthew B. Woods, city attorney, with whom, on the brief, was Cynthia C. Anger, assistant city attorney, for the appellant (defendant).

      Leo P. Carroll, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendant, the planning and zoning board of the city of Milford (board), appeals from the judgment of the trial court sustaining the appeal of the plaintiff, Oakbridge/Rogers Avenue Realty, LLC (owner). The board had denied the owner’s petition to amend its special permit to add four boat slips to its existing pier in Milford harbor. On appeal, the court concluded that the board had exceeded its authority. We affirm the judgment of the trial court.

We begin by setting forth the facts and procedural history that are relevant to the defendant’s appeal. The owner is a limited liability company holding title to 2.1 acres of real property at 20 Rogers Avenue in Milford. The property, which is adjacent to the harbor, is in a single-family residential zone. In 1967, a special permit was granted to allow two boat slips. In 1991, Joseph Nesteriak, the owner’s predecessor in title, was granted an amended special permit to increase the number of slips to four. By petition dated March 1,2001, the owner sought to amend the special permit again to increase the number of slips to eight.

The board held a public hearing on the owner’s petition for an amended special permit on April 17, 2001. At that time, the owner presented the board with a statement of use, which indicated that the harbor management commission had found that the proposed application was consistent with the harbor management plan. The owner also presented expert testimony that the additional slips would produce traffic consistent with the addition of a single-family house on Rogers Avenue and that real property values would not be affected negatively by the additional boat slips. Some of the owner’s neighbors voiced support for the petition.

A greater number of neighbors, however, opposed the petition, noting that in the past, as many as eight or nine boats were docked at the existing four slips and that some of those boats did not belong to the owner. The opposition objected to the potential increase in motor vehicular traffic the additional slips would bring to Rogers Avenue and the chance that the slips would be used for a commercial enterprise in conjunction with the slips on the adjoining property at 30 Rogers Avenue. At the hearing, neighbors voiced considerable concern about the marina-like activity that occurs at 30 Rogers Avenue. Those speaking in opposition to the petition feared that the neighborhood will loose its residential character if the owner is permitted to add the requested slips. At the time of the hearing, there was no cease and desist order pending against the owner.

The petition was discussed at a meeting of a board subcommittee on April 24 and May 29, 2001. On June 5, 2001, the board voted in favor of a motion that “the [owner’s] petition for additional boat slips is inconsistent with the residential zone district within which 20 Rogers Avenue is located.” The owner appealed from the board’s decision to the Superior Court, which sustained the owner’s appeal. The court concluded that the board had exceeded its authority in denying the petition on the ground that increased utilization of a permitted use was inconsistent with the zone in which the property was located, where such use previously was found to be in harmony with the harbor management plan, as required by the zoning regulations. The court observed that the board’s concern about the owner’s use or misuse of the slips is a matter for the appropriate enforcement of the city’s zoning regulations rather than a reason to deny the petition. The board appealed to this court, claiming that the trial court improperly concluded that the board had exceeded its authority in denying the owner’s petition to amend the special permit.

We next address the appropriate standard of review with respect to special permits. A special exception is also known as a special permit; Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 242 n.7, 794 A.2d 1016 (2002); and whether a zoning board grants a special permit essentially is a discretionary process. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 626, 711 A.2d 675 (1998). “A special permit allows aproperty owner to use his property in a manner expressly permitted by local zoning regulations. . . . The proposed use, however, must satisfy standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values. . . . An application for a special permit seeks permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district. . . . When a special permit is issued, the affected property may be allowed an exception to the underlying zoning regulations, but it continues to be governed in the same manner as provided in the overall comprehensive plan.” (Citations omitted; internal quotation marks omitted.) Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 215-17, 779 A.2d 750 (2001).

“The basic rationale for the special permit ... is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site.” (Internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, 74 Conn. App. 155, 160, 810 A.2d 312 (2002), cert. granted on other grounds, 262 Conn. 945, 815 A.2d 675 (2003).

“When ruling upon an application for a special [permit], a planning and zoning board acts in an administrative capacity. . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The [Appellate Court and] trial court [must] decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. . . . Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations and statutes.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 160-61. “[G]eneral considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may be the basis for the denial of a special permit.” (Emphasis added.) Irwin v. Planning & Zoning Commission, supra, 244 Conn. 627.

“[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing .... The trial court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support, [the board’s] findings. . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Where the board states its reasons on the record we look no further. . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision. . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, must determine whether the court properly concluded that the board’s decision to [deny the application for a special permit] was arbitrary, illegal or an abuse of discretion. . . . The evidence, however, to support any such [decision] must be substantial . . . .” (Citations omitted; internal quotation marks omitted.) Municipal Funding, LLC v. Zoning Board of Appeals, supra, 74 Conn. App. 161-62.

In Milford, boat slips are special uses permitted in single-family residential districts in which the owner’s property is located. See Milford Zoning Regs., § 3.1.2.17. Since the 1991 amendmentto the owner’s special permit was granted, the Milford zoning regulations were amended, eliminating from the regulations a predetermined number of slips permitted pursuant to a special permit. The amended regulation provides: “Private boathouses, landings and docks subject to the following conditions and safeguards: (1) The number of boat slips, berths, moorings and similar spaces proposed shall be consistent with the Milford Harbor Management Plan as determined by the Milford Harbor Management Commission; (2) The lot owner shall obtain all necessary State and Federal permits prior to constructing such boating facilities; (3) Such boat facilities shall be designated for the exclusive use of the owner.” The owner here had obtained all of the permits necessary for eight slips.

On appeal, the board relies on § 7.1.3.1 of the Milford zoning regulations to justify its having denied the owner’s petition. The regulations permit the board to rely on § 7.1.3.1, which provides: “Zoning Districts: That the proposed use shall be of such location, size and character that, in general, it will be in harmony with the appropriate and orderly development of the zoning district in which it is proposed to be situated and will not be detrimental to the orderly development of adjacent properties in accordance with the zoning classification of such properties.”

A zoning board is vested with discretion to grant or to deny a petition for a special permit. Regardless of what action the board takes, its decision must be supported by substantial evidence in the record. The record before us does not contain substantial evidence that the addition of four boat slips per se is inconsistent with the residential zone district. The objections to the additional four slips concern the use of the slips by nonowners of the premises, not the number of slips. Those concerns, however, pertain to the manner in which the special permit is used, not to whether the additional slips are consistent with the residential zone district. Furthermore, the regulations make clear that the harbor management commission has the duty to determine the number of permissible boat slips. The harbor management commission had approved the addition of four boat slips at 20 Rogers Avenue.

It appears from the return of record that the board’s real concern is not with the number of slips at 20 Rogers Avenue, but with the utilization of the existing slips by nonowners and the potential for even greater abuses of the zoning laws in the future if more slips are permitted. That, however, is a zoning enforcement issue, not a question of whether the additional slips are consistent with the residential zone district. The board and the neighbors have remedies they may pursue with respect to zoning violations. If the owner fails to abide by the zoning regulations, the Milford zoning enforcement officer may take action to enforce the regulations or the board may revoke the special permit, as it is entitled to do pursuant to § 7.2.9 of the Milford zoning regulations. Finally, whatever joint endeavors might be undertaken by the owners of 20 Rogers Avenue and 30 Rogers Avenue is a matter of speculation, which does not constitute substantial evidence. The court therefore properly sustained the owner’s appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The limited liability company is owned by fifteen individuals, namely, Joseph Nesteriak, his three sons and their wives and children. They are nonresident owners.

       Nesteriak conceded that from time to time, he had permitted his friends, the Special Olympics, a local yacht club and the attorney representing him at the hearing to use the slips out of friendship and as a favor. He did not receive compensation for letting nonowners use the slips, and he did not barter for their use.

       Section 7.2.3 of the Milford zoning regulations provides in relevant part: “In approving the application, the Board may place conditions on such approval and shall consider, in addition to the criteria of Section 7.1.3, the following . . . .”


author: SCHALLER, J.

text:
    JEFFREY TISDALE ET AL. v. RIVERSIDE CEMETERY ASSOCIATION
    (AC 22451)
    Schaller, Dranginis and Stoughton, Js.
    Argued March 17
    officially released July 22, 2003

      Brenden P. Leydon, for the appellants (plaintiffs).

      James E. Coyne, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiffs, Deborah Tisdale and Jeffrey Tisdale, appeal from the trial court’s judgment rendered after the jury’s verdict in favor of the defendant, Riverside Cemetery Association, with respect to Deborah Tisdale’s loss of consortium claim. On appeal, the plaintiffs claim that the court improperly denied their motion to set aside the verdict. Specifically, they argue that the court should have granted the motion because (1) the court improperly rendered judgment against Deborah Tisdale after the jury failed to return any verdict as to her loss of consortium claim, and (2) if the jury did in fact render a verdict with respect to her claim, the verdict, awarding $40,000 in compensatory damages to Jeffrey Tisdale, while presumably awarding $0 to Deborah Tisdale on her claim, was inconsistent, against the manifest weight of the evidence and inadequate.

The jury reasonably could have found the following facts. In January, 1977, Jeffrey Tisdale purchased from the defendant a cemetery plot containing two abutting graves. Jeffrey Tisdale’s mother died shortly after he purchased the cemetery plot. Jeffrey Tisdale interred his mother’s remains in grave number two.

In October, 1995, Jeffrey Tisdale’s father, James Tisdale, died. Jeffrey Tisdale ordered his father’s remains interred in the remaining grave site, grave number one. While preparing that grave site, however, the defendant’s workers discovered that unknown human remains had been previously buried there. During the memorial service for James Tisdale, on November 3, 1995, but before the casket was lowered into the ground, Jeffrey Tisdale was informed privately about the discovery. Jeffrey Tisdale was assured that the unknown remains would be removed and that the grave site would be prepared for his father’s remains.

After the memorial service, the unknown remains were disinterred and reburied in a separate cemetery plot. James Tisdale’s remains were thereafter interred in grave number one. Two years after his father’s death, and after considerable concern, Jeffrey Tisdale ordered his parents’ remains disinterred to ensure that the remains in the two graves were, in fact, his parents’ remains. The remains were identified positively as those of his parents. Jeffrey Tisdale viewed his father’s remains during the identification process.

The plaintiffs commenced this action on November 13, 1997. On August 13, 2001, the plaintiffs filed an amended six count complaint alleging negligence, loss of consortium, negligent infliction of emotional distress, intentional infliction of emotional distress, trespass and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

After a jury trial, on September 5, 2001, the jury returned a verdict utilizing the supplied plaintiffs’ verdict form. The first question on the plaintiffs’ verdict form inquired as to whether the jury had found unanimously in favor either of Jeffrey Tisdale or both Jeffrey Tisdale and Deborah Tisdale. The jury placed a check mark next to Jeffrey Tisdale’s name and awarded him $40,000 in damages. The jury did not complete any portion of the plaintiffs’ verdict form with respect to Deborah Tisdale. The court supplied the jury with a defendant’s verdict form, but the jury did not complete any portion of that form. During the recording and acceptance of the verdict, the jury responded, “yes,” when asked whether the verdict, as read, was correct. The court rendered judgment in favor of Jeffrey Tisdale and against Deborah Tisdale.

The plaintiffs thereafter filed a motion to set aside the verdict on the grounds that the verdict, while not awarding Deborah Tisdale any damages but awarding Jeffrey Tisdale $40,000, was contrary to law, against the weight of the evidence and inadequate. The court denied the plaintiffs’ motion. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs first claim that the court improperly denied their motion to set aside the verdict because it rendered judgment against Deborah Tisdale after the jury failed to return a verdict with respect to her loss of consortium claim. More specifically, they argue that the manner in which the jury completed, or failed to complete, the verdict forms, in light of the jury’s verbal confirmation of the verdict, rendered the verdict unintelligible.

The following additional facts are relevant to the plaintiffs’ claim. During its charge to the jury, the court informed the jurors that they would receive both plaintiffs’ and defendant’s verdict forms. The court instructed the jurors on the proper use of those forms. Despite the court’s instructions, the jury returned a verdict utilizing only the supplied plaintiffs’ verdict form. The plaintiffs’ verdict form indicated that the jury had found in favor of Jeffrey Tisdale, but did not indicate anything with respect to Deborah Tisdale. The jury awarded him damages totaling $40,000. The court ordered the clerk to read the verdict to the jmy. When the clerk read the verdict, the clerk did not mention Deborah Tisdale. The jurors acknowledged that they had found in favor of Jeffrey Tisdale and had awarded him $40,000. The court accepted and then ordered the verdict recorded. The clerk reread the plaintiffs’ verdict form to the jury. This time, however, the clerk added that “as to Deborah Tisdale, loss of consortium, noneconomic damages, nothing.” The jury again affirmatively stated that this was its verdict. At no time did the plaintiffs object to the form or substance of the accepted verdict. The record indicates that the court accepted the verdict without comment.

The proper appellate standard of review when considering the action of a court granting or denying a motion to set aside a verdict and for a new trial is the abuse of discretion standard. Bolmer v. McKulsky, 74 Conn. App. 499, 510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).

During the hearing on the plaintiffs’ motion, the court stated that the plaintiffs’ verdict form required the juiy to check either Jeffrey Tisdale or both Jeffrey Tisdale and Deborah Tisdale. The court noted that the jury followed that instruction and checked only Jeffrey Tisdale. The court indicated that the jury, by checking only Jeffrey Tisdale, and leaving all portions of that form blank with respect to Deborah Tisdale, clearly indicated a verdict solely for Jeffrey Tisdale. The fact that the jury did not complete the defendant’s verdict form, the court stated, was merely “form over substance.” Therefore, the court concluded, on the basis of the plaintiffs’ verdict form and the jury’s verbal assent, that the jury had returned a defendant’s verdict as to Deborah Tisdale.

On appeal, the plaintiffs argue that the verdict was unintelligible because the verdict forms were incomplete and inconsistent, resulting in a verdict that was defective, not merely as a matter of form, but rather, defective as a matter of law. To guide our analysis in determining whether the verdict was defective as a matter of law, we examine the pertinent case law. A verdict is not defective as a matter of law as long as it contains “an intelligible finding so that its meaning is clear.” Kilduff v. Kalinowski, 136 Conn. 405, 409, 71 A.2d 593 (1950). A verdict will be deemed “intelligible if it clearly manifests the intent of the jury.” Gajewski v. Pavelo, 32 Conn. App. 373, 379 n.5, 629 A.2d 465 (1993), rev’d on other grounds, 229 Conn. 829, 643 A.2d 1276 (1994). We note that if a verdict is defective in form alone, rather than as a matter of law, the parties should have objected at a time when the mistake could have been corrected. See Nigro v. Hagearty, 33 Conn. Sup. 609, 610, 364 A.2d 241 (1976); see also Mallinson v. Black, 41 Conn. App. 373, 381, 675 A.2d 937 (1996) (plaintiffs counsel polled jury to clarify uncertainty in verdict). “We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.” (Internal quotation marks omitted.) Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 497, 705 A.2d 210 (1998).

We conclude that because the verdict, as rendered, clearly manifests the jury’s intent, the verdict was intelligible and the defect was only a matter of form. Turning first to the manner in which the forms were prepared by the jury, we conclude that the verdict forms are consistent. The jury prepared the plaintiffs’ verdict form in accordance with the court’s instructions. The jury’s response on that form, read in light of the court’s instructions, could indicate only a verdict in favor of Jeffrey Tisdale and a verdict against Deborah Tisdale. Had the jury intended to find iri favor of Deborah Tisdale, it would have placed a check mark next to her name. Compare Bolmer v. McKulsky, supra, 74 Conn. App. 508-509 (inconsistent verdict forms yield unintelligible verdict).

Additionally, with reference to the plaintiffs’ argument as to incompleteness, the fact that the jury did not fill out the defendant’s verdict form does not make the verdict forms inconsistent or unintelligible. The verdict, as rendered on the plaintiffs’ verdict form, alone, disposes of the issues as to each plaintiff. Compare Clark v. Shaw, 143 Conn. 114, 117, 119 A.2d 912 (1956) (verdict forms disposed of issues as related to only one of two defendants). To support their argument that the failure to complete the defendant’s verdict form resulted in an unintelligible verdict, the plaintiffs cite Elliot v. Ferguson, 158 Conn. 553, 264 A.2d 556 (1969).

In Elliot, the plaintiff brought two causes of action sounding in negligence against a defendant child and the child’s parents. Id., 554. In the first count, the plaintiff claimed that the defendant child negligently had kindled a fire in the plaintiffs home. Id. In the second count, the plaintiff claimed that the parents negligently had failed to maintain control of their child. Id. The jury returned a verdict in favor of the plaintiff, and against the child, on the first count. Id. The court accepted and recorded the verdict. Id. The jury, however, failed to return a verdict with respect to the child’s parents. Id. Nevertheless, the court rendered judgment for the parents on the second count. Id. On appeal, our Supreme Court held that the trial court had given inadequate jury instructions concerning the verdict forms. Id., 555. Consequently, the court concluded that “the jury’s failure to render a verdict for or against the parents cannot be interpreted in any manner other than a failure to find on one of the material issues of the case.” Id.

By citing Elliot, the plaintiffs appear to equate the jury’s failure to complete the defendant’s verdict form to the jury’s failure, in Elliott, to fully dispose of the issues. We are not persuaded by that comparison. Significantly, in Elliot, the court applied the principle that “a verdict, once returned, may be construed with reference to the instructions pursuant to which it was rendered.” Id. The instructions in Elliot were deemed inadequate because the verdict, read in light of the proffered instructions, could be construed only with respect to the child. By contrast, in this case, the plaintiff does not claim that the instructions were inadequate. The verdict, read in light of the instructions given, can be construed in a manner whereby it is dispositive as to both plaintiffs. Compare Clark v. Shaw, supra, 143 Conn. 117 (verdicts deemed plainly defective where completed verdict form failed to dispose of the issue concerning which of two defendants was hable); see also Greco v. Keenan, 115 Conn. 704, 704, 161 A. 100 (1932) (verdict defective where verdict did not fully dispose of issues in case).

Even if we were to conclude that the forms were inconsistent, the transcript indicates that the court clerk twice announced the verdict for the assent of the jurors. Both times the jurors orally agreed, on the record, that this was their verdict. In the absence of disagreement stated on the record, the jury is taken to have assented to the verdict as announced by the court. See McCaskey Register Co. v. Keena, 81 Conn. 656, 659-60, 71 A. 898 (1909) (jurors not bound to signed verdict form; rather, verdict is what jurors assent to in open court). The clerk inquired on two occasions, in two different ways, whether the verdict, as read by him, was correct. By assenting to the verdict as read, the jury twice confirmed that the clerk’s interpretation of the verdict forms was correct. Additionally, the court accepted the verdict. “Acceptance of the verdict signifies that the court views it as satisfactorily responding to the issues in the case.” Suburban Sanitation Service, Inc. v. Millstein, 19 Conn. App. 283, 289, 562 A.2d 551 (1989). In that manner, a double safeguard is provided against mistake. See State v. DiPietro, 120 Conn. 537, 539, 181 A. 716 (1935). Accordingly, the jury’s failure to complete the defendant’s verdict form did not constitute a substantive defect. See Ferris v. Hotel Pick Arms, Inc., 147 Conn. 72, 74, 157 A.2d 106 (1959) (“[a]mple opportunity is thus afforded, and designedly so, for the court, counsel, and the jurors to comprehend the verdict and to cure any misunderstanding before the final assent”).

Still, the plaintiffs argue that although the jury twice verbally assented to the verdict, the verdict was read to the juiy inconsistently. On the basis of that distinction and considering the manner in which the forms were completed, the plaintiffs argue that there exists an ambiguity that precludes an intelligible verdict despite the jury’s verbal assent. We disagree. The clerk’s use of the word “nothing” with respect to Deborah Tisdale, on the ground that the jury did not place a check mark next to her name, has two possible meanings: (1) the jury found in favor of Jeffrey Tisdale and not Deborah Tisdale; or (2) the clerk attempted to correct the defect, failure to complete the defendant’s verdict form, in light of the jury’s silence with respect to Deborah Tisdale on the plaintiffs’ verdict form. If it is the former, then we believe that the juiy’s verbal assent vitiates any ambiguity, as the verdict is said to be what the jury assented to in open court. If it is the latter, then the clerk properly corrected the technical informality in the jury’s written verdict. See Watertown Ecclesiastical Society’s Appeal from Probate, 46 Conn. 230 (1878).

In Watertown Ecclesiastical Society’s Appeal from Probate, following acceptance of the verdict by the court, the clerk read the jury the written verdict. Id., 232. The clerk stated that the jury had found for the appellee in the amount of $1674. Id. The jury assented to the verdict as read and accepted despite the fact that the verdict form indicated that the jury awarded the appellee “sixteen and seventy-four dollars.” (Internal quotation marks omitted.) Id., 233. On appeal, our Supreme Court held that the clerk merely corrected an informality in the form and that the jury’s acceptance of the corrected verdict, as read by the clerk, was proper. Id.

Similarly, the clerk in this case, acting on behalf of the court, corrected the technical informality and read the verdict forms to the jury twice in open court. Each time that the verdict was read to the jury, the court asked the jurors whether the verdict, as read to them, was their verdict. “Under the procedure for receiving, accepting and recording a verdict . . . the final assent of the jurors, given after the verdict has been read aloud by the clerk, accepted and ordered recorded by the court . . . makes the verdict.” (Internal quotation marks omitted.) Josephson v. Meyers, 180 Conn. 302, 309, 429 A.2d 877 (1980), quoting Ferris v. Hotel Pick Arms, Inc., supra, 147 Conn. 74. We therefore conclude that the defect was not a matter of law, but instead a matter of form.

With that conclusion in mind, we note that during oral argument, counsel for the plaintiff conceded the fact that he should have reviewed the verdict forms and that he would do so in the future. As we previously stated, given that the defect was one of form only, we do not look favorably on grounds for appeal arising in the absence of timely objections at trial. See Parker v. Shaker Real Estate, Inc., supra, 47 Conn. App. 497 (plaintiffs not able to prevail on claim that they were entitled to new trial where, after jury discharged, court recalled jury to correct incomplete caption on verdict form).

On the basis of the foregoing analysis, we conclude that the jury’s verdict was not defective as a matter of law. The court did not abuse its discretion in denying the plaintiffs’ motion.

II

The plaintiffs claim that the court improperly denied their motion to set aside the verdict because if the jury did in fact return a verdict with respect to Deborah Tisdale’s claim, the verdict, awarding $40,000 in compensatory damages to Jeffrey Tisdale, while presumably awarding $0 to Deborah Tisdale for her loss of consortium claim, was inconsistent, against the manifest weight of the evidence and inadequate.

That claim presumes that the jury returned a plaintiffs’ verdict in favor of Deborah Tisdale, but awarded her no damages. To reach the conclusion urged by the plaintiff, we (1) would have to speculate that the jury ignored the court’s instructions, (2) would have to speculate that the jury reached a verdict in favor of Deborah Tisdale without completing any portion of the form as to her, (3) would have to read into the plaintiffs’ verdict form a check mark next to Deborah Tisdale’s name and (4) would have to speculate that the jury intended its silence, concerning damages, to imply a written “$0” or “zero.” Our law is clear that we are not permitted to speculate, as the plaintiff urges us to do. See Suburban Sanitation Service, Inc. v. Millstein, supra, 19 Conn. App. 290 (reviewing court will not speculate about jury’s intentions); Webster Bank v. Flanagan, 51 Conn. App. 733, 753, 725 A.2d 975 (1999) (reviewing court will not speculate about trial court’s impressions). Accordingly, we conclude that the court properly denied the plaintiffs’ motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to November 2, 1995, there was in fact an unrecorded burial in grave number one. Jeffrey Tisdale testified that no one in the family had been buried next to his mother in grave number one. The defendant’s representative, Ellen Pagliaro, indicated that the unknown person had been buried in grave site number one some time between the mid-1970s and the mid-1980s.

       In the original eight count complaint, the plaintiffs alleged, inter alia, negligence, loss of consortium, fraudulent concealment, negligent infliction of emotional distress, intentional infliction of emotional distress, trespass, conversion and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

       The jury completed the plaintiffs’ verdict form as follows:
      “PLAINTIFFS’ VERDICT
      In this case the Jury unanimously finds in favor of: (Check either Jeffrey Tisdale or both).
      ✓ Jeffrey Tisdale
      _Deborah Tisdale
      1) As to Jeffrey Tisdale
      Past and future economic damages: $ 25.000
      Past and future noneconomic damages: $ 15.000
      TOTAL $ 40.000
      Punitive damages, if any, $_
      (Reasonable attorney’s fees)
      2) As to Deborah Tisdale
      Loss of consortium noneconomic damages $_
      fSigned bv foreperson! 9/5/2001”

       The defendant’s verdict form, which was not filled out, stated:
      “DEFENDANT'S VERDICT
      (If this form is used, check the one that applies)
      _The jury unanimously finds against the plaintiffs Jeffrey Tisdale and Deborah Tisdale and in favor of the defendants.
      _The Jury unanimously finds against the plaintiff Deborah Tisdale only and in favor of the defendant, on her loss of consortium claim for her failure to prove her claim by a fair preponderance of the evidence.
      riJnsignedl”

       We note that although Deborah Tisdale failed to object at trial and failed to expressly raise that specific issue in her written motion to set aside the verdict, the court raised and addressed the issue on the record during the hearing on the motion. We also note, however, that the record fails to contain either a written memorandum of decision or a transcribed copy of an oral decision signed by the court stating its reasons for denying the plaintiffs’ motion to set aside the verdict. “The duty to provide [the Appellate Court] with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). This court frequently has declined to review claims when the appellant has failed to provide an adequate record for review. See Emigrant Savings Bank v. Erickson, 46 Conn. App. 51, 53-54, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997). On occasion, we have reviewed claims of error in light of an unsigned transcript as long as the transcript contains a sufficiently detailed and concise statement of the court’s findings and conclusions in connection with its decision. See Connecticut National Bank v. Browder, 30 Conn. App. 776, 778-79, 622 A.2d 588 (1993). In this case, the parties had the opportunity to argue their respective positions concerning the motion, and the court made its ruling on the record. The transcript from that hearing adequately reveals the basis of the court’s conclusions. Therefore, in light of the sufficiently detailed transcript, we consider the issue preserved for appeal.

       With respect to the verdict forms, the court instructed the jury as follows:
      “The Court: You will be receiving verdict forms. There will be a plaintiffs’ verdict form and a defendant’s verdict form. If you find the issues for the plaintiffs, you will use the plaintiffs’ verdict form. On this form, you will also see a place for punitive damages, if you award them.
      “As to Mrs. Tisdale, if you find for her on the loss of consortium claim, you should check her name on the plaintiffs verdict form and fill in the dollar amount for her loss of consortium damages.
      “If you find in favor of the defendant, either against both plaintiffs or against Deborah Tisdale only, you should use the defendant’s verdict form. You will see that you are to check one of the two options set forth. These two forms must be consistent with each other.
      “Let me say to you that damages, if you award them, are only to be awarded once. That is to say, even if you were to find against the defendant on more than one of the plaintiffs’ claims against it, you may make only a single award of compensatory damages and a single award of punitive damages, if any.
      “The foreperson of the jury must sign the verdict forms.”

       “The Clerk: Ladies and gentlemen of the jury, this is your verdict as it is read. In the case of Jeffrey Tisdale and Deborah Tisdale versus Riverside Cemetery Association, docket number CV 970162274, plaintiffs verdict.
      “In this case, the jury unanimously finds in favor of Jeffrey Tisdale. As to Jeffrey Tisdale, past and future economic damages, $25,000. Past and future noneconomic damages, $15,000. Giving a total of $40,000.
      “Signed by . . . the foreperson, dated fifth of September, 2001.
      “Ladies and gentlemen of the jury, is this your verdict, so say you all?
      “The Jury: Yes.
      “The Court: The court directs the verdict be accepted and recorded.
      “The Clerk: Ladies and gentlemen of the jury, listen to your verdict as it is ordered, accepted and recorded.
      “In the case of Jeffrey Tisdale and Deborah Tisdale versus Riverside Cemetery Association, docket number CV 970162274, plaintiffs verdict.
      “In this case, the jury unanimously finds in favor of Jeffrey Tisdale. As to Jeffrey Tisdale, past and future economic damages, $25,000. Past and future noneconomic damages, $15,000. Giving a total of $40,000.
      “As to Deborah Tisdale, loss of consortium, noneconomic damages, nothing.
      “As signed by . . . foreperson, dated fifth September, 2001.
      “Ladies and gentlemen of the jury, do you all agree that this is your verdict?
      “The Jury: Yes.”

       We note that the plaintiffs first objected to the form of the verdict, based on an alleged incomplete verdict form, during the hearing on their motion to set aside the verdict.

       Practice Book § 16-31 provides in relevant part that “the judicial authority shall, if the verdict is in order and is technically correct, accept it without comment.” The record indicates that the court accepted the verdict without comment. The court reviewed the verdict forms and, other than requesting the jurors to total the two damages figures, did not express any concern with the correctness or completeness of the forms. We can determine, therefore, that the court believed that the verdict was technically correct despite the jury’s failure to complete the defendant’s verdict form.

       We note that although the plaintiffs’ September 17, 2001 motion was labeled a motion to set aside the verdict, the plaintiffs should have labeled the motion as one to set aside the verdict and for a new trial. Despite the inaccurate label, the court properly considered the substance of relief sought in the subject motion that also requested a new trial. See Drahan v. Board

        of Education, 42 Conn. App. 480, 489, 680 A.2d 316 (when case requires court to determine nature of pleading filed by party, courts not required to accept precise label affixed to that pleading by moving party), cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996). We will therefore treat it as a motion to set aside the verdict and for a new trial.

       During oral argument, the plaintiffs’ counsel stated: “It wasn’t until we got to court on the motion to set aside that we actually saw the physical forms. . . . Both of us are going to make sure we look at the forms in future cases. At the time, they weren’t viewed, and it was assumed that the clerk was reading from what he had. . . .”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. TROY LOPES
    (AC 22596)
    Foti, Flynn and Dupont, Js.

      Argued March 20
    officially released July 29, 2003

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph J. Harry, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Troy Lopes, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, the defendant claims that the trial court improperly (1) instructed the jury on the charge of attempt to commit murder, (2) deprived him of a fair trial as a result of the court’s remarks, criticism and elicitation of evidence from witnesses, (3) restricted cross-examination and (4) failed to admonish jurors as required. We reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. On September 7, 2000, at about 1:47 p.m., the defendant, who was driving a grayish Honda Accord, approached the victim, Sean Spencer, while he was standing outside the police substation at Stratford Avenue and Sixth Street in Bridgeport. They had had words some days earlier, and an exchange again took place. The defendant told Spencer that the defendant was “going to get him,” and that he knew where Spencer worked and where his mother worked. Spencer replied that he knew where the defendant lived. At that point, the defendant threatened to kill Spencer. The parties were eight to ten feet apart during that exchange. The defendant, who had a grayish handgun that was five to six inches in length, fired two gunshots at Spencer, who retreated behind a truck unharmed.

Officer Raymond Ryan, a member of the Bridgeport police department, upon hearing the gunshots, observed a beige colored Honda proceeding away from the scene. He recognized the car as belonging to the defendant, who, two days earlier, had admitted ownership and produced paperwork to that effect. That evening, the police located the Honda parked across the street from the house of the defendant’s grandmother, where the defendant had been living. The police found a .380 caliber shell casing in the backseat behind the driver’s side. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly instructed the jury on the law as applicable to the charge of attempt to commit murder, in the following three ways. First, the court’s instructions included a mandatory presumption that the defendant had the intent to kill solely by his use of a deadly weapon. Second, the court instructed the jury on the full statutory definition of intent as set forth in General Statutes § 53a-3 (11). Third, the court instructed the jury on both subdivisions of the attempt statute. The defendant did not properly preserve his claim for appeal; he neither filed a request to charge on intent or attempt to commit murder, nor did he note his objection to the court’s instruction on either intent or attempt to commit murder. The defendant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

“Under prong three of Golding, a challenged jury instruction constitutes a clear constitutional violation that clearly deprives a defendant of a fair trial if it is found reasonably possible that the jury was misled by the court’s instruction.” State v. Tate, 59 Conn. App. 282, 286, 755 A.2d 984, cert. denied, 254 Conn. 935, 761 A.2d 757 (2000).

We will review the defendant’s claim pursuant to Golding because the record is adequate, and an improper instruction on an element of an offense is of constitutional magnitude. See State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998).

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 63 Conn. App. 529, 534, 777 A.2d 704, cert. denied, 256 Conn. 936, 776 A.2d 1151 (2001).

It is the defendant’s contention that the instructions as a whole misled the jury and diluted the state’s burden of proof. We agree.

A

The defendant first argues that the instructions misled the jury by creating a mandatory presumption that he had the intent to kill solely by virtue of his use of a deadly weapon.

The court instructed as follows: “An intent to cause death may be inferred circumstantially. Evidence as to the type of the weapon used, the manner in which it’s used, the type of wound inflicted, the events leading to and immediately following attempt at the death of a victim. One who uses a deadly weapon upon the vital part of another will be determined to have intended the probable result of that act, and from such a circumstance, a proper inference may be drawn in some cases that there was an intent to kill. And the use of a deadly weapon upon the vital part of another, it will be deemed that it is intended the probable result of that act and, from such a circumstance, a proper inference may be drawn that there was an intent to cause death. Any inference may be drawn from the nature of the weapon, and the manner of its use is an inference of fact to be drawn by the jury from the consideration of these and all other circumstances in the case.” (Emphasis added.)

It is the defendant’s position that the phrases “will be determined to have intended” and “it will be deemed that it is intended” impermissibly shifted the burden of proof. We disagree.

Our Supreme Court, in the exercise of its supervisory powers, directed trial courts not to use such language in the future. State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002). Aponte, however, was decided after the defendant’s trial. The defendant argues that although the court in Aponte found the charge not to be harmful, we should not so view the charge herein.

In the present case, however, as in Aponte, the court used permissive language, “may be inferred,” as to the intent to cause death. “[P]ermissive language tempers the challenged portion of the instruction and ensures that a reasonable jury will not interpret the charge in an unconstitutional manner.” Id., 521.

On the basis of our review of the jury charge as a whole, we conclude that it is not reasonably possible that the court’s instruction misled the jury and, thus, the defendant was not deprived of a fair trial by that particular instruction.

B

The defendant next argues that it was improper for the court to read the entire statutory definition of intent as contained in General Statutes § 53a-3 (11). Specifically, he contends that the court, on three occasions, instructed the jury that “a person acts intentionally with respect to a result or to conduct described by a statute defining an offense when the conscious objective of that person is to cause a result or to engage in such conduct.” “The specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim.” (Internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 322, 664 A.2d 743 (1995). The defendant specifically argues that the court should not have read that portion of the definition concerning a person’s conscious objective to engage in conduct because this part of the definition relates only to general intent crimes, and attempt to commit murder is a specific intent crime. We agree that that portion of § 53a-3 (11) dealing with intent to engage in proscribed conduct is irrelevant to a murder prosecution pursuant to § 53a-54a; State v. Young, 68 Conn. App. 10, 15, 791 A.2d 581, cert. denied, 260 Conn. 909, 795 A.2d 547 (2002); State v. DeBarros, 58 Conn. App. 673, 681-83, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000); and upon review of the entire charge, we conclude that the risk of juror confusion as a result of that improper instruction was not eliminated by the court’s proper instruction on the elements of murder. Cf. State v. Austin, supra, 244 Conn. 236 (numerous proper instructions eliminated risk of juror confusion resulting from improper instruction); see also State v. DeJesus, 260 Conn. 466, 475, 797 A.2d 1101 (2002).

Our review of the entire charge discloses that the court, did properly instruct the jury as to the state’s burden of proof regarding intent to cause a death necessary to convict the defendant on the charge of attempt to commit murder. The court instructed: “The first element the state must prove beyond a reasonable doubt is that the defendant had the kind of mental state required for the commission of the crime of murder. The element of the crime of murder is that the defendant intended to cause the death of another person.” That instruction, however, did not ehminate any possible juror confusion concerning the element of intent. Rather, the jury was still left with the distinct impression that the defendant could be found guilty of attempt to commit murder if he had the intent to engage in the conduct of firing his gun. We do not observe numerous proper instructions that would overshadow the improper “engaging in conduct” language, which pertains to a general intent crime.

Because the improper instruction was given in regard to the definition of murder and not solely in the instruction dealing with the general definition of intent, and because there were not numerous proper instructions given, we conclude that the instructional error deprived the defendant of a fair trial, as it is reasonably possible that the jury was misled.

C

Last, the defendant argues that the court improperly read the entire attempt statute to the jury, “which further misled the jury because the inapplicable portion of the attempt statute defines the crime of engaging in conduct.”

The court instructed: “After determining the intent of the defendant, the state must prove beyond a reasonable doubt either of the following: That he intentionally engaged in conduct that would constitute the crime or if the attendant circumstances were as he believed them to be or that this defendant intentionally did anything that, under the circumstances as he believed them to be, was an act constituting a substantial step in the course of conduct planned to culminate in the commission of the crime of murder.” (Emphasis added.) Thereafter, the court further instructed: “Please remember, the state must prove intent and conduct beyond a reasonable doubt before you can find the accused guilty of an attempt to commit the crime of murder. If you find the state has proven beyond a reasonable doubt each of the elements of the crime of attempt to commit murder, then you shall find the defendant guilty. On the other hand, if you find the state has failed to prove beyond a reasonable doubt any one of the elements, then you shall find the accused not guilty.” (Emphasis added.)

General Statutes § 53a-49 (a) defines criminal attempt. It 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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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.” General Statutes § 53a-49 (a).

The information in the present case charged the defendant under § 53a-49 without citing a subsection. The defense was one of identity. The evidence was sufficient, and the defendant does not claim otherwise, to convict him under § 53a-49 (a) (2). Generally, a trial court’s overinclusive jury charge would not deny a defendant his due process rights. “[A] factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation . . . .” (Internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 164, 778 A.2d 955 (2001), quoting State v. Chapman, 229 Conn. 529, 539, 643 A.2d 1213 (1994). Jurors are generally well equipped to analyze the evidence, and are in a position to be able to evaluate the testimony presented and to assess whether the evidence supported the charged theory. Griffin v. United States, 502 U.S. 46, 59, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991).

Although we might ordinarily conclude that the over-inclusive charge taken alone was harmless error, under the particular circumstances of this case, we must conclude that the error of instructing improperly on subdivision (1) of § 53a-49 (a) misled the jury by appearing to focus on the conduct rather than on the result.

II

The defendant next claims that the court’s improper remarks, criticism of defense counsel's closing argument and elicitation of evidence from witnesses that was prejudicial to his case deprived him of a fair trial.

“The principles guiding a trial judge in conducting a criminal trial are well established. Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. ... In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. . . . Consistent with his neutral role, the trial judge is free to question witnesses or otherwise intervene in a case in an effort to clarify testimony and assist the jury in understanding the evidence so long as he does not appear partisan in doing so.” (Internal quotation marks omitted.) State v. Solek, 66 Conn. App. 72, 89-90, 783 A.2d 1123, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). “Thus, when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent. On the contrary, the judge may, by questions to a witness, elicit relevant and important facts.” (Internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 770, 760 A.2d 82 (2000).

“This court has said that [j]udges in this state . . . are given wide latitude to comment fairly and reasonably upon evidence received at trial, but the court must refrain from making improper remarks which are indicative of favor or condemnation. . . . Even though a judge may take all reasonable steps necessary for the orderly progress of the trial, he must always be cautious and circumspect in his language and conduct.” (Internal quotation marks omitted.) State v. Pharr, 44 Conn. App. 561, 570-71, 691 A.2d 1081 (1997). “Any claim that the trial judge crossed the line between impartiality and advocacy is subject to harmless error analysis.” State v. Burke, 51 Conn. App. 328, 335, 723 A.2d 327 (1998), cert. denied, 248 Conn. 901, 732 A.2d 177 (1999).

The defendant only partially preserved his claim in that the court noted his objection as to the court’s instructions; the defendant seeks Golding review on the remainder of his claim.

During the state’s case-in-chief, the defendant’s mother, Carmen Lopes, testified that she owned the Honda Accord and that she did not give the car to her son to use. She testified that the defendant did not drive the car because he did not have a license. On cross-examination, she testified that she owned the car for about two weeks, and that the car was with her and her husband during that time. She also stated that she had an agreement with her son that he had to get a job and obtain his driver’s license before he could use the car. On redirect examination, she testified that she told the police that she had bought the car for her son, but did not tell them about the agreement.

276

JULY, 2003

State v. Lopes

78 Conn. App. 264

Following the examination, the court inquired:

“The Court: You seen [the defendant] drive a car?

“The Witness: Pardon me?

“The Court: You ever seen him drive?

“The Witness: Yes, I have.

“The Court: So, he knew how to drive?

“The Witness: Yes, he knew how.

“The Court: No question whether or not he had a license. Didn’t really make any difference, did it?

“The Witness: Yes, it did.

“The Court: It didn’t to him, if he wanted to drive.

“The Witness: Maybe to him it didn’t make a difference, but it made a difference to me.

“The Court: To you. But you don’t know what happened to that car on September 7?

“The Witness: No, I don’t. All I know was the—

“The Court: Was it with you?

“The Witness: It was at my house.

“The Court: All day?

“The Witness: It wasn’t with me all day. I was at work, Your Honor. The car was parked at 183 Livingston Place. To my knowledge, it was still — no let me back up. On—

“The Court: Thank you.

“The Witness: No. I want to tell the truth.

“The Court: I don’t want to hear it at this time. Okay.

“The Witness: Okay, Your Honor.

“The Court: Step out.”

Neither the state nor the defense attempted to ask any further questions.

“Whether or not the trial judge shall question a witness is within his sound discretion. The extent of the examination is likewise within his sound discretion. Its exercise will not be reviewed unless he has acted unreasonably, or, as it is more often expressed, abused his discretion.” (Internal quotation marks omitted.) State v. Bember, 183 Conn. 394, 401, 439 A.2d 387 (1981). “The trial judge can question witnesses both on direct and cross-examination. . . . [I]t may be necessary to do so to clarify testimony as [the judge] has a duty to comprehend what a witness says . . . [and] to see that the witness communicates with the jury in an intelligible manner. . . . While no precise theorem can be laid down, we have held that it is proper for a trial court to question a witness in endeavoring, without harm to the parties, to bring the facts out more clearly and to ascertain the truth . . . and [intervene] where the witness is embarrassed, has a language problem or may not understand a question.” (Citations omitted; internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 12-13, 501 A.2d 1195 (1985). “The risk of constitutional judicial misconduct is greatest in cases where the trial court has interceded in the merits of the trial. See [id.], 14-17 (impugning credibility of defense’s only witness violated right to fair trial); but see State v. Tatum, 219 Conn. 721, 739-42, 595 A.2d 322 (1991) (questioning of witnesses did not serve to endorse state’s view of case).” State v. Woodson, 227 Conn. 1, 31, 629 A.2d 386 (1993).

Our review of the record leads us to conclude that the colloquy did not cause the court to assume the role of advocate. The questioning was neither extensive nor irrelevant. The “judge took no position of advocacy regarding the outcome of the case, and made no improper comments on the significance of the evidence presented. At no time did the judge convey to the jury his opinion as to the guilt or innocence of the defendant.” State v. Gordon, 197 Conn. 413, 425-26, 504 A.2d 1020 (1985). The defendant, therefore, cannot prevail on his unpreserved claim.

The defendant next argues that the court “added to the prejudicial impact of the testimony by Mrs. Lopes by later instructions to the jury that defense counsel had inappropriately discussed testimony in her closing argument that was not supported by the evidence

During final argument, defense counsel argued: “The state may wish you to perhaps ignore the little fact that a box of ammunition matching the shell casings that were found at both the liquor store and Sixth Street were found not on [the defendant], not in his car, but in a car driven by Devon Smith . . . .”

The court instructed as follows: “Counsel’s arguments to you, both sides, I’m not going to pick on anybody, but there are rules, and the fact of the matter is, counsel may not suggest the evidence to you which has not been presented here in this courtroom under oath from the witness stand. You have to understand that. Where it does come in, there has been discussion here about the Nissan car, there is absolutely no evidence in this case about a Nissan car being involved in operation by anybody. Anyone. That’s known. There’s no evidence of this person who was seen coming to the car with a set, with a key for it and a key for a Honda; he never got in the car, he never drove the car, from the evidence in this case. And for counsel to suggest to you that he’s the driver of the car, it’s improper. There’s no evidence of that. Cannot do it. Understand that. So, be careful. Be guided by what you believe came from the witness stand under oath. Not the opinion of others, me included. You may draw reasonable inferences from the established facts in the case. Inferences which you draw must not be from a guess upon the evidence which an attorney may have presented to you in argument from that attorney’s knowledge which was not presented to you as evidence during the course of the trial.” (Emphasis added.)

Defense counsel also argued: “And there is not one, not one corroborating witness to what [Spencer] has said happened as to the identity of the shooter in either case. Yes, Officer Ryan says he sees a Honda going at a rapid rate of speed down the street, but he’s not out there. He can’t corroborate who the shooter was. He can’t say who is in the Honda. He can’t say anything, beyond a reasonable doubt, [about] what he observed, and that is a Honda down the street. In fact, it was so far away, he couldn’t notice any [license] plate. He didn’t tell you it had tinted windows. He didn’t tell you it had body damage. He couldn’t tell you it was painted, body work on the side. That’s how far away it was. All he could say was, oh, that’s [the defendant’s] car from that distance. How anxious was Officer Ryan to tell you that it was [the defendant’s] car? Maybe too anxious.”

The court, during its instructions, stated: “I never heard anyone on this witness stand testify that the windows were blackened in any Honda automobile, but you may have. But if you did not hear it, the suggestion by counsel in a case as to that being an impairment for someone to see through a window, there’s no evidence of it. You cannot consider it. That’s not subject of circumstantial evidence. That’s something that’s observable in the eye of the observer who would testify here.”

The defendant argues that those instructions, “coupled with the court’s questions asked of Mrs. Lopes, clearly conveyed the court’s skepticism of [his] entire defense.”

“Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. . . . Counsel may not, however, comment on or suggest an inference from facts not in evidence.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 58, 612 A.2d 755 (1992). We conclude, after a careful review of the record, that the court’s instructions did not deprive the defendant of a fair trial.

The defendant also complains that the court “placed inadmissible and prejudicial evidence before the jury” when the court, in ruling on an objection by the prosecutor, stated: “You [defense counsel] objected to uncharged criminal conduct.”

During the cross-examination of Vincent Manjoney, the surgeon who treated Spencer, defense counsel asked Manjoney about a similar gunshot wound from a prior occasion.

“[Defense Counsel]: And this — in the course of your exploratory surgery, I notice from the medical records, that, doctor, there was another bullet you located in his body unrelated to this incident. Correct?

“[The Witness]: That’s correct.

“[Prosecutor]: I’d object, Your Honor.

“The Court: Overruled. It’s unrelated to the incident?

“[Defense Counsel]: It’s unrelated to the incident. It’s in the medical records.

“The Court: I would sustain the objection if it’s unrelated. Your question poses it in that fashion, then it’s irrelevant. Next question, please.

“[Defense Counsel]: The — Mr. Spencer had sustained damage in his body prior to this incident for a similar gunshot wound that you treated him for on a prior occasion unrelated to this?

“[Prosecutor]: I’d object, Your Honor.

“The Court: Sustain the objection. Disregard the question. Do not ask it again.

“[Defense Counsel]: Did you observe any injury in his body that was not caused by this?

“The Court: I suggest that you do not do that. Now, I’m doing it for a good reason, ma’am. You objected to uncharged criminal conduct. Now, I don’t know where we’re going with that, but do not open the door unless you’re able to close it. We’re here for one case.”

Our review of the record fails to disclose exactly what “door” would be opened by that question and answer, but we realize that the court is in the best position to determine where a particular line of questioning will lead and to whose detriment. Although the jury was not entitled to know about the defendant’s motion in limine concerning uncharged misconduct by the defendant, the comment itself was not so prejudicial as to affect the integrity of the trial itself.

The defendant contends that those alleged improprieties taken individually or viewed together violated his right to a fair trial. Because we find no individual constitutional alleged impropriety in the instruction to the jury to constitute reversible error, we cannot view all alleged errors together to so find. See State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).

Ill

The defendant next claims that the court improperly restricted his cross-examination of a key witness, Spencer, thereby violating the defendant’s right of confrontation under the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut.*

During cross-examination of Spencer, defense counsel asked if he intended to make application to the victim’s compensation fund after the case was over, and he answered no. Defense counsel then asked if it was true that Spencer had told people that it was his intention to so do, and he replied no. When she asked Spencer if he believed “that by giving testimony favorable to the state that your chances of receiving compensation from the victim’s compensation fund are increased,” the prosecutor objected.

The court stated: “Well, first and foremost, I don’t know if he has already made application and his bills have been paid. I know St. Vincent’s Hospital would like to know how they’re being paid. But what’s the difference? We don’t know what motivates the commissioners on the victim’s commission. There’s three of them. They make the decision, and there’s no guidelines, so.”

Defense counsel began to argue that “what he believes as motivation would be,” but the court interjected, stating, “[w]ell, we’re going to get into what he has been told by everybody?” Defense counsel stated, no, “Lj]ust what he believes by testifying favorably . . . .” The court refused to allow the question, stating: “I understand that. He answers the question, and the next thing is why? What basis do you make that belief on? And we get into a whole different set of questions, which are irrelevant to these proceedings. The question in this case is, who shot him on the night in question?”

Defense counsel continued to question Spencer:

“[Defense Counsel]: So, you came into court today and you identified [the defendant] as the person responsible for shooting at you?

“[The Witness]: Right.

“[Defense Counsel]: Stratford Avenue and the liquor store, correct?

“[The Witness]: Correct.

“[Defense Counsel]: Isn’t it trae that last week, when you were brought into the courthouse, when you were speaking amongst other inmates down in lockup, you revealed and confided to them that you were unsure of the identity of the shooter?

“[Prosecutor]: I would object, Your Honor.

“The Court: Sustain the objection.

“[Prosecutor]: There’s no foundation.

“The Court: I have no way of knowing what that’s all about. Whether in fact that ever happened, I don’t know, unless you have a bona fide offer that you can tell me as a commissioner of this court you have reliable information that that occurred. I don’t mean from this, some inmate.

“[Defense Counsel]: I have three inmates who say the same thing.

“[Prosecutor]: Objection, Your Honor, to that comment.

“The Court: No. Disregard.”

On redirect examination, the state asked Spencer if since the day of the incident or “since September 14, the time you gave your statement, to today’s date, did you ever recant part of that statement?” Spencer answered no. On recross-examination, defense counsel asked Spencer, “[y]ou testified on redirect [examination] that you never had no doubt in your mind who was the shooter, and you never recanted any part of your statement. Once again, I’m asking you, do you recall recanting part of your statement with respect to the identification last week in lockup?” The prosecutor stated, “[t]hat’s a misrepresentation,” and the court sustained the objection.

“A trial court’s ruling on the admissibility of evidence is afforded great deference. . . . The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. 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. . . . Furthermore, [t]o establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial.” (Citations omitted; internal quotation marks omitted.) State v. Valentine, 255 Conn. 61, 69, 762 A.2d 1278 (2000). After our own review of the challenged evidence, we conclude that the court did not abuse its discretion.

“The sixth amendment to the United States constitution guarantees the right of an accused in a criminal prosecution to confront and cross-examine the witnesses against him. . . . [T]he primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Therefore, an accused’s right to cross-examination to elicit facts tending to show motive, interest, bias and prejudice may not be unduly restricted by the wide discretion of the trial court. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiiy was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial. ... 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. . . .

“We have emphasized in numerous decisions, however, that the confrontation clause does not give the defendant the right to engage in unrestricted cross-examination. . . . [T]he right to cross-examine a witness pertaining to specific acts of misconduct is limited in three distinct ways. . . . First, cross-examination may only extend to specific acts of misconduct other than a felony conviction if those acts bear a special significance upon the issue of veracity. . . . Second, [w]hether to permit cross-examination as to particular acts of misconduct . . . lies largely within the discretion of the trial court. . . . Third, extrinsic evidence of such acts is inadmissible.” (Citations omitted; internal quotation marks omitted.) Id., 70-71.

Spencer answered the initial question regarding the victim’s compensation fund in the negative. Regardless of whether that was true or not, any further inquiry certainly would have been irrelevant. Even if Spencer had planned to file a claim, which he denied, testifying, cooperation with the prosecution or even a prosecution itself are not prerequisites to receive compensation. See General Statutes § 54-204 et seq.

The defendant also claims he was unduly restricted in cross-examination of Spencer relative to Spencer’s alleged recanting of his identification of the defendant as the shooter. The court asked for a “bona fide offer” of reliable information that a recanting had occurred. The defendant concedes that he made no offer of proof. We conclude that the court neither infringed on the defendant’s right of confrontation nor abused its discretion in sustaining the state’s objection to the questions asked.

IV

Last, the defendant challenges the court’s partial failure to comply with Practice Book § 42-14 (a). The defendant alleges that the court failed to admonish the jurors not to read, to listen to or to watch any news accounts of the defendant’s case. He argues that it is impossible to go back in time and try to re-create whether the jurors heard, read or watched something about the case, and, therefore, a showing of prejudice is virtually impossible. The defendant claims the court’s failure to fully comply with Practice Book § 42-14 constituted plain error or violated his constitutional right to due process.

The court did instruct the jury not to discuss the matter with each other or with anyone else, but clearly did not fully comply with Practice Book § 42-14 (a).

A court violates a defendant’s constitutional right to an unprejudiced jury when it instructs jurors that they may discuss the case among themselves before the case is submitted for deliberations. State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980). In this matter, the court gave only a partial instruction rather than an incorrect instruction. Although there may be error in failing to admonish the jury not to read, to listen to or to view news reports, we conclude that under the particular circumstances of this case, it was harmless. “If error touches a less basic constitutional right, we sometimes apply the ‘harmless error’ exception, but only sparingly, in a few, discrete circumstances.” (Internal quotation marks omitted.) State v. Cohane, 193 Conn. 474, 485, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).

We look to determine if the error affected the outcome of the case; did the error have little, if any, likelihood of having changed the result of the trial. Even if we assume the omitted instruction to be constitutional error, we nevertheless may apply the harmless error rule. See Chapman v. California, 386 U.S. 18, 21-22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Absent a showing of prejudice, we cannot deem that the defendant, who did not seek an admonishment at any point during the trial, is entitled to an automatic reversal of his conviction.

The judgment is reversed only as to the conviction of attempt to commit murder and the case is remanded for a new trial on that charge. The judgment is affirmed as to the conviction of carrying a pistol without a permit.

In this opinion the other judges concurred.

       The jury also found the defendant not guilty of one count of attempt to commit murder and of assault in the first degree. The court dismissed an additional charge of criminal possession of a firearm.
      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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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.”
      General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
      General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon one’s person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .”

       The defendant, who did not testify during the trial, stipulated that he did not possess a pistol permit on the date in question.

       Although Spencer was later shot while he was working at a liquor store in Bridgeport at around 7:15 that evening, and he testified that the defendant was the perpetrator, the jury acquitted the defendant of both attempt to commit murder and assault in the first degree in connection with that incident.

       “[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 haimlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The improper instruction also was given as to the charge of assault in the first degree. Although the jury acquitted the defendant on that charge and a second count of attempt to commit murder, we cannot conclude that the faulty repeated instruction did not mislead the jury.

       “The harmless error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence . . . and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” (Citation omitted; internal quotation marks omitted.) Bunkley v. Commissioner of Correction, 222 Conn. 444, 460, 610 A.2d 598 (1992).

       See footnote 4.

       Although the court’s questioning did not violate the defendant’s constitutional lights, our Supreme Court has cautioned that “trial courts should be careful to avoid giving the impression of passing upon the credibility of witnesses.” State v. Robertson, supra, 254 Conn. 782.

       The court’s instructions included an admonition to disregard what the jury might perceive as the court’s opinion about the case. The court stated: “You should not draw any inferences whatsoever from any questions I may have asked any witness in the case. If I did, give no consideration to the answer given to the [question] which I may have asked.” The court also instructed as follows: “[I]f I have made any reference to the position of the state or the accused, I assure you, it’s not my intention to convey to you either directly or indirectly how this court feels about the outcome of this case. It is not my concern. It’s none of my business. This is your case. You decide it unhampered by anybody else’s opinion. That includes me as well as those voiced by counsel. That’s not to be considered by you. You decide the case based on what you believe to be the cold, hard facts of this case. The case belongs to you.”

       We find no merit to the defendant’s additional claim that the court made “gratuitous remarks” about “other statements the court considered to be prejudicial.” Our review of the record discloses that on two occasions, defense counsel objected to statements made by Spencer because they were “prejudicial.” The court replied, “I’m sure it is,” and, “it is prejudicial, of course.” The court should not exclude evidence merely because it is prejudicial. “[A]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted.” (Emphasis added; internal quotation marks omitted.) State v. Pare, 75 Conn. App. 474, 481, 816 A.2d 657, cert. denied, 263 Conn. 924, 823 A.2d 1216 (2003).

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”
      Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him . . . .”
      “Because the defendant did not separately address his state constitutional claim, we resolve this issue only on federal constitutional grounds.” State v. Maye, 70 Conn. App. 828, 831 n.1, 799 A.2d 1136 (2002).

       Practice Book § 42-14 (a) provides: “The judicial authority shall cause the jurors selected for the trial to be sworn or affirmed in accordance with General Statutes §§ 1-23 and 1-25. The judicial authority shall admonish the jurors not to read, listen to or view news reports of the case or to discuss with each other or with any person not a member of the jury the cause under consideration, except that after the case has been submitted to the jury for deliberation the jurors shall discuss it among themselves in the jury room.”

       The record does not disclose that there indeed was any publicity or news media coverage of the matter during the trial or during jury deliberations.