author: Daly, J. Landau, J.,

text:
    State of Connecticut v. Richard J. Tanzella
    (9914)
    Daly, Landau and Freedman, Js.

      Argued March 31
    decision released August 11, 1992

      Jon L. Schoenhorn, with whom, on the brief, was Christine M. Fiedler, legal intern, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and John H. Malone, supervisory assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70, assault in the third degree in violation of General Statutes § 53a-61, threatening in violation of General Statutes § 53a-62 and unlawful restraint in the first degree in violation of General Statutes § 53a-95. He claims that the trial court improperly (1) allowed the state to make a substantive amendment to the information after the commencement of trial, (2) admitted extrinsic evidence to impeach the defendant on a collateral matter, and (3) admitted prejudicial hearsay testimony.

The jury reasonably could have found the following facts. On July 16, 1988, the victim went to the Club Car, a Hartford nightclub, to meet some friends. At approximately 1:30 a.m. on July 17, she left the club by herself and walked to her car. As she was walking to her car, the defendant approached her and began a conversation. The defendant identified himself and asked if she would give him a ride to his house in Manchester. The victim initially refused but then changed her mind after the defendant emptied his pockets to show he did not have a weapon. The victim examined the defendant’s driver’s license after he emptied his pockets. She then drove the defendant to Manchester and stopped at a school parking lot near his apartment.

According to the victim’s testimony, when they arrived at the school parking lot, the defendant grabbed her and turned off her car’s engine. The defendant told the victim to remove her pants but she attempted to struggle with him. She was able to restart the car but again he removed the keys and threatened her with death if she kept resisting. During the course of the struggle, the defendant punched the victim in the head and she bit him on the forearm. The defendant then sexually assaulted the victim and forced her to engage in sexual intercourse. After intercourse, the victim drove the. car, following the defendant’s directions, toward his apartment. While driving, the victim saw a house with its lights on and drove into the driveway. She grabbed her keys and fled from the car to a side door of the house. She began to bang on the door and saw that the defendant had exited her car. The defendant ran up the street and the victim returned to her car. As she drove toward a hospital, the victim encountered a Manchester police officer and reported that she had been raped.

After meeting with the victim and further investigation, the police went to the defendant’s apartment. The police officers told the defendant he was under investigation for sexual assault. The defendant denied any knowledge of a sexual assault and stated that he had been out with his girl friend all night. The defendant’s girl friend, Virginia Cross, was also at his apartment when the police arrived. The police arrested the defendant and took him into custody. The defendant telephoned Cross from the police station. A police officer who overheard the defendant’s conversation with Cross testified that he stated, “You are driving a nail into my coffin.” According to this officer, the defendant also told Cross to change her story and tell the police that she did not remember anything because she suffered from blackouts. The police photographed a small bitemark on the defendant’s forearm.

The defendant testified that after spending the evening with Cross at a club in Hartford, he became separated from her as the club was closing. The defendant stated that he and Cross were getting along very well and had not been fighting that evening. The defendant began to look for Cross outside of the club and during this search he met the victim. According to the defendant’s version, the victim offered to drive him home and during the drive placed her hand on his knee. At the school parking lot, they kissed and then had consensual sexual intercourse. After this, the victim asked if she could go to the defendant’s apartment with him. The defendant refused because his girl friend was at his apartment. The defendant told the victim that “having sex in a parking lot is not a way to start a relationship for the future.” The victim then drove the defendant to a house whereupon she exited the car and walked into the house. The defendant exited the car and took the victim’s pants and nylons with him. He deposited the defendant’s pants and nylons in a dumpster near his apartment.

I

The defendant first claims that the trial court improperly allowed the state to amend the information after the completion of jury selection. The defendant argues that the amended information charged offenses different from the original information in violation of Practice Book § 624.

The following facts are relevant to the disposition of this claim. Before the commencement of jury selection, the third count of the state’s information charged the defendant with assault in the third degree in violation of General Statutes § 53a-61 (a) (2). The fourth count of the state’s information charged the defendant with threatening in violation of General Statutes § 53a-62 (a) (3). After jury selection, the trial court clerk read the information to the jury. After this reading, the assistant state’s attorney, outside the presence of the jury stated that he discovered for the first time that the third and fourth counts of the information were incorrect and claimed that a drafting error resulted in the wrong subdivisions being cited in the original information. He stated that the third count should have alleged a violation of subdivision (1) instead of subdivision (2) of § 53a-61 (a), and the fourth count should have alleged a violation of subdivision (1) instead of subdivision (3) of § 53a-62 (a). The defendant, relying on Practice Book § 624, objected to the state’s attempt to amend the original information. The defendant argued that the state could amend the information after the commencement of trial only if the amendment substituted a lesser included offense. He argued that the amendment changed the nature, elements and proof as to both the assault and threatening counts. According to the defendant’s argument, the change in subdivisions of the assault count resulted in a clearly different substantive offense’s being charged. The state argued that the amendment did not add extra or different charges and that the defendant faced the same penalty under the original and amended information. The defendant focused on the change related to the third count concerning assault in the third degree because the state originally had to prove serious physical injury and, under the amendment, had to prove only physical injury. The defendant argued that the amendment changed the theory of the case and prejudiced his defense because he lacked proper notice of the new charges. The trial court allowed the amendment, concluding that it did not amount to a substantive change because the offenses remained the same and the amendment altered only the manner in which the offense was committed. The trial court asked defense counsel whether he needed any additional time to address the changes in the amendment. Defense counsel felt that he did not need additional time at that point but stated that he would inform the court if the amendment resulted in a time problem.

Because this amendment occurred after the jury was selected, the trial had commenced and Practice Book § 624 governed the amendment. State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 752 (1986). After the commencement of trial, the state can amend the information without the defendant’s consent as long as “no additional or different offense is charged and no substantive rights of the defendant would be prejudiced.” Practice Book § 624. “The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. See U. S. Const., amend. VI; Conn. Const., art. I, § 8.” State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981). “Unless the original and the amended informations charge the defendant with the same crime, as was the case in State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980), amendment is permissible only to charge a lesser included offense.” Id., 590-91.

Under the state’s original information, it was required to prove that the defendant acted recklessly and thereby caused a serious physical injury to another person to secure a conviction based on § 53a-61 (a) (2). Under the amended information, to secure a conviction based on § 53a-61 (a) (1), the state had to prove that the defendant intentionally caused another to suffer a physical injury. Although both subdivisions (1) and (2) of subsection (a) are generally classified as the crime of assault in the third degree, we conclude that, for purposes of Practice Book § 624 they are not the same offense. Each subdivision within § 53a-61 (a) requires proof of different mental states as well as different resulting physical injuries from the defendant’s conduct. The physical injury element of § 53a-61 (a) (1) requires proof of “impairment of physical condition or pain.” See General Statutes § 53a-3 (3). In contrast, the serious physical injury element of § 53a-61 (a) (2) is defined as “physical injury which creates a substantial serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.” General Statutes § 53a-3 (4).

The state’s reliance on State v. Secore, 194 Conn. 692, 481 A.2d 741 (1984), State v. Wallace, supra, and (State v. Sullivan, 11 Conn. App. 80, 525 A.2d 1353 (1987), to support its claim that the amendment in this case did not charge an additional or different offense is misplaced because the statutes in those cases are distinguishable from this case. In Wallace, the defendant was initially charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (2). After discovering that it did not have the actual weapon used in the robbery, the state was allowed to amend the original information to charge the defendant with a violation of § 53a-134 (a) (4) instead of § 53a-134 (a) (2). State v. Wallace, supra, 239. The amendment was necessary because subdivision (2) required proof that the defendant was armed with a deadly weapon while subdivision (4) required proof that the defendant threatened the use of what he represented by his actions to be a firearm. The statutory subdivisions (2) and (4) for robbery in the first degree under General Statutes § 53a-134 (a), unlike §§ 53a-61 and 53a-62, do not contain different mental states and different resulting harms. Our Supreme Court also noted that the defendant in State v. Wallace, supra, was not prejudiced by the amendment because he raised an alibi defense and therefore did not dispute whether the robbery was committed by the use of a deadly weapon or by the threat of the use of a firearm. State v. Wallace, supra, does not control in this case because the amendment there did not charge the defendant with a different crime and therefore did not violate Practice Book § 624. Here, the amendment charged the defendant with two different offenses in violation of Practice Book § 624 and violated the defendant’s constitutional right to fair notice.

In State v. Secore, supra, 698, our Supreme Court found “that the language of [General Statutes] § 53a-70 divides the statute, not into crimes but into two methods of committing the same crime; see State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980) . . . .” On the basis of that interpretation, the substitute information charging the defendant in Secore with a sexual assault “ ‘by the threat of use of force’ ” rather than “ ‘by the use of force’ ” as charged in the indictment did not charge the defendant with a different crime. Again, the substitute information in State v. Secore, supra, unlike the amended information in this case, did not require a proof of a different mental state and of a different resulting harm. The subdivisions in §§ 53a-61 (a) and 53a-62 (a) have different mental states and different resulting harms and are thus distinguishable from §§ 53a-70 and 53a-134.

The statutory classification for risk of injury to a child in violation of General Statutes § 53-21 is also different from § 53a-61 and § 53a-62. In State v. Sullivan, supra, the state initially charged the defendant with impairing the morals of a child in violation of the first part of § 53-21. The amended information sought to charge the defendant with both parts of § 53-21 instead of only the first part. This court upheld the trial court’s granting of the amendment after commencement of trial because it did not charge the defendant with a different or additional offense. A comparison of § 53-21 to §§ 53a-61 and 53a-62 reveals that the latter statutes’ subdivisions are not merely different methods of committing the same crime. Each subdivision under §§ 53a-61 (a) and 53a-62 (a) has different results and different mental states. Here, the amendment charged the defendant with different offenses in violation of Practice Book § 624. Because the amended information charged the defendant with different crimes that did not constitute lesser included offenses of the original charges, the state was not permitted to amend the information in this case. State v. Jacobowitz, supra, 590-91. The judgment of conviction rendered on the third and fourth counts must be set aside because of the improper amendment and judgment of not guilty is directed. Id., 593.

We must next determine whether the improper amendment concerning the assault in the third degree and the threatening conviction contributed to the defendant’s convictions on the remaining three counts. State v. Ignatowski, 10 Conn. App. 709, 715, 525 A.2d 542, cert. denied, 204 Conn. 812, 528 A.2d 1157 (1987). Because the improper amendment violated the defendant’s constitutional right to notice of the charges against him, the state must show that the improper amendment was harmless beyond a reasonable doubt as to the remaining counts. Id. We conclude that the state has met its burden concerning the improper amendment’s effect on the three remaining counts.

In State v. Ignatowski, supra, 712, the defendant was charged in the first information with sexual assault in a cohabiting relationship in violation of General Statutes § 53a-70b (b), and assault in the third degree. The state’s second information charged the defendant with one count of assault in the third degree and three counts of sexual assault in the first degree in violation of § 53a-70 (a). Before jury selection, the defendant raised the affirmative defense of cohabitation pursuant to General Statutes § 53a-67 (b) to the three counts of sexual assault in the second information. After commencement of the trial, the state amended the second information to include three additional charges of sexual assault in a cohabiting relationship. The defendant was found guilty on both counts under the first information and all counts in the second information except for the three additional counts of sexual assault in a cohabiting relationship of which the defendant was acquitted.

We found that the trial court’s granting of the amendment to the second information concerning the three additional counts of sexual assault in a cohabiting relationship violated Practice Book § 624. Id., 714. The state argued that the improper amendment was harmless error because the defendant was acquitted of the three additional counts that were improperly added. Id., 715. We found that although the improper amendment did not affect the verdicts under the first information and the assault conviction in the second information, it did affect the guilty verdicts related to the three counts of sexual assault in violation of § 53a-70 (a). The error in that case was not harmless beyond a reasonable doubt because it “unfairly prejudiced the defendant’s ability to present a statutory affirmative defense to the three charges of sexual assault in the first degree.” Id., 716. In Ignatowski, the improper amendment forced the defendant to choose between not raising the affirmative defense of cohabitation or raising that defense with the risk of proving an element of the improperly added charges of sexual assault in a cohabiting relationship. Id. The defendant’s failure to pursue the affirmative defense of cohabitation due to the improper amendment deprived him of a defense to the three counts of sexual assault in the first degree. This prejudiced the defendant and resulted in an unfair trial. Id. The improper amendment to the second information did not contribute to the defendant’s conviction of assault in the third degree in that information. Therefore, it was harmless beyond a reasonable doubt as to that conviction. Id., 717.

In the present case, the amendment changing the charges related to the assault in the third degree and the threatening count did not prevent the defendant from raising a defense to the remaining counts of sexual assault in the first degree and unlawful restraint. The defendant’s claim that the charges in the improper amendment “formed the very foundation” of the remaining three counts is without merit. The elements for a conviction under §§ 53a-70 and 53a-95 are separate and distinct from the elements of the amended information. The amended information did not force the defendant to alter his defense to the remaining counts of sexual assault and unlawful restraint.

The defendant also argues that the amendment contributed to his conviction on the remaining counts because it removed the contradiction in the original charges concerning allegations of recklessness in the violations of §§ 53a-61 (a) (2) and 53a-62 (a) (3) and allegations of intentional action in the remaining counts. According to the defendant, the jury would not have been able to reconcile the difference between the allegation of reckless and intentional conduct by the defendant. Our Supreme Court has noted that even though intentional conduct and reckless conduct have different meanings, “this does not mean that the same factual circumstances cannot support a jury finding of either intentionality or recklessness.” State v. Giguere, 184 Conn. 400, 403-404, 439 A.2d 1040 (1981). The jury could have found that although the defendant was not guilty of reckless conduct in assaulting and threatening the victim, he did intentionally sexually assault and unlawfully restrain her. There was not such a clear contradiction between the original counts even though each charge consisted of different elements.

The improper amendment did not contribute to the defendant’s conviction of the three remaining counts. The trial court’s improper amendment was harmless beyond a reasonable doubt as to the remaining convictions.

II

The defendant next claims that the trial court improperly admitted evidence of a collateral matter to impeach the defendant. The following facts are relevant to this claim.

The defendant testified that he went with Cross first to the Club Car and then to City Lights, both located in Hartford. He was with Cross the entire time at City Lights except when they went to the restrooms. According to his testimony, he and Cross were getting along and had not had any arguments that evening. The defendant expected Cross to come to his apartment after the bar closed.

During cross-examination, the defendant stated that although he was with Cross at the Club Car, he did have a conversation with a woman named Denise in the absence of his girl friend. A cocktail napkin with a phone number and the name Denise written on it was discovered in the defendant’s pants pocket the night of his arrest. When asked how he got Denise’s phone number the defendant stated that “[s]he might have asked me if I wanted it.” The defendant could not remember whether he actually called Denise but thought he did not call her. Upon further questioning, the defendant did not believe that he requested Denise’s number because he was with Cross. The defendant later stated that he did not call Denise but that she might have called him.

The state then sought to call Denise Burns to the stand. The defendant objected and, after oral argument on the matter, the court allowed her to testify. The court rejected the defendant’s argument that Burns’ testimony constituted an attempt by the state to impeach the defendant concerning a collateral matter. The court found that this testimony was not. collateral because of the difference between the victim’s testimony concerning how she met the defendant and defendant’s testimony of their meeting. The testimony by Burns indicated that the defendant approached her and thus also contradicted the defendant’s claim of devotion to his girl friend, Cross. The court found that because the defendant’s encounter with Burns had occurred around the time of the encounter with the victim that Burns’ testimony went to a basic issue in the case. The defendant took exception to the court’s ruling.

Burns testified that while at the Club Car she spoke with the defendant for approximately ten to fifteen minutes. She stated that because she did not offer her telephone number to the defendant, he must have asked for it. She received two or three telephone calls from a man identifying himself as the defendant approximately one month after meeting the defendant at the club.

It is well established that a witness’ testimony on a collateral matter cannot be impeached through the admission of extrinsic evidence. State v. Carbone, 172 Conn. 242, 262, 874 A.2d 215, cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977). “A contradiction is not collateral if it is relevant to a material issue in the case apart from its tendency to contradict a witness.” State v. McCarthy, 197 Conn. 166, 176, 496 A.2d 190 (1985).

If we assume that the admission of Burns’ testimony concerned a collateral matter, the defendant would have to establish that the trial court’s action was harmful because this claim does not involve the violation of a constitutional right. State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990). A new trial would be necessary if the admission of Bums’ testimony “was so prejudicial to the rights of the defendant as to deprive him of a fair trial . . . .” State v. Ruth, 181 Conn. 187, 196, 435 A.2d 3 (1980). The defendant has failed to demonstrate that “it is more probable than not” that the admission of Burns’ testimony affected the jury’s verdict. State v. Moody, supra.

The defendant correctly argues that his credibility and the victim’s credibility were very important because of the nature of this case. Burns did not accuse the defendant of any improper conduct or state that he forced himself on her. Her testimony was not inflammatory or confusing such that the jury would treat the defendant’s encounter with Burns and his encounter with the victim the same. The defendant’s failure to obtain a cautionary instruction as to the use of Burns’ testimony weakens his claim of prejudice from the admission of her testimony. See State v. Conroy, 194 Conn. 623, 628, 484 A.2d 448 (1984). On the basis of our review of the evidence, we are unable to conclude that the admission of Burns’ testimony deprived the defendant of a fair trial. Thus, any error concerning the admission of Burns’ testimony was harmless.

III

The defendant next claims that the court improperly admitted prejudicial hearsay testimony into evidence. We disagree.

The following facts are pertinent to the resolution of this claim. The state offered into evidence a sworn police statement made by Cross. The statement was offered without objection as a past recollection recorded because Cross could not remember any details about the night of the defendant’s arrest. Cross stated that at the time she made her statement she had “too much alcohol and very little sleep.” Cross also testified that she had experienced dizzy spells and blackouts.

After the state presented its case-in-chief, the defendant called Manchester police officer William Daley to testify about the circumstances surrounding Cross’ statement. During the defendant’s direct examination of Daley, the officer stated that Cross had insisted that certain facts about the evening not be included with her sworn police statement. The defendant did not inquire as to what Cross wanted excluded from her statement. During cross-examination, the state asked Daley to relate what Cross wanted kept out of her statement. The defendant objected claiming that Daley’s answer constituted hearsay. The state responded that the defendant opened the door by calling Daley and asking him about the circumstances surrounding the report.

The court held a hearing outside the jury’s presence concerning Daley’s testimony about the omissions from Cross’ police statement. Daley stated that at the time of her statement Cross did not want to include any reference to the fact that she had been drinking heavily that evening. Cross was concerned about drunk driving because in her statement she admitted to driving the defendant to East Hartford to pick up his car after she returned from Hartford. Cross also did not want to mention that she and the defendant had an intense argument that evening that resulted in the defendant’s leaving the club without her. Cross could not recall why she was arguing with the defendant.

Daley further testified that his memory of the events surrounding Cross’ statement differed from his written report. He admitted that he failed to read the report thoroughly after writing it at the end of his shift. His report did not include Cross’ statement about having an intense argument with the defendant. The report also stated that Cross did not “remember having a fight with Tanzella but it is very unusual that she would leave with him or vice versa.” Daley stated that he mistakenly typed “with” instead of “without” in his report. According to Daley’s recollection, Cross thought that the reference to the argument might get the defendant in trouble. The state argued that Cross’ statements were admissible to show her state of mind at the time of her statement, or as a prior inconsistent statement or under the residual exception to the hearsay rule. The defendant argued that Cross’ statements were hearsay and not admissible under any exception. The defendant also argued that Cross was not unavailable because she had already testified on behalf of the state. The state had brought Cross from California but she had returned after testifying for the state. The state argued that Cross’ statements were reliable because they were against her interest as well as that of the defendant, her boyfriend at the time of her statement.

The court ruled that Cross’ statements were relevant to the defendant’s opportunity to commit the crime, a material fact in the case, and that the statements also fit within the state of mind exception to the hearsay rule because the statements revealed Cross’ state of mind at the time she made her statement. The court also admitted the statements by Cross under the residual exception to the hearsay rule. Cross’ statements were found to be reliable and necessary to the resolution of the case. The court further found that, in the interests of justice, these statements should be admitted for the truth of the matter. The defendant took exception to the court’s ruling. The defendant later entered Daley’s written report into evidence.

“A statement made out of court which is offered to establish the truth of the facts contained in the statement is hearsay.” State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981). Cross’ statements to Daley that were not included in his report fit within the definition of hearsay. “Though generally inadmissible, hearsay may be admitted if there is a sufficient probability that the statement is reliable and trustworthy, if the evidence contained in the statement is necessary to resolution of the case, and if the trial court concludes that admitting the statement is in the interests of justice. 5 Wigmore, Evidence (Chadbourn Rev. 1974) § 1422, pp. 253-54.” State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

It must be first determined “whether there was a reasonable necessity” for the admission of Cross’ statement to Daley. State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985). Our Supreme Court adopted the Wigmore definition of necessity which is satisfied by a showing that the facts contained in the hearsay statement “may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources.” State v. Sharpe, supra, 665. The defendant, relying on In re Jason S., 9 Conn. App. 98, 516 A.2d 1352 (1986), argues that since Cross had already testified and was not shown to be unavailable, there was no reasonable necessity to admit her hearsay statements made to Daley. In re Jason S. was a parental rights termination case where statements by the abused child made out-of-court to school personnel and social workers about physical abuse were offered into evidence. The hearsay statements of Jason failed to establish the necessity requirement of State v. Sharpe, supra, because Jason had already testified about who abused him and how he was abused. There was no need for the admission of Jason’s hearsay statements about physical abuse because “[t]he facts contained therein could not have been lost because the declarant recounted them to the court himself.” In re Jason S., supra, 106.

In the present case, Cross did not testify about any argument with the defendant or that he left before her. She did testify that she had been drinking heavily that evening. Daley’s testimony was relevant to show that at the time of her statement Cross selectively chose to omit certain facts from it. Cross' omissions from her statement contradict the inference that because she was drinking and lacked sleep she did not accurately recall what occurred that evening. Her sworn police statement was entered into evidence because of her inability to remember what occurred at the time of this incident. Cross’ out-of-court assertion that she had argued with the defendant and that he had left before she left would have been lost because of her inability to remember it had it not been introduced through Daley’s testimony. The admission of Cross’ hearsay statements was necessary in this case because of her inability to remember any details about this incident. Cross testified, “I did not think I would be coming in here, so I have not been repeating the events of the evening since then. So I have no idea other than what is on my statement as to what took place.” This indicates that even had Cross been recalled to testify she would not have been able to remember her statements to Daley about omitting certain facts from her sworn statement. Therefore, Cross’ availability is irrelevant because her statements could not have been obtained from the same or another source besides Daley. The court correctly concluded that the state has satisfied the reasonable necessity element as explained in State v. Sharpe, supra. Thus, this case is distinguishable from In re Jason S., supra, because evidence of the same value could not have been obtained from any other source besides Daley.

We must next determine whether Cross’ hearsay statements were “supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.” State v. Sharpe, supra, 664. When making her statement, Cross recognized that any reference to her heavy drinking could subject her to criminal liability because she drove home from the club and also drove from East Hartford after she brought the defendant to get his car. She realized that this was against her penal interest. The statement about having an argument with the defendant was not against Cross’ interest. Cross recognized that this could be damaging to the defendant who was her boyfriend at the time of the statement to Daley. These statements were made just after this incident and concerned matters within Cross’ personal knowledge. Cross’ statements contained sufficient indicia of reliability and trustworthiness to satisfy this element of the residual of hearsay exception.

“The court has broad discretion to determine that hearsay evidence is nonetheless admissible because it is clearly necessary and relevant to the resolution of issues.” State v. Tyson, 23 Conn. App. 28, 35, 579 A.2d 1083 (1990). The fact that the defendant left the club before Cross was relevant to the resolution of how much time the defendant had to commit the sexual assault. At that point, the defendant had not testified about his involvement with the victim. According to Cross’ sworn statement, she was with the defendant until last call at the club which occurred at approximately 1:30 a.m. After failing to locate the defendant, she drove to his apartment and found him lying in bed at approximately 2 a.m. Cross’ statement about an argument and the defendant’s leaving without her shows that they could have been separated for more than thirty minutes. The trial court did not abuse its discretion when it admitted Cross’ hearsay statements because they were necessary to the resolution of issues in this case. The court correctly admitted Cross’ statements under the residual hearsay exception. The discrepancy between Daley’s memory and his written report goes to the weight accorded to the testimony and not to its admissibility concerning the reliability of the hearsay statements. On the basis of this finding, we need not address whether Cross’ statements were also admissible under the state of mind hearsay exception.

Furthermore, the state argued that, because the defendant in his direct examination of Daley brought out the fact that Cross kept certain facts out of her statement, it was entitled to inquire about these omissions. “Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence.” (Citations omitted.) State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986).

The defendant called Daley to challenge Cross’ sworn statement about her recollection of this incident. The sworn police statement by Cross had been admitted as a prior recorded recollection because of her inability to remember events that occurred during the evening of the sexual assault. Daley’s response, elicited by the defendant, that Cross wanted certain facts kept out of her sworn statement indicated that it might not be complete and accurate. The validity of Cross’ sworn statement was called into question by Daley’s response. The state had to inquire about the omitted facts to show how they affected the validity of Cross’ sworn statement. Therefore, the court did not abuse its discretion by allowing Daley to testify about Cross’ hearsay statements. Id.

IV

We refuse to review the defendant’s final claim that the assistant state’s attorney’s failure to disclose to the defendant that there was a discrepancy between Daley’s written report and his actual recollection of what Cross said during her statement violated the constitutional, statutory and Practice Book rules concerning the disclosure of exculpatory information. The defendant did not include this claim in his statement of issues of his brief. The defendant’s attempt to develop this claim in a single footnote violates Practice Book § 4065 (d) which requires that a brief shall contain “[t]he argument, divided under appropriate headings into as many parts as there are points to be presented . . . .” See State v. Reddick, 15 Conn. App. 342, 343, 545 A.2d 1109, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988). In State v. Reddick, supra, we refused to review three of the defendant’s claims that although included in his preliminary statement of issues were argued by way of footnotes. An improperly briefed issue is considered abandoned. State v. Gaines, 196 Conn. 395, 397-98 n.2, 493 A.2d 209 (1985). The defendant’s clear violation of the rules of practice warrants our refusal to review this claim.

The judgment of conviction of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and threatening in violation of General Statutes § 53a-62 (a) (1) is reversed and the case is remanded with direction to render judgment of not guilty of those charges. The judgment of conviction on the three remaining counts are affirmed.

In this opinion Freedman, J., concurred.

Landau, J.,

dissenting in part and concurring in part. I respectfully dissent from the portion of the majority opinion reversing the defendant’s conviction of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and threatening in violation of General Statutes § 53a-62 (a) (1). The majority concludes that the amendment to the defendant’s information after the completion of jury selection, substituting subdivision (1) of § 53a-61 (a) for subdivision (2) of that statute and substituting subdivision (1) of § 53a-62 (a) for subdivision (3) of that statute resulted in charging an additional or different offense and thereby implicitly prejudiced the defendant’s defense because he lacked proper notice of the new charge. I agree with the majority’s conclusion that the amendment resulted in charging the defendant with an additional or different offense, but conclude that the defendant was not prejudiced by the amendment and that his conviction should be upheld.

“ ‘After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information ... at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced . . . .’Practice Book § 624; State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981); State v. Ignatowski, 10 Conn. App. 709, 714, 525 A.2d 542, cert. denied, 204 Conn. 812, 528 A.2d 1157 (1987); State v. Cole, 8 Conn. App. 545, 550, 513 A.2d 752 (1986). ‘The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself.’ State v. Jacobowitz, supra, 590.” State v. Welch, 25 Conn. App. 270, 273, 594 A.2d 28, cert. granted, 220 Conn. 924, 598 A.2d 366 (1991). The due process concerns of Practice Book § 624 are aimed at protecting “a defendant’s right to fair and adequate notice of the charges against him so as to afford him an opportunity to prepare an adequate defense.” State v. Parker, 25 Conn. App. 619, 622, 595 A.2d 939 (1991), quoting State v. Cole, supra.

As a threshold for permitting amendments to an information, the state must demonstrate good cause for the amendment. See Practice Book § 624. Once the state has done this, the defendant bears the burden of demonstrating that there is a different or additional offense being charged and that he is prejudiced by this amendment. Although Practice Book § 624 is not a model of clarity, I conclude that the defendant bears this burden because to conclude otherwise would require the state to prove two negatives, (1) that a different or additional offense was not charged and (2) that the defendant will not be prejudiced, an impracticable and Sisyphean, if not impossible task. See, e.g., Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 516, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). In Griffin Hospital, the defendant commission cut $160,000 from the hospital budget on the ground that the hospital had adequate “in house expertise, the expense of which is already in the hospital’s budget, to develop the majority of the plan.” The trial court concluded that the commission’s finding of adequate expertise within the hospital to develop the long range plan was unsupported by the evidence. On appeal, the commission argued that the trial court acted improperly in not placing the burden on the hospital to prove that its management personnel did not possess the requisite expertise. The Supreme Court disagreed and concluded that “[t]he hospital could not reasonably have been expected to prove the negative, i.e., that its management personnel were inadequate to perform the proposed functions”; id., 516; and that the trial court properly placed the burden of proving that the hospital management personnel did not possess the requisite expertise on the commission.

On appeal, the party challenging the trial court action, in this case the defendant, bears the burden of demonstrating that the trial court acted improperly. See State v. Bergin, 214 Conn. 657, 679, 574 A.2d 164 (1990) (defendant failed to show how he would be prejudiced by an amendment to the information, pursuant to Practice Book § 623, prior to commencement of trial). In order for the defendant to prevail on his claim he must prove, not only that a different or additional offense was charged by the amendment, but also that the amendment prejudiced the preparation of his defense. I conclude that the defendant has failed to sustain his burden of proof as to this second element.

The outcome of this case, regarding the issue of prejudice, I would argue, is guided by our Supreme Court decision in State v. Wallace, 181 Conn. 237, 435 A.2d 20 (1980). In Wallace, the state amended the defendant’s information after the commencement of trial by deleting subdivision (2) of General Statutes § 53a-134 (a) and substituting in its place subdivision (4) of the same statute. The court concluded that “the amended information did not charge an additional or different offense. Both the original and amended information charged the defendant with the same crime of robbery in the first degree. Moreover, since the defendant’s defense at the trial was one of alibi, no substantive rights of the defendant were prejudiced. The defendant did not dispute the commission of the crime charged, he simply claimed that he was not the one who committed it.” Id., 239.

The majority attempts to distinguish Wallace on the grounds that (1) the statute at issue in that case is different from the statutes at issue in this case because all subdivisions of General Statutes § 53a-134 (a) require the same mental state, but each subdivision of the statutes at issue in the subject case requires a different mental state and (2) the trial court found that the amendment did not charge the defendant with a different or additional offense. The majority concludes that the issue of prejudice to the defendant’s preparation of his defense need be addressed only if no additional or different offenses are charged. With respect to the prejudice created by the amendment, the majority, upon a reading of Wallace, concludes that the defendant in that case was not prejudiced by the amendment because he relied on an alibi defense and therefore did not dispute whether the robbery for which he was convicted was committed as charged in the original information (by the use of a deadly weapon) or as charged in the amended information (by the threat of the use of a firearm). In this case, because of its conclusion that the amendment charged the defendant with different or additional offenses, the majority never reaches the prejudice prong of Practice Book § 624.1 disagree with their failure to reach this issue.

Regarding the issue of prejudice, I believe that the present case presents a scenario identical to that presented in Wallace. In both cases, the theories of defense presented at trial were wholly unrelated to and unaffected by the context of the amendments. In Wallace, the amendment involved the means by which the offense was perpetrated while the theory of defense was alibi — that the defendant was elsewhere at the time the crime was committed. In this case, while the defendant did not argue that he was in another place at the time the crime was committed, his defense at trial was that the victim consented to the sexual intercourse, and that this consent negated any need for an assault or threat, and, thus, that these offenses were never committed. His theory of defense was not that he did not commit the offense with the charged state of mind. Thus, as in Wallace, where the specific conduct alleged did not implicate the defendant’s alibi theory of defense, the particular state of mind charged in the information here did not implicate the defendant’s theory of defense that he did not commit the charged acts, regardless of the accompanying mental state. The defendant has failed to demonstrate how this amendment prejudiced his opportunity to prepare an adequate defense; see State v. Parker, supra; and, therefore, how the due process concerns of Practice Book § 624 have been implicated.

I would, therefore, affirm the defendant’s conviction of assault in the third degree and threatening.

       “[General Statutes] Sec. 53a-61. assault in the third degree: class A misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon. . . .”

       “[General Statutes] Sec. 53a-62. threatening: class a misdemeanor. (a) A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience. . . .”

       See footnote 1, supra.

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-134 provides in relevant part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... he or another participant in the crime ... (2) is armed with a deadly weapon; or . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    In re Lloyd W.*
    (10519)
    Dupont, C. J., Landau and Heiman, Js.
    Argued June 12
    decision released August 11, 1992

      Barbara Sorrentino, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were John H. Kearney, state’s advocate, and, on the brief, Francis J. Carino, chief state’s advocate, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the order of the trial court that transferred his trial for murder from the juvenile docket to the regular criminal docket pursuant to General Statutes § 46b-127. He claims that (1) the evidence presented at the transfer hearing failed to show probable cause that he intended to kill the victim and (2) that the trial court abused its discretion in relying on evidence allegedly not presented at the transfer hearing to support its decision. We affirm the judgment of the trial court.

The state filed a delinquency petition in the Superior Court against the defendant, who was then fifteen years of age, claiming that he had committed the serious juvenile offense of murder in violation of General Statutes § 53a-54a in causing the death of the victim. Thereafter, the state moved to transfer the defendant to the regular criminal docket pursuant to General Statutes § 46b-127 because he had been charged with murder. After a hearing, the court granted the motion and this appeal followed.

The trial court made written findings as required by § 46b-127. On March 10,1991, five young men, including the defendant, were driving in the Brooklyn section of Waterbury in a stolen car. In the glove compartment of the car was a .25 caliber pistol that had been taken from a car stolen a day or two previously.

The driver, Javier Gonzalves, saw the victim, Jason Regner, in a car and drove around the block to park near him. Gonzalves told the victim that the victim owed “John” some money. The defendant took the pistol from the car, walked up to Regner and said “Yo, Jay.” The victim rolled down the driver’s window about four inches. The defendant stuck the gun into the car and shot Regner in the left rear shoulder blade. The bullet penetrated his lungs and quickly killed him. The trial court found that no heated words were exchanged.

On the basis of these findings, the court inferred that the defendant intended to kill Regner when he placed the gun into the car and fired at the victim’s torso from close range. Accordingly, the court found probable cause to believe that the defendant intended to cause and did cause the victim’s death.

General Statutes § 46b-127 requires, as a precondition to transfer from the docket for juvenile matters to the regular criminal docket, that the court find “that there is probable cause to believe that the child has committed the act for which he is charged.”

“The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial. ... In making its finding, the court had to determine whether the government’s evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime. . . . The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear that [t]here is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.” (Citations omitted; internal quotation marks omitted.) In re Keijam T., 221 Conn. 109, 115-16, 602 A.2d 967 (1992).

Our function on appeal is to determine whether the decision of the trial court that probable cause existed was clearly erroneous. Practice Book § 4061. “[Wjhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the . . . decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) In re Ralph M., 211 Conn. 289, 316, 559 A.2d 179 (1989). We view the evidence and the permissible inferences drawn therefrom in the light most favorable to sustaining the trial court’s determination of probable cause. In re Keijam T., supra, 116.

The defendant concedes that the shooting was reckless or involved extreme indifference to human life, but that the facts were insufficient to find probable cause for an intent to kill as required by General Statutes § 53a-54a. He argued that the car was moving when the shot was fired and that firing into a moving car indicated recklessness rather than evidenced an intent to kill. Reviewing this evidence in the light most favorable to sustaining the finding of probable cause, we conclude that the court was entitled to infer that the defendant intentionally placed a gun into the passenger compartment of the victim’s car and fired a shot that entered the victim’s lung. A factfinder may infer an intent to kill “ ‘from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.’ ” In re Edwin N., 215 Conn. 277, 284, 575 A.2d 1016 (1990). The evidence was sufficient to support a finding of probable cause that the defendant intended to kill the victim.

The defendant next claims that the trial court relied on its allegedly erroneous recollection of a witness’ testimony in stating from the bench that it was the court’s “feeling that at this time probable cause has been established by the state, based primarily on the testimony of Moisés Garcia and Evon Gardner.” The court also stated that it would make its finding more specific in writing at a later time. The finding about which the defendant complains relates to the movement of the victim in his car. Our review of the trial court’s written findings of fact show that the court’s ultimate finding that the victim “jolted forward” as he was being shot is supported by the record. Any alleged mistake in a statement from the bench was corrected by the written findings, which were made after the transcript of the hearing was available to the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       General Statutes § 46b-127 (Formerly Sec. 51-308) provides in pertinent part: “mandatory transfer of child charged with certain felonies to REGULAR criminal docket. The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years .... No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. At such hearing, the child shall have the right to counsel and to confront the witnesses against him. The procedures provided in section 54-46a shall apply at such hearing, except that the child shall have the right to move to suppress any admission made by him on the ground that it was obtained in violation of the provisions of subsection (a) of section 46b-137 and to obtain discovery of exculpatory information. An order by the court under this section transferring a child from the docket for juvenile matters to the regular criminal docket of the superior court shall be a final judgment for purposes of appeal. Upon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age . . . .”


author: Daly, J.

text:
    State of Connecticut v. Richard Prunier
    (10103)
    Daly, Foti and Heiman, Js.

      Argued June 1
    decision released August 18, 1992

      Judith F. Machuga, deputy assistant public defender, with whom, on the brief, was Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Edward Narus, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and larceny in the sixth degree in violation of General Statutes § 53a-126b (a). The defendant claims that the trial court improperly (1) instructed the jury on a theory of criminality under § 53a-134 (a) (3) for which there was no evidence, (2) defined serious physical injury in its definition of dangerous instrument, (3) excluded evidence of possible third party culpability, and (4) defined reasonable doubt. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On January 7, 1989, Valerie Root was working at a package store in Windsor Locks. During the course of the afternoon, a man entered the store and approached Root as she was standing behind the cash register. The man pulled out a utility knife and said “This isn’t a game; give me all the money or I’ll cut you.” Root gave him all the money in the cash register as well as additional money kept in a cigar box below the cash register. The man wanted more money, so Root removed her jewelry and gave it to him. After examining the jewelry, the man left it behind and exited the store. Root felt that the entire incident took about five minutes. There were no other people in the store at the time of the robbery.

Root reported the robbery to the police and gave a description of the perpetrator. She later viewed a series of photographs of possible suspects, and ultimately identified the defendant from a photograph as the person who committed the robbery. Root identified the defendant in court as the robber. The defendant testified that he was working near Boston on January 6, 1989, and returned home to Connecticut during the early evening hours. He further stated that he was taking care of his daughter on the day of the robbery.

I

The defendant claims that the trial court improperly instructed the jury on a theory of criminality for which there was no evidence presented by the state. The defendant argues that the court allowed the jury to consider the defendant’s “use” of a dangerous instrument as a basis for supporting a conviction of a violation of § 53a-134 (a) (3). He argues that this was improper because the evidence indicated that the perpetrator only threatened to use the knife and did not actually use it. The defendant asserts that the court could not instruct the jury on the use of a dangerous instrument as there was no evidence that the perpetrator used the utility knife. The defendant interprets § 53a-134 (a) (3) as providing two separate methods of committing the crime of robbery in the first degree. The defendant posits that a person cannot “ordinarily use a dangerous instrument and at the same time threaten to use a dangerous instrument.”

The court read § 53a-134 (a) (3) to the jury. The court noted that “the distinction between robbery and robbery in the first degree in the case before us is the threat to use a dangerous instrument.” The court further stated that “[i]f you find that no actual physical force was inflicted upon the victim but that the victim was threatened with physical force, you must also find to sustain a verdict of guilty that the defendant threatened the victim with immediate use of physical force.”

The defendant did not object to the court’s charge. He seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We review this claim because it implicates the defendant’s constitutional right to be proven guilty beyond a reasonable doubt of each element of the charged crime. State v. Allen, 216 Conn. 367, 388, 579 A.2d 1066 (1990).

Although the defendant relies on State v. Williams, 202 Conn. 349, 521 A.2d 150 (1987), to support his claim, his reliance on that case is misplaced. In Williams, the trial court instructed the jury on both subdivisions of General Statutes § 53a-133. The state conceded that it did not present any evidence to support a conviction based on subdivision (2) of § 53a-133. Because there was no evidence to support a conviction under the second statutory alternative, the judgment of conviction was reversed even though there was sufficient evidence to support a conviction under subdivision (1) of § 53a-133. Reversal of the conviction was required because a trial court cannot submit to the jury an issue on which there is no evidence to support a finding. State v. Williams, supra, 364; State v. Chapman, 28 Conn. App. 360, 365, 610 A.2d 1328 (1992).

Here, the state has not conceded that there was no evidence to support the finding that the defendant used a dangerous instrument. The defendant seems to argue that “use” of a dangerous instrument requires that the instrument be used to harm the victim in order to overcome the victim’s resistance. The defendant concedes that there was evidence to support a charge on the threat of use of a dangerous instrument under § 53a-134 (a) (3).

The term “use” is not defined in the Connecticut penal code. We conclude that once the defendant displayed the utility knife and ordered the victim to give him the money in the cash register, he used a dangerous instrument. The use of a dangerous instrument does not require evidence that the victim was actually touched or harmed by the instrument. In contrast, a threat to use a dangerous instrument also occurred in this case when the defendant threatened to cut the victim if she did not cooperate with him. Because there was evidence indicating that the defendant both used and threatened the use of a dangerous instrument, the trial court properly instructed the jury on both portions of § 53a-134 (a) (3). See State v. John, 210 Conn. 652, 688-89, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

II

The defendant next claims that the trial court improperly instructed the jury as to what constitutes a “dangerous instrument” for purposes of § 53a-134 (a) (3). The court first read the statutory definition of dangerous instrument and stated that “serious physical injury imports a meaning of more than physical injury.” The court then gave the statutory definition of physical injury.

The defendant argues that the trial court incorrectly defined “serious physical injury” because it did not read the statutory definition set forth in General Statutes § 53a-3 (4). The defendant claims that the court’s statement about serious physical injury constituted an affirmative misstatement of an essential element of robbery in the first degree. The defendant did not properly preserve this claim by taking exception to the trial court’s charge.

We conclude that the defendant is not entitled to review of this claim under either State v. Golding, supra, or under the plain error standard on the basis of State v. Johnston, 17 Conn. App. 226, 551 A.2d 1264 (1988), cert. denied, 210 Conn. 810, 556 A.2d 609 (1989), and State v. Huff, 10 Conn. App. 330, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).

In Huff, the defendant sought to challenge for the first time on appeal the trial court’s omission of the definition of serious physical injury as it related to the definition of dangerous instrument, an essential element of the crime of assault in the second degree. We declined to review the defendant’s claim because “ ‘[sjerious physical injury,’ is not itself, however, an essential element of the crime charged. It is but a definitional component of an essential element. A court’s failure to read the statutory definition of a phrase which itself appears as part of the definition of an essential element, is not an error of constitutional proportion.” State v. Huff, supra, 335.

The defendant attempts to avoid this result by arguing that, in this case, the trial court misstated the meaning of serious physical injury, rather than merely omitting the definition of serious physical injury. The court did not give an incorrect definition of serious physical injury when it stated that it involves “more than physical injury.” The court made clear that a serious physical injury is more than a physical injury. The court’s failure to explain fully all of the definitional components of the essential element concerning a “dangerous instrument” did not rise to the level of a constitutional violation. See State v. Johnston, supra.

The defendant has failed to establish the existence of a constitutional violation that clearly deprived him of a fair trial. The defendant also has failed to establish the existence of plain error from the court’s instruction on dangerous instrument that resulted in manifest injustice. See id.

Ill

The defendant claims that the trial court improperly excluded evidence of third party culpability. We disagree.

The following additional facts are relevant to this claim. During his cross-examination of Detective John Murphy of the Windsor Locks police department, the defendant sought to present evidence about a robbery that occurred in Agawam, Massachusetts, on January 6, 1989. The Agawam robbery involved a suspect who had a similar physical description to that of the defendant. The Agawam suspect also employed a utility knife. The trial court refused to admit this evidence because the defendant failed to offer any evidence directly connecting any other person responsible for the Agawam robbery. The trial court sustained the state’s objection and gave the defendant an exception. The trial court noted that it would allow further inquiry about the Agawam robbery if the defendant produced some evidence connecting the Agawam suspect to this robbery.

The defendant also sought to offer evidence of a robbery that took place in Enfield, a town near Windsor Locks. According to the defendant’s offer of proof, made outside of the jury’s presence, the Enfield police brought the victim of the Enfield robbery to the defendant’s arraignment. The victim in that case stated that the defendant was not the person who committed the Enfield robbery, which was committed in a manner similar to the Windsor Locks robbery. The defendant sought to develop this evidence through Officer Rick Rachele of the Windsor Locks police department. Defense counsel asked Rachele whether he remembered bringing the defendant to the Enfield courthouse for the defendant’s arraignment. Rachele had no recollection of transporting the defendant to his arraignment. Defense counsel then stated: “I can’t get anywhere if in fact this witness doesn’t remember arraigning my client in Enfield court because he would then have no recollection of whether or not [the] Enfield police department had brought the victim in that robbery to Enfield court to identify my client, so I think the issue is moot as a practical matter, Your Honor.” The court noted that it would not admit any evidence about the other robberies until there was some evidence linking a person other than the defendant to them. The court found that evidence indicating that the defendant was not responsible for the Enfield robbery was irrelevant to the issues in this case. The defendant never attempted to offer evidence linking another person to the Windsor Locks robbery.

Evidence indicating that a third party and not the defendant was responsible for the crime with which the defendant is charged is generally admissible. State v. Burge, 195 Conn. 232, 252, 487 A.2d 532 (1985). “The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged. ... It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused.” (Citations omitted.) State v. Echols, 203 Conn. 385, 392, 524 A.2d 1143 (1987). “The trial court’s ruling on the relevancy of third party inculpatory evidence will be reversed on appeal only if the court has abused its discretion or an injustice appears to have been done.” State v. Payne, 219 Conn. 93, 117, 591 A.2d 1246 (1991).

The defendant failed to offer any reliable evidence linking a third party to the commission of the Windsor Locks robbery. The fact that the victim of a similar robbery in a nearby town stated that the defendant was not responsible does not constitute reliable evidence that the defendant did not commit the Windsor Locks robbery. The defendant never offered any evidence linking another person to the robbery in Windsor Locks. The trial court’s finding that evidence of the other robberies was irrelevant did not constitute an abuse of discretion or cause an injustice.

IV

The defendant’s final claim concerns the trial court’s instruction on reasonable doubt. The defendant argues that the trial court’s references to the jurors’ considering decisions in their own personal affairs when deciding on a verdict impermissibly diluted the state’s burden of proof. Again, the defendant did not raise this issue at trial by taking an exception to the trial court’s charge on reasonable doubt. He seeks review of this claim under State v. Golding, supra.

In State v. Falcon, 26 Conn. App. 259, 271, 600 A.2d 1036 (1991), we refused to review the defendant’s unpreserved claim that “the trial court’s instructions relating a reasonable doubt to the jurors’ own affairs ‘trivialized’ the state’s burden of proof.” Id. This instruction did not constitute a constitutional violation. Id. Because the challenged instruction on reasonable doubt did not constitute a constitutional violation, we refuse to review this claim. See State v. Johnson, 214 Conn. 161, 177-80, 571 A.2d 79, (1990). The instructions in the present case are almost identical to the instructions in State v. Falcon, supra, 270. We conclude that State v. Falcon, supra, controls the disposition of this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime [of robbery, defined in General Statutes § 53a-133] or of immediate flight therefrom, he . . . (3) uses or threatens the use of a dangerous instrument . . .

       A defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or'threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-3 (7) provides in pertinent part: “ ‘Dangerous instrument’ means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . .

       General Statutes § 53a-3 (4) provides: “ ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”
      General Statutes § 53a-3 (3) provides: “ ‘Physical injury’ means impairment of physical condition or pain . . . .”


author: Freedman, J.

text:
    L. Suzio Concrete Company, Inc. v. New Haven Tobacco, Inc., et al.
    (10767)
    Foti, Heiman and Freedman, Js.
    Argued June 2
    decision released August 18, 1992

      Jeffrey M. Krupnikoff for the appellant (plaintiff).

      Leonard A. Fasano, for the appellees (defendants East Haven Economic Development Commission et al.).
   Freedman, J.

This appeal comes to us on a reservation of legal issues pursuant to General Statutes § 52-235 and Practice Book § 4147. The stipulation of the parties presents two questions for the advice of this court: “(a) Is the [Land Disposition Agreement] for the conveyance of parcel #18 owned by the Town of East Haven within the East Haven Industrial Park a public works contract as defined in General Statutes § 49-41? [and] (b) When the private party to a General Statutes § 49-41 public works contract has not provided a labor and material payment bond in the amount of the contract, is the act of forebearing from entering into the contract a ministerial act of the public official with respect to a materialman supplying the contract?” Because the involvement of the town of East Haven in the construction contemplated on parcel eighteen was minimal, we conclude that the contract conveying the land in question to a private entity for development is not a public works contract within General Statutes (Rev. to 1987) § 49-41. We therefore answer the first question in the negative and need not answer the second question.

For purposes of this reservation, the parties stipulated to the following facts. The town of East Haven is a Connecticut municipality, and a subdivision of the state of Connecticut. The town of East Haven, by virtue of General Statutes §§ 7-136 and 7-486, as amended, established the East Haven economic development commission (commission). The commission has been involved with the development of a particular area in East Haven known as the East Haven Industrial Park (industrial park), pursuant to an industrial development plan.

The industrial park consists of approximately 228 acres of land and is dedicated to building a strong tax base for the town of East Haven by appealing to certain businesses to locate there. In order to enable East Haven and the commission to achieve the objectives of an industrial park, the state has undertaken to provide, and has provided, substantial aid and assistance to the commission to meet the net project costs for obtaining the land and development of the industrial park in the form of bond moneys allowing the town of East Haven and the commission to buy out or to foreclose on various parcels to create the 228 acre industrial park. The industrial park development has added jobs and increased the tax base of East Haven and has done so particularly with respect to parcel eighteen purchased by the New Haven Tobacco Company (Tobacco).

Tobacco, a privately held corporation, entered into the commission’s standard land disposition agreement (agreement) with the town of East Haven and the commission on March 10,1987. Within the confines of the restrictions placed on it by the agreement, Tobacco’s business was and is operated exclusively by the private entity and consists of manufacturing and storing goods for its own private profit. The structure built on parcel eighteen is not open to the general public and no governmental functions are conducted on its premises.

The agreement specified that the town of East Haven and the commission would sell parcel eighteen of the industrial park to Tobacco for $80,704 under specified terms. Tobacco signed the agreement and tendered its deposit on March 10, 1987. The agreement was recorded on land records in East Haven on the same day. The agreement was fully executed and acknowledged by the town of East Haven, the commission and Tobacco. Both Robert Norman, acting for the town of East Haven, and Joseph Bittner, acting for the commission in signing the agreement, were acting within the scope of their respective public authorities. The agreement contains many conditions regarding revesting of title, construction, use and maintenance. A further condition of the agreement is that the foundation of Tobacco’s proposed building on parcel eighteen had to be constructed prior to the conveyance of parcel eighteen to Tobacco. Within the confines of the agreement’s conditions and restrictions, Tobacco undertook the construction of an office and manufacturing building. Normally, building plans would be approved by the commission before an agreement was signed.

The foundation construction condition is written into the standard agreement to safeguard against land speculation by potential redevelopers. The commission was wary of nonconstruction by the redeveloper and then a resale of the parcels because the parcels were sold by the commission at a price somewhat below the fair market value. The construction of the foundation before conveyance was intended to have the redeveloper fulfill its commitment to construct its proposed building.

Tobacco entered into a construction contract with Long Construction Company (Long) for the construction of its proposed office and manufacturing building on parcel eighteen. In accordance with the agreement, all plans and specifications with respect to the construction of improvements were reviewed by the commission to ensure its conformity with industrial development plans for the industrial park. Only Tobacco negotiated with Long regarding construction tasks such as prices, payment terms and subcontractors to be used on the job. The moneys used to obtain, grade and prepare the 228 acres of land to become the industrial park, including parcel eighteen, were public. The commission, through the agreement, imposed conditions on the use, construction and maintenance of parcel eighteen. The moneys used for the construction of the building itself were not from public funds but from private capital supplied by Tobacco. On March 10,1987, parcel eighteen was expected to be conveyed to Tobacco after the foundation was completed. On June 16,1988, the property, with the completed foundation, was conveyed to Tobacco subject to the right of reversion to the commission provided in the agreement. The deed was recorded in the East Haven land records on June 21,1988. Tobacco presently enjoys the benefit of having its business within the industrial park.

After the recording of the agreement on the East Haven land records and after Tobacco and Long had entered into their construction agreement, a foundation was erected on parcel eighteen. The plaintiff, L. Suzio Concrete Company, Inc. (Suzio), supplied the materials for the foundation erected on parcel eighteen to Long from September 10,1987, to March 23,1988. Suzio was left a total unpaid balance of $35,896.27 plus interest for materials delivered to the parcel eighteen foundation. Between May 16 and May 26,1988, Suzio sought to place a mechanic’s lien on parcel eighteen, but its search of title on the East Haven land records showed parcel eighteen was owned by the municipality. Between May 16 and May 26,1988, Suzio inquired of the town and of the commission if a bond had been obtained and was advised that no bond had been obtained regarding parcel eighteen. On May 27,1988, Suzio made demands on Long, Tobacco, the town of East Haven and the commission for payment in the amount of $35,896.27 for materials delivered to parcel eighteen. Long filed for bankruptcy on July 17, 1989, and obtained relief. At no time did the defendants Bittner or Norman, or any other agent of either the town of East Haven or the commission request, receive, or obtain from Tobacco or any other entity, a bond regarding the agreement for parcel eighteen, particularly a labor and material payment bond for improvements to parcel eighteen during the period of time that the town was record owner of the property and during which time the foundation was being constructed with Suzio’s materials.

Suzio brought this civil action against Tobacco, the town of East Haven, its mayor, the commission and its chairman for entering into a public works contract without first obtaining a bond in accordance with the mandates of General Statutes § 49-41. All claims against Tobacco have been withdrawn by both Suzio and the East Haven defendants. The town of East Haven, by agreement, will indemnify the mayor and the commission chairperson against any judgment rendered against them in this action.

The first question reserved for our advice requires us to determine whether the agreement here was a contract for the construction of a “public work” of the town of East Haven within the meaning of General Statutes § 49-41. At the time that the agreement was signed, § 49-41 (a) provided, in pertinent part, that “[bjefore any contract exceeding one thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, that person shall furnish to the state or the subdivision a bond in the amount of the contract . . . .” Neither § 49-41 nor the case law interpreting it provides any definition of what constitutes a “public work” of a town which invokes the bonding requirements of the statute. Because § 49-41 is intended to operate in general conformity with the federal statutes popularly known as the Miller Act, 40 U.S.C. § § 270a through 270e; Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 476 n.7, 542 A.2d 692 (1988); Internal Harvester Co. v. L. G. DeFelice & Son, Inc., 151 Conn. 325, 331-33, 197 A.2d 638 (1964); we look to the interpretation of the federal statute for guidance.

The Miller Act, like § 49-41, does not define the term “public work.” The United States Supreme Court has concluded, however, that public works under the Miller Act are “projects of the character heretofore constructed or carried on . . . with public aid to serve the interests of the general public.” United States Use of Noland Co. v. Irwin, 316 U.S. 23, 30, 62 S. Ct. 899, 86 L. Ed. 1241 (1942). While the cases applying the Miller Act and its counterparts under state statutes have identified various factors that are used in determining whether a particular construction project qualifies as a public work; see generally annot., 48 A.L.R. 4th 1170, 1182-85; no one factor is determinative. The application of the Irwin definition is necessarily made on a case-by-case basis, and where a project involves publicly assisted construction of buildings for private use, such as is at issue in this case, the determination of whether the project is a public work turns on “the facts determining the degree of intimacy of the [governmental] connection with the particular project.” Id., 1202.

We conclude that the agreement involving parcel eighteen of the East Haven industrial park was not a contract for a public work within § 49-41. The purpose of the agreement was to promote local economic development pursuant to chapter 132 of the General Statutes through the acquisition and transfer of real property. See General Statutes § 8-193. The agreement was simply a contract to sell real property in the industrial park, with conditions attached to ensure the development and use of the property in a manner consistent with the local plan of development. One such condition, of course, was the construction of a foundation prior to conveyance. This condition, however, was only intended to prevent land speculation in the industrial park, thereby ensuring the proper development of the industrial park. The foundation condition in the agreement did not convert the agreement into a contract for the construction of the foundation.

The contract detailing the specifications for the entire building to be constructed on parcel eighteen, including the foundation, was the contract subsequently entered into between Tobacco and Long. This contract for the actual construction of the building was negotiated between Tobacco and Long without municipal involvement. Tobacco and Long determined the payment arrangements, the subcontractors and the various construction specifications. The completed building houses Tobacco’s business and is operated by a private entity for the manufacture and storage of goods for private profit. The completed building is privately owned, not open to the general public, and no governmental functions are conducted on the premises.

The plaintiff stresses the fact that the municipality was the record owner of parcel eighteen when the agreement was signed and when the plaintiff delivered its concrete to the general contractor at the construction site on parcel eighteen. We are not persuaded that this fact alone changes the essentially private nature of the construction work done on parcel eighteen into public work for purposes of § 49-41. At all times relevant to this case, it was expressly contemplated that parcel eighteen would be conveyed by the town to Tobacco once construction of the foundation was completed. The property was, in fact, conveyed to Tobacco less than three months after the plaintiff last delivered materials to the construction site.

Under similar circumstances, the Supreme Court of Rhode Island determined that a facility owned and financed by the Rhode Island Port Authority and Economic Development Corporation but operated exclusively by private industry was not a “public work” under a Rhode Island bonding statute similar to § 49-41. James J. O’Rourke, Inc. v. Industrial National Bank, 478 A.2d 195 (R.I.1984). After noting the lack of state involvement in the construction or operation of the meat processing plant at issue, the O’Rourke court concluded that the manufacturing plant there “cannot be classified as a public work. By no stretch of the imagination can the plant be considered a public building; it is not open to the general public and no governmental functions are conducted with public funds, and the necessary private capital was supplied by the bank. Whatever profits result from [the plant’s operations] will be earmarked for [the corporation’s] shareholders rather than the State of Rhode Island.” Id., 198. Likewise, the Minnesota Court of Appeals, in determining whether a bus remanufacturing plant constructed on a parcel developed in part through tax increment financing was a public work for purposes of the Minnesota bonding statute, concluded that such publicly assisted, private development projects “are not even colorably public works. Public works are typified by sewer systems, streets and roads, schools and other projects owned and paid for by the government, exempt from property taxes and put to the common use. A private, commercial, industrial project is simply not the same kind of enterprise.” Judd Supply Co. v. Merchants & Manufacturers Ins. Co., 448 N.W.2d 895, 899 (Minn. App. 1989).

Because the LDA at issue in the present case was, at its core, a contract for the sale of land and because the involvement of the town of East Haven in the construction that took place on the land was minimal at best, we conclude that the agreement for the conveyance of parcel eighteen owned by the town of East Haven within the East Haven industrial park is not a public works contract under § 49-41. In light of our negative answer to the first question reserved for our advice, we will not address the second question presented to us. Barr v. First Taxing District, 147 Conn. 221, 158 A.2d 740 (1960).

To the first question in the reservation, we answer “No.” The second question will not be answered.

No costs will be taxed to either party.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 52-235. reservation of questions of law. (a) The superior court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the supreme court or appellate court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein.
      “(b) The court or judge making the reservation shall, in the judgment, decree or decision made or rendered in such cases, conform to the advice of the supreme court or the appellate court.”

       “[Practice Book] Sec. 4147. [RESERVATIONS]--IN general
      “A reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court or to the appellate court, respectively, had judgment been rendered. Reservations in cases where the proper court for the appeal cannot be determined prior to judgment shall also be taken directly to the supreme court.
      “All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
      “The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.
      “The advice of the appellate court on a reservation may be reviewed by the supreme court only upon the granting of certification as provided by chapter 72.”

       The parties to this appeal are the plaintiff and the following defendants: the town of East Haven; its mayor, Robert M. Norman; the East Haven economic development commission; and the commission’s chairperson, Joseph T. Bittner. The named defendant is not a party to this appeal, all claims against that party having been withdrawn prior to this appeal.

       “[General Statutes (Rev. to 1987)] Sec. 49-41. public structures. BONDS FOR PROTECTION OF EMPLOYEES AND MATERIALMEN, (a) Before any contract exceeding one thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, that person shall furnish to the state or the subdivision a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person, provided that no such bond shall be required to be furnished in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than ten thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than twenty thousand dollars.
      “(b) Nothing in this section or sections 49-41a to 49-43, inclusive, shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to the bond herein referred to, except that no such officer shall require a performance bond in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than ten thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than twenty thousand dollars.”