text:
    JOSE DE JESUS SUAREZ-NEGRETE v. WILLIAM F. TROTTA
    (AC 17136)
    Foti, Dupont and Daly, Js.
    Submitted on briefs November 13, 1997
    officially released January 27, 1998

      Bruce D. Tyler filed a brief for the appellant (defendant).

      Pat Labbadia III filed a brief for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, William F. Trotta, appeals from the judgment rendered for the plaintiff on his complaint and on the defendant’s counterclaim after a trial to the corurt. In his complaint, the plaintiff, Jose De Jesus Suarez-Negrete, sought to recover funds entrusted to the defendant for the purpose of posting a bond to guarantee the plaintiffs appearance in proceedings before the United States Immigration and Naturalization Service (INS). The plaintiff fulfilled the conditions of the bond, which was returned to the defendant by the INS, and the defendant refused to return the plaintiffs funds to him. The defendant filed a counterclaim alleging that he had loaned the plaintiff $1900 prior to the return of the bond. The plaintiff filed an offer of judgment in the amount of $2900, which was not accepted by the defendant.

The trial court concluded that the evidence presented by the defendant in support of his counterclaim was not credible and that as of April 11, 1990, the date that the INS issued a check returning the posted money to the defendant, the plaintiff was entitled to the amount of $2906.85. The court found, by clear and convincing evidence, that the defendant had converted the plaintiffs money and, therefore, awarded treble damages pursuant to General Statutes § 52-564. The court awarded prejudgment interest, pursuant to General Statutes § 37-3a, from April 13,1990, the estimated date of the defendant’s conversion of the INS check, through April 11, 1997, the date of judgment, at the rate of 10 percent per annum for a total of $2034.80. The court also awarded interest on the offer of judgment, pursuant to General Statutes § 52-192a (b), at the rate of 12 percent per annum for a total of $2414.83. Prior to trebling the plaintiff’s award of damages, the trial court awarded attorney’s fees, pursuant to General Statutes § 52-192a (b), in the amount of $350. The total of the trial court’s basic award, prejudgment interest, interest on the offer of judgment, and award of attorney’s fees, therefore, was $7706.48, which the court trebled for a total award of $23,119.44.

The defendant claims (1) that the trial court’s findings of fact are clearly erroneous and (2) that the court improperly construed and applied § 52-564. We reverse in part the judgment of the trial court.

I

Our review of the record discloses that the facts as found by the trial court are reasonably supported by the evidence. The trial court was justified in assigning to each party the burden of proving the facts affirmatively asserted in his pleadings. “The credibility of witnesses and the weight to be accorded their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.” Krawiec v. Blake Manor Development Corp., 26 Conn. App. 601, 608, 602 A.2d 1062 (1992). We conclude, therefore, that the trial court’s findings of fact are not clearly erroneous.

II

The defendant claims that the evidence was insufficient to demonstrate a conversion and that treble damages cannot be awarded in ordinary breach of contract cases. The second count of the plaintiffs complaint alleged that the defendant intentionally deprived the plaintiff of his money and wilfully converted it to his own use. The plaintiff sought damages pursuant to § 52-564, which authorizes treble damages where a person steals the property of another. The trial court properly recognized that the plaintiff was required to satisfy the higher standard of proof by clear and convincing evidence to be entitled to an award of treble damages pursuant to § 52-564. See Schaffer v. Lindy, 8 Conn. App. 96, 104-105, 511 A.2d 1022 (1986).

“Statutory theft under § 52-564 ‘is synonymous with larceny under General Statutes § 53a-119.’ Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 309, 635 A.2d 843 (1993), citing Lauder v. Peck, 11 Conn. App. 161, 165, 526 A.2d 539 (1987). Pursuant to § 53a-119, ‘ [a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or [withholds] such property from an owner.’ By comparison, ‘[conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner’s rights.’ Discover Leasing, Inc. v. Murphy, supra, 309, citing Devitt v. Manulik, 176 Conn. 657, 660, 410 A.2d 465 (1979). In addition, conversion requires that the owner be harmed as a result of the unauthorized act. Devitt v. Manulik, supra, 660. Conversion may arise subsequent to an initial rightful possession. Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994). Conversion can be distinguished from statutory theft as established by § 53a-119 in two ways. First, statutoiy theft requires an intent to deprive another of his property; second, conversion requires the owner to be harmed by a defendant’s conduct. Therefore, statutory theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.” Lawson v. Whitey’s Frame Shop, 42 Conn. App. 599, 605-606, 682 A.2d 1016 (1996), rev’d on other grounds, 241 Conn. 678, 697 A.2d 1137 (1997).

In the present case, the trial court found that the defendant’s behavior “strongly supports the proposition that he intended to convert the bond proceeds to his own use from the date he received the check in 1990. ” We conclude, therefore, that the evidence presented was sufficient to establish a statutory theft in that (1) the money held by the defendant belonged to the plaintiff, (2) the defendant intentionally deprived the plaintiff of his funds, and (3) the defendant’s conduct was unauthorized. See General Statutes § 53a-119. Thus, the trial court properly awarded treble damages to the plaintiff pursuant to § 52-564.

Ill

Although the parties’ briefs did not specifically address whether the trial court properly calculated the award of treble damages, “Connecticut courts have concluded that the misapplication of a statute constitutes plain error and therefore we ‘may in the interests of justice notice plain error not brought to the attention of the trial court.’ Practice Book § [4061].” Lawson v. Whitey’s Frame Shop, supra, 42 Conn. App. 607.

“Prejudgment interest on money wrongfully withheld from the owner is a proper, albeit discretionary, element of a plaintiff s damages. Perl v. Case, 3 Conn. App. 111, 116, 485 A.2d 1331 [cert. denied, 195 Conn. 803, 491 A.2d 1103] (1985). General Statutes § 52-564 provides that if the defendant stole the plaintiffs property, he ‘shall pay the owner treble his damages.’ We see no reason to carve out of those damages, as a matter of law, the prejudgment interest element for the benefit of a defendant who has been found liable pursuant to General Statutes § 52-564.” Lauder v. Peck, supra, 11 Conn. App. 167-68.

“In Connecticut, a prevailing party may recover attorney’s fees if such an award is authorized by either statute or contract.” Neiditz v. Housing Authority, 42 Conn. App. 409, 413, 679 A.2d 987 (1996). In the present case, the trial court awarded attorney’s fees, pursuant to § 52-192a (b), in the amount of $350. In accordance with the express language of § 52-192a (b), an award of interest is mandatory, whereas an award of attorney’s fees is discretionary but may not exceed $350. See Lutynski v. B. B. & J. Trucking, Inc., 31 Conn. App. 806, 815, 628 A.2d 1 (1993), aff'd, 229 Conn. 525, 642 A.2d 7 (1994). The trial court, in a proper exercise of its discretion, awarded the maximum statutory attorney’s fees. It exceeded its statutory authority, however, by trebling that amount. The court may not circumvent the obvious purpose of § 52-192a (b), which is to limit the amount of attorney’s fees recoverable by a successful plaintiff. A trial court should not be permitted to do indirectly that which it may not do directly. See Miller v. Commissioner of Correction, 242 Conn. 745, 812, 700 A.2d 1108 (1997) (Berdon, J., concurring and dissenting); State v. Menillo, 159 Conn. 264, 269, 268 A.2d 667 (1970).

The judgment is reversed only as to the trebling of the attorney’s fee award and the case is remanded with direction to reduce the total amount of the judgment by $700.

In this opinion the other judges concurred.

       General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”

       General Statutes § 37-3a provides: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.”

       General Statutes § 52-192a (b) provides: “After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1,1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       The trial court determined that the “amount recovered” was $4941.65, consisting of the basic award of $2906.85 together with prejudgment interest of $2034.80.

       The defendant did not move the trial court either to articulate or to rectify its memorandum of decision. See Practice Book § 4051.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DAVID HUCKABY
    (AC 16462)
    O’Connell, C. J., and Dupont and Shea, Js.

      Argued November 3, 1997
    officially released January 27, 1998

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Marcia Smith, former supervisory assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from his conviction, following a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103. He claims that the trial court improperly concluded that his statements to the police (1) did not violate his Miranda rights; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and (2) were voluntary. We affirm the judgment of the trial court.

There was evidence from which the court, in making its evidentiary ruling, could have found the following facts. On December 9, 1984, Middlebury police officers Luther France and Patrick Bona were dispatched to the PIC Design building in response to a burglar alarm. The officers entered the building where they encountered the defendant who fled at the sight of them. During the chase, the officers observed that the defendant was carrying a revolver in his belt.

Once outside the building, the defendant stopped running and surrendered. France advised the defendant of his Miranda rights and the defendant acknowledged that he understood them. Bona then started to handcuff and disarm the defendant. The defendant resisted, and Bona struck him and forced him to the ground in an effort to immobilize him. After successfully disarming and handcuffing the defendant, Bona took him inside the building where they awaited a third officer who had been dispatched to the scene to transport the defendant to the police station. At that point, Bona again advised the defendant of his Miranda rights and asked him if he understood them, to which the defendant responded, “I know, I know.”

Once inside the police cruiser, the defendant spontaneously initiated a conversation about the incident with Officer Stephen Ferracci, the third police officer to arrive at the scene. Ferracci stopped him from speaking and advised him of his rights, to which the defendant responded, “I know my rights.” During their conversation, the defendant was calm, had “all his faculties about him” and did not request an attorney.

At the station, Ferracci again advised the defendant of his Miranda rights, and the defendant refused to sign a waiver of rights form. Approximately five minutes later, France arrived at the police station and the defendant stated that he would speak only to him. During their conversation, which occurred about forty minutes after the arrest, the defendant neither requested an attorney nor indicated that he did not want to answer France’s questions. The defendant appeared coherent, spoke and understood English and exhibited above average intelligence.

Approximately six horns after the defendant’s arrest, Bona initiated a conversation with the defendant concerning the burglary. Again, the defendant spoke willingly, was coherent and did not request an attorney.

The defendant’s motion to suppress the testimony of France and Bona was denied by the trial court. The court found the police officers credible and further found that the defendant had expressed a willingness to speak and chose words that constituted an affirmative act evidencing a knowing and voluntary waiver, despite his refusal to sign a waiver of rights form.

The trial court also found that the defendant’s statements were made voluntarily. Specifically, the court stated that “[t]here’s no exhibition of weakness of will or mind. The fact that [the defendant] and Officer Bona had some kind of confrontation while the cuffs were being placed does not warrant a finding of an involuntary statement because there’s nothing in the evidence concerning what happened at the station itself to indicate that the accused was in any way affected by what happened at the [scene].”

Additional relevant facts are included in the analyses of the individual claims.

I

The defendant contends that because his statements were made when he was in custody, they should not have been admitted into evidence without a knowing and voluntary waiver of his right to remain silent. Miranda v. Arizona, supra, 384 U.S. 444. It is undisputed that the defendant was in custody when he made the statements in question and that he refused to sign the waiver of rights form.

Pursuant to the fifth and fourteenth amendments to the United States constitution, “a statement made by a defendant during custodial interrogation is admissible only upon proof that he . . . waived his rights [under Miranda] to remain silent . . . .” State v. Simms, 201 Conn. 395, 411, 518 A.2d 35 (1986). “ ‘In order to show that the defendant waived his privilege against self-incrimination, the state must prove by a preponderance of the evidence that he knowingly and intelligently waived his constitutional right to remain silent.’ ” State v. Toste, 198 Conn. 573, 579, 504 A.2d 1036 (1986).

The reviewing court is required to make an independent judgment of whether the defendant made a valid waiver of his constitutional rights based on the totality of the circumstances. Beckwith v. United States, 425 U.S. 341, 348, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976); State v. Russo, 3 Conn. App. 137, 146-47, 485 A.2d 1335 (1985). Deference to the trial court’s findings of fact is limited by the requirement that we make “a scrupulous examination of the record to ascertain whether [the trial court’s] factual finding is supported by substantial evidence.” State v. Madera, 210 Conn. 22, 49, 554 A.2d 263 (1989).

If the record does not show a defendant’s express oral statement either that he wanted to rely on his rights and to remain silent or that he wanted to waive them, the state must demonstrate (1) that the defendant understood his rights and (2) that his course of conduct indicated that he did in fact waive them. State v. Shifflett, 199 Conn. 718, 731-32, 508 A.2d 748 (1986).

In the present case, the defendant was advised of his rights four times. Each time, the defendant expressly stated that he understood his rights. At no time did he ask for a lawyer or indicate that he would not answer the officers’ questions. All three officers indicated that no threats or promises were made to the defendant in exchange for any statements.

The defendant was thirty-seven years old and appeared to possess above average intelligence. He was coherent, free from the influence of liquor or drugs, fully conversant in the English language and, when offered the use of a telephone, called his mother. He was provided with cigarettes and coffee and expressly told France that he would talk with him. He had prior experience with the police and the criminal justice system. Considering the defendant’s expressed willingness to speak with the police and his course of conduct, we conclude that there was substantial evidence before the trial court to support the finding that the defendant understood his Miranda rights and that he knowingly and intelligently waived his right to be silent.

II

The defendant also contends that his statements were not voluntarily made. The defendant’s claim of involuntariness arises out of his altercation with Bona at the time of his arrest. The defendant contends that he had become so agitated by Bona’s actions that he inadvertently blurted out incriminating statements out of intimidation and in anger.

Despite our conclusion in part I that the admission of the defendant’s statements did not violate the fifth amendment or his Miranda rights, they would nevertheless be inadmissible as a fourteenth amendment denial of due process of law if they were not voluntarily made. State v. Shifflett, supra, 199 Conn. 726-27. A statement is voluntary if it is “the product of an essentially free and unconstrained choice by its maker”; (internal quotation marks omitted.) State v. Downey, 45 Conn. App. 148, 162, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997); “[i]f it is, if he has willed to [make a statement], it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his [statement] offends due process.” (Internal quotation marks omitted.) Id.

“The question of voluntariness is one of fact for determination by the trial court in the exercise of its discretion, subject to the constitutional standards of due process.” State v. Barrett, 205 Conn. 437, 452, 534 A.2d 219 (1987). “ ‘The factors taken into account [on voluntariness] when assessing the totality of the circumstances include many of those used when determining the capacity of the defendant to waive his Miranda rights knowingly and intelligently.’ ” State v. Madera, supra, 210 Conn. 41. Among those factors are “the defendant’s age, intelligence, and his experience with the criminal justice system . . . .” State v. Shifflett, supra, 199 Conn. 731.

In part I of this opinion, we concluded that the defendant was an adult with above average intelligence who had prior experience with the police and criminal justice system. The evidence further shows that the police were respectful of the defendant’s rights and no threats were used to elicit statements from the defendant. The trial court found, and we agree, that the minor altercation between the defendant and Bona did not produce an atmosphere of intimidation that would warrant a finding that the defendant’s statements were involuntary. Bona’s actions were not meant to elicit a confession, but simply to restrain the defendant and to prevent him from grabbing his gun. In fact, the defendant willingly made several incriminating statements while sitting in the police cruiser and then again at the police station, six hours after his arrest. It cannot be said that the incident with Bona in any way affected the voluntariness of any of the defendant’s statements. The record reveals that the statements were the product of a free and deliberate choice.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant did not initially file a timely appeal after his trial, which was held in April, 1985. In 1987, he filed a habeas corpus petition claiming that his counsel was ineffective for failing to perfect his appellate rights. On August 28, 1996, the habeas court granted the defendant’s petition and reinstated the defendant’s right to appeal. See State v. Phidd, 42 Conn. App. 17, 27, 681 A.2d 310, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997) (habeas court has authority to reinstate lapsed appellate rights).

       Subsequent to Ms conviction of burglary in the third degree, the defendant pleaded guilty to part B of the information charging him with being a persistent serious felony offender by virtue of having been convicted of robbery with violence on April 14, 1967, and manslaughter on November 10, 1972.


author: FOTI, J.

text:
    MICHAEL INFANTE v. MANSFIELD CONSTRUCTION COMPANY ET AL.
    (AC 16770)
    Foti, Schaller and Hennessy, Js.

      Argued September 23, 1997
    officially released January 27, 1998

      Kevin J. Maher, with whom, on the brief, was James D. Moran, Jr., for the appellants (defendants).

      JanineM. Becker, with whom, on the brief, was Daniel Shepro, for the appellee (plaintiff).
   Opinion

FOTI, J.

The named defendant, Mansfield Construction Company (Mansfield), and the defendant insurance carrier, Zurich-American Insurance Group (Zurich), appeal from a decision rendered by the workers’ compensation review board (board) affirming the commissioner’s decision denying the defendants’ motion to modify, filed pursuant to General Statutes § 31-315.

An examination of the board’s record discloses the following. In 1986, the plaintiff was employed part-time by Mansfield, which insured its employees through Zurich. On November 19, 1986, the plaintiff, pursuant to instructions from his employer, drove to a parcel of land owned by Mansfield, performed an inspection and while returning home was injured in an automobile accident. Mansfield reported the injury to Zurich and thereafter sent a twenty-six week wage statement indicating that the plaintiff had worked for two weeks before the accident and had earned $500. Zurich computed the plaintiffs compensation rate to be $166.67 per week and began making temporary total disability payments in February, 1987. These payments continued for six and one-half years even though a voluntary agreement had never been completed. On June 26,1993, Zurich ceased making payments; however, a form 43 notice of contest was never filed. Zurich also failed to pay for certain improvements to the plaintiffs home to accommodate his incapacity, although it had agreed to do so. Payments to the nursing and physical therapy services that were used by the plaintiff at the direction of his physicians were also discontinued, along with payments for the plaintiffs prescriptions and medical bills. The defendants filed a “motion to modify the agreement” and, as an alternative, sought to modify the rate of compensation.

The commissioner found all paid and unpaid charges to be reasonable. He concluded that no credible evidence had been presented to establish that the plaintiff was not in the course of his employment at the time of injury, and he found that the claim had been accepted years earlier and that no credible evidence had been presented to show that there had been a mutual mistake in computing the rate of compensation. The commissioner, therefore, denied the defendants’ motion, concluding that the injury was compensable. Thereafter, he ordered payments of $166.67 per week as temporary total disability benefits payable from June 27,1993, plus cost of living adjustments, to continue until a notice of intention to discontinue or reduce payments, form 36, is approved by a commissioner. He also ordered that all outstanding medical bills were to be paid and that the plaintiff was to be reimbursed for the cost of the improvements to his home, pursuant to the parties’ previous agreement. He also awarded statutory interest and attorney’s fees pursuant to General Statutes § 31-300.

The defendants claim that the board improperly affirmed (1) the finding of compensability, (2) the award of home modification, (3) the finding of no mutual mistake of fact and (4) the denial of the motion to modify. We affirm the board’s decision.

As a preliminary matter, we note that we ordered the parties to file supplemental briefs addressing the jurisdiction of the workers’ compensation commissioner to act in this matter. Under the Workers’ Compensation Act, the filing of a written notice of claim is a prerequisite to the subject matter jurisdiction of the commission; General Statutes § 31-294c (a) (formerly § 31-294); or one of the statutory jurisdictional alternatives must be satisfied. General Statutes § 31-294c (c) (formerly § 31-294); Figueroa v. C & S Ball Bearing, 237 Conn. 1, 5, 675 A.2d 845 (1996). The parties agree that while no notice of claim was ever filed, timely or otherwise, the commission had jurisdiction pursuant to one of the jurisdictional alternatives, i.e., the furnishing of medical care for the injury to the employee within one year from the date of the accident. The parties further claim, and we agree, that the commissioner’s findings as contained in the record are sufficient to establish that the employer, through Zurich, furnished such care.

“The exception is, no doubt, based upon the fact that if the employer furnishes medical treatment he must know that an injury has been suffered which at least may be the basis of such a claim [for compensation].” Gesmundo v. Bush, 133 Conn. 607, 612, 53 A.2d 392 (1947). In the event that a representative or agent of the employer, authorized to send the employee to a physician, does so, that constitutes furnishing medical treatment for purposes of the exception. Id. It is clear that the defendants were not ignorant of the injury, and do not claim to be prejudiced in any way. Even if the employer did not pay for the medical treatment furnished by a physician selected by him, he has “furnished” such treatment within the meaning of the statute if he has sent the claimant for medical treatment, thereby authorizing it. See Kulis v. Moll, 172 Conn. 104, 109, 374 A.2d 133 (1976).

Our review of the record discloses that Mansfield is owned by the plaintiffs son, and, although no specific finding was made that the plaintiffs son sent the plaintiff for medical treatment or actually directed him to receive such, Mansfield acknowledges that it did furnish such treatment and that the defendants actually knew, shortly after the accident, that the plaintiff had suffered an injury that at least may have been the basis for a claim for compensation. “Every presumption which favors the jurisdiction of the court should be indulged.” Tuccio v. Zehrung, 164 Conn. 231, 232, 319 A.2d 406 (1973).

“When jurisdiction is possible, and the court has taken jurisdiction over a cause, every presumption supports the judgment which it renders. . . . This presumption is strengthened by the fact that the parties [did not contest] the jurisdiction of the commissioner.” (Citations omitted.) Cuccuro v. West Haven, 6 Conn. App. 265, 268, 505 A.2d 1, cert. denied, 199 Conn. 804, 508 A.2d 31 (1986). “For the presumption of jurisdiction to apply, jurisdiction must be within the possible ambit of the record, and not excluded from it. Stone v. Hawkins, 56 Conn. 111, 115, 14 A. 297 (1888).” Cuccuro v. West Haven, supra, 270 (Bieluch, J., dissenting).

The Workers’ Compensation Act is liberally construed in favor of the employee and is to be interpreted with sufficient liberality to carry into effect its beneficial purpose and to prevent the defeat of this purpose by narrow and technical definition. Bahre v. Hogbloom, 162 Conn. 549, 558, 295 A.2d 547 (1972). Zurich’s payment of medical bills for an extended period, under the particular facts and circumstances of this case, constitutes the furnishing of medical treatment. We conclude, therefore, that the commission had jurisdiction over this claim pursuant to the medical treatment exception to § 31-294c (c).

We next set forth our standard of review. The conclusions drawn by the commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Green v. General Dynamics Corp., 44 Conn. App. 112, 115, 687 A.2d 550 (1996), cert. granted on other grounds, 240 Conn. 916, 692 A.2d 813 (1997).

The defendants cannot prevail on their first claim that the board improperly affirmed the commissioner’s finding that the defendants accepted the compensability of the claim. The board, in affirming the finding of compensability, noted that “Admin. Reg. § 31-296-n2 allows an employer or insurer who doubts the causal connection between employment and injury to make payment without prejudice, so long as both the claimant and commissioner are notified as such, a formal notice of intent to contest liability (Form 43) accompanies such notice, and the payments without prejudice extend not more than six weeks. [No] Form 43 was ever filed in this case. Moreover, [Zurich] stopped noting in February of 1987 that the claimant’s payments were being made without prejudice and continued to make such payments for many years afterward. [The commissioner’s finding that Zurich had accepted the compensability of the claim] is clearly borne out by the record, and by the commissioner’s findings as to the length of time between the injury and the attempt to contest liability.”

Our review of the record discloses that, under the facts as found by the commissioner and the circumstances existing in this matter as noted by him, ample evidence existed to support the conclusion that Zurich had accepted the compensability of the claim, thereby waiving its right to contest liability. “Waiver is the voluntary relinquishment of a known right. It involves the idea of assent, and assent is an act of understanding. . . . Intention to relinquish must appear, but acts and conduct inconsistent with intention to [relinquish] . . . are sufficient. . . . Waiver is a question of fact for the trier.” (Citations omitted; internal quotation marks omitted.) Soares v. Max Services, Inc., 42 Conn. App. 147, 175, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996). Because the commissioner’s finding that Zurich accepted the compensability of the claim was not clearly erroneous, the board properly sustained the commissioner’s decision.

The defendants cannot prevail on their second claim. They argue that they cannot be ordered to pay the bills for certain services furnished the plaintiff and for the cost of improvements to the plaintiffs home because those expenses are not items encompassed by the workers’ compensation statute. Since it does not appear that the defendants challenged the commissioner’s findings that Zurich specifically agreed to pay for these items and that the costs were reasonable, we cannot conclude that the board’s decision affirming the commissioner’s order was clearly erroneous. Having agreed to the payments, the defendants cannot now deny their obligation on the assertion that those payments are not compelled by statute. Moreover, Zurich’s agreement renders irrelevant a determination of whether the services or improvements were reasonable and necessary. We do not address issues that are irrelevant to the disposition of the appeal. Discuillo v. Stone & Webster, 43 Conn. App. 224, 227 (1996), 682 A.2d 145, aff'd, 242 Conn. 570, 698 A.2d 873 (1997).

Finally, the defendants claim that the board improperly affirmed the commissioner’s determination that Zurich failed to sustain its burden of establishing a mutual mistake concerning the rate of compensation and, therefore, improperly denied its motion to modify. It would serve no useful purpose to review the findings of fact. Because the conclusions drawn by the commissioner reflect an appropriate application of the law to the subordinate facts, we conclude that the board properly affirmed the decision of the commissioner. We also conclude that the commissioner did not abuse his discretion in denying the defendants’ motion to modify. Our review of the record discloses that the commissioner’s finding that Zurich had failed to produce credible evidence to establish that the parties were operating under a mutual mistake of fact in determining the compensation rate and, therefore, had failed to sustain its burden, was not clearly erroneous.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       In addition to denying the defendants’ motion to modify, the commissioner filed a finding and award that formed the basis of the defendants’ petition for review before the board.

       General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the ipjury in question.”

       As part, of Ms decision, the commissioner stated that a hearing would be assigned to address the issues of attorney’s fees, interest, and to review the medical treatment and bills. We conclude that the decision is final for purposes of appeal. A review of the medical treatments and bills would necessarily involve only a determination of whether the current award should be modified. See Besade v. Interstate Security Services, 212 Conn. 441, 444-45, 562 A.2d 1086 (1989). The recoverability or amount of counsel fees remaining to be determined does not cause the decision not to be final for purposes of appeal. Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988).

       The parties were ordered to address the following questions in simultaneous supplemental briefs:
      1. Did the commission have subject matter jurisdiction over the claim involved in this appeal? See Figueroa v. C & S Ball Bearing, 237 Conn. 1, 675 A.2d 845 (1996); Castro v. Viera, 207 Conn. 420, 541 A.2d 1216 (1988); Walsh v. A. Waldron & Sons, 112 Conn. 579, 153 A. 298 (1931).
      a. Was a written notice of claim ever filed pursuant to General Statutes (Rev. to 1985) § 31-294? See Figueroa v. C & S Ball Bearing, supra, 237 Conn. 1.
      b. If the answer is yes, should the case be remanded to the commission for a formal finding of fact with respect to the filing of a notice of claim? See Figueroa v. C & S Ball Bearing, supra, 237 Conn. 1.
      c. If not, do you claim that one of the jurisdictional alternatives provided by General Statutes (Rev. to 1985) § 31-294 was satisfied? See Figueroa v. C & S Ball Bearing, supra, 237 Conn. 1.
      2. If the determination as to whether there is a statutory jurisdictional alternative requires findings of fact, which tribunal is authorized to make those determinations? See Figueroa v. C & S Ball Bearing, supra, 237 Conn. 1.
      3. If such fact based determinations must be made by the commission, does the Appellate Court have authority to order a remand for that purpose under Figueroa?

       General Statutes § 31-294c (a) provides in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. . . .”

       General Statutes § 31-294c (c) provides: “Failure to provide a notice of claim under subsection (a) of this section shall not bar maintenance of the proceedings if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident or within a three-year period from the first manifestation of a symptom of the occupational disease, as the case may be, or if a voluntary agreement has been submitted within the applicable period, or if within the applicable period an employee has been furnished,, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d. No defect or inaccuracy of notice of claim shall bar maintenance of proceedings unless the employer shows that he was ignorant of the facts concerning the personal injury and was prejudiced by the defect or inaccuracy of the notice. Upon satisfactory showing of ignorance and prejudice, the employer shall receive allowance to the extent of the prejudice.” (Emphasis added.)

       The defendants’ third statement of the issues reads: “Whether a mutual mistake of fact was occasioned in accepting compensability.” On appeal, the board addressed only whether the commissioner properly determined that no mutual mistake of fact existed as to the rate of compensability and not as to the aspect of liability. On appeal before us, the defendants address only the compensation rate as their third issue. We therefore do not consider whether a mutual mistake of fact was made as to the defendants’ liability. “[Ijssues raised in the defendant’s preliminary statement of issues which were not briefed are considered abandoned.” State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980).


author: STOUGHTON, J.

text:
    STANLEY D. CHANCE v. COMMISSIONER OF CORRECTION
    (AC 16327)
    Foil, Freedman and Stoughton, Js.

      Argued November 12, 1997
    officially released January 27, 1998

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher A. Alexy, assistant state’s attorney, for the appellee (respondent).
   Opinion

STOUGHTON, J.

The petitioner, Stanley D. Chance, appeals from the judgment of the habeas court. He claims that the habeas court improperly denied his petition for permission to appeal the judgment dismissing his application for a writ of habeas corpus and improperly dismissed his amended petition.

To obtain appellate review of the dismissal of a petition for habeas corpus after the habeas court has denied a petition for certification to appeal, the petitioner must make a two part showing. First, he must demonstrate that the habeas court’s ruling constituted an abuse of discretion. If he succeeds in that, he must then demonstrate that the judgment of the habeas court should be reversed on its merits. Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To establish an abuse of discretion, the petitioner must demonstrate that the issues are debatable among jurists of reason, that a court could resolve the issues differently or that the questions are adequate to deserve encouragement to proceed further. Id., 616.

The claim made by the petitioner to the habeas court that he wants to pursue on appeal is that the performance of counsel at his trial was so deficient as to deprive him of the effective assistance of counsel. Specifically, the petitioner alleges that trial counsel failed to represent him adequately and effectively because she failed to object on proper grounds to the admission of prison disciplinary reports. The petitioner claims that an objection should have been offered on the ground that the prison reports were privileged and confidential and shielded from disclosure by General Statutes § 1-19 (b) (2).

During the course of his criminal trial, the trial court ruled that the state could impeach the petitioner with eleven prior felony convictions and cross-examine him regarding four prison disciplinary reports bearing on his truthfulness. In the absence of the jury, the petitioner’s counsel objected on grounds of relevancy. After the objection was overruled, she decided not to offer the objection in the presence of the jury because she knew it would be overruled and believed that to do so would further damage the petitioner’s credibility.

A hearing was held before the habeas court, which considered the testimony of the petitioner and his trial counsel. The court found that the petitioner failed to sustain his burden of proving deficient performance by counsel and actual prejudice, as required under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as to any of his allegations.

General Statutes § 1-19 (b) (2) provides that certain sections of the Freedom of Information Act are not to be construed to require disclosure of certain personnel files. It does not, however, forbid disclosure of those files. The petitioner has cited no authority for his claim that prison records are confidential and prohibited from disclosure by § 1-19 (b) (2).

Having carefully considered all of the claims advanced by the petitioner, we conclude that he has failed to make a substantial showing that he was denied a state or federal constitutional right, and failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice was done.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 1-19 provides in relevant part: “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-211c, inclusive, shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

       “Our Supreme Court has adopted the two-pronged analysis of Strickland v. Washington, supra, [466 U.S. 687] to determine if counsel’s assistance was ineffective. . . . Under this analysis, to prevalí on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice.” (Citations omitted.) Davis v. Warden, 32 Conn. App. 296, 302, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993).


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. MITCHELL HENDERSON
    (AC 15998)
    O’Connell, C. J., and Lavery and Hennessy, Js.

      Argued November 4, 1997
    officially released January 27, 1998

      Craig A. Raabe, special public defender, with whom, on the brief, was James P. Ray, special public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Mitchell Henderson, appeals from a judgment of conviction, rendered after a jury trial, of two counts of larceny in the sixth degree in violation of General Statutes § 53a-125b, one count of assault in the third degree in violation of General Statutes § 53a-61, two counts of credit card theft in violation of General Statutes § 53a-128c (a), one count of forgery in the second degree in violation of General Statutes § 53a-139 (a) (1), and one count of criminal attempt to commit kidnapping in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-94 (a). The defendant claims that the trial court improperly denied his motions (1) to dismiss that alleged a denial of due process in the jury selection system, (2) for judgment of acquittal of forgery in the second degree by possession of a forged instrument, (3) for judgment of acquittal on the ground that the state failed to present sufficient evidence to prove that the items were “credit cards” within the statutory definition, (4) to dismiss for improper venue, (5) to dismiss for violation of a motion in limine, and (6) to dismiss for indoctrinating the jury on charges that were dismissed midway through trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of March 16,1993, several personal items were stolen from Deana Quilty’s car while it was parked in Hartford. Among those items were two credit cards, an automated teller machine (ATM) card, and several other cards in her name. On March 17, 1993, the defendant presented a check and courtesy card to a cashier at a supermarket in Wethersfield. A store detective, Clinton Marth, observed the cashier leave her cash register to take the check and courtesy card to the manager. Marth called the manager to verify that the defendant had presented proper identification to the cashier. After speaking to the manager, Marth noticed that the defendant was no longer waiting at the cash register.

Marth left the security booth and saw the defendant running across the supermarket parking lot carrying grocery bags that he eventually dropped. Marth caught up to the defendant and identified himself as store security. When the defendant did not stop, Marth grabbed and turned the defendant toward him. The defendant brandished a small pocketknife and cut Marth’s finger. After breaking away from Marth, the defendant jumped into a car waiting for a customer and ordered the operator to drive out of the parking lot. The defendant abandoned this endeavor after a few seconds when he saw that the parking lot exits were blocked by shopping carts.

The Wethersfield police department conducted a search of the area and found the defendant in a laundry room of the nearby Park Ridge Apartments and placed him under arrest. A search incident to the arrest produced a VISA card, a Discover card, an ATM card, store courtesy cards, a library card and a video store card, all in the name of Deana Quilty (victim).

The jury returned a verdict of guilty of two counts of larceny in the sixth degree, one count of assault in the second degree, two counts of credit card theft, one count of forgery, and one count of attempted kidnapping. The trial court rendered judgment on the verdict, and this appeal followed.

I

The defendant’s first claim is that he was denied due process because the state failed to maintain statistical information regarding the racial composition of the jury pool, thereby placing an unconstitutional burden on him to prove a prima facie case of the absence of a fair cross section of the population within the jury array. The crux of the defendant’s constitutional claim is that because the state did not maintain statistics on the racial composition of the jury pool at the time of his trial, his sixth amendment right to a jury composed of a fair cross section of the population was violated. On that basis, the defendant argues that the trial court’s denial of the motion to dismiss the charges against him was improper. We disagree.

Additional facts are necessary to the resolution of this claim. In March, 1993, the defendant was arrested. He did not file a motion for the disclosure of jury data in order to determine the racial composition of the jury pool until November 6, 1995, on the eve of trial. In a hearing on the motion, the trial court adopted, and the parties stipulated to, the findings of a case involving a jury challenge, State v. Ortiz, Superior Court, judicial district of Hartford-New Britain, geographical area number fourteen, Docket No. CR-14-448783 (Corrigan, J.). The stipulation established that the state did not maintain or collect demographic information that would yield the racial composition of the jury pool in the judicial district of Hartford.

During the pretrial hearing, the defendant called Richard J. Gayer, the jury administrator for the state, and Ruth Kvisis, the Hartford Superior Court jury pool officer. Gayer confirmed that racial demographics of the jury pool were not maintained while Kvisis testified that she did not know the racial demographics of the citizens that report for jury duty in Hartford. The defendant then moved to dismiss the proceedings against him on the ground that the state’s inability to produce information on the racial composition of the jury pool denied him due process of law. The defendant argued that the lack of information precluded him from establishing a prima facia pattern of underrepresentation of minorities in the judicial district of Hartford jury pools. The trial court denied the motion to dismiss.

It is undisputed that, pursuant to article first, §§ 8, 9 and 19 of the constitution of Connecticut and the sixth and fourteenth amendments to the United States constitution, a criminal defendant has a right to a petit jury that is drawn from a pool that is “representative of a fair cross section of the community.” State v. Castonguay, 194 Conn. 416, 420-21, 481 A.2d 56 (1984); see generally Duren v. Missouri, 439 U.S. 357, 363-64, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). The United States Supreme Court has stated that the fair representation of the community is one that does not “systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). Accordingly, a state may not systematically deny members of a certain race “the right to participate as jurors in the administration of justice.” Alexander v. Louisiana, 405 U.S. 625, 628-29, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972).

To sustain an allegation of noncompliance with the “fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v Missouri, supra, 439 U.S. 364. The Duren criteria were adopted and applied by our Supreme Court in State v. Castonguay, supra, 194 Conn. 421-22. “Once a prima facia case of invidious discrimination is established, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result. Turner v. Fouche, 396 U.S. 346, 361 [90 S. Ct. 532, 24 L. Ed. 2d 567] (1970); Eubanks v. Louisiana, 356 U.S. 584, 587 [78 S. Ct. 970, 2 L. Ed. 2d 991] (1958).” Alexander v. Louisiana, supra, 405 U.S. 631-32. Although precision is not demanded, “a factual inquiry is necessary in each case that takes into account all possible explanatory factors.” Id., 630.

In Taylor v. Louisiana, supra, 419 U.S. 538, the Supreme Court stated that “[defendants are not entitled to a jury of any particular composition . . . but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” (Citations omitted.) It is clear that one does not have the absolute right to a petit jury that is representative of the community; this right only ensures that an identifiable segment of the community will not be systematically excluded from the jury pool. Apodaca v. Oregon, 406 U.S. 404, 413, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972).

To prove that the jury pool is unconstitutional, the moving party must first make out a prima facie case of discrimination. The defendant’s due process claim fails because while it is difficult to prove a prima facia case of discrimination absent the demographic information he asserts is the responsibility of the state to collect, it is not impossible. See State v. Castonguay, supra, 194 Conn. 416.

In Castonguay, the defendant successfully presented a prima facie case to the trial court showing a disparity between the number of Hispanic grand jurors who served and the percentage of the population. Id., 422. To that end, the defendant used voter registration lists to determine the percentage of Hispanic persons eligible to participate in the grand jury and then compared that to the actual percentage of Hispanics in the community. Here, the defendant has not established, and we find no indication, that similar efforts are incapable of repetition.

We also note that the relief requested by the defendant in this appeal, that he “be granted a new trial under the legislatively revised jury selection system,” illustrates the faulty logic in this appeal. The fact that demographic information will now be available in a limited sense does not guarantee that the defendant’s jury will be composed of a fair cross section of the community or that he was denied a fair cross section previously.

As noted earlier, the only evidence that was presented to the trial court to establish a violation of the defendant’s constitutional right was the lack of statistical record keeping by the state. That, standing alone, does not satisfy the mandates of Taylor and Castonguay. The defendant’s argument rests on the assumption that the only way to prove that the jury pool does not reflect a fair cross section of the community is with information provided to the defendant by the state. We disagree. While it is clear that this information would make it much easier to prove such a claim, we are not persuaded that the lack of statistical information deprived the defendant of his constitutional right to establish a fair cross section claim.

II

The defendant’s second argument is that the state failed to prove the statutory elements required to find him guilty of forgery in the second degree in violation of § 53a-139. In the defendant’s brief, he states that he “is not contesting the evidence, or even the inferences, if any that might be drawn from that evidence. . . . The state only offered evidence that purported to show [the defendant] making a false statement.” We agree with the state that this claim is both legally and factually incorrect and reject it out of hand.

For the defendant to be found guilty of violating § 53a-139, the state must prove that (1) the defendant intended to deceive another and (2) that he possessed a written instrument that he knew to be forged. The defendant does not allege that the state failed to show that he intended to deceive another, rather he merely challenges the possession element. To prove that someone possessed an object, the state must show that he “knew of its presence and exercised dominion and control over it.” (Internal quotation marks omitted.) State v. Ogrinc, 29 Conn. App. 694, 698, 617 A.2d 924 (1992).

The state offered into evidence a store security videotape from the day of the incident. The video shows the defendant writing a check and handing it to the cashier along with the courtesy card, both of which, other evidence showed, had been stolen from the victim. The check had the victim’s name and address printed in the upper left comer. The signature on the check, which the videotape clearly showed the defendant writing, was the victim’s name.

On appeal, the defendant relies on State v. Cooke, 42 Conn. App. 790, 682 A.2d 513 (1996), to support his proposition that the law requires the state to charge a defendant with either possession of a forged instrument or completion of a forged instrument. The defendant argues that on the basis of Cooke, the evidence presented by the state proves that the defendant completed a forged instmment, but not that he possessed a forged instrument. The defendant argues that the conviction of forgery in the second degree by possession of a forged instmment therefore must be reversed. The defendant incorrectly interprets and applies the holding of Cooke to the facts of the present case.

In Cooke, the defendant forged his wife’s signature on a mortgage deed and then presented the deed to the bank as having been properly executed by his wife. Thereafter, the defendant was charged in two separate counts under § 53a-139 (a) (1), in one count with completing a forged document and in the other with possessing a forged document. Id., 802. The court held that “[t]he two crimes of which the defendant was convicted were different offenses and, thus, not in violation of the double jeopardy clause.” Id.

The facts here are identical to those in Cooke with the exception that the state did not charge the defendant with two counts—one of completing and one of possessing a forged document. Here, the defendant was charged only with possession of a forged document. The facts, however, would have supported a charge of completing a forged instrument. The time that elapsed between the defendant’s forging of the victim’s signature and his passing of the instrument to the teller was sufficient to support the charge of possession. See State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Ogrinc, supra, 29 Conn. App. 698. We conclude, therefore, that the evidence was sufficient to support the defendant’s conviction on the charge of possession of a forged instrument.

Ill

The defendant next claims that the state failed to introduce sufficient evidence to support his conviction of two counts of credit card theft in violation of § 53a-128c. Specifically, he asserts that the state did not present sufficient evidence from which the jury could have drawn the reasonable inference that the victim’s VISA and Discover cards were credit cards that could be used to obtain money, goods or services on credit. We disagree.

Section 53a-128a (b) defines a credit card as: “any instrument or device, whether known as a credit card, as a credit plate, or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services or anything else of value on credit.” During her direct testimony, the victim identified the VISA card and the Discover card as items taken from her possession on March 16, 1993. The victim testified that both cards were her “credit cards,” which were used to obtain “money, goods, or services.” The defendant did not cross-examine the witness and, after the state rested, moved to dismiss the three counts of credit card theft (VISA, Discover, and ATM cards) because there was insufficient evidence to support those charges. The trial court granted the motion as to the ATM card but overruled the motion as to the VISA and Discover cards, reasoning that sufficient evidence existed from which a jury could reasonably infer that these cards were used to obtain money, goods or services on credit. We agree.

“In reviewing a sufficiency of evidence claim on appeal the question presented is whether, viewing the evidence favorably to sustaining the verdict, the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983).” State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985).

We conclude that it is a reasonable and logical inference for a juror to conclude that a card referred to as a “credit card” enables one to receive things on credit. “It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom.” Id. We find, therefore, that sufficient evidence existed to support the jury’s finding of guilt.

IV

The defendant next argues that the trial court should have granted his motion to dismiss because his case was transferred from New Britain to Hartford without his consent in violation of General Statutes § 51-353a. In short, the defendant asserts that he is entitled to a new trial because the trial was heard in an improper venue. We conclude that the trial court properly denied the defendant’s motion to dismiss on this ground.

Additional facts are necessary to our resolution of this claim. On March 18, 1993, the defendant was charged by information in geographical area number fifteen in New Britain, which is in the judicial district of Hartford-New Britain. The crimes were allegedly committed in the town of Wethersfield. On September 20,1993, the case was transferred to the judicial district courthouse in Hartford, which is also in the judicial district of Hartford-New Britain, where the defendant was charged by substitute information on September 28, 1993.

General Statutes § 51-352 (a) provides that “[e]ach person charged with any offense shall be tried in the judicial district in which the offense was committed, except when it is otherwise provided.” (Emphasis added.) Additionally, General Statutes § 51-347b (a) provides that “[a]ny action or the trial of any issue or issues therein may be transferred, by order of the court on its own motion . . . from the superior court for one judicial district to the superior court in another court location within the same district . . . .”

The defendant’s assertion that his case was transferred improperly is not supported by the statutes because his case was transferred within the same judicial district. Accordingly, we affirm the trial court’s denial of the defendant’s motion to dismiss for improper venue.

V

The fifth claim presented by the defendant is that the trial court improperly denied his motion for a mistrial after the state purportedly violated the court’s order resulting from a motion in limine. The defendant claims a mistrial was warranted because the jury was prejudiced by questions asked during the direct examination of the state’s witness Marth, the store detective, and that the questions were asked in violation of the trial court’s ruling. We disagree.

At trial, the state proffered the testimony of Marth regarding his observations of the defendant on the day prior to the alleged crimes. The defendant argued that Marth’s observations on the previous day were not relevant to the pending charges and should be deemed inadmissible. In response, the state argued that the testimony would be offered to explain why Marth was interested in the defendant. The trial court held that the testimony would be admissible for that limited purpose.

The state asked Marth on direct examination if he recalled seeing the defendant in the store on the day prior to the incident. He responded in the affirmative and stated that he noticed the defendant because he had purchased several “high-ticket” items that could be easily resold on the street. The defendant objected on the grounds that this testimony consisted of uncharged misconduct and was prejudicial. The trial court sustained the objection and gave the jurors a cautionary instruction that they were to disregard the witness’ statement. Upon further questioning, the trial court allowed Marth to testify that the purchase of high-ticket items caused him concern and that was why he focused on the defendant on March 17.

After the jury had been dismissed for the day, the defendant requested a mistrial, arguing that the instruction given was insufficient to cure the harm done to him and that the state had violated the court’s prior ruling. The trial court denied this motion, finding that the state had not violated the prior order and that the curative instruction was sufficient. The trial court offered to give an additional curative instruction to the jury at the close of the trial if the defendant so desired. At the appropriate time, the defendant informed the court that he would not request an additional curative instruction as he did not want to “highlight [that] issue again.”

“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. [It] should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . State v. Wooten, [227 Conn. 677, 693-94, 631 A.2d 271 (1993)]. On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. State v. Rodriguez, 210 Conn. 315, 333, 554 A.2d 1080 (1989); State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972).” (Internal quotation marks omitted.) State v. Bowman, 46 Conn. App. 131, 136-37, 698 A.2d 908 (1997).

We conclude that given the curative instruction, the defendant has failed to show that the questioning complained of was of such a magnitude and character that as a result, he did not receive a fair trial.

VI

The defendant’s final claim is that the trial court improperly denied his motion for a mistrial on the ground that the jury was indoctrinated on charges for which the state produced no evidence. We decline to review this claim due to inadequate briefing.

“We are not required to review issues that have been improperly presented to this court through an inadequate brief.” Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). On appeal, the defendant has presented us with nothing more than the assertion that “[b]ased on the prejudice [the defendant] suffered through the jury’s indoctrination, the court abused its discretion in failing to grant the motion.” We conclude that the analysis is inadequate and, therefore, we decline to consider this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Since the defendant’s conviction, the legislature has enacted a statute that requires the jury administrator to include information on the jury questionnaire regarding a juror’s race. General Statutes § 51-232 (c).

       General Statutes (Rev. to 1993) § 51-217 (a) (1) provides in relevant part: “All jurors shall be electors, or citizens of the United States who are residents of this state and listed in the records of the motor vehicle department as persons to whom motor vehicle operators’licenses have been issued . . . Challenges to this system have been rejected. See State v. Townsend, 167 Conn. 539, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S. Ct. 84, 46 L. Ed. 2d 67 (1975) (requirement that jurors be electors and be chosen from voter registration lists does not discriminate on basis of race or color, notwithstanding unsubstantiated claim that black residents registered and voted in smaller proportions than white residents); see generally State v. Brown, 169 Conn. 692, 364 A.2d 186 (1975).

       General Statutes § 53a-139 provides in relevant part: “(a) A person is guilty of forgery in the second degree when, with intent to defraud, deceive or iryure another, he falsely makes, completes or alters a written instrument or issues or possesses any written instrument which he knows to be forged, which is or purports to be, or which is calculated to become or represent if completed: (1) A deed, will, codicil, contract, assignment, commercial instrument or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status

       The following colloquy occurred during the direct examination of the victim:
      “Q. [Showing the victim an item in evidence.] Can you tell the court and jury what that is?
      “A. It’s a VISA credit card. . . .
      “Q. [Showing the victim another item in evidence.] Can you tell the court and the jury what it is?
      “A. It’s a Discover credit card in my name. . . .
      “Q. [As to] the VISA card. Is this signature on the back your signature?
      “A. Yes.
      “Q. Now, was this particular card used to obtain money, goods or services?
      “A. Yes.
      “Q. Going to the Discover card .... Prior to its being stolen, was this particular card used to obtain money, goods or services?
      “A. Yes.”

       On direct examination, the victim identified the “ElectraCard” as an item used to obtain money. She never identified the ElectraCard as a credit card, nor did the state ask her if she was able to use this card to obtain money, goods or services on credit.

       We note that in the defendant’s brief he argues that “[n]o witness testified that the VISA card, the Discover card or the Electracard ATM card could be used ‘to obtain money, goods or services on credit.’ Conn. Gen. Stat. § 53a-128a (b).” (Emphasis added.) During argument before the trial court, defense counsel specifically stated that “you don’t have to use the words ‘on credit.’ But someone has to either use the words ‘on credit’ or define the terms [of the VISA and Discover cards].”

       General Statutes § 51-353a provides: “Cases pending on the criminal docket of the superior court in any geographical area or judicial district may, with the consent of the accused and the state’s attorney for such judicial district, be transferred to the criminal sessions of said court in any other judicial district or may be transferred to any other courthouse within the judicial district.”

       The motion in limine related to information that would have tended to show that the defendant had sold stolen items on the day before the incident at issue in this case. The defendant argued that this was inadmissible evidence of uncharged misconduct. The trial court agreed and ordered that the state not elicit this information for that reason.

       The court’s instruction was as follows: “I’m also going to remind the jury that with respect to a question that was asked and answered, I told the jury to disregard the answer. And obviously when I indicate that you are to disregard an answer, you are to disregard it. And you’re not to draw any inference from an answer that has been disregarded. So the fact that the witness has testified that it is a high-ticket item, I’m going—I permitted that. But with respect to any inference or conclusion that this witness attempted to draw, which was the subject of the answer that I indicated, you’re to disregard, it is to be disregarded.”

       The entire briefing of this claim is as follows: “Mr. Henderson also is entitled to a new trial because the trial court erred in denying his mistrial based on the indoctrination of the jury on charges for which the state had no evidence. The state’s information that was read during jury selection and to the jury at the start of trial included charges of robbery in the first degree, attempted kidnapping in the first degree, assault in the second degree, forgery in the second degree, larceny in the sixth degree and three counts of credit card theft. Unquestionably the jurors’ first impression of this case based on that indoctrination was one of a serious felony crime spree. At trial, however, it became apparent that the state had no evidence to support its charges of robbery in the first degree or attempted kidnapping in the first degree. Indeed, because of the absence of any proof on these charges the court granted Mr. Henderson’s motions for acquittal. There can be little doubt that the jurors’ minds were poisoned, and thus Mr. Henderson [was] prejudiced, by the jury’s indoctrination on very serious crimes for which the state had no evidence. Mr. Henderson moved for a mistrial after his motions for judgment of acquittal were granted. Based on the prejudice Mr. Henderson suffered through the jury’s indoctrination, the court abused its discretion in failing to grant the motion.”


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. PATRICK S. WRIGHT
    (AC 16011)
    Lavery, Landau and Dupont, Js.
    Argued September 30, 1997
    officially released February 3, 1998

      BrianS. Karpe, with whom, on the brief, were Robert F. Field, public defender, and Richard L. Grant, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, and Devin T. Stilson, assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The primary issue of this appeal is whether the testimony of a state’s expert witness was tantamount to an opinion that answered the ultimate question for the jury, namely, whether the defendant was guilty of the possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a) and, if so, whether the defendant is entitled to a new trial or a judgment of acquittal of that charge.

The defendant claims that there was insufficient evidence to establish guilt of possession of a narcotic substance with intent to sell, although he acknowledges that there was evidence to establish guilt of simple possession of a narcotic substance in violation of General Statutes § 21a-279. He seeks ajudgment of acquittal of the crime of possession with intent to sell on the ground of insufficiency of the evidence. In the event that we conclude that he is not entitled to a judgment of acquittal, he seeks a new trial, claiming that the introduction of opinion testimony on an ultimate question to be resolved by the jury was impermissible and that its introduction more probably than not affected the result.

The testimony of which the defendant complains was given by Detective Mark Trohalis, an expert on narcotics trafficking. The defendant does not dispute that Trohalis is an expert. The colloquy at issue is as follows:

“Q. Viewing those items that are before you on that desk [the six ‘snow folds’ that had been in the possession of the defendant], does that indicate anything to you about the behavior of the person that had those?
“A. Yes, it does.
“Q. What does it indicate to you?
“A. That these packages were packaged for sale and packaged where a larger quantity was packaged at that time.”

The first question to be resolved is whether the testimony in question was impermissible. Three Connecticut cases are pertinent. In State v. Vilalastra, 207 Conn. 35, 36-37, 540 A.2d 42 (1988), the defendant was also on trial for a violation of the crime of possession of a narcotic substance with intent to sell. The question asked of an expert witness in that case was as follows:

“Q. Would you be able to formulate an opinion based on your training and experience and the facts as I gave you, whether or not the items found . . . were possessed for either personal use or consumption or with the intent to sell and or dispense?
“A. My opinion is that this would be used for sale, not personal use.”

The Vilalastra court held that the testimony was impermissible. The court stated that expert witnesses may testify that certain behavior was conduct similar to that of those engaged in selling drugs, or that in light of the witness’ personal observation of the defendant’s conduct, it would appear that the defendant was engaged in sales of drugs, but that the state “may not ask an expert whether in his expert opinion a defendant possessed illegal drugs for sale or consumption.” Id., 45. The defendant’s conviction was upheld, however, because there was other evidence in the case, exclusive of the impermissible testimony, that could have caused the jury to find an intent to sell so that the improper admission more probably than not did not affect the outcome.

The second relevant case, State v. Campbell, 225 Conn 650, 657, 626 A.2d 287 (1993), held that it was improper to permit an expert witness for the state to testify “as to whether in his opinion the defendant possessed the drugs with the intent to sell or with the intent to use them personally.” As was true in Vilalastra, the court held that the defendant was probably not harmed and was, therefore, not entitled to a new trial. Id., 658. The court buttressed its determination that the admission of the testimony was improper by citing General Statutes § 54-86i. Id., 656-57. That statute provides that “[n]o expert witness testifying with respect to the mental state ... of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state .... constituting an element of the crime charged .... The ultimate issue as to whether the defendant was criminally responsible for the crime charged is a matter for the trier of fact alone.”

In the case of State v. Walton, 227 Conn 32, 59-60, 630 A.2d 990 (1993), the question and answer were as follows:

“Q. Based on all of [your] training and experience, you observed what was on that table, how it was packaged, what was open, what was closed. Did you, based on all that training and experience, come to a conclusion as what had transpired to get those to the way they were?
“A. The white powder in the large white plastic bag was in the process of being packaged for distribution.”

As was true in both Vilalastra and Campbell, the court held that although the testimony was improper, the defendant was not entitled to a new trial because it was more probable than not, in view of the other evidence, that the testimony did not affect the jury’s finding of guilt.

It is difficult to draw a meaningful distinction between the forbidden testimony of Walton and the testimony in this case and we, therefore, hold that the testimony in this case was equally improper and that the jury should not have been allowed to consider it.

The next issue we must resolve is the consequence of the improper admission of the expert opinion. The improper admission of opinion testimony that answers a question that a jury should have resolved for itself is not of constitutional significance and is a type of evidentiary error. State v. Vilalastra, supra, 207 Conn. 46. If the testimony is deemed to have answered a question that was solely for the jury’s determination, the burden is on the defendant to show that the admission more probably than not affected the outcome of the verdict. Id. If the defendant can show that the outcome was affected, the defendant is entitled to a new trial.

Before we determine whether the defendant is entitled to a new trial, we must first consider his claim that the evidence was insufficient to convict him of possession of a narcotic substance with intent to sell because if that claim is meritorious, all of his other claims are moot; see State v. Munoz, 233 Conn. 106, 110, 659 A.2d 683 (1995); and he is entitled to a judgment of acquittal on that charge rather than a new trial.

For the purpose of our review of the sufficiency of the evidence, we must consider all of the evidence presented to the trial court, including the improperly admitted opinion testimony. See State v. Carey, 228 Conn. 487, 495-96, 636 A.2d 840 (1994); State v. Gray, 200 Conn. 523, 535-39, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). “When the trial court erroneously admits evidence resulting in reversal . . . the State should not be precluded from retrial even though when such evidence is discounted there may be evidentiary insufficiency. ” (Internal quotation marks omitted.) State v. Gray, supra, 538; see also Burks v. United States, 437 U.S. 1, 15, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (incorrect reception or rejection of evidence is trial error that does not invoke double jeopardy clause). A reversal for trial error does not mean that the state has failed to prove its case but is a determination that a defendant was convicted in a defective process; State v. Gray, supra, 540; and, therefore, a claim of insufficiency of the evidence must be tested by including the evidence that is the subject of the evidentiary error. We, therefore, review all of the evidence in the present case, including the tainted opinion testimony, and compare it with the evidence in other cases in which the defendant was charged with the possession of narcotics with intent to sell, in order to determine whether the defendant should prevail on his insufficiency of the evidence claim.

In the present case, Detective David Arconti, Officer John Krupinsky and other members of the Danbury police department converged on an area known for the buying and selling of narcotics to serve an arrest warrant on someone other than the defendant. While there, Arconti saw a person, later identified as the defendant, walk to a parking lot and throw an object under a station wagon and then continue to walk toward Krupinsky. Krupinsky, who could not see the defendant from his position, was given a description of the defendant and ordered to detain him, which he did when the defendant came into view. Immediately after seeing the defendant throw the object, Arconti recovered a plastic pill bottle from underneath the station wagon. The bottle contained six “snow folds,” items commonly used to package cocaine. All of the six items were subsequently tested and found to contain cocaine in solid form, but no analysis was made to determine the percentage of purity of the cocaine.

Trohalis also testified, properly, to the fact that it is unlikely that a user of drugs would buy six folds, that the most common purchase of diugs costs between $20 and $40 dollars for two folds, that the six folds would cost $120 and that if a user spent $120, it would be for a bulk purchase, not six folds. He further testified that one person could consume six folds in a time period varying between one hour and two days. No evidence other than the bottle was seized from the defendant or found under the station wagon. There was no evidence that the defendant had in his possession any money, other drugs, a weapon, drug paraphernalia, a beeper, or records relating to drug transactions. Immediately prior to the defendant’s throwing an object under the station wagon, he had been standing next to two people, but no conduct was observed to indicate that drugs were being sold.

We now consider whether the evidence was sufficient to convict the defendant of possession of a narcotic substance with intent to sell. The standard of review for challenges to the sufficiency of the evidence is well settled. The evidence is viewed in a light most favorable to sustaining the verdict and then it is determined whether the jury could have found, on the basis of the facts established and the inferences reasonably drawn from those facts, that the cumulative effect established guilt beyond a reasonable doubt. State v. Conley, 31 Conn. App. 548, 559, 627 A.2d 436, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993). “Possession of narcotics in quantities ordinarily not associated with personal use is a factor on which a jury may reasonably rely to infer intent to sell. . . . Our courts, however, have stopped short of declaring that this factor alone warrants an inference of intent.” (Citations omitted.) Id., 560. If expert testimony has established that a defendant possessed an amount of drugs that was unusually large for personal use, a jury is entitled to credit the testimony as a factor in the analysis of whether the state has inferentially established intent to sell beyond a reasonable doubt. Id. If a defendant has no drug paraphernalia, it is reasonable to infer that he did not intend to use the drugs himself and that also may be factored into the jury’s determination, as well as the way the drugs were packaged. Id., 560-61.

In view of the testimony that the most common purchase for users of drugs is only one or two folds, that it is not common for a user to buy as many as six folds, that drug sellers may have other quantities of drugs and money nearby and not on their person and that it was unlikely that a drug user would buy six folds for personal consumption, and considering the lack of any drug paraphernalia and the tainted opinion evidence; see State v. Carey, supra, 228 Conn. 495-97; State v. Gray, supra, 200 Conn. 535-39; the cumulative effect could have established guilt beyond a reasonable doubt. We conclude that the defendant, therefore, is not entitled to a judgment of acquittal.

We now turn to the question of whether the evidence of the opinion testimony more probably than not affected the outcome. Unlike in the cases of Vilalastra, Walton and Campbell, here there was no evidence of large amounts of cash in small denominations on the person of the defendant, nor were there extra plastic bags, or a very large amount of cocaine. There were no guns or weapons introduced into evidence, and the street value of the drugs was not great. There was no evidence of conduct by the defendant that was indicative of a drug sale.

In the three cases previously cited, because of overwhelming other evidence, the defendants could not establish that it was more probable than not that the improper ruling that allowed the expert to testify to his opinion that the defendant possessed the intent to sell affected the verdict. In the present case, the trial court stated that the case against the defendant on the element of intent “was not the strongest case that has been brought before the Connecticut courts in the sale of a narcotic substance.” We agree with the trial judge. This case differs from the other cases cited because of the lack of other overwhelming evidence. We conclude that more probably than not, the opinion testimony affected the result. Accordingly, the judgment of conviction is reversed and we remand the case for a new trial.

Although our disposition of the previous issue requires a new trial, we will briefly consider the defendant’s claim that the trial court improperly prevented him from cross-examining Krupinsky, a state’s witness, and in disallowing the testimony of Captain Arthur Sullo, the chief of police of Danbury, with respect to motive, interest or bias. It is likely that this claim will recur at retrial. Certain additional facts are necessary for a proper resolution of this issue.

Krupinsky, a ten year veteran of the Danbury police department, was assigned to the tactical narcotics team at the time of the defendant’s arrest. Tactical narcotics is a special unit of the Danbury police department designed to combat street drug sales. On cross-examination, the defendant attempted to question Krupinsky regarding the funding sources for that unit. Specifically, the defendant proposed to show that Krupinsky had an ulterior motive for arresting the defendant and testifying for the state because the state and federal funding of the tactical narcotics team is dependent on the number of arrests made by the unit. The trial court excused the jury and permitted the defendant to establish relevance and foundation by cross-examining Krupinsky outside of the presence of the jury.

After the trial court permitted the defendant to make his offer of proof, through both the cross-examination of Krupinsky and the introduction of the testimony of Sullo, it considered the defendant’s claim that the officers had an ulterior motive for their testimony. The court concluded that the defendant failed to establish how the funding of the tactical narcotics team was relevant to Krupinsky’s motive, bias or interest, and, thus, properly excluded the evidence as irrelevant.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant moved for a judgment of acquittal at the close of all of the evidence, which motion was denied by the trial court. The charge in this case, without objection by the defendant, included a charge on the lesser included offense of illegal possession of a narcotic substance. If a judgment of acquittal on the greater offense must be rendered, the case would have to be remanded to the trial court to reflect the conviction of the lesser offense and for resentencing in accordance with that conviction. See State v. Carpenter, 214 Conn. 77, 84-85, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992).

       Krupinsky testified that although he was aware that the tactical narcotics team was partially funded by state grants, he was not in charge of keeping statistics of arrests or providing those statistics to the state. There was no testimony that the amount of money received by the unit was dependent on the number of arrests. Furthermore, no evidence was adduced that Krupinsky distorted his testimony on cross-examination or that he would have gained personally from the defendant’s conviction. To the contrary, Krupinsky’s testimony established that his job was secure with the police department and was totally unrelated to the funding of the tactical narcotics team.