text:
    State of Connecticut v. Daniel J. Webb
    (3912)
    Dupont, C. J., Hull and Spallone, Js.

      Argued June 4
    decision released August 26, 1986

      Suzanne Zitser, assistant public defender, with whom, on the brief, were Joette Katz, public defender, and Joseph G. Bruckmann, assistant public defender, for the appellant (defendant).

      Eric I. B. Beller, special assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, James E. Thomas, assistant state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant was charged with sexual assault in the first degree in violation of General Statutes § 53a-70, unlawful restraint in the first degree in violation of General Statutes § 53a-95 and robbery in the third degree in violation of General Statutes § 53a-136/ arising out of a series of events occurring in Hartford on February 17, 1984. Prior to trial, the defendant requested that the state disclose the essential facts claimed to constitute the offense pursuant to Practice Book § 625. In response, the state specified the factual background for the charges against the defendant as follows: “On February 17,1984, at about 8:00 p.m. in the Civic Center Garage, Hartford, the defendant Webb forced his way into the auto of the female victim and forced her to have vaginal sexual intercourse with him and touched her breasts then forced her to sign over to him her pay check and then eventually drove her around parts of North Hartford, ending up on Tower Avenue about 11:00 p.m.”

After a trial to a jury, the defendant was convicted as charged. He now appeals, challenging the judgment of conviction of robbery in the third degree only, claiming that the trial court erred in three respects: (1) in failing to submit to the jury an information amended by the statement of essential facts pursuant to Practice Book § 625, and in instructing the jury on General Statutes § 53a-133 (1) which he claims related to and defined conduct totally distinct from that specified in the statement of essential facts; (2) in denying his motion for judgment of acquittal because the state failed to present sufficient evidence to support his conviction for robbery in the third degree; and (3) in charging the jury on reasonable doubt. We find no error.

The pertinent facts which the jury could reasonably have found are as follow: At 8 p.m., on February 17, 1984, the victim, twenty-nine years of age, went to get her car in the Hartford Civic Center garage. As she was getting ready to exit the garage, the defendant came up to the driver’s side of her car and forced her into the middle of the car. He then ripped at her clothing, partially undressed her, threatened to kill her, and forced her to have vaginal intercourse with him and to perform fellatio on him.

During the hour that the defendant was engaged in sexual intercourse with the victim, he searched through her pockets demanding to know what they contained. In order to get answers to this and other questions, he slapped her face. The victim told the defendant that her pay check was among her belongings. While the victim was still restrained in the garage, the defendant became concerned about how he could leave before the victim encountered the security guard or the police. There was a conversation of forty-five minutes to an hour during which the defendant pleaded with and threatened the victim in order to get her not to report him. The defendant then asked the woman if she had any money or bank cards. The victim was still afraid at this time. In order to get the defendant out of the car, she told him she would sign her pay check over to him if he would just go and let her be. She signed over the check and gave it to the defendant. He still wouldn’t let her leave the car, however, and when she tried to get out, he pulled her back in, causing her to hit her head. He told her not to try to leave again. The defendant and the victim left the garage together with the victim still fearful and under restraint. The defendant drove the car around certain streets and, when he stopped the car, the victim got out of it and screamed at him until he got out of the car. Her check was returned to her by the defendant’s trial counsel.

At trial, the defendant admitted that he was with the victim the night in question and that he wrongfully retained the payroll check that she endorsed to him for the purpose of cashing it. He denied, however, sexually assaulting or physically injuring her, or using any force or threat of force to obtain or retain the check. He claimed that he met the victim and walked with her to her car in the garage and that she asked him to back her car out because it was in a tight spot. He testified that she wanted money to buy cocaine and, as part of a con game to acquire her check, he agreed to get the check cashed. He claimed that he got out of the victim’s car without incident and put the check in his back pocket. He contended that they exchanged phone numbers and he gave her a brief kiss and said he would see her later.

The defendant’s first claim is that the trial court erred in instructing the jury on General Statutes § 53a-133 (1) which he claims concerns conduct totally distinct from that specified in the statement of essential facts. The defendant concedes that no exception was taken to the charge on this ground. He asserts that this issue is, nevertheless, reviewable under the fundamental rights — fair trial exception of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). In support of his claim of reviewability, the defendant asserts that by filing the statement of essential facts, in which it specified that the “defendant forced [the victim] to sign over to him her pay check,” the state eliminated the possibility of convicting him on proof that he used or threatened force for the purpose of “[preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking,” as prohibited by General Statutes § 53a-133 (1). The defendant argues that the phrase used in the statement of essential facts describes the conduct prohibited by subsection (2) only and, therefore, that the state was limited to proving that he used or threatened force for the purpose of “(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,” as prohibited by General Statutes § 53a-133 (2). Accordingly, he claims that when the trial court charged the jury using the definition of robbery in § 53a-133 (1), it instructed the jury under a statute with which he was not charged in violation of his due process rights.

The defendant’s claim, thus presented, does implicate a fundamental constitutional right, and the record is sufficient for us to review the merits of the claim. Accordingly, the next question we must answer is whether there was in fact a deprivation of that constitutional right. See State v. Newton, 8 Conn. App. 528, 534, 513 A.2d 1261 (1986). We conclude that there was not. The defendant’s argument amounts to little more than semantic overkill. A common sense analysis illustrates that the two subsections overlap. In the first place, we find it difficult to distinguish the conduct prohibited by the two subsections of § 53a-133. “[Preventing or overcoming resistance to the taking of the property” is at least a first cousin of “compelling the owner of such property ... to deliver up the property.” Accordingly, while we concede that the language “forced her to sign over to him her pay check” is covered by subsection (2), that does not logically lead to the conclusion that subsection (1) is excluded. On the contrary, the language in the statement of essential facts just as clearly relates to the use or threat of use of force to prevent or overcome resistance to the taking of property as it does to the use of force to compel delivery of the property. Thus, logically, the statement of essential facts charged the defendant under both General Statutes §§ 53a-133 (1) and (2).

In State v. Secore, 194 Conn. 692, 485 A.2d 1280 (1984), our Supreme Court faced a claim similar to that raised here. The defendant had been indicted under subsection (1) of General Statutes (Rev. to 1979) § 53a-70 (a) for sexual assault by the use of force. This indictment was replaced by an information charging the defendant under subsection (2) with sexual assault “by the threat of use of force.” The defendant claimed that because these constituted separate offenses, the indictment for one could not be replaced by an information charging the other, but only by a new indictment. Accordingly, the issue before our Supreme Court was whether § 53a-70 (a) describes two separate crimes. The court concluded “that the language of § 53a-70 divides the statute, not into two crimes, but into two methods of committing the same crime; see State v. Wallace, 181 Conn. 237, 239, 435 A.2d 20 (1980); and that the indictment substitution made by the state . . . involved a matter of form, not substance.” Id., 698. The court concluded, therefore, that “both the indictment and the substitute information charge the defendant with only one crime, sexual assault in the first degree;” id.; since compulsion by the use of force and compulsion by the threat of force are simply two methods of committing one offense. In this case, where the two subsections involved are almost indistinguishable, there is no question that the defendant’s conviction under either subsection was consistent with the statement of essential facts. Accordingly, we conclude that the defendant was not deprived of his right to due process.

The defendant also argues that the combination of the trial court’s instruction on General Statutes § 53a-133 (1) and its submission of the information which, contrary to the mandates of Practice Book § 625, did not incorporate the essential facts, deprived him of his fundamental right to due process. He concedes, however, that “had the trial court ultimately provided correct instruction that incorporated the robbery offense as alleged and particularized,” the noncompliance with Practice Book § 625 would have been harmless. We have already concluded that the trial court did provide correct instruction as particularized by the statement of essential facts. Accordingly, this claim falls with the first claim on which it is dependent.

The defendant’s second claim is that because the victim “volunteered” her paycheck, there was insufficient evidence presented that he used force during the course of committing larceny as required to sustain a conviction under General Statutes § 53a-133. Additionally, he contends that there was insufficient evidence that any use of force was for the purpose of committing a larceny. The principles governing appellate review of a claim of error challenging the sufficiency of the evidence to support the jury’s verdict are well settled in this state. “ ‘ “[T]he issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . . ” ’ State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 479 (1980), quoting State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980).” State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981); State v. Candito, 4 Conn. App. 154, 157, 493 A.2d 250 (1985). An appellate court addressing an insufficiency claim must construe the evidence presented at the trial in the light most favorable to sustaining the jury’s verdiet. State v. Stankowski, supra, 126; State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977).

Under these standards, the defendant’s claim of insufficiency of the evidence borders on the frivolous. We will not rehash the overwhelming evidence before the jury that the defendant inflicted a reign of terror on the victim, starting in the Civic Center garage. Both the direct evidence and the reasonable inferences to be drawn therefrom present a compelling picture of intimidation and coercion. The victim was sexually assaulted and restrained for over two hours. She was choked and threatened with death. She was slapped in the face. She was threatened with abduction to New York. Under this blanket of fear, the defendant “gave” her pay check to the defendant. To isolate, as the defendant attempts to, the narrow circumstances of the turning over of the paycheck from the whole factual scenario is totally unrealistic and unsupported by the law. Our Supreme Court has held that while an offender, to commit robbery, must use or threaten force with the purpose of committing a larceny, he need not use or threaten the force at the “precise time” he takes that property. State v. Gordon, 185 Conn. 402, 410-11, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982). The trial court did not err in denying the defendant’s motion for judgment of acquittal on this basis.

The defendant also claims that there was insufficient evidence that any force or threat of force was used/or the purpose of committing a larceny. “An act may have more than one purpose and more than one effect. Thus a jury reasonably may find that acts which compelled a victim to engage in sexual intercourse also had the purpose of preventing the victim’s resistance to the taking of her property.” Id., 411. Force is used to prevent resistance to the taking of property or to compel delivery of property “if it induces in the victim a physical disability or a reasonable emotional response that causes her not to resist the taking of her property [or to deliver up the property].” Id. The court did not err in denying the defendant’s motion for judgment of acquittal on this ground.

The defendant’s final claim is that the trial court erred in charging the jury on reasonable doubt. He concedes that he did not properly preserve this issue. He claims, however, that review is warranted under the fundamental rights — fair trial exception of State v. Evans, supra, 70. The defendant’s claim does implicate the fundamental constitutional right to be found guilty only on proof beyond a reasonable doubt; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); and the record is sufficient for us to consider the defendant’s claim on its merits. Accordingly, we review the claim to see if the defendant was deprived of this right.

In instructing the jury on the state’s burden of proof, the trial court gave the following definition of reasonable doubt: “And what is a reasonable doubt? A reasonable doubt is not a slight doubt, nor a possible doubt. It is not a surmise, a guess or a conjecture. It doesn’t rise from feelings of sympathy or pity for anyone who may be affected by your verdict. A reasonable doubt is one which is based on the evidence and flows naturally from the evidence or lack of evidence. In short, it is doubt which is based on reason.

“Now, in this connection it’s not necessary for the state to prove the absolute guilt of the defendant or guilt with certainty. However, each element which is essential to establish the defendant’s guilt must be proved by facts or circumstances beyond a reasonable doubt.”

According to the defendant, the language that “it is not necessary for the state to prove the absolute guilt of the defendant or guilt with certainty” substantially reduced the state’s burden of proof. He claims that this instruction permitted a finding of guilt on the more probable than not standard. We disagree with this strained interpretation of the court’s language. The trial court’s charge will not be “critically dissected in a microscopic search for possible error.” State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). The charge, read as a whole, required the state to prove each element of the crimes charged beyond a reasonable doubt. It instructed the jury to give the evidence the construction which favors innocence where the evidence offered is capable of two reasonable constructions and to equate reasonable doubt with a doubt based on the evidence or lack of evidence. The trial court did not err in so charging.

The defendant’s reliance on State v. DelVecchio, 191 Conn. 412, 464 A.2d 813 (1983), is misplaced. Our Supreme Court in DelVecchio analyzed a trial court’s charge analogizing the state’s burden to a football field. The defendant claimed that this illustration lightened the burden of proof in that it implied that more than 50 percent proof was sufficient to convict the defendant. Our Supreme Court found error and concluded that it was reversible error since it was reasonably possible that the jury was misled by the charge. Id., 425. DelVecchio, however, does not support the defendant’s claim. In DelVecchio, the Supreme Court did not take issue with language almost identical to that used here: “This does not mean that the state must prove guilt beyond absolute certainty. Absolute certainty is not required.” State v. DelVecchio, supra, 418 n.5. Accordingly, we conclude that the defendant was not deprived of his fundamental constitutional right to be found guilty only on proof beyond a reasonable doubt.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-136 provides in part: “(a) A person is guilty of robbery in the third degree when he commits robbery.”

       Practice Book § 625 provides: “Whenever the information charges the offense only by referring to the statute which is alleged to have been violated, the prosecuting authority, upon written request of the defendant, shall as of course amend the information by adding or annexing thereto a statement of the essential facts claimed to constitute the offense charged. Such request shall be made within ten days following arraignment.”

       We note that the defendant did not claim lack of notice of the nature of the charges, nor could he. Without specifically ruling on the interplay between a bill of particulars and a request for essential facts, we note that the function of the bill of particulars in a criminal case is to provide information fairly necessary to enable the accused to understand and prepare his defense against the charges without prejudicial surprise at trial. State v. Coleman, 167 Conn. 260, 269, 355 A.2d 11 (1974); see also, State v. Roque, 190 Conn. 143, 154-55, 460 A.2d 26 (1983). A request for essential facts, too, is related to giving the defendant sufficient notice of the charges in question. The defendant, of course, enjoys a constitutional right to such notice. State v. Newton, 8 Conn. App. 528, 532, 513 A.2d 1261 (1986). In State v. Roque, supra, however, our Supreme Court stated that “ ‘ “if the state’s pleadings . . . informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.” State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979);’ State v. Ballas, [180 Conn. 662, 664, 433 A.2d 989 (1980)].” Here, these requirements were fully met by the information and the statement of essential facts.

       The trial court in State v. DelVecchio, 191 Conn. 412, 417-18, 464 A.2d 813 (1983), perhaps recovering from a weekend of television football, used the following language: “ ‘Reasonable doubt is not guilt beyond any doubt. You don’t have to go a hundred yards for a guilty finding. You got to go somewhere, I suppose, beyond the fifty yard line; where it is in there is up to you to decide.’ ”


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Alpha Nims
    (3329)
    Dupont, C. J., Borden and Sfallone, Js.
    Argued June 4
    decision released August 26, 1986

      Beth A. Merkin, with whom, on the brief, was Thomas Corradino, for the appellant (defendant).

      Robert J. Devlin, Jr., assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Daniel A. Lyons, Jr., former assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant is appealing from the judgment rendered after he was convicted by a jury of one count of burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (1) and 53a-101 (a) (2), two counts of attempted assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49, two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63, and one count of theft of a firearm in violation of General Statutes § 53a-212 (a).

The defendant claims that the trial court erred (1) in allowing into evidence the identification testimony of Carol Jerolman, (2) in allowing into evidence the identification testimony of Officer Duane McKay after refusing to afford the defendant an evidentiary hearing in connection with his motion to suppress McKay’s testimony, and (3) in the manner in which it commented on the evidence.

The jury could reasonably have found the following facts. At approximately 10 p.m. on August 2,1983, the defendant, Alpha Nims, and another individual, Jenny Newton, drove to Wilbert Street in Hamden. After driving past 27 Wilbert Street four times, they parked, left the car, and walked into the rear of the residence of Sally Simonds at 12 Wilbert Street. George Jerolman witnessed the defendant and Newton enter the Simonds property. He stated that as the defendant and Newton entered the premises they were carrying what appeared to be plastic bags or pillow cases. Jerolman then called his mother, Carol Jerolman, who arrived on the scene accompanied by Mark Mazzone. Carol Jerolman and Mazzone went to the rear of the Simonds’ residence. At this point, Newton came out of the back door and was grabbed and held by Mazzone, but he let her go to confront a man who dove out of a window of the Simond’s residence. Mazzone described the man as being 5’ 7” or 5’ 8” tall, light skinned, with a small afro hair style, and deep cut facial lines. Mazzone also stated that the man wore no glasses, and no gloves. The man got away from Mazzone. Mazzone then went to the front of the house where he noticed a man on the left side of the house fire a shot into the air and two shots towards a group of people who had gathered in front of the house. Carol Jerolman ran from the Simonds’ backyard to get additional help and, having concern for her son, ran toward him. While so engaged, her attention was drawn to a person coming from the side of the house near some bushes. Carol Jerolman shouted to a woman in the area to get back because of the gunfire. Because of her shouting, the man’s attention was directed toward her, giving her an unobstructed view of his face which was illuminated by a nearby street light. Less than ten minutes later, Mazzone, who was walking further down Wilbert Street, saw the man with whom he previously had engaged in a struggle jump out of some bushes and fire shots at the police. Thereafter, at trial, although he was unable to make a positive identification of the defendant, Mazzone testified that the defendant’s skin color and afro hair style were similar to those of the man with whom he had struggled and who fired a weapon during the incident of August 2, 1983.

Officers Duane McKay and William Fry arrived on the scene in response to a report of a burglary in progress. As the officers approached the scene in their patrol car, they heard gunfire. When the police car turned into Wilbert Street, McKay saw, in the light of the vehicle’s headlights, a black male and female. McKay got out of the patrol car and the black male continued to walk toward him and then fired at the officers from a distance of between twenty and twenty-five feet. The person who fired the shots ran off pursued by McKay into a backyard where, from a distance of fifteen feet, the man turned and again fired at McKay. The man jumped a fence causing McKay to lose sight of him although McKay again sighted the man from a distance of between fifteen and twenty yards running across Wilbert Street under a street light and then between two houses. The police then located the vehicle that had been driven to the scene by the defendant. In it they found a shotgun. The defendant’s fingerprints were found on a soda can and a paper bag taken from the backseat of the car and on the hood of the car. On August 15,1983, when he was arrested for the above crimes, the defendant stated to the arresting officer, “You have the wrong guy,” and told the officer that his name was Walter Johnson.

At trial, Newton testified that she and the defendant were in the Simonds’ house stealing items when they heard people approaching, at which time they fled. When Newton was grabbed by Mazzone, she saw the defendant fire a shot in her direction. She identified the pistol, found by the police in a field where the man who fired the shots was last seen, as belonging to the defendant. She also identified a shotgun as having been in the backseat of the defendant’s car on the night of the incident, and identified the defendant as the person who was with her, who engaged in the burglary and who fired the shots. In addition, she gave the police a picture of the defendant.

At the commencement of the defendant’s trial, Carol Jerolman accompanied her son, George, to the courthouse where he was to be a witness for the state. Carol Jerolman looked into the courtroom and saw the defendant seated at a counsel table and immediately identified him as the black male who pursued her and apparently shot at her on the night of the incident. No law enforcement agent requested or encouraged her to look in the courtroom. Prior to her looking into the courtroom, she had not engaged in any identification procedures relative to this case. Further, she saw no photos of the defendant between the time she saw him in the courtroom and when she testified. During the jury trial, she made a positive in-court identification of the defendant as the person she had seen on the night of the burglary.

Officer McKay also made a positive in-court identification of the defendant as the person he observed on the night of the crime. McKay’s first view of the defendant occurred as McKay arrived at the scene and observed Newton and the defendant walking toward him. He ordered them to stop and, at that time, the defendant fired a shot toward McKay. McKay saw the defendant again that night, both when the defendant was scaling a fence and when he ran across a street under a street light.

Shortly after the incident, McKay, having become aware that the defendant was a suspect, acquired a single photo of him and immediately recognized him as the person he had confronted and chased during the incident. Upon the defendant’s arrest, McKay and other members of the Hamden police department went to New Haven to pick him up. Upon his arrival at the New Haven police department, McKay saw the defendant seated in an office and he immediately recognized him as the person he had confronted and chased during the incident. The trial court refused the defendant’s request to conduct a preliminary hearing regarding McKay’s identification testimony. At the trial, McKay testified as to the circumstances of his out-of-court identification of the defendant. In addition, McKay made a positive in-court identification of the defendant.

The defendant’s first claim is that the identification by Carol Jerolman of the defendant while he was seated in the courtroom was unnecessarily suggestive and, under the totality of the circumstances, unreliable. He contends that it was error for the trial court to have allowed this evidence and the subsequent in-court identification to come before the jury.

‘A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.’ ” State v. Evans, 200 Conn. 350, 354, 511 A.2d 1006 (1986), quoting State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984); State v. Elliott, 8 Conn. App. 566, 569, 513 A.2d 1285 (1986); State v. Wiggins, 7 Conn. App. 95, 99, 507 A.2d 518 (1986). “In order to determine whether the identification procedures violated the defendant’s due process rights, a case by case inquiry must be made as to (1) whether the identification procedures were unnecessarily suggestive, and, if so, (2) whether the identification was nevertheless reliable based upon an examination of the totality of the circumstances. State v. Findlay, 198 Conn. 328, 336-37, 502 A.2d 921 (1986); State v. Amarillo, 198 Conn. 285, 291, 503 A.2d 146 (1986); State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985).” State v. Frazier, 7 Conn. App. 27, 34, 507 A.2d 509 (1986).

We note that the defendant has made no showing that Carol Jerolman’s viewing of the defendant while he was awaiting trial was prearranged or was in any way contrived by the police or the prosecuting authority. Absent an official procedure which is subject to the strictures of due process, the court was correct in concluding that Jerolman’s in-court identification of the defendant was not tainted and that the defendant’s due process rights were not violated by the admission of the evidence. State v. Villafane, 171 Conn. 644, 658, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled, in part, on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984), reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Anderson, 6 Conn. App. 15, 19-20, 502 A.2d 446 (1986).

The defendant’s next claim challenges the trial court’s ruling denying his motion to suppress McKay’s identification testimony. Prior to the commencement of trial, the court held a hearing on the defendant’s motion to suppress McKay’s testimony concerning the identification of the defendant. The defendant argued that McKay’s identification of him at the New Haven police station constituted a show-up, which was conducted in the absence of the requisite constitutional safeguards. The state argued that the events which surround McKay’s viewing of the defendant did not constitute a police procedure which could be the subject of either an evidentiary hearing or a due process challenge.

On the basis of the representations of counsel during argument, the court concluded that McKay’s out-of-court identification of the defendant did not result from an official proceeding and, therefore, an evidentiary hearing was not required. The defendant excepted to the court’s ruling. On appeal, the defendant claims that the court’s denial of his request for a preliminary-hearing and the resulting admission of McKay’s testimony were erroneous. Our review of the transcript of the hearing on the defendant’s motion to suppress indicates that there existed an issue of fact which was sufficiently in dispute so as to necessitate an evidentiary hearing on those issues; see State v. Duffen, 160 Conn. 77, 82, 273 A.2d 863 (1970), cert. denied, 402 U.S. 914, 91 S. Ct. 1397, 28 L. Ed. 2d 657 (1971); State v. Oliver, 160 Conn. 85, 90, 273 A.2d 867 (1970), cert. denied, 402 U.S. 946, 91 S. Ct. 1637, 29 L. Ed. 2d 115 (1971); LaFave, Search and Seizure § 11.2 (d) (1978); rather than the summary disposition afforded the issue at the suppression hearing.

Although we recognize that the proper procedure would have been to conduct an evidentiary hearing regarding the admissibility of McKay’s identification testimony, we conclude that the court’s failure to do so was harmless. See State v. Shifflett, 199 Conn. 718, 751-52, 508 A.2d 748 (1986); State v. Felder, 7 Conn. App. 489, 493-94, 509 A.2d 542 (1986). Therefore, we will assume, arguendo, that the identification of the defendant made by McKay was unnecessarily suggestive and, consequently, we will focus our analysis on whether, despite the suggestive factor present in the identification procedures, such identification was reliable under the totality of the circumstances. See State v. Evans, supra, 356; State v. McKnight, 191 Conn. 564, 569, 469 A.2d 397 (1983); State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983); State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Frazier, supra, 35; State v. Nelson, 4 Conn. App. 514, 517, 495 A.2d 298 (1985).

The factors to be considered in assessing the reliability of an identification include the opportunity of the witness to view the individual, the witness’ degree of attention, the prior description given by the witness, the time interval between the incident and the identification, and the witness’ degree of certainty about the identification. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Evans, supra; State v. Theriault, supra; State v. Frazier, supra.

McKay’s initial view of the suspect was at a distance of approximately forty feet and was illuminated by the headlights of McKay’s police vehicle. The suspect walked toward McKay, consequently narrowing the distance between himself and McKay to approximately twenty or twenty-five feet. McKay’s view was clear and unobstructed and lasted about one minute. McKay twice more viewed the suspect after their initial confrontation, once from approximately fifteen feet away and then from between fifteen and twenty yards. McKay described the suspect in detail as a light skinned, black male, five feet eight inches tall, weighing approximately 180 pounds, with a beard, and wearing a light colored open cotton shirt, a white workman’s glove on his left hand and no glasses. McKay expressed complete confidence in his identification of the defendant as the suspect. The time interval between the incident and photographic identification of the defendant was a matter of a few days and was less than two weeks with respect to the in-person identification.

On the basis of the totality of the circumstances, we conclude that the trial court’s conclusion that McKay’s in-court identification of the defendant was sufficiently reliable to warrant its admission into evidence. It was then for the jury, after cross-examination, to determine what weight to give such evidence. State v. Perez, 198 Conn. 68, 76, 502 A.2d 368 (1985).

The defendant’s final claim of error, challenging the trial court’s comments on the evidence during its charge to the jury, is without merit. Although the defendant in his brief launches a broad based attack on the court’s comments on the evidence, we will limit our review only to those specifically raised by the exceptions taken to the charge. State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982); State v. Taxiltaridis, 2 Conn. App. 617, 618, 481 A.2d 98 (1984).

After the court completed its instruction to the jury, the defendant took specific exceptions to the charge relating to (1) the court’s comments on the evidence during its charge on accomplice testimony and the claimed corroboration by the state, (2) the court’s comments on Newton’s observation of a gun, (3) the court’s use of the phrase “point blank” in the court’s description of the shots fired at McKay, and (4) the court’s failure to comment on the inability of a certain witness to identify the defendant.

General Statutes § 54-89 provides, in pertinent part, that the “court shall submit the facts to the jury without directing how to find their verdict.” Within the parameters of this directive, the court is given certain latitude to comment on the evidence. It is well established that it is necessary for the court to allude to the evidence in order to furnish the jury with a practical guide as to how to apply the law to that evidence. State v. Storlazzi, 191 Conn. 453, 467, 464 A.2d 829 (1983); Shea v. Tousignant, 172 Conn. 54, 60, 372 A.2d 151 (1976). A trial court may comment on the weight of the evidence as long as it does not direct or advise the jury how to decide the matter. State v. Mullings, 166 Conn. 268, 274, 348 A.2d 645 (1974). “It has been established by repeated decisions in this State that a court, in submitting a case to the jury, may, at its discretion, call the attention of the jury to the evidence or lack of evidence, bearing upon any point of evidence in issue in the case, and may comment upon the weight of the evidence, so long as it does not direct or advise the jury how to decide the matter.” State v. Cabaudo, 83 Conn. 160, 163, 76 A. 42 (1910).

In State v. Marx, 78 Conn. 18, 28, 60 A. 690 (1905), the Supreme Court stated: “It is the duty of the trial judge, in submitting the law and the facts to the consideration of a jury, to refer to the testimony so far as may be necessary to assist the jury to a clear apprehension of the relation of the testimony, whose credibility they must determine, to the material facts they must decide .... It is evident that whenever this duty is well done, the charge must to some extent uncover the weakness of a weak case, the difficulties of a difficult case, or the strength of a strong case.” Furthermore, “the fact that the claims or evidence of one party are stated at much greater length than those of the other does not by itself render the court’s summary of the evidence in its charge unfair.” Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 592, 356 A.2d 873 (1975); see Sturdevant’s Appeal from Probate, 71 Conn. 392, 396, 42 A. 70 (1899).

We cannot examine any individual component of a charge out of context. It is well settled that charges must be considered in their entirety. State v. Tomassi, 137 Conn. 113, 124, 75 A.2d 67 (1950); Kerin v. Baccei, 125 Conn. 335, 337, 5 A.2d 876 (1939). Individual passages comprising the jury instructions must be construed in the light of the charge as a whole. State v. Murphy, 124 Conn. 554, 566, 1 A.2d 274 (1938); Tappan v. Knox, 115 Conn. 508, 511, 162 A. 7 (1932); Smart v. Bissonette, 106 Conn. 447, 453, 138 A. 365 (1927); Salemme v. Mulloy, 99 Conn. 474, 482, 121 A. 870 (1923); State v. Griswold, 73 Conn. 95, 100, 46 A. 829 (1900). We conclude that the charge, as a whole, fairly and correctly presented the case to the jury.

There is no error.

In this opinion the other judges concurred.


author: Dupont, C. J.

text:
    Laurie L. Ames v. Sears, Roebuck and Company
    (3425)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued June 11
    decision released August 26, 1986

      Philip S. Walker, with whom, on the brief, was Kirk D. Tavtigian, Jr., for the appellant-appellee (defendant).

      Frank N. Eppinger, with whom, on the brief, was Peter J. Bartinik, for the appellee-appellant (plaintiff).
   Dupont, C. J.

In this products liability action, the defendant appeals from the judgment rendered by the trial court following a jury verdict for the plaintiff. Certain facts presented to the jury are not disputed by either party. The plaintiff, a fourteen year old girl, was operating a riding lawnmower, which had been sold by the defendant, at the home of relatives when she was injured. She had often operated the lawnmower while staying with her relatives and had been instructed in its use and operation by them. While making a turn on a blacktop driveway, the plaintiff was distracted and drove the lawnmower onto an incline on the lawn. At this point, the lawnmower’s steering wheel began to shake violently and the plaintiff lost control of the machine. She then fell off the lawnmower and rolled backwards as the machine continued its turn on the incline. As the lawnmower began moving toward the plaintiff, she reached out with her right arm, in an attempt to deflect the course of the mower. The machine then drove over the left side of the plaintiff’s chest, and its revolving blade made contact with her left arm, severely cutting and disfiguring it.

As a result of the accident, the plaintiff brought suit against the defendant and her relatives. The jury-returned a verdict for the plaintiff in the amount of $250,000. The jury also found contributory negligence of thirty percent on the part of the plaintiff. As a result, judgment was rendered for the plaintiff in the net amount of $175,000.

On appeal, the defendant raised the following claims: (1) that the trial court erred in instructing the jury that they could find that the lawnmower involved in the accident was defective because the defendant had failed to warn that the lawnmower did not have a deadman’s control, and in instructing the jury that the existence of a deadman’s control on other lawnmowers could be evidence that the defendant’s lawnmower was defective; (2) that the court erred in prohibiting the defendant from introducing into evidence a settlement agreement between the plaintiff and the owners of the lawnmower because General Statutes § 52-216a, which allows such settlements to be introduced into evidence in a trial to the court but not in a trial to the jury, violates the equal protection clause of the fourteenth amendment to the United States constitution; (3) that the court erred in admitting into evidence, under the learned treatise exception to the hearsay rule, written materials which were not authoritative reference works; and (4) that it erred in admitting into evidence a videotape portraying the operation of a deadman’s control on a later model lawnmower. The plaintiff cross appeals from the judgment, claiming that the trial court erred in its failure to charge the jury on her claim for punitive damages.

The defendant’s first claim of error involves the trial court’s instructions to the jury. The defendant argues that the evidence presented at trial demonstrated that the plaintiff was aware or should have been aware that the machine did not have a deadman’s control, and, therefore, that the defendant did not have a duty to warn the plaintiff of the absence of this feature. Its claim is that the court should not have instructed the jury that it could conclude that this failure to warn was a defect. The defendant also argues that the court should not have instructed the jury that they could find the mower to be defective because other mowers sold during the same period of time had a deadman’s control. The defendant’s claim is that in a strict products liability action, evidence of the design of other products is not relevant in determining whether the product in question is defective.

The established rule in this jurisdiction is that “[a] product may be defective because a manufacturer or seller failed to warn of the product’s unreasonably dangerous propensities.” Tomer v. American Home Products Corporation, 170 Conn. 681, 689, 368 A.2d 35 (1976); see also General Statutes § 52-572q; Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 235, 429 A.2d 486 (1980); 2 Restatement (Second), Torts § 402A. Under such circumstances, the failure to warn, by itself, constitutes a defect. See Giglio v. Connecticut Light & Power Co., supra, 236; Prosser, Torts (4th Ed.) § 99, p. 659.

In this case, the trial court properly instructed the jury that it might conclude that the defendant’s lawnmower was defective because the defendant failed to warn that the machine was not equipped with a dead-man’s control. Whether there was a defect because of the failure to warn was a question of fact to be decided by the jury. Although evidence was presented that the plaintiff was aware of the dangers presented by the operating mower blades, there was no evidence that the plaintiff was aware of the inherent risks involved in operating a riding mower which lacked a deadman’s control. “Warnings must specifically identify for the user the danger inherent in the product’s use.” Giglio v. Connecticut Light & Power Co., supra, 237. Here, there was no warning by the defendant that if the user of the operating riding mower fell from the machine, the absence of a deadman’s control would result in its continuing operation, thus presenting a substantial risk that the user could be seriously injured. Under these circumstances, “[t]he defendant had a duty adequately to warn the plaintiff of this unreasonably dangerous condition.” Id. Thus, the trial court’s instructions to the jury on this issue were correct.

The defendant’s related claim is that the trial court erred by instructing the jury that it could consider the existence of a deadman’s control on other lawnmowers as evidence that the defendant’s lawnmower was defective. As the basis for its objection, the defendant argues that evidence of the design of other products is not relevant in a strict products liability action in order to determine whether the product in question is defective. Evidence was presented in this case that deadman’s controls were available in similar lawnmowers in the period up to, and including, 1973, the year in which the defendant’s machine was produced. The testimony of the plaintiff’s expert witness was that a lawnmower without such controls was defective and unreasonably dangerous, and that the defendant could have foreseen the harm which would ensue to the user of the product if the controls were absent.

In Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 491 A.2d 389 (1985), the court addressed the related issue of whether evidence of subsequent remedial measures should be excluded where recovery is sought under a theory of strict products liability. The court concluded that “in cases such as this where a strict products liability theory is pursued, evidence of subsequent design modifications, if shown to be related to the claimed defects, may be admitted at trial.” (Footnotes omitted.) Id., 148. The court based this conclusion on the fact that the doctrine of strict liability in tort is concerned with the character of the product injected into the stream of commerce and not with the specific conduct of the defendant. Id., 147; Giglio v. Connecticut Light & Power Co., supra, 234. “ ‘Subsequent change evidence may be highly probative of defectiveness because it provides a safer alternative against which to compare the allegedly defective product. Because the manufacturer’s culpability is not an issue, there should be no concern that the subsequent changes will be construed as an admission of negligence. Therefore, evidence of subsequent changes may be relevant without being prejudicial in strict products liability actions.’ Note, ‘Subsequently Remedying Strict Products Liability: Cann v. Ford, ’ 14 Conn. L. Rev. 759, 769 (1982); see Lolie v. Ohio Brass Co., 502 F.2d 741, 744 (7th Cir. 1974); Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 794 (Alaska 1981); Sutkowski v. Universal Marion Corporation, 5 Ill. App. 3d 313, 319, 281 N.E.2d 749 (1972).” Sanderson v. Steve Snyder Enterprises, Inc., supra, 147-48. If evidence of subsequent design modifications, such as a deadman’s control, is relevant to the claimed defects, and, therefore, admissible, then evidence of prior or contemporaneous design features are certainly relevant and admissible to prove that the product in question was defective. The trial court properly instructed the jury that it could consider whether other mowers had deadman’s controls in determining whether the defendant’s lawnmower was defective.

The defendant’s second claim of error is that the trial court erred in prohibiting the defendant from introducing into evidence a settlement between the plaintiff and the owners of the lawnmower. The defendant bases that claim on the ground that General Statutes § 52-216a, which allows such settlements to be introduced into evidence in a trial to the court but not in a trial to a jury, violates the fourteenth amendment equal protection clause of the United States constitution. The defendant argues that General Statutes § 52-216a imposes an unconstitutional infringement upon the right to a trial by jury as guaranteed by the Connecticut constitution and, therefore, violates the equal protection clause of the fourteenth amendment to the United States constitution.

General Statutes § 52-216a prohibits the submission of evidence to a jury concerning an agreement with any tortfeasor not to bring legal action, or a release of a tortfeasor in any cause of action, during the trial of the cause of action against any other joint tortfeasor. The statute, however, does “not prohibit the introduction of such agreement or release in a trial to the court.” Id. The defendant claims that this statute impermissibly denies persons asserting their right to trial by jury the equal protection of law as guaranteed by the fourteenth amendment. Before reviewing the substance of this claim, we must first decide whether it is properly before this court.

An appellate court is not bound to consider a claim of error unless it was distinctly raised at trial. See Practice Book § 3063. This limitation upon appellate review applies to constitutional issues. Roche v. Fairfield, 186 Conn. 490, 505, 442 A.2d 911 (1982). “ ‘If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the apellate court to decide the claim.’ Practice Book § 285A; see Petrillo v. Maiuri, 138 Conn. 557, 86 A.2d 869 (1952); Practice Book §§ 3060B, 3063. This court will not consider any claim which was neither ruled upon nor decided by the trial court adversely to the moving party. See Petrillo v. Maiuri, supra, 562.” Roche v. Fairfield, supra, 505 n.14.

At trial, the defendant filed a memorandum of law in support of its offer to introduce evidence of the amount of a settlement with joint tortfeasors. This memorandum alleged that § 52-216a violates the defendant’s right to have all questions of fact, including the assessment of damages, decided by a jury. It specifically claimed an unconstitutional interference with its right to trial by jury in violation of article first, § 19 of the Connecticut constitution and the seventh amendment to the United States constitution. The memorandum also stated that the statute is unconstitutional because it imposes a chilling effect upon the exercise of litigants’ rights to a trial by jury, but did not refer to the equal protection clause in particular. See United States v. Jackson, 890 U.S. 570, 582, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968).

The defendant asserts that its memorandum sufficiently apprised the trial court of the equal protection argument which it now presses before this court. Our review of the record, however, reveals that no mention was ever made of the guarantee of equal protection under the fourteenth amendment. No analysis of the guarantees of the fourteenth amendment was ever made to the trial court, no case law on this issue was cited, and there is nothing to suggest that the trial court ever considered this issue in its ruling on the motion. We therefore decline to address this issue.

The defendant’s next claim of error is that the trial court erred in admitting into evidence, under the learned treatise exception to the hearsay rule, written materials which were allegedly not authoritative reference works. The defendant argues that the materials, which were relied upon by the plaintiff’s expert witness in formulating his opinion that deadman’s controls were technologically and economically feasible when the defendant’s lawnmower was manufactured, did not qualify as learned treatises on the ground that no evidence was presented, other than the expert’s own testimony, that the materials were authoritative reference works.

The rule in this jurisdiction regarding the use of learned treatises is that if a “treatise is recognized as authoritative by an expert witness and if it influenced or tended to confirm his opinion, then relevant portions thereof may be admitted into evidence in the exercise of the trial court’s discretion.” Cross v. Huttenlocher, 185 Conn. 390, 395, 440 A.2d 952 (1981); see also Kaplan v. Mashkin Freight Lines, 146 Conn. 327, 334-35, 150 A.2d 602 (1959); Tait & LaPlante, Connecticut Evidence §§ 7.16f (4), 11.19. The written materials objected to by the defendant in this case were five technical papers on the subjects of accidents and injuries involving riding lawnmowers and the design and operation of riding mowers and small tractors. Three of the documents were engineering studies prepared for presentation to the American Society of Agricultural Engineers.

At trial, the plaintiff’s expert witness testified that he considered the papers to be authoritative on the subject of lawnmower safety and that he relied on the documents in formulating his opinions concerning the defendant’s lawnmower. Furthermore, the defendant conducted an extensive voir dire of the witness in order to determine whether he considered the materials to be authoritative. This testimony satisfied the requirements for the admission of the documents under the learned treatise exception to the hearsay rule. See Cross v. Huttenlocher, supra; Tait & LaPlante, supra. Under these circumstances, the trial court was correct in admitting the materials into evidence.

The defendant’s fourth claim of error is that the trial court erred in admitting into evidence a videotape portraying the operation of the deadman’s control on a later model lawnmower. At trial, the plaintiff introduced into evidence a videotape of two riding lawnmowers. The first machine was similar to the one involved in the accident and the second machine was a 1983 model lawnmower which was equipped with a deadman’s control. The videotape was admitted for the purposes of explaining the device to the jury and demonstrating to the jury how the deadman’s control operated. Prior to viewing the videotape, the trial court gave a limiting instruction to the jury concerning its use. The videotape was then used by the plaintiff’s expert witness in conjunction with his testimony.

“It is well established that motion pictures, when properly authenticated and relevant to the issues in the case, are admissible in evidence in the discretion of the court. Note, 62 A.L.R.2d 686, 688. The rules which apply to the admissibility of photographs also apply to that of motion pictures, including videotapes. Scott, Photographic Evidence (2d Ed.) §§ 1294,1297; 29 Am. Jur. 2d, Evidence § 801. Thus, if a motion picture has a tendency to prejudice the jury, the question before the court is whether its value as evidence outweighs its possible prejudicial effect.” Pisel v. Stamford Hospital, 180 Conn. 314, 323-24, 430 A.2d 1 (1980); see also Tait & LaPlante, Connecticut Evidence (1985 Sup.) § 9.5. In this case, the trial court did not abuse its discretion in admitting the videotape into evidence. The videotape assisted the jury in understanding the operation of a deadman’s control and, in light of the trial court’s instructions, the prejudicial effect of the videotape, if any, was minimal. Nor was the videotape the type of “staged reproduction of one party’s version of the facts”; Pisel v. Stamford Hospital, supra, 324; which would be misleading to the jury. See Hubbard v. McDonough Power Equipment, Inc., 83 Ill. App. 3d 272, 281, 404 N.E.2d 311 (1980). The evidence demonstrated the location and operation of a deadman’s control on a riding lawnmower and supplemented the explanation of the device offered by the plaintiff’s expert witness. The trial court has broad discretion with respect to the admission of such demonstrative evidence, and, in this case, the court did not abuse its discretion in allowing the videotape into evidence. See Blanchard v. Bridgeport, 190 Conn. 798, 806, 463 A.2d 553 (1983); Katsetos v. Nolan, 170 Conn. 637, 649-50, 368 A.2d 172 (1976).

In addition to the defendant’s assignments of error, the plaintiff has filed a cross appeal in this case. She claims that the trial court erred in refusing to charge the jury with respect to the issue of punitive damages in accordance with General Statutes § 52-240b. In her substituted complaint, the plaintiff alleged that the defendant acted recklessly in distributing the riding lawnmower when it knew or should have known of the dangers involved in placing the machine into the stream of commerce. At trial, the court instructed the jury to disregard this count of the plaintiffs complaint on the ground that there was no basis in the evidence presented to indicate that the defendant had acted recklessly. The plaintiff took an exception to the trial court’s failure to charge on the issue of recklessness and punitive damages.

As a general matter, “[pjunitive damages, applying the rule in this state as to torts, are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.” Collens v. New Canaan Water Co., 155 Conn. 477, 489, 234 A.2d 825 (1967); see also Kenny v. Civil Service Commission, 197 Conn. 270, 277, 496 A.2d 956 (1985); Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978). “In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128, 222 A.2d 220 (1966).” Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983). In a products liability action, “[pjunitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller’s reckless disregard for the safety of product users, consumers or others who were injured by the product.” General Statutes § 52-240b; see also American Airlines, Inc. v. National Automatic Products Co., 39 Conn. Sup. 269, 271, 477 A.2d 171 (1984).

Our review of the record in this case indicates that the trial court did not err in refusing the plaintiff’s request to charge the jury on the issue of punitive damages. Although evidence was presented that the defendant was aware of the existence of deadman’s controls at the time its machine was produced and distributed, the failure to incorporate such a device into its lawnmower did not constitute reckless disregard for the safety of the machine’s users so as to support an award of punitive damages. As a general rule, punitive damages may be awarded only for outrageous conduct. See Triangle Sheet Metal Works, Inc. v. Silver, supra, 128; 4 Restatement (Second), Torts § 908, comment (b). The conduct must be outrageous, either because the defendant’s acts are done with an evil motive or because they are done with “reckless indifference to the interests of others.” 4 Restatement (Second), Torts, supra. The defendant’s failure to install a deadman’s control on its lawnmower, when such devices were not universally accepted by the industry and were not required under applicable safety standards at the time the defendant’s machine was distributed, and its reliance on the product manufacturer for safety testing did not rise to the level of reckless conduct. Without the required showing of recklessness, there was no basis for the jury to consider an award of punitive damages against the defendant under General Statutes § 52-240b. Accordingly, the trial court’s instructions to the jury on the issue were correct.

There is no error.

In this opinion the other judges concurred.

       The parties agreed that General Statutes §§ 52-572m through 52-572r would govern the determination of the plaintiffs action, although the injuries sustained by the plaintiff occurred prior to the passage of Public Acts 1979, No. 79-483, now codified as General Statutes §§ 52-572m through 52-572r.

       At the time this action was brought, the plaintiff, Laurie L. Ames, was a minor. Accordingly, the action was brought through her mother. During the pendency of the trial, the plaintiff reached her majority of eighteen years of age.

       The suit against her relatives was subsequently settled for $25,000, the action withdrawn as to them, and a substitute complaint against the defendant was filed.

       A deadman’s control is a device which stops the blades of a lawnmower from rotating when the mower is not being operated.

       In answer to an interrogatory submitted to the jury, the jury found the mower was defective and unreasonably dangerous.

       General Statutes § 52-216a provides: “An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. If the court concludes that the verdict is inadequate as a matter of law, it shall order an additur, and upon failure of the party so ordered to add the amount ordered by the court, it shall set aside the verdict and order a new trial. This section shall not prohibit the introduction of such agreement or release in a trial to the court.”

       The defendant urges us to consider the issue even if it were not distinctly raised below because the parties have briefed it on appeal and because it involves an issue of substantial public importance. Neither of these reasons is compelling. See Peck v. Jacquemin, 196 Conn. 53, 491 A.2d 1043 (1985). It is likely that if this issue is reviewed in the future by the Connecticut Supreme Court, General Statutes § 52-216a would be held to be constitutional under the federal equal protection clause because that court has already stated that the statute does not provide for a substantive difference between the treatment of releases or agreements in jury trials and trials to a court. Id., 73.

       We acknowledge those cases establishing the right of an appellate court to decide issues not distinctly raised at trial. See, e.g., Peck v. Jacquemin, 196 Conn. 53, 61-62 n.13, 491 A.2d 1043 (1985); Roche v. Fairfield, 186 Conn. 490, 442 A.2d 911 (1982). Exercise of this right, however, lies within the discretion of this court. The defendant has presented no exceptional circumstances which were not apparent at trial to compel us to exercise such discretion in this appeal.

       The trial court’s instructions to the jury on this issue are as follows: “THE COURT: Now, ladies and gentlemen of the jury, we’re about to start the evidence again. It’s my understanding the Plaintiff is going to put on [her] expert witness today, and he had — the Plaintiff has provided the Court for your benefit a videotape which the expert will use in his testimony. Basically the videotape shows a picture of two lawnmowers, one a Craftsman, the one involved in this particular episode. The identity of the other is unimportant to this case, so you don’t have to be concerned with the identity of the lawnmower. The only purpose for this second lawnmower is to illustrate to you how a deadman’s switch operates on that particular lawnmower. Whether there’s any other way they operate I don’t know, but the expert will probably testify.
      “I want you to understand that you are not to draw any conclusions as to the defect or unreasonable condition of the lawnmower involved in this case merely from the fact that there is a deadman’s switch on the second lawnmower that you see. That in and of itself — the fact that there’s a dead-man’s switch on one lawnmower does not in and of itself mean that it should be on every other lawnmower. Do you understand that? So, the only purpose for showing you this video is to show you how it works so that you’ll understand it better in your deliberations; and then when you deliberate, taking all the evidence that you’ve heard concerning the condition of the Defendant’s lawnmower, the Craftsman, with all the instructions, -with all the other evidence that you hear, it will be then for you to determine whether or not it was in a defective and unreasonably safe condition at the time it was sold.
      “In your deliberations, you may or may not wish to consider whether it should have had a deadman’s switch, but again what I’m trying to emphasize is the mere fact that you see a deadman’s switch on this second lawnmower is not in and of itself to make you conclude that the Craftsman should have had it, and since it did not have it, it was defective and in an unreasonably safe condition at the time it was sold. Do you understand that?”

       We note that the defendant did not file a motion to set aside the verdict on the ground that it was inadequate because the trial court instructed the jury not to consider the issue of punitive damages. Although the verdict was in her favor, the plaintiff could have filed a motion to set aside the verdict as inadequate. See Peck v. Jacquemin, 196 Conn. 53, 57, 491 A.2d 1043 (1985). Instead of filing a motion to set aside the verdict, the plaintiff merely took an exception to the trial court’s refusal to instruct the jury on the issue of punitive damages. This failure to file a motion to set aside the verdict limits our consideration of this issue to determining whether there has been plain error. See Practice Book § 3063; Pietrorazio v. Santopietro, 185 Conn. 510, 515, 441 A.2d 163 (1981). “ ‘Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ State v. Hinckley, 198 Conn. 77, 87-88 n. 10, 502 A.2d 388 (1985).” State v. Franko, 199 Conn. 481, 489-90, 508 A.2d 22 (1986); see also State v. Vinal, 198 Conn. 644, 654, 504 A.2d 1364 (1986). The plaintiff’s claim of error is neither so obvious nor so egregious as to constitute plain error. State v. Franko, supra.


author: Daly, J.

text:
    In re Cynthia A.

    (4216)
    Borden, Daly and Bieluch, Js.

      Argued June 12
    decision released August 26, 1986

      Barbara J. Ruhe, for the appellant (respondent mother).

      Judith Merrill Earl, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, Robert W. Garvey, assistant attorney general, and Kim Knox, law student intern, for the appellee (petitioner).

      Brian Thomas Walsh, for the appellee (father).

       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.
      Reporter of Judicial Decisions

   Daly, J.

The respondent mother has appealed from the judgment committing her three year old daughter, Cynthia, to the temporary custody of the commissioner of the department of children and youth services (DCYS), pursuant to General Statutes § 46b-129 (d), for the maximum period of eighteen months for placement with the child’s paternal grandmother who lived at the time in Puerto Rico.

On January 30, 1985, following a plea of nolo contendere, the trial court found that Cynthia had been neglected by her mother (respondent) and father. The state claimed that, on September 1,1984, the child had suffered burns to 55 percent of her body as a result of being immersed in boiling hot water by a male companion of the respondent. The male companion is not the natural father of Cynthia but is the father of the respondent’s two other, younger children. As a result of this incident, the male companion was charged with the offense of injury or risk of injury to a minor.

From the time of Cynthia’s birth in July, 1981, until November, 1983, the maternal grandmother greatly assisted in the care of Cynthia, as the respondent and child lived in the home of the maternal grandmother during that time. On two occasions, in 1982 for two months, and in 1983-84 for five months, the respondent sent Cynthia to Puerto Rico to stay with the child’s father and paternal grandparents. Upon learning of the child’s injury, the paternal grandmother left her home and family in Puerto Rico and came to Connecticut to be with the child. The paternal grandmother visited Cynthia in the hospital, nursed and cared for her upon the child’s release, and brought her to the hospital for subsequent treatments. During this time, the paternal grandmother was living in New Britain where the child often stayed or visited with her. During the thirty-seven month period after Cynthia’s birth until her hospitalization, the respondent had full responsiblity for the care of her daughter for only four months.

Neither the respondent nor the father contested the neglect charges. At the conclusion of the dispositional phase of the proceedings, the trial court committed the child to the custody of DCYS for eighteen months for placement with the paternal grandmother, currently residing in Puerto Rico.

In her appeal, the respondent claims that the trial court erred as follows: (1) in ruling that the petitioner established by a fair preponderance of the evidence that commitment of the minor child to DCYS is in the child’s best interests; (2) in denying the respondent’s motion to dismiss for the failure of the petitioner to establish by a fair preponderance of the evidence that commitment of the minor child to DCYS is in the child’s best interests; (3) in finding that the respondent was not denied her due process rights by the admission of hearsay testimony through the social study summary of facts and the summary of the DCYS worker; (4) in failing to grant the respondent’s motion for a psychological evaluation of a nonparty pursuant to General Statutes § 17-38 (a); (5) in denying the respondent’s motion for continuance of the dispositional hearing pending the resolution of criminal charges pending against the respondent’s male companion, so as to permit him to testify at the dispositional hearing; (6) in ordering the minor child to be committed to DCYS with placement with the paternal grandmother in Puerto Rico absent efforts to reunify the child and her mother; (7) in terminating de facto the respondent’s parental rights by granting the commitment of the child to DCYS for placement in Puerto Rico with the paternal grandmother; and (8) in refusing to grant an administrative hearing in accordance with General Statutes § 46b-129 (d) (3) relative to the out-of-state placement.

I

“After a judicial determination that a child is ‘uncared for, neglected or dependent’ the Superior Court has available three possible options from which to choose regarding custody of that child: (1) to ‘commit [the child] to the commissioner of children and youth services’; (2) to ‘vest such child’s or youth’s care and personal custody’ in a third party until the child reaches the age of eighteen; or (3) to permit the natural parent to retain custody and guardianship of the child, with or without protective supervision by DCYS. General Statutes § 46b-129 (d).” (Footnote omitted.) In re Juvenile Appeal (85-BC), 195 Conn. 344, 353, 488 A.2d 790 (1985).

The respondent contends that the state failed to substantiate the child’s commitment to DCYS by a fair preponderance of the evidence. “ ‘We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.’ ” Knight v. Breckheimer, 3 Conn. App. 487, 490, 489 A.2d 1066 (1985), quoting Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). “ ‘We cannot retry the facts or pass upon the credibility of the witnesses.’ ” Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 220. “It is well established that the trial court is in the best position to determine the credibility of witnesses and the weight to be accorded their testimony.” Colonial Bank of Waterbury v. Forish, 6 Conn. App. 289, 291, 505 A.2d 11 (1986); Holden & Daly, Connecticut Evidence § 125 (a). “In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action.” Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985).

There was evidence before the trial court that the respondent had cared for Cynthia for only four out of the thirty-seven months prior to her hospitalization for the burn injury. There was ample evidence that the paternal grandmother has exhibited a strong sense of responsibility toward the child and could continue to provide her with a stable and loving environment. The paternal grandmother has maintained a continuous bond with the child through extended visits. She left Puerto Rico, regularly visited Cynthia in the hospital and cared for her needs after her release. The paternal grandmother is an experienced caretaker, having raised a family of her own.

On the other hand, the respondent must bear the responsibility of caring for her two children by her male companion, the alleged abuser of Cynthia. If the child remained with the respondent, the male companion would inevitably come in contact with the abused child. The psychologist, the DCYS social worker and a counselor all were in accord that the DCYS placement with the paternal grandmother in Puerto Rico would be in the best interests of the child. Our review of the record reveals that the state satisfied its burden of proof by a fair preponderance of the evidence. The trial court’s conclusion as to the placement of the child with DCYS was, therefore, legally correct and factually supported. See In re Rebecca W., 8 Conn. App. 92, 510 A.2d 1017 (1986).

II

The respondent claims that the trial court erred in failing to grant her motion for dismissal. Practice Book § 302 provides in relevant part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the respondent may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. ...”

If we assume, arguendo, that the motion was appropriate in a dispositional hearing of neglect and timely even though made at the end of the entire testimony, a judgment of dismissal is proper when the trier cannot make a reasonable finding in favor of the plaintiff based on the evidence produced. Hinchliffe v. American Motors Corporation, 184 Conn. 607, 609, 440 A.2d 810 (1981). “The evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to him, and every reasonable inference is to be drawn in his favor.” Id., 609-10. Treating the evidence in that manner, we conclude that the denial of the judgment of dismissal was proper because the evidence not only satisfied the prima facie requirement but also met the state’s burden of proof by a fair preponderance.

Ill

The respondent claims that she was denied her due process rights since extensive hearsay evidence was admitted through the social study summary of facts and the testimony of the DCYS social worker. It should be noted at the outset that in juvenile proceedings certain procedural informalities are constitutionally permissible, allowing, for example, the liberal interpretation of the formal rules of evidence as long as due process standards are observed. In re Juvenile Appeal (85-2), 3 Conn. App. 184, 190, 485 A.2d 1362 (1985). More importantly, the respondent did not object at the trial to any of the evidence which she challenges on appeal. Indeed, she introduced much of the evidence through cross-examination of the social worker. She can hardly be heard now to complain of its admission.

IV

The trial court denied the respondent’s motion requesting that her male Mend be ordered to submit to a psychological examination pursuant to General Statutes § 17-38a. By employing the word “may” as opposed to the mandatory “shall,” the statute calls upon the court’s discretion. The trial court’s action which involves the exercise of judicial discretion will not be disturbed unless there is a clear abuse of that discretion .In re David E., 4 Conn. App. 653, 656, 496 A.2d 229 (1985). We determine that there was no abuse of discretion because the male friend was facing, as a result of the burn incident, a criminal charge of injury or risk of injury to a minor child.

V

The respondent claims that the trial court erred in refusing to continue the matter until the criminal case against her male friend was resolved so that he could testify at the dispositional hearing. A motion for continuance falls within the purview of the trial court’s discretion which will not be upset absent a showing of clear abuse of that discretion. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). “Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980); Rose v. Messier, 1 Conn. App. 563, 565, 474 A.2d 100 (1984). The right to a continuance is not absolute and no mechanical tests come into play for determining whether the denial of a continuance violates due process standards. “ ‘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.’ ” State v. Beckenbach, supra, 47-48; State v. McKnight, 191 Conn. 564, 576, 469 A.2d 397 (1983); In re Juvenile Appeal (85-2), supra, 189.

Time is of the essence in child custody cases. State v. Anonymous, 179 Conn. 155, 171, 425 A.2d 939 (1979). The failure to continue a matter until the father’s unscheduled release date from prison was upheld in a termination of parental rights case. In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 439, 446 A.2d 808 (1982). Here, the male friend’s criminal disposition date was speculative. Hence, there was no error in denying the request for a continuance.

VI

In support of her claim that DCYS failed to make reasonable efforts to reunite the family, the respondent cites the Adoption Assistance and Child Welfare Act of 1980. The act, however, is an appropriations act and does not apply to individual actions or judicial findings as the respondent argues, but merely sets forth general guidelines for a state’s continued eligibility to receive funds for foster care maintenance. 42 U.S.C. §§ 601, 627, and 670-672. The respondent’s claim lacks merit and need not be considered further.

VII

The respondent next claims that the commitment of Cynthia to DCYS and her placement with the paternal grandmother in Puerto Rico constituted a de facto termination of parental rights. “ ‘It is important to note . . . that the ultimate standard underlying the whole statutory scheme regulating child welfare is the “best interests of the child.” The public policy of this state as enunciated in General Statutes § 17-38a (a) is “[t]o protect children whose health and welfare may be adversely affected through injury and neglect ... to provide a temporary or permanent nurturing and safe environment for children when necessary . . . . ” ’ ” In re Juvenile Appeal (Docket No. 10155), supra. “ ‘This furthers the express public policy of this state to provide all of its children a safe, stable nurturing environment.’ ” (Citation omitted.) Id., 440.

We find, under these circumstances, that the court did not err in concluding that the respondent is currently unable to provide the protection her daughter needs and that the child’s best interests therefore require placing her in the custody of DCYS. Although the placement of the child with the paternal grandmother was phrased as part of the court order, the actual commitment of the child pursuant to General Statutes § 54-129 was to the commissioner. The trial court’s placement of the child with the paternal grandmother was, in legal effect, a suggestion to the commissioner that he, in his discretion and in the child’s best interests, so place the child. The respondent’s parental rights have not been terminated de jure or de facto by the placement with the paternal grandmother in Puerto Rico. Connecticut still retains jurisdiction of the child under the Interstate Compact on the Placement of Children, General Statutes § 17-81a, article V (a), which provides in relevant part: “The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained in the sending agency’s state . . . . ”

VIII

General Statutes § 46b-129 (d) provides in pertinent part: “Said commissioner may place any child or youth so committed to him in a suitable foster home or in the home of a person related by blood to such child or youth or in a licensed child-caring institution or in the care and custody of any accredited, licensed or approved child-caring agency, within or without the state, provided a child shall not be placed outside the state except for good cause and unless the parents of such child are notified in advance of such placement and given an opportunity to be heard . . . . ” (Emphasis added.)

The respondent claims that, in order for the child to be placed in Puerto Rico, she was entitled to a separate administrative hearing. The respondent was notified on the first date of the dispositional hearing that it was the position of DCYS that the child be placed in Puerto Rico with the paternal grandmother. The case having been litigated on that basis, the respondent had an opportunity to be heard in this regard and to participate in the hearing as a witness. Under these circumstances, no separate hearing was required.

There is no error.

In this opinion the other judges concurred.

       The court also noted its “expectations” that the grandmother return the child to Connecticut at least once a year for a period of at least three weeks, that DCYS make available to the mother support services for reunification with the child, and that, if the mother visits Puerto Rico, extremely liberal visitation be granted her with the child.

       Cynthia’s natural father resides in Puerto Rico.

       General Statutes § 17-38a (f) provides in pertinent part: “In proceedings in the superior court under this section, (1) the court may order the child, the parents, the guardian, or other persons accused by a competent witness with abusing the child, to be examined by one or more competent physicians, psychiatrists or psychologists appointed by the court . . . . ”

       42 U.S.C. § 672 (a) of the Adoption Assistance and Child Welfare Act of 1980 provides in pertinent part: “Each State with a plan approved under this part shall make foster care maintenance payments . . . with respect to a child who would meet the requirements of section 606 (a) of this title or of section 607 of this title . . . if — (1) the removal from the home occurred pursuant to a voluntary placement agreement entered into by the child’s parent or legal guardian, or was the result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child and . . . that reasonable efforts of the type described in section 671 (a) (15) of this title have been made . ”

      42 U.S.C. § 671 provides in pertinent part: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which — (15) . . . provides that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home . . . . ”