author: Foti, J.

text:
    State of Connecticut v. Stefan Bagley
    (11596)
    Foti, Laveey and Landau, Js.
    Argued February 15
    decision released July 12, 1994

      Richard A. Fuchs, with whom, on the brief, was Joshua Koskoff, law student intern, for the appellant (defendant).

      Donald A. Browne, state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), attempted assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49, and assault in the second degree in violation of General Statutes § 53a-60 (a) (2).

The defendant claims that the trial court improperly (1) denied his motion for a bill of particulars, (2) restricted cross-examination of a state’s witness, and (3) failed to instruct the jury on the guilt of a principal and on the lesser included offense. The defendant also claims prosecutorial misconduct and failure to disclose exculpatory material. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 14,1991, at approximately 2 a.m., the victim, Demond Braswell, age sixteen, left his apartment at Father Panik Village in Bridgeport. He, along with four others, planned to go to a local store to buy beer and food. As the five left building sixteen they split into two groups. The victim and two companions, Tremayne O’Brien and Maunick Braswell, proceeded between building sixteen and building twenty, while the others proceeded in the opposite direction along Crescent Avenue.

As the three walked, they observed Jacob Crump standing in a doorway to their left at the south corner of building sixteen, and the defendant Stefan Bagley, standing to their right at the end of building twenty. The defendant, who was carrying a long gun, stepped forward and said, “Freeze, don’t move.” Maunick Braswell immediately ran ahead, and the victim and O’Brien retreated back toward building sixteen. The defendant and Crump pursued the two retreating men and fired at them. O’Brien was struck twice, once in the left leg and once in the right thigh. The victim and O’Brien managed to reenter the building and more shots were fired therein. They returned to their apartment to seek assistance. The victim had been shot once in the upper abdomen, and later died as a result. O’Brien was treated and released.

The victim’s fatal wound was caused by a 10 millimeter copper jacketed bullet. Three 10 millimeter bullet casings were recovered from the area to the south of building sixteen, between the two buildings. Three .45 caliber bullet casings were found adjacent to the south end of building twenty, and two additional casings were found in the stairway leading to the Braswell apartment.

I

The defendant was charged by long form information with manslaughter in the first degree as to Demond Braswell and attempted murder and assault in the second degree as to O’Brien. The defendant filed a motion for a bill of particulars pursuant to Practice Book § 830 et seq., requesting that the court order the state to indicate, as to each count of the information, whether the defendant was “being charged as a principal or as an accessory pursuant to § 53a-8 of the Connecticut General Statutes.” The state objected and argued that it could not make that designation. The court denied the defendant’s motion.

Following the completion of the state’s evidence, the defendant renewed his request for a bill of particulars and moved for a judgment of acquittal on the charge alleging that he had committed manslaughter as a principal. His motions were denied. In its final argument, the state conceded that the evidence was not sufficient to demonstrate that the defendant had fired the fatal shot, and, therefore, that it was proceeding only on the theory of accessorial liability with regard to the manslaughter charge. The court, accordingly, instructed the jury only on accessorial liability on that charge.

The denial of a motion for a bill of particulars is within the sound discretion of the trial court. State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). It will be overturned only upon a clear showing of prejudice to the defendant. State v. Spigarolo, 210 Conn. 359, 385, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). In order to prevail, a defendant must show that he was prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. State v. Kyles, 221 Conn. 643, 653, 607 A.2d 355 (1992).

We agree that a defendant has a constitutional right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial. State v. Spigarolo, supra, 210 Conn. 381. We cannot agree with the defendant, however, that the information here was too vague and indefinite to allow him to prepare his defense adequately and to avoid surprise at trial, thereby entitling him to a bill of particulars.

It is well established in this state that there is no crime of being an accessory. State v. Foster, 202 Conn. 520, 528, 522 A.2d 277 (1987). Rather, the accessory statute merely provides an alternative theory under which liability for the underlying substantive crime may be proved. State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985). There is no practical significance in the labels “accessory” and “principal” in determining criminal liability. State v. Smith, 212 Conn. 593, 606, 563 A.2d 671 (1989). A defendant may be convicted as an accessory, even if charged only as a principal, as long as the evidence presented at trial was sufficient to establish accessorial conduct. State v. Williams, 220 Conn. 385, 388, 599 A.2d 1053 (1991); State v. Gamble, 27 Conn. App. 1, 10, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992).

If a bill of particulars is filed alleging that the defendant committed the crime as a principal, the jury may not be charged on accessorial liability. State v. Steve, 208 Conn. 38, 45-46, 544 A.2d 1179 (1988). The jury may be so instructed, however, if the defendant is alerted by the charging instrument that the state will rely on alternative theories of liability or if the court specifically puts the defendant on notice that the issue of accessorial liability remains in the case. State v. Williams, supra, 220 Conn. 390.

In this case, it was alleged that two people were shooting at two other individuals. These facts raise the possibility of principal or accessorial liability for each shooter’s participation in each of the two assaults. Under these circumstances, the court cannot be said to have abused its discretion in refusing to require the prosecution to specify the defendant’s exact participation in each of the assaults.

Further, the defendant has not demonstrated that he was prejudiced in his defense on the merits. The defendant did not claim surprise at trial, or request a continuance to respond to any unanticipated evidence. He was aware of the state’s proposed evidence and witnesses. We apply the principle that every reasonable presumption should be given in favor of the correctness of the court’s ruling. State v. Davis, 29 Conn. App. 801, 806, 618 A.2d 557 (1993), rev’d-on other grounds, 229 Conn. 285, 641 A.2d 370 (1994). Accordingly, we must conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a bill of particulars.

II

The defendant next claims that the trial court improperly restricted cross-examination of one of the state’s witnesses. During a probable cause hearing on October 11,1991, defense counsel cross-examined O’Brien, a witness for the state, regarding the extent of his knowledge of the court system, and his prior arrests, pending charges, any pending violations of probation, any past convictions and future court dates.

On February 11, 1992, the state filed a motion in limine seeking to preclude the defendant from impeaching O’Brien by evidence or questions of his prior arrest or arrests, his participation in a pretrial accelerated rehabilitation program or his knowledge of the court system or whether he had previously been in court. The state also filed a motion in limine on February 18,1992, to preclude the defendant from introducing evidence from two other witnesses that a toxicological analysis of blood secured from the decedent Braswell was positive for cocaine. The court granted these motions.

Following the state’s direct examination, the defendant conducted a lengthy and thorough cross-examination of O’Brien spanning seventy-three pages of transcript. During an offer of proof in the absence of the jury, the witness testified that he had no felony convictions, no criminal charges pending, and that he had previously been granted accelerated rehabilitation for a charge of larceny in the second degree. The defendant was permitted to question O’Brien’s participation in the larceny as a prior act of misconduct.

The defendant argues that “the cumulative effect of the trial court’s decisions regarding the in limine motions effectively precluded the defendant from cross-examination of the state’s key witness.” The defendant has not complied with the requirements of Practice Book § 4065 (d) (3). His brief contains no specific questions, objections, grounds for objections, the claimed ground of admissibility, or evidentiary rulings by the court, that allow for a review of this claim. “When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error.” Aspiazu v. Orgera, 205 Conn. 623, 636-37 n.5, 535 A.2d 338 (1987). The mere assertion in a brief that the evidence was improperly excluded, coupled with transcript page references, will not be sufficient. State v. Russell, 29 Conn. App. 59, 63, 612 A.2d 809, cert. denied, 224 Conn. 908, 615 A.2d 1050 (1992). It has long been our strong policy that if evidentiary rulings claimed to be improper are to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice. Id.; State v. Siller, 12 Conn. App. 395, 402, 530 A.2d 1106, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987).

We decline to review this claim.

Ill

Finally, the defendant alleges that the trial court improperly instructed the jury by failing to charge (1) on the necessity of proving beyond a reasonable doubt the guilt of the principal as a prerequisite to convicting the defendant as an accessory, and (2) on the lesser included offense of attempted assault in the second degree.

A

The defendant filed a request to charge that asked the court, inter alia, to charge the jury that it “must first find beyond a reasonable doubt that Jay Crump was the principal.” General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

The trial court in a criminal proceeding is under no duty to charge in the identical language requested if its charge is accurate, adequate, and, in substance, properly includes material portions of the requested charge. State v. Pinnock, 220 Conn. 765, 789, 601 A.2d 521 (1992). The test is whether the charge as a whole presents the case to the jury so that no injustice will result; State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993); and whether the court’s instruction properly covered the substance of the written request. State v. Allen, 216 Conn. 367, 387, 579 A.2d 1066 (1990).

The defendant cannot point to a Connecticut case requiring that a principal be tried, convicted or even identified, before the defendant could be convicted for accessorial criminal responsibility. In fact, our Supreme Court, in dealing with a predecessor to § 53a-8 (§ 54-196), indicated that a conviction of a principal was not a prerequisite. State v. Wakefield, 88 Conn. 164, 175, 90 A. 230 (1914); see also General Statutes § 53a-9.

The defendant agrees that the state “need not apprehend, try, convict or even name a principal in its case against an accessory.” He posits, however, that “fp]roof that some principal committed the crime that [the] defendant allegedly aided and abetted ... is an essential element of the crime of aiding and abetting.” Therefore, he argues, the court must instruct the jury that it must find, beyond a reasonable doubt, that the crime was committed by a principal before the defendant can be convicted as an accessory.

The trial court instructed, pursuant to § 53a-8, that the burden was on the state to prove beyond a reasonable doubt that the defendant possessed the criminal intent for each of the substantive crimes, that he intended to aid a principal, and that he did intentionally help or aid that person in the commission of each crime alleged. The court instructed that “[e]veryone is a party to a crime who actually commits it, or who does some act forming part of it, or who assists in its actual commission” and also that “where the defendant is an accessory by aiding in the commission of the crime, he must have the intent to aid the principal perpetrator of the crime. That is, he must have the intent to aid the other person in his actual commission of the crime.”

Thereafter, the court instructed: “If any person or persons committed an offense charged, and the defendant was an accessory as I have explained that term to you, legally it is just as if he, himself, committed the crime.” The court also instructed: “In order to find the defendant, Stefan Bagley, guilty of the crime of manslaughter in the first degree on the theory of accessorial liability, or as an accessory to this crime, which I have just defined for you, you must find proven beyond a reasonable doubt three things: one, that the defendant had the mental state required for the commission of manslaughter in the first degree — and we are now talking about the defendant, meaning Mr. Bagley— that his conduct must have evinced or demonstrated an extreme indifference to human life and was reckless, in that it created a grave risk of death to another; two, that the defendant intentionally aided the other person, Jay Crump, in the commission of the crime; and three, that acting with that mental state, he helped or assisted Crump in the commission of that crime.”

Our review of the charge as a whole leads us to conclude that it was adequate and proper on accessorial liability as it related to the charge of manslaughter in the first degree. We cannot conclude that the trial court improperly failed to instruct the jury, as requested by the defendant, that as a prerequisite the state had the burden of proving beyond a reasonable doubt that Crump was the principal and that this constituted an essential element of the crime.

B

The defendant also claims that the trial court improperly failed to instruct on the lesser included offense of attempted assault in the second degree. The defendant requested that the trial court instruct the jury as to attempted assault in the second degree in violation of General-Statutes §§ 53a-49 and 53a-60, as a lesser included offense of attempted murder and its lesser included offense of attempted assault in the first degree. The court did not do so and the jury returned a verdict of guilty of attempted assault in the first degree.

The state argues that error, if any, in the court’s failure to instruct on this lesser included offense is harmless error in view of the jury’s verdict of guilty to the greater offense of attempted assault in the first degree. The state argues that our law requires the jury to agree unanimously on the defendant’s guilt or innocence under a charge before considering, if necessary, a lesser included offense. State v. Sawyer, 227 Conn. 566, 579, 630 A.2d 1064 (1993). The state concludes, therefore, that if the court fails to charge on a requested lesser included offense that would have been warranted under the evidence of the case, and the jury convicts on the greater, it is harmless error because the jury never would have reached the lesser even had the instruction been given. Basically, the state’s argument, if adopted, would result in the court’s never being required to give a requested and warranted lesser included offense charge. If the defendant was convicted of the greater offense, it would be harmless error not to have given the instruction on the lesser offense, and if acquitted of the greater, then the defendant would have benefited from the lack of instruction given on the lesser.

The law in Connecticut is clear. The defendant is entitled to a warranted instruction on a lesser included offense, and a refusal to so charge cannot be held harmless merely because the defendant was convicted of a greater offense. State v. Hall, 213 Conn. 579, 588, 569 A.2d 534 (1990); State v. Monte, 131 Conn. 134, 137, 38 A.2d 434 (1944); see also State v. Sawyer, 29 Conn. App. 68, 89, 614 A.2d 471 (1992) (Foti, J., dissenting), rev’d, 227 Conn. 566, 630 A.2d 1064 (1993). Unlike the court in Sawyer, but like that in Monte, the court in this case refused to give a warranted instruction on a lesser included offense. Although a unanimous determination of guilty precludes the jury from proceeding to any lesser included offense; State v. Sawyer, supra, 579; if a warranted instruction on a lesser included offense was not given, the instruction is improper. State v. Hall, supra, 588.

The state also argues that the defendant was not entitled to an instruction on attempted assault in the second degree because the request fails to satisfy the four prerequisites of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id.

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, [588] we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. State v. Montanez, 219 Conn. 16, 22-23, 592 A.2d 149 (1991). . . . The jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Ray, 228 Conn. 147, 154, 635 A.2d 777 (1993). We must conclude that the trial court’s failure to give the requested instruction is improper if we cannot exclude, as a matter of law, the possibility that the defendant is guilty only of the lesser offense. Id., 155; State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982).

We need spend little time on the first two conditions of Whistnant. The defendant appropriately requested an instruction in compliance with the standards set forth in State v. McIntosh, 199 Conn. 155,158-61, 506 A.2d 104 (1986) (discussing former Practice Book § 852 “Request for Instructions” in context of Whistnant analysis). The state agrees that the only element that would distinguish assault in the first degree, General Statutes § 53a-59 (a) (1), and assault in the second degree, General Statutes § 53a-60 (a) (2), under the circumstances as they exist here, is whether the defendant intended to cause either serious physical injury or only physical injury.

The propriety of the defendant’s request turns on whether he has demonstrated the third and fourth conditions of Whistnant. The state argues that the evidence did not justify a conviction on the lesser offense, and that proof of the difference between the two offenses was not sufficiently in dispute. There must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs to justify a finding of guilt on the lesser offense. State v. Rasmussen, 225 Conn. 55, 67-68, 621 A.2d 728 (1993). If, on the basis of the evidence presented at trial, the jury could reasonably have found that the defendant intended to cause physical injury, but not serious physical injury, then the defendant was entitled to the charge requested.

The evidence to which the defendant points in support of his contention was introduced by the state on its direct examination of Richard Garvey, the attending physician in the emergency room at Bridgeport Hospital. Garvey testified that the puncture wound to O’Brien was neither life threatening nor constituted a “serious impairment” of O’Brien’s health. On cross-examination, Garvey also testified that O’Brien was admitted to the hospital at approximately 3:15 a.m. and discharged at about 5:05 a.m.

The defendant argues that because the injury was not serious, the jury was free to infer that the shots fired at O’Brien were not fired with the intent to kill, or to cause serious physical injury, but instead were fired with the intent to cause only physical injury. This argument ignores the fact that the defendant was specifically charged in count three of the information, filed February 24, 1992, with assault in the second degree; General Statutes § 53a-60 (a) (2); that “with intent to cause physical injury to one Tremayne O’Brien, [he] did cause physical injury to [O’Brien] with a deadly weapon.”

To determine what constitutes a lesser included offense of the offense charged, we must first examine the statutes and the information. State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977). The plain language of the charging document alleges in count two that the defendant had the “intent to cause the death of . . . O’Brien” in the crime of attempted murder. The trial court recognized that if it granted the defendant’s request to instruct, it would permit the jury to convict the defendant on both attempted assault and assault in the second degree. The court commented, “[0]n this particular information . . . the only way the defendant can be found guilty of assault in the second degree, [is] if the specific language within the third count is proved. It’s the court’s view, in light of that, [that] it would be inappropriate to charge ... on attempt to commit assault in the second degree under the second count. It would also appear to the court that the defendant ... is benefiting if there is only one possible way that he can be found guilty of assault in the second degree, and that is in the form of the information set forth in the third count.”

Although factual consistency in the verdict is not necessary; State v. Stevens, 178 Conn. 649, 653, 425 A.2d 104 (1979); verdicts may not be inconsistent as a matter of law or based on a legal impossibility. State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). Verdicts are legally inconsistent if “the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted.” Id. Considering the factual scenario here and the wording of the information, the jury verdicts could have been legally inconsistent if the court had allowed the jury to consider both an attempt to commit assault in the second degree as the lesser included offense of attempted murder, and a separate count of assault in the second degree. The attempt to commit an act ceases once the act is committed.

We conclude that, under the state’s long form information, it would have been improper to allow the jury to deliberate on two counts that could have resulted in inconsistent verdicts. We therefore conclude that the defendant was not entitled to a jury instruction on attempted assault in the second degree as a lesser included offense of attempted assault in the first degree, itself a lesser included offense of attempted murder.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found guilty of attempted assault in the first degree as a lesser included offense of the charge of attempted murder. General Statutes §§ 53a-49 and 53a-54a (a). The defendant was originally also charged with carrying a pistol on his person without a permit in violation of General Statutes § 29-35 (a); the court granted the defendant’s oral motion to strike this count.

       The defendant had originally been charged with the murder of Demond Braswell, but after a probable cause hearing, the charge was reduced to manslaughter.

       The relevant portion of the state’s substituted information provided: “On 14th day of August 1991, at or about 2:41 a.m. between building 16, and building 20, Father Panik Village, Bridgeport, the said STEFAN BAGLEY, under circumstances evincing an extreme indifference to human life, recklessly engaged in conduct which created a grave risk of death to one DEMOND BRASWELL and thereby caused the death of the said DEMOND BRASWELL, in violation of Section 53a-55 (a) (3) of the Connecticut General Statutes.”

       The defendant had also previously filed a motion for a bill of particulars after the state filed its long form information. That earlier motion is not part of the defendant’s claim.

       Discretion imports more than leeway in decision making. It implies a legal prudence and sagacity to be exercised in conformity with the spirit of the law and in a manner to serve and not to impede the ends of substantive justice. State v. Bergin, 214 Conn. 657, 683, 574 A.2d 164 (1990).

       The function of a bill of particulars is to enable the defendant to obtain a more precise statement of the offense charged in the information in order to prepare a defense. State v. Stepney, 191 Conn. 233, 240, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

       General Statutes § 53a-8.

       The defendant did not testify in this matter. He suggests that he might have elected to testify had he been charged only as an accessory. We cannot speculate on this point in reaching the conclusion that he was prejudiced.

       In the earlier ruling on the motion in limine, the court specifically noted: “The questions as to prior acts involving character trait or veracity are admissible. Larceny would be one involving character trait generally, and I would allow that question.”

       Practice Book § 4065 (d) (3) provides in pertinent part: “When error is claimed in any other ruling in a court or jury case, the brief or appendix shall include, where appropriate ... the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception. When the basis of the ruling cannot be understood without a knowledge of the evidence or proceeding which preceded or followed the ruling, a brief narrative or verbatim statement of the evidence or proceeding should be made. A verbatim excerpt from the transcript should not be used if a narrative statement will suffice. ...”

       The defendant requested the following charge: “To convict this defendant, Stefan Bagley, on an accessorial theory you must find that the defendant was an accessory to the underlying crimes of manslaughter in the first degree, assault in the first degree, and attempted murder. Accordingly, you must first find, beyond a reasonable doubt, that Jay Crump was the principal. If you so find, then you must find that the accused intended both to aid the principal, Jay Crump, and that he intended to commit the underlying felonies of manslaughter first, assault first and attempted murder.” (Emphasis in original.)

       The defendant’s supplemental request to charge as pertinent is as follows: “If you find that the State has also not proven beyond a reasonable doubt any of the elements or all of the elements of attempted assault in the first degree, subsections (1) and (3), as I have just defined them for you, then you may consider whether or not the defendant is guilty of attempted assault in the second degree, in violation of Connecticut General Statutes Section 53a-60, subsections (1), (2), and (3).
      “Assault in the second degree, subsection (1) is as follows: 'A person is guilty of assault in the second degree, when with intent to cause serious physical injury to another person, he causes such injury to such person or to a third person.’
      “Assault in the second degree, subsection (2), is as follows: ‘A person is guilty of assault in the second degree when, with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.’
      “Assault in the second degree subsection (3), is as follows: ‘A person is guilty of assault in the second degree when he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument. . . .’
      “Testimony during the course of this trial from Dr. Garvey of Bridgeport Hospital, that the wounds sustained by Tremayne O’Brien were not of a life threatening nature or of a serious nature. Therefore, the jury may infer the shots fired at Tremayne O’Brien were not fired with an intent to kill. The first count alleges recklessness.”

       “Although there is no constitutional right to have a jury consider possible lesser included offenses, Connecticut law entitles a defendant to a lesser included offense charge if his request satisfies the four requirements set forth in State v. Whistnant, [supra, 179 Conn. 588].” State v. Crafts, 226 Conn. 237, 250, 627 A. 2d 877 (1993).

       The information charged in pertinent part: “state’s attorney FURTHER accuses the said STEFAN BAGLEY with the crime of ATTEMPTED MURDER and charges that ... the said STEFAN BAGLEY, with the intent to cause the death of one TREMAYNE O’BRIEN, did shoot at, and attempt to cause the death of the said TREMAYNE O’BRIEN, in violation of Section 53a-49 and Section 53a-54a (a) of the Connecticut General Statutes.
      “and said state’s attorney further accuses the said STEFAN BAGLEY with the crime of ASSAULT IN THE SECOND DEGREE and charges that . . . the said STEFAN BAGLEY, with intent to cause physical injury to one TREMAYNE O’BRIEN, did cause physical injury to the said TREMAYNE O’BRIEN, with a deadly weapon, in violation of Section 53a-60 (a) (2) of the Connecticut General Statutes.”


source: Caselaw Access Project

author: O'Connell, J.

license: Public Domain

text:
    Audra Sung et al. v. Russell Butterworth et al.
    (12102)
    O’Connell, Landau and Freedman, Js.

      Argued March 31
    decision released July 19, 1994

      Nicholas P. Cardwell, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom, on the brief, was Denise Rodosevich, for the appellee (defendant Robert E. Edkin).
   O'Connell, J.

This is a medical malpractice action in which the named plaintiff appeals from the denial of her motion to set aside the jury verdict in favor of the defendant Robert Edkin. The plaintiff claims that the trial court (1) improperly refused to allow an expert in orthopedic surgery to render an opinion, (2) improperly refused to allow the plaintiff to lay a foundation with the expert, which would have provided a basis for the introduction of evidence regarding medical expenses, and (3) improperly refused to allow the plaintiff to lay a foundation with the expert, which would have provided a basis for the introduction of evidence regarding loss of an academic opportunity. In addition, the plaintiff claims that (4) the jury verdict was contrary to the weight of the evidence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On January 8, 1985, the plaintiff, who was ten years old at the time, injured her left elbow in a gymnastic maneuver at Tootin’ Hills School in Simsbury. She was treated by Anthony J. Spinella, an orthopedic surgeon, who attempted a closed reduction. When this proved unsuccessful, Spinella recommended other options to the plaintiff’s parents. None of these was acceptable and the plaintiff was transferred to the care of the defendant, also an orthopedic surgeon, who performed a second closed reduction. In time, the plaintiff developed a median nerve involvement causing numbness in her left arm and fingers. In addition to Spinella and the defendant, the plaintiff was examined or treated by nine other physicians. None of them offered evidence at trial of deviation from the standard of care for an injury of this sort.

At trial, the plaintiff was prevented from using Spinella as an expert witness. The plaintiff was also prevented from introducing evidence concerning medical expenses associated with nerve transplant surgery, scarring, future medical expenses and a lost opportunity to attend the United States Coast Guard Academy.

The first two claims implicate Practice Book § 220 (D), which mandates that within sixty days of the date a case is claimed for the trial list, the plaintiff must disclose (1) the name of any expert the plaintiff intends to call, (2) the subject matter of the expert’s expected testimony, (3) the substance of the facts and opinions to which the expert is expected to testify, and (4) a summary of the grounds of each opinion.

In compliance with § 220 (D) the plaintiff disclosed to the defendant the names and required information concerning several experts whom she expected to call. Spinella’s name was not disclosed as such an expert and consequently, § 220 (D) information was not supplied concerning the expert testimony he might provide.

Although Spinella was not disclosed as a potential expert witness, the plaintiff had disclosed that she intended to call Spinella to testify concerning his treatment of the plaintiff and also concerning an opinion that he had previously expressed in a deposition. In a separate action, the plaintiff had sued Spinella for malpractice arising out of the same facts that gave rise to the present case. The plaintiff took Spinella’s deposition in the case against him and sought to use that deposition in the present case. In his deposition, Spinella had testified as to both the standard of care applicable to the plaintiff’s treatment and the care and treatment rendered by the defendant to the plaintiff. The plaintiff contends that she was entitled to examine Spinella concerning the expert opinion that he expressed in this deposition regardless of her failure to disclose Spinella pursuant to § 220 (D).

The trial court did not agree and ruled that Spinella could testify concerning only his own care and treatment of the plaintiff. The plaintiff argues that the trial court failed to recognize a distinction between disclosing a physician as an expert and disclosing a treating physician who would provide expert opinion as well as factual evidence. We are asked to create a new hybrid factual expert category of witness who could give expert testimony restricted to those matters about which the witness gave factual testimony. This quasi-expert witness, however, could not be asked the typical expert hypothetical question. The plaintiffs sole authority for this proposition is Mason v. Robinson, 340 N.W.2d 236, 242 (Iowa 1983), which we do not find persuasive.

“We have previously held and continue to hold that the disclosure requirements of Practice Book § 220 (D) apply with equal force to treating physicians as well as to independent experts.” Gemme v. Goldberg, 31 Conn. App. 527, 535, 626 A.2d 318 (1993); Bank of Boston Connecticut v. Ciarleglio, 26 Conn. App. 503, 509, 604 A.2d 539, cert. denied, 221 Conn. 922, 608 A.2d 685 (1992). Moreover, it is irrelevant that the plaintiff had provided a copy of Spinella’s deposition to the defendant prior to trial. In Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 506-508, 541 A.2d 893, cert. denied, 208 Conn. 812, 544 A.2d 1107 (1988), we held that merely supplying opposing counsel with an expert’s report does not constitute proper compliance with § 220 (D).

We note the emphatic tone of the final sentence of § 220 (D) which reads in relevant part that if there has not been a compliance with this section “such expert shall not testify except in the discretion of the court for good cause shown. ” (Emphasis added.) In the present case there was not compliance with § 220 (D). Moreover, there is no claim that the trial court was asked to find good cause to except Spinella’s testimony from the rule. Absent a good cause assessment by the trial court, we are unable to rule whether the trial court abused its discretion. Roberto v. Honeywell, Inc., 33 Conn. App. 619, 626, 637 A.2d 405 (1994) (discussing good cause assessment under § 220 (D) where party failed to disclose rebuttal expert witness).

We conclude that the trial court, in ruling that the plaintiff failed to comply with § 220 (D), properly refused to allow Spinella to give an expert opinion on the standard of care as well as an expert opinion regarding the defendant’s treatment of the plaintiff.

The second issue is also dependent on whether the trial court properly excluded Spinella’s expert testimony. For the reasons set forth previously, we affirm the trial court’s decision on the plaintiffs second claim. Because the jury returned a verdict in favor of the defendant, we do not reach the plaintiff’s third claim which raised an issue of damages. Finally, in view of our disposition of the first and second issues, the evidence properly supported a defendant’s verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named plaintiff, Audra Sung, is the sole remaining plaintiff in this action. The plaintiff’s father, in his individual capacity, was an original plaintiff but withdrew during trial. We refer in this opinion to Sung as the plaintiff.

       Robert Edkin is the sole remaining defendant in this action. Prior to trial, the plaintiff settled and thereafter withdrew all her claims against the named defendant as well as one other defendant. We refer in this opinion to Edkin as the defendant.

       The principal and a teacher of Tootin’ Hills School were the other original defendants in this action. As noted in footnote 2, the plaintiff’s claims against the principal and teacher were settled and withdrawn prior to trial.

       Orthopedic surgeons Gerald Becker, A.F. Serbin, Jeffrey Lovallo, and Steven Bond, neurologist Keshav Rayo, neurosurgeons Arthur Amacher, and Alan Hudson, pediatrician Richard Bason, and plastic surgeon Gary Russolillo.

       Practice Book § 220 (D) provides in pertinent part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. . . .”

       The case against Spinella had been withdrawn prior to the trial of the present case.

       The defendant argues that Spinella in fact gave expert testimony on the standard of care in violation of the trial court’s ruling. In view of our disposition of this appeal we need not analyze this argument.


author: O’Connell, J.

text:
    Luba Hill v. James T. Hill
    (11464)
    (12066)
    Dupont, C. J., and O’Connell and Spear, Js.
    Argued February 17
    decision released July 19, 1994

      John R. Williams, with whom, on the brief, were Sue Wise and Diane Polan, for the appellant (plaintiff),

      Richard L. Albrecht, with whom, on the brief, were Richard G. Kent and Jocelyn L. Birnbaum, for the appellee-appellant (defendant).

      Luba N. Hill, pro se, the appellee (plaintiff), filed a brief.
   O’Connell, J.

This case involves two appeals from the same marriage dissolution action. In appeal no. 11464, the plaintiff claims that (1) the procedures followed by the trial court deprived her of her right to due process of law under both the state and federal constitutions, and (2) the trial court abused its discretion in ordering the trial to begin, in dividing assets without current financial affidavits, in awarding joint custody without a custody study, in conducting ex parte proceedings off the record, and in failing to protect the plaintiff from misconduct by her attorney. In appeal no. 12066, the defendant claims that a postjudgment order pertaining to a motor vehicle violated the automatic stay.

I

The central issue in the plaintiff’s appeal involves the trial court’s denial of her request for a continuance. The following facts are necessary for the disposition of this issue. On June 4, 1991, the plaintiff instituted an action seeking dissolution of the parties’ fifteen year marriage, sole custody of their four minor children, child support, alimony, division of assets and sole ownership of the marital residence. On November 28, 1991, Allen S. Mall became the third attorney to represent the plaintiff. By agreement of the parties, the trial of the case was scheduled for January 3, 1992. Because of a subsequent order requiring both parties to attend a January 30,1992 conference with a family relations officer, the trial was rescheduled for March 10,1992. On March 3,1992, the plaintiffs counsel appeared in court seeking a continuance “to at least May, if not June.” The reasons proffered for the continuance were to obtain discovery of certain of the defendant’s American Express records and because the plaintiff disagreed with the family relations officer’s refusal to complete a full custody study. In response, the trial court, Bailen, J., scheduled a hearing for the following day to resolve the question of whether a full custody study was necessary and would thus warrant granting the plaintiff’s request for a continuance.

During the March 4 hearing, Judge Bailen heard testimony from the plaintiff and a family relations officer and thereafter denied the continuance on the basis of the family relations officer’s recommendation that a full custody report was not necessary. There is, however, disagreement as to what Judge Bailen intended would take place on March 10. When the parties appeared on March 10, Judge Bailen and defense counsel expected that the trial was to commence, but Mall protested that he understood that the trial would not go forward until he had received the American Express information. Accordingly, Mall made it clear that he was not ready to commence trial. Judge Bailen told Mall that he could present evidence concerning the American Express records at a later time but that he must proceed to trial that day on other issues. Mall then asked Judge Bailen if he could at least have until the afternoon to prepare for trial. Judge Bailen granted the request and then referred the case to Judge Karazin for trial to begin later that same day.

At the start of trial that afternoon, Mall informed Judge Karazin that the case was not ready for trial because Judge Ballen’s order to commence the trial was conditioned on the plaintiffs receipt of the American Express records. The defendant disagreed and Judge Karazin recessed so that he personally could ask Judge Bailen the substance of his order. Thereafter, Judge Karazin reconvened court and stated that Judge Bailen had ordered the trial to begin that day as long as the plaintiff could present her evidence concerning the American Express records when they arrived. Despite this concession, Mall informed the court that he was not prepared to start the trial and that he did not think it prudent to begin his case without his client, who was so upset about the morning’s proceedings that she had left the courthouse and would not return. After inquiry by Judge Karazin, Mall admitted that the presence of his client was not essential for him to go forward, and Judge Karazin told Mall to begin putting on evidence. A short colloquy between Mall and Judge Karazin ensued, which ended with Mali’s leaving the courthouse, despite several warnings from Judge Karazin that such behavior would have serious consequences. Immediately following Mall’s departure, defense counsel moved for a nonsuit, which was granted. Judge Karazin then heard the case on the defendant’s counterclaim and rendered judgment thereon. It is from that judgment that the plaintiff now appeals. Additional facts are set forth in the course of our discussion.

We commence our analysis by considering the plaintiff’s argument that the trial court improperly denied her request for a continuance and compounded the impropriety by proceeding to judgment in the absence of both the plaintiff and her counsel. “[T]he matter of a continuance is traditionally within the discretion of the trial judge, which will not be disturbed absent a clear abuse. ... It must be shown that the trial judge acted arbitrarily and substantially impaired defendant’s ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion. The test is a stringent one.” (Citations omitted; internal quotation marks omitted.) State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). Not every denial of a request for more time violates due process. Avery v. Alabama, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377 (1940); State v. Bethea, 167 Conn. 80, 84, 355 A.2d 6 (1974).

The Supreme Court has been “especially hesitant to find abuse of discretion where the court has denied a motion for continuance made on the day of trial.” Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983); Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011 (1984), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1985); Kinney v. Kinney, 5 Conn. App. 484, 485, 500 A.2d 569 (1985), cert. denied, 199 Conn. 804, 506 A.2d 146, cert. denied, 497 U.S. 818,107 S. Ct. 78, 93 L. Ed. 2d 33 (1986). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841,11L. Ed. 2d 921 (1964); State v. McKnight, 191 Conn. 564, 576, 469 A.2d 397 (1983); State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977). We agree with the general principle implicit in the plaintiff’s argument that when a court considers a request for a continuance, it must pay special attention to the facts of the individual case; but the plaintiff fails to refer to us any case in which the individual facts resulted in a continuance. In all of the cases cited by the plaintiff, the trial court’s denial of a continuance was upheld on appeal.

In the present case, the plaintiff, now represented by new counsel, contends that when Mall appeared in court on March 10, he did not know that it was for trial and supports this contention with transcript references. On the other hand, defense counsel argues that the same transcript references gave the plaintiff clear notice that the case was assigned for trial on March 10. Examination of the transcripts is not dispositive of the issue. We were not there and the flavor of the court’s remarks cannot be appreciated from reading the cold black and white lines of a transcript. The nuances of voice inflection, gestures and body English are invisible on the pages of a printed transcript. It is not lost on us, however, that two of the three persons present during the colloquy (i.e., Judge Bailen and the defendant’s counsel) unequivocally understood that the trial was to start on March 10. Only one of the three, Mall, did not interpret Judge Ballen’s remarks as setting a firm March 10 trial date. The defendant’s brief states in a reference to the transcript that “[i]t is difficult to imagine more clear and direct pronouncements of the court’s intention to proceed with trial on the scheduled date.” We cannot ignore this impression that the court’s words made on defense counsel. We also cannot ignore Judge Ballen’s response to Judge Karazin’s inquiry regarding the order that trial was to commence that afternoon.

We emphasize that trial courts are afforded wide discretion in matters of continuances and our review of such matters is governed by an abuse of discretion standard. State v. Beckenbach, supra, 198 Conn. 47. “The [appellate] court’s function is not to determine if the trial court could have reached a conclusion other than the one reached but whether the court could reasonably have reached the conclusion it did. An appellate court should ‘guard against’ substituting its own interpretation of the evidence on the cold record for that of the trial court on the live record. A finding cannot be rejected just because the ‘reviewing judges personally disagree with the conclusion or would have found differently had they been sitting as the fact-finder.’ ” C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 7.6 (b), citing Sportmen’s Boating Corp. v. Hensley, 192 Conn. 747, 751, 474 A.2d 780 (1984), and Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). In deciding whether the trial court could reasonably conclude as it did, we must follow the unquestioned rule that great weight is due the action of the trial court and every reasonable presumption should be allowed in favor of the correctness of its action. Askinazi v. Askinazi, 34 Conn. App. 328, 342, 641 A.2d 413 (1994); Ashton v. Ashton, 31 Conn. App. 736, 742, 627 A.2d 943 (1993), cert. denied, 228 Conn. 901, 634 A.2d 295 (1994).

The wide latitude we accord to trial court decisions is especially applicable in cases, as here, where the meaning of spoken words cannot easily be gleaned from transcript pages. We were not present at the hearings and therefore cannot appreciate the true flavor of those proceedings. We will defer to the trial court’s broad discretion in such matters. In the present case, we conclude that the trial court’s order denying the plaintiff’s request for a continuance, but permitting the plaintiff to present the American Express records when they became available, did not constitute an abuse of discretion.

Having determined that the trial court properly denied the plaintiffs request for a continuance, we turn next to her argument that the trial court violated her due process rights by proceeding to trial in her absence. The record indicates that she was present during the hearing before Judge Bailen and that she had a full and fair opportunity to take part in the trial. Instead of taking advantage of this opportunity to be heard, she elected to forgo her right to be present during trial.

A party has a right to be present at all phases of his civil litigation. Conn. Const., art. I, § 19. This right may be waived, however. Rozbicki v. Huybrechts, 218 Conn. 386, 393, 589 A.2d 363 (1991). Even in a criminal case, a defendant may waive his constitutional right to be present either “by his conduct, misconduct or his voluntary and deliberate absence from the trial without good cause.” State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987). “The right to be present . . . may be lost by consent, waiver or misconduct .... Waiver need not be express. It may be implied from the totality of acts or conduct of a defendant . . . .” Id. These principles apply with equal force in civil litigation. Rozbicki v. Huybrechts, supra, 393-94.

“Permitting a defendant unilaterally to prevent his case from going forward would give him the license to defy the law with impunity, and in the process, to paralyze the proceedings of courts . . . .” State v. Drakeford, supra, 202 Conn. 81. When the plaintiff voluntarily left the courthouse upon learning that Judge Karazin insisted on going forward, she waived her right to be present. She charted her course and cannot now complain if that course caused her to founder on rocks that she had not foreseen. See Johnson v. United States, 318 U.S. 189, 201, 63 S. Ct. 549, 87 L. Ed. 2d 704 (1943).

Because the plaintiffs absence was wholly voluntary, cases that she cites involving involuntary absence due to circumstances beyond a party’s control are inapposite. Despite the rule of law that imputes a lawyer’s acts to his client; Allen v. Nissley, 184 Conn. 539, 542-43, 440 A.2d 231 (1981); it is nonetheless easy to have compassion for the innocent client who suffers because of her lawyer’s ill conceived conduct. This, however, is not one of those cases. Here, the plaintiff herself must shoulder the culpability of her own actions in leaving the courthouse and refusing to return so that the orderly process of justice could go forward.

The plaintiff also claims that the trial court violated her due process rights by “permitting” her privately retained counsel to walk out of the courtroom despite his having been warned that the case would go forward with or without him. Despite this warning, plaintiff’s counsel refused to participate in the proceedings and walked out of the courthouse, thereby abandoning his client’s cause. We cannot condone this conduct and, even more so, we cannot reward it with a new trial.

Mall was retained to protect his client’s interests, but nevertheless elected to follow a course that the court warned would fatally jeopardize those interests. On appeal, the plaintiff, through her new counsel, argues that Mall’s desertion of the case was the functional equivalent of withdrawing his appearance. This is ludicrous. Our rules of practice establish the procedures by which an attorney may withdraw his appearance. Practice Book § 77. Walking out of court is not included among the prescribed withdrawal methods, nor does the plaintiff provide authority for this claim. The plaintiff’s reliance on Matza v. Matza, 27 Conn. App. 769, 610 A.2d 702 (1992), is no longer legally viable in that subsequent to the filing of the plaintiff’s brief the Supreme Court reversed that judgment. See Matza v. Matza, 226 Conn. 166, 627 A.2d 414 (1993). Additionally, Matza was never factually apposite to the present case. Matza involved an attorney’s written motion to withdraw during trial when he believed that his client was persisting in a criminal or fraudulent course of action. There is no similarity between the Matza scenario and the facts of the present case.

Mall left the courtroom because, by his own statement, he was not prepared for trial. We can scarcely imagine the chaos if every attorney could control the docket through a self-help continuance obtained by walking out of the courtroom. The judges of the Superior Court must remain in control of the scheduling and trial of cases. If an attorney disagrees with the scheduling order, he should make an appropriate record and then cooperate as well as the circumstances allow. If a claimed improper scheduling order prejudices his case, he may then seek relief by way of appeal.

Judge Karazin gave Mall every possible consideration. He allowed Mall to go to Stamford to get his file and gave him an opportunity to telephone his client in an attempt to secure her attendance at the proceedings. He suggested that Mall proceed on issues other than the American Express bills and clearly, in no uncertain terms, warned him of the consequences of his absenting himself from the proceedings. We cannot easily conceive of what action, short of physically restraining Mall or exercising its contempt powers, the trial court could have taken to prevent the debacle caused by Mali’s absence.

II

The trial court awarded the plaintiff 60 percent of the family assets, lifetime alimony, joint custody of the four minor children, and child support. “ ‘In determining whether a trial court has abused its broad discretion in domestic relations matters, [the Appellate Court allows] every reasonable presumption in favor of the correctness of its action.’ ” Ashton v. Ashton, supra, 31 Conn. App. 742. The plaintiff has not persuaded us that the trial court abused its discretion in any of its orders.

The plaintiff also seeks reversal on the ground that the trial court failed to protect the plaintiff from her own attorney. The plaintiff claims that the trial court should have inquired into a possible conflict of interest between Mall and defense counsel’s law firm. The plaintiff’s claim of a possible conflict is based on speculation. Neither party has ever raised an issue concerning a possible conflict of interest. In support of her claim, the plaintiff points to a single sentence in the transcript in which Mall insists on a continuance because of a heavy schedule of trials, including one “of my own personal matter with [defense counsel’s] office.” This statement is subject to numerous interpretations and we will not speculate as to its meaning, especially where none of the parties raised such a claim at the trial level.

Finally, the plaintiff claims that the trial judge spoke ex parte with the defendant and his attorney before rendering a decision in this matter, thereby tainting the final outcome of the case. The plaintiff references the last page of the transcript of the March 10 trial wherein Judge Karazin concluded the case and defendant’s counsel responded by saying, “May we go off the record for a minute.” We will not find bias and misconduct on the part of the trial judge on the basis of this single, unsubstantiated reference to a possible ex parte communication. This is not an adequate record to support the plaintiff’s claim.

In appeal no. 11464, the judgment of the trial court is affirmed.

Ill

In appeal no. 12066, the defendant appeals from the trial court’s postjudgment order requiring him to return to the plaintiff a motor vehicle that she was permitted to use under the terms of the original dissolution decree. The defendant claims that a signed stipulation between the parties dated July 2,1992, permitted the defendant to obtain title to the vehicle and thereafter to obtain possession of it from the plaintiff. Accordingly, in December, 1992, the defendant took possession of the vehicle. The plaintiff responded by filing a motion for order seeking return of the vehicle. The trial court, Moran, J., granted the plaintiffs motion and ordered the automobile returned to her. The defendant argues that the trial court’s order violated the automatic stay. We disagree.

Nothing in the July 2,1992 stipulation permitted the defendant to obtain possession and use of the automobile. Although the stipulation allowed the defendant to pay off the lease and thereafter to acquire title to the automobile, he was not authorized to regain possession of the vehicle unilaterally in violation of the original dissolution agreement. The trial court’s order requiring the defendant to return the motor vehicle to the plaintiff served to effectuate the original dissolution decree. Rather than violate the automatic stay, Judge Moran’s order preserved the status quo under the dissolution decree by giving rightful possession and use of the motor vehicle to the plaintiff. Accordingly, in appeal no. 12066, we affirm the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that after Judge Ballen’s conclusion during the March 4 hearing that a custody report was not necessary and that the trial should go forward, the plaintiff reiterated his claim that the trial should not start without the American Express records. In response, Judge Bailen stated that the trial is “down for March 10, and I’m going to say that come March 10, subject to the court’s availability, and it may be that we get started the prior week on other matters and we can’t go ahead on March 10, but if in fact we can go ahead on March 10, and if in fact you have your American Express information, we’ll go ahead on March 10.” Mall then asked, “[I]í I don’t receive [the American Express records] by this Friday, can I tell the court that, so I can avoid a trip up here next week?” Judge Bailen responded by saying that he wanted the parties in on Friday, March 6, or March 10 to bring him up to date on the status of the records.
      Judge Ballen’s remarks are best understood when read in the context of what transpired during the entire two days of hearings, during which time the parties had engaged in heated discussion over the relevance of these records as well as whether the plaintiff was using the absence of the records as a way to buy time. Throughout argument, Judge Bailen stated on numerous occasions his belief that the plaintiff did not need all the records to proceed and that the plaintiffs recent deposition of the defendant had provided the plaintiff with enough information regarding the defendant’s recent American Express charges to proceed. It is clear that Judge Bailen was seeking to accommodate the plaintiffs need for all relevant information and the defendant’s request that the trial commence as scheduled. In addition, Judge Bailen stated near the end of the hearing: “All right, all right. Why don’t we let it go then March 10, as originally scheduled. Hopefully somebody mil get this American Express information. ” (Emphasis added.) We read this statement as a clear warning that the March 10 trial was not conditioned on the receipt of the American Express records.

       Judge Karazin expressed a measure of sympathy at a hearing on a motion to open the judgment. “I was hoping you’d come back the next day. I was hoping somebody was going to come back .... I did not render the decision immediately. I gave what I thought was a chance . . . to your side ... to come in and do something. Nobody did anything so I then decided the case .... I waited a full week before the decision. I waited for somebody to do something. Why didn’t you people come in the day after?”

       The colloquy between Judge Karazin and Mall was as follows:
      “Mr. Mall: Okay. I am going to absent myself from the proceedings, Your Honor, with Your Honor’s permission.
      “The Court: Well, you are not either going to get my permission or my nonpermission, but I am telling you that I am going ahead with the case.
      “Mr. Mall: Okay.
      “The Court: I think that you are doing your client an injustice and you are putting yourself, in my opinion, at great risk for a lot of different reasons .... I will tell you this, that if you do leave, I will default your client for failure to appear. I have not done that yet. I have not been requested to do that and at this point I am letting them proceed on the cross complaint. ... I haven’t granted [the motion for default] yet. That’s why I advised you that if you physically leave then I will default [the plaintiff] for failing to appear because at this point she is represented. I’m not sure she has to be here. . . .
      “Mr. Mall: Honestly, Your Honor, I don’t need her here to ask questions. However, she is the client, she is the plaintiff, she is entitled to be in court if she so desires.
      “The Court: She chose not to.
      “Mr. Mall: I would like, if Your Honor please, if I may have five minutes just to call the client, see if I can reach her at home, and tell her what the circumstances are and give her instructions.
      “The Court: All right. I’m not even going to take a recess. I’ll sit on the bench. . . . Sheriff, if you will open that door for a minute and let’s get a little air in here. I’ll just wait on the bench.
      [Mall left and called the plaintiff.]
      “Mr. Mall: If Your Honor please, I was patched through by my office. They called her and she is not home.
      “The Court: Okay.
      * * *
      “Mr. Mall: If your Honor please, I’ve made a decision. I have to be consistent and I’m sincere and honest in what I have said, that I’m not prepared.
      * * *
      “The Court: Okay. So I see you are packing up your gear. What does that mean? Does that mean you are actually leaving?
      “Mr. Mall: Yes, sir. I think I should leave the premises because I don’t want to waive any claims I might have.
      “The Court: Well, I will entertain a motion for default for failure to appear once you have exited the courtroom, okay, because up until this point you have appeared. Your appearance is in the file and your physically being here is an appearance and it is not necessary that your client be here, as I perceive it, to have her interest protected. So you are choosing to leave. Then I will entertain a motion for default for failure to appear.”

       Rule 1.16 (b) of the Rules of Professional Conduct provides in pertinent part that “a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
      “(1) The client persists in a course of action . . . that the lawyer reasonably believes is criminal or fraudulent . . . .”

       See footnote 3.

       Judge Karazin’s order stated: “The leased Mercedes is to remain in the possession of the wife.”

       The parties agreed in their stipulation that proceeds derived from a deposit received in connection with the sale of the marital residence would be used to pay off a host of debts, one of which was for the motor vehicle in question.


text:
    State of Connecticut v. Sean Siering
    (12008)
    O’Connell, Foti and Heiman, Js.

      Argued November 8, 1993
    decision released July 19, 1994

      Kevin A. Randolph, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Timothy J. Liston, senior assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). The jury acquitted the defendant of unlawful restraint in the first degree. The defendant claims that the trial court improperly precluded him from introducing evidence of the victim’s prior sexual conduct and also improperly instructed the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim first met about 9:30 p.m. on February 8,1992, in the Lakeshore Pub in East Hampton. The Lakeshore Pub is a small bar and lounge with a dance floor and pool table. After their initial meeting, the defendant and victim danced together, shared a kiss and then spent the evening talking in one of the pub’s booths. The two decided to leave at about 1 a.m. Because the defendant lacked transportation, the victim agreed to drive him to the Heidelberg Inn where he lived in a rented room on the second floor. Upon arriving at the inn, the victim accompanied the defendant to his room where she hoped either to obtain the defendant’s phone number or make arrangements for a future date. Immediately upon entering his room, the defendant forcibly kissed the victim and pushed her onto his bed. The victim tried to leave but the defendant became aggressive and held her on the bed against her will. In the struggle that followed, the defendant pulled off the victim’s clothes and had sexual intercourse with her by force. Throughout the assault, the victim was yelling, screaming and fighting. Eventually, she broke free, grabbed her clothes and rushed back to the Lakeshore Pub and called the police. As a result of the assault, the victim suffered injuries to her face, neck, wrists and legs.

The defendant’s version of the critical events was that he and the victim were engaged in mutually consensual sexual intercourse when the victim suddenly “snapped and yelled rape.”

I

The defendant’s first claim implicates General Statutes § 54-86f, commonly known as the rape shield law. This statute provides that evidence of a victim’s prior sexual conduct is not admissible unless it qualifies under one of four exceptions. The defendant claims that his proffered evidence qualifies under the first exception because it was “offered ... on the issue of whether the defendant was, with respect to the victim, the source of . . . injury.” The defendant attempted to show that the injuries to the victim’s face, neck, wrists and legs did not result from an assault by him but instead were the product of intercourse with another person on the day preceding the assault.

In response to the defendant’s motion for permission to introduce evidence of prior sexual intercourse, the trial court conducted the statutorily mandated hearing out of the presence of the jury. The victim was the sole witness called by the defendant. She testified that on the day before the assault she had consensual sexual intercourse with someone other than the defendant but that she had sustained no physical injuries during that contact. The defendant offered no evidence to the contrary. The trial court ruled that the prejudicial effect of the evidence outweighed its probative value and denied the defendant’s motion.

In State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985), we held that the rape shield statute was “enacted specifically to bar or limit the use of . . . sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material.” The defendant did not show how his proffered evidence would tend to demonstrate that he was not the source of the victim’s injuries. “ ‘In light of the fact that . . . [the victim] only would have denied the allegations again if she were allowed to testify in front of the jury, it is difficult to perceive any justification for breaking down the barriers of the rape shield statute except to harass and embarrass [the victim] and confuse or mislead the jury.’ State v. Williams, 20 Conn. App. 263, 270, 565 A.2d 1365 (1989).” State v. Kendrick, 30 Conn. App. 56, 59, 619 A.2d 1 (1993).

It is apparent that on trial the victim would have testified before the jury that none of the injuries that she claims she received from the incident with the defendant were present before the encounter with him. He proffered no evidence establishing that, despite her testimony to the contrary, the victim had been injured prior to her encounter with him. Furthermore, he proffered no evidence as to how consensual sexual contact would have caused injuries of the type suffered by the victim; nor did he show how his proffered evidence would tend to demonstrate that he was not the source of the victim’s injuries.

The trial court has broad discretion in ruling on the admissibility of evidence and only upon a showing of a clear abuse of discretion will this court set aside rulings on evidentiary matters. State v. Gray, 221 Conn. 713, 725, 607 A.2d 391, cert. denied, U.S. , 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). The trial court did not abuse its broad discretion in ruling that the prejudicial effect of the proposed evidence outweighed its probative value and properly denied the defendant permission to introduce it as evidence at trial.

II

Additional facts are necessary for the disposition of the defendant’s claim that the trial court improperly instructed the jury. At trial, the victim and the defendant gave sharply divergent testimony concerning what transpired in the defendant’s room. The defendant testified that they engaged in consensual sexual intercourse until the victim suddenly “snapped and yelled rape.” In contrast, the victim insisted that the intercourse resulted from the defendant’s use of force and was without her consent from the start. The record does not disclose evidence of any physical or emotional impediment preventing the defendant from discontinuing his sexual activity at any time.

During its deliberations, the jury sent a question to the court. The jury inquiry was “if a person agrees to sexual intercourse then changes her mind, withdraws her consent, but is compelled to continue intercourse by use of force, does this constitute sexual assault?” The court responded in part “if there exists consensual sexual intercourse and the alleged victim changes her mind and communicates the revocation or change of mind of consent and the other person continues the sexual intercourse by compelling the victim through the use of force then it would be sexual assault in the first degree.”

The defendant argues that this supplemental instruction was not a correct statement of the law and impaired his constitutional right to prepare a defense, which includes the right to proper jury instruction on the elements of any applicable defense. State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982). As then instructed, the jury had two alternatives under which it could find the defendant guilty. The jurors could have found that the victim (1) never consented and resisted the defendant from the start or (2) consented but withdrew her consent at some point subsequent to penetration. “When one of two alternative grounds for conviction would not constitutionally support a guilty verdict, the conviction must be invalidated because a general guilty verdict makes it impossible to know whether the jury relied on the impermissible ground.” State v. Jemison, 35 Conn. App. 1, 6, 643 A.2d 1287 (1994); see also Leary v. United States, 395 U.S. 6, 31-32, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969). The first alternative presents a common sexual assault scenario well established in law. The defendant, however, challenges the constitutional validity under the due process clause of the second alternative, i.e., consent withdrawn after penetration. Accordingly, unless the trial court’s instruction on the second alternative was correct in law, we would be required to reverse the conviction. State v. Jemison, supra, 7.

The defendant argues that if there is consent at the moment of penetration, the subsequent withdrawal of consent and continuation of intercourse accompanied by force cannot convert consensual intercourse into sexual assault. The defendant bases his argument on General Statutes § 53a-65 (2), which provides the definition of “sexual intercourse” applicable to the General Statutes. Although the defendant concedes that § 53a-65 (2) is unambiguous, he nevertheless invites us to consider its legislative history because he argues that it will highlight the error in the court’s supplemental instruction.

The defendant contends that Public Acts 1975, No. 75-619 (P.A. 75-619), redefined sexual intercourse. Prior to 1975, sexual intercourse was defined by General Statutes (Rev. to 1975) § 53a-65 as having “its ordinary meaning and occurs upon any penetration . . . .’’(Emphasis added.) Public Act 75-619 changed the definition in part to provide: “Penetration, however slight, is sufficient to complete vaginal intercourse . . . .” (Emphasis added.) General Statutes § 53a-65 (2). The defendant concedes that the “ordinary meaning” of sexual intercourse contemplates a continuous act of penetration but contends that we must assume that the legislature changed the language for a reason. Turner v. Turner, 219 Conn. 703, 719, 595 A.2d 297 (1991). The reason for this change, the defendant asserts, is that the legislature no longer intended to define intercourse as a continuing act of penetration, thereby making it legally impossible for either party to revoke consent once penetration occurs.

The fallacy in the defendant’s argument is that the 1975 legislature did not make only this change but rather overhauled the entire sex offense portion of the General Statutes, part VI of chapter 952. The legislative history reveals that the purpose of changing the definition of sexual intercourse from “having its ordinary meaning” was to include “anal intercourse, fellatio and cunnilingus,” none of which had been encompassed under the expression “ordinary meaning” of sexual intercourse. See 18 S. Proc., Pt. 7, 1975 Sess., pp. 3214-27.

We construe the statutory reference to penetration as establishing the minimum amount of evidence necessary to prove that intercourse has taken place. The statute does not read that “intercourse is complete” upon penetration; rather, it provides that “penetration, however slight, [is sufficient] to complete . . . intercourse.” State v. Mackor, 11 Conn. App. 316, 319-20, 527 A.2d 710 (1987). We do not construe this to mean that only the initial penetration constitutes intercourse. The defendant’s argument would mean that the act that commences intercourse is also the act that simultaneously concludes intercourse.

It is axiomatic that statutes are not to be interpreted to arrive at bizarre or absurd results. Scrapchansky v. Plainfield, 226 Conn. 446, 453, 627 A.2d 1329 (1993). The defendant’s construction of the statute would mean that if intercourse is continued by force after the victim withdrew consent, it would not constitute sexual assault unless the victim, upon revoking consent and struggling against the defendant, succeeds in momentarily displacing the male organ, followed by an act of repenetration by the defendant. See State v. Way, 297 N.C. 293, 254 S.E.2d 760 (1979).

The absurdity of this construction is demonstrated not only by the difficulty involved in the close evidentiary determination required but also because it protects from prosecution a defendant whose physical force is so great or so overwhelming that there is no possibility of the victim’s causing even momentary displacement of the male organ. Furthermore, the defendant’s argument does not furnish us with terminology to describe the state of continued presence of the male organ in the female organ following initial penetration. The defendant’s argument would not permit the nomenclature of sexual intercourse to be applied to that situation.

Despite this absurdity, a review of the limited case law of sister states reveals that three jurisdictions appear to support the defendant’s argument. One jurisdiction, however, rejects it. Because this case presents an issue of first impression in Connecticut, we consider how other jurisdictions have resolved this question.

In support of his claim, the defendant cites State v. Way, supra, 297 N.C. 293, in which the trial court had instructed the jury that intercourse continued by force after withdrawal of consent became rape from the point that it was no longer consensual. The North Carolina Supreme Court reversed the trial court and held that consent could be withdrawn only if there was more than one act of intercourse and the consent was withdrawn between the acts. Id. This decision is not persuasive because it contains no analysis or explanation but is merely a bald statement that the trial court was wrong.

The case of People v. Vela, 172 Cal. App. 3d 237, 218 Cal. Rptr. 161 (1985), likewise supports the defendant’s position. Interpreting a statutory scheme similar to ours, the Court of Appeals for the Fifth Appellate District of California held that if a woman initially consents to sexual intercourse but later withdraws her consent, and the male forcibly continues the act without interruption, no rape occurs. In support of this result, the court relied on the principle that the “essential guilt of rape” consists of the “outrage to the feelings of the female.” Accordingly, the court held that the outrage to the feelings of a female who initially consents to sexual intercourse but who during the same act withdraws that consent “is not of the same magnitude as that resulting from initial non-consensual violation of [the victim’s] womanhood.” We reject this reasoning as archaic and unrealistic.

On the other hand, the Maine Supreme Court in State v. Robinson, 496 A.2d 1067 (Me. 1985), concluded that continuation of intercourse by compulsion after withdrawal of consent constituted rape. The Maine statute, however, defines “sexual intercourse” as “any penetration of the female sex organ by the male sex organ.” Me. Rev. Stat. Ann. tit. 17-A, § 251 (1) (B) (1983). Thus, the reasoning of the Maine court, while appealing, reflects in part that state’s statutes, which are not identical to our own.

Due to the paucity of reliable authority from other jurisdictions, we must resolve this appeal on the basis of our own best judgment of the meaning of our statute interpreted in the light of the common sense of the situation before us. It is a basic principle of law that common sense is not to be left at the courtroom door; State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985), State v. Perez, 10 Conn. App. 279, 291, 523 A.2d 508, cert. denied, 203 Conn. 810, 528 A.2d 524 (1987); and “courts will not pretend to be more ignorant than the rest of mankind.” Maseline v. New York, N. H. & H. R. Co., 95 Conn. 702, 709,112 A. 639 (1921). “In anybody’s everyday lexicon, continued penetration of the female sex organ by the male sex organ ... is factually ‘sexual intercourse’ ”; State v. Robinson, supra, 496 A.2d 1069; and if intercourse is without consent and accomplished through force, it constitutes sexual assault.

We conclude that the trial court’s supplemental jury instruction was a correct statement of the law.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person . . . .”

       General Statutes § 54-86f provides in pertinent part: “In any prosecution for sexual assault under section 53a-70 ... no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue, of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.” (Emphasis added.)

       The jury had previously asked: “If once you consent to sexual intercourse and the act has begun (penetration) and one party says to stop and the other party continues does this constitute sexual assault?” The court replied: “Based on the elements of the crime as I just explained them to you, the short answer to your question is no.” A colloquy between the court and defense counsel made it clear that the court’s answer was based on the fact that the jury question made no reference to the use of force. Shortly after the court’s reply the jury returned with the question that we now consider.

       The relevant part of the court’s supplementary jury instruction was as follows: “Your question once again is ‘If a person agrees to sexual intercourse then changes her mind, withdraws her consent, but is compelled to continue intercourse by use of force, does this constitute sexual assault?’ My answer to [your question] is if there exists consensual sexual intercourse and the alleged victim changes her mind and communicates the revocation or change of mind of consent and the other person continues the sexual intercourse by compelling the victim through the use of force then it would be sexual assault in the first degree.
      “This is not just someone withdrawing their consent but it’s a withdrawal of consent communicated to the other and then the sexual intercourse continues by compelling the victim through the use of force. So it’s not just a withdrawal of consent, it’s also a withdrawal of consent communicated to the other person and then a compelling use of force to continue sexual intercourse.”

       General Statutes § 53a-65 (2) provides: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.”

       Prior to 1975, the penal code treated forcible vaginal sexual intercourse and forcible anal or oral sexual intercourse in separate but parallel sections. Forcible vaginal intercourse was labeled rape and was divided into two degrees. General Statutes (Rev. to 1972) §§ 53a-72 and 53a-74. Forcible anal or oral intercourse was labeled “deviate sexual intercourse,” and was likewise divided into two degrees. See General Statutes (Rev. to 1972) §§ 53a-75 and 53a-76; see State v. Scott, 11 Conn. App. 102,115, 525 A.2d 1364, cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987). Public Act 75-619, inter alia, repealed the existing statutory classification of varying degrees of rape and deviate sexual intercourse in lieu of a statutory classification based on varying degrees of sexual assault. See General Statutes §§ 53a-70 through 53a-73a. This revision reflected the adoption under P.A. 75-619 of a gender neutral definition of “sexual intercourse,” which included vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex.
      Public Act 75-619 also altered the rape statute by deleting the element of “forcible compulsion,” which required the state to prove that physical force overcame earnest resistance by the victim. Now, proof of resistance is no longer required; the use of force or the threat of force is proof enough. General Statutes § 53a-70. Additionally, P.A. 75-619 eliminated as a defense to sexual assault in the second degree the claim of mistake of age. Finally, P.A. 75-619 added the crimes of sexual assault in the first degree with a firearm.

       We note General Statutes § 1-1 (a), which provides in pertinent part: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .”

       In one of those cases, however, the discussion of this issue is arguably dicta and thus will not be addressed here. Battle v. State, 287 Md. 675, 414 A.2d 1266 (1980).