text:
    STATE OF CONNECTICUT v. DAVID HILL
    (AC 19996)
    Foti, Spear and Healey, Js.

      Argued May 4
    officially released July 18, 2000

      Joseph Visone, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, . with whom, on the brief, were James E. Thomas, state’s attorney, and Rachel Baird, former assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, David Hill, appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). On appeal, the defendant claims that his conviction should be set aside because (1) the statute is unconstitutionally void for vagueness as applied to the facts of this case and (2) the state failed to produce sufficient evidence to prove that he intended to abduct the victim. We affirm the judgment of the trial court.

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. On June 9, 1996, at approximately 3 a.m., the victim was walking alone on Beaver Street in New Britain, when she was approached by the defendant. He asked her if she wanted to have a “friendship” with him. She replied that she did not, at which time he pushed her and directed her from the street down the driveway of the side parking lot of a closed social club to an area under a stairwell. He pushed her to the ground onto her back, stopped her from escaping by holding down her wrists and arms, and raped her. Her further resistance was met by his placing his hand over her mouth; her struggle to free herself was to no avail. She was later observed to have red marks on her arms and throat.

I

The defendant first claims that § 53a-92 (a) (2) (A) is unconstitutionally vague as applied to the facts supporting the conviction of kidnapping in the first degree.

Conceding that his claim is unpreserved, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).* 1*3* To enable us to review a claim that a statute is vague as applied, the record must reflect that the defendant was convicted under the statute in question and must also reflect the conduct that formed the basis of the conviction. State v. Indrisano, 228 Conn. 795, 800, 640 A.2d 986 (1994). Because the record is adequate for our review, we advance our analysis to the third prong of Golding, namely, whether the defendant was deprived of his constitutional right to a fair trial because § 53a-92 (a) (2) (A) is unconstitutionally vague as applied to his conduct.

The defendant claims that the statute is vague as applied to the facts supporting his conviction because of the element of “restraint” contained therein, which is defined in General Statutes § 53a-91 (l).

“The doctrine [of vagueness] requires statutes to provide fair notice of the conduct to which they pertain and to establish minimum guidelines to govern law enforcement.” State v. Indrisano, supra, 228 Conn. 802. “Our Supreme Court based its analysis in Indrisano on the three standards set out by the United States Supreme Court for evaluating vagueness. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. . . . [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. . . .

“Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. . . . Therefore, a legislature [must] establish minimal guidelines to govern law enforcement.” (Internal quotation marks omitted.) State v. Cummings, 46 Conn. App. 661, 667-68, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997).

The defendant argues that “the evidence of sufficient unlawful restraint beyond what was needed to accomplish a sexual assault is lacking, and [his] conviction for kidnapping produces an ‘absurd and unconscionable result.’ ” We disagree.

Pursuant to § 53a-91 (1), restraint requires either a movement or a confinement, that is, a movement from one place to another, or a confinement either in the place where the restriction begins or in a place where that person has been moved, without consent. It is clear from the facts, which obviously were found by the jury, that the defendant, without the victim’s consent, moved the victim from the street to the place of the rape by pushing and directing her, and that once there he confined her, again without her consent, when she attempted to leave. Either action is sufficient to constitute restraint under the statute. It matters not that the defendant’s underlying motive in either moving the victim from the street to the stairwell, or in confining her there, was to accomplish a rape. Such intent does not preclude a conviction for kidnapping. State v. Green, 55 Conn. App. 706, 715, 740 A.2d 450 (1999), cert. denied, 252 Conn. 920, 744 A.2d 438, cert. denied, 529 U.S. 1136, 120 S. Ct. 2019, 146 L. Ed. 2d 966 (2000). Accordingly, we conclude that the statute is not vague as applied to the defendant’s conduct. Thus, no constitutional violation clearly exists.

II

The defendant next claims that the state failed to prove beyond a reasonable doubt that he restrained the victim by moving her from one place to another and also that he intended to kidnap the victim. He argues that the evidence was insufficient to support his conviction for kidnapping in the first degree.

Our appellate courts have developed a two part standard of review of an insufficiency of evidence claim. First, the court must construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Scales, 38 Conn. App. 225, 228, 660 A.2d 860 (1995). Second, the court must determine whether, on the established facts and all reasonable inferences drawn therefrom, the jury could have reasonably concluded that the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Rasmussen, 225 Conn. 55, 73-74, 621 A.2d 728 (1993); State v. Pinnock, 220 Conn. 765, 770, 601 A.2d 521 (1992).

A person is guilty of first degree kidnapping if he “abducts another person and . . . restrains the person abducted with intent to . . . violate or abuse [her] sexually. ...” General Statutes § 52a-92 (a) (2) (A). Kidnapping is a continuing crime that commences once a person is wrongfully deprived of freedom and continues as long as the unlawful detention lasts. State v. Gomez, 225 Conn. 347, 351, 622 A.2d 1014 (1993); State v. Smith, 198 Conn. 147, 155, 502 A.2d 874 (1985). Persons are “abducted” within the meaning of § 53a-92 when they are restrained with the intent to prevent their liberation either (1) by secreting or holding them in a place where they are not likely to be found or (2) by using or threatening to use physical force or intimidation. General Statutes § 53a-91 (2). Persons are “restrained” when their movements are intentionally restricted so as substantially to interfere with their liberty either (1) by moving them from one place to another or (2) by confining them either to the place where the restriction commences or to the place where they have been moved without their consent. General Statutes § 53a-91 (1).

Applying these principles of law to the facts of this case, we conclude that the jury reasonably could have found that the defendant abducted the victim and forced her to move from the sidewalk to the stairwell, and that he confined the victim in the area under the stairwell against her will, as discussed in part I of this opinion. We find no merit in the defendant’s argument that the evidence is insufficient to support his conviction for kidnapping in the first degree.

While the defendant does not contest that the state proved beyond a reasonable doubt that he intended to commit and did commit a rape, he claims that the state failed to prove that he intended to kidnap the victim. “It is well established that the question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Watson, 50 Conn. App. 591, 605, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” Id., 134. The defendant’s conduct was more than sufficient to allow the jury reasonably to find that he intended to abduct the victim for the purpose of raping her.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to . . . (A) inflict physical injury upon him or violate or abuse him sexually. . . .”

       The defendant was also convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), which is not part of this appeal. Additionally, the defendant pleaded guilty to one count of failure to appear in the first degree in violation of General Statutes § 53a-172. He received a total effective sentence of forty-one years, execution suspended after seventeen years, followed by twenty years of probation.

       The defendant does not contest the state’s claim that force was used to complete the rape.

       The defendant claims his due process rights were violated under both the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. Because the defendant presents no separate analysis for his state claim, we will not address it. See State v. Cummings, 46 Conn. App. 661, 667 n.3, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997).

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all- of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       General Statutes § 53a-91 (1) provides: “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (A) deception and (B) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.”


source: Caselaw Access Project

author: SPALLONE, J.

license: Public Domain

text:
    NORMAN H. LOWE v. ANNE B. LOWE
    (AC 19019)
    (AC 19191)
    Foti, Mihalakos and Spallone, Js.
    Argued May 5
    officially released July 18, 2000

      C. Michael Budlong and Campbell D. Barrett, for the appellant-appellee (defendant).

      Andrew J. Spinnell, with whom, on the brief, were Wendy A. Grispin and Sheldon A. Rosenbaum, for the appellee-appellant (plaintiff).
   Opinion

SPALLONE, J.

These consolidated appeals arise from the postjudgment financial orders of the trial court that stem from a 1993 judgment of dissolution in New Hampshire. In appeal no. 19019, the defendant, Anne B. Lowe, claims that the court, Owens, J., in fashioning new financial orders after the New Hampshire court’s orders had been vacated, improperly adopted the terms of the parties’ original stipulation for judgment, which had been set aside on the basis of fraud by the court, Axel-rod, J. In appeal no. 19191, the plaintiff, Norman H. Lowe, claims that the court, Owens, J., improperly (1) awarded alimony to the defendant in contravention of New Hampshire law and (2) failed to classify its alimony award as being periodic in nature. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of these appeals. Prior to dissolution of their twenty-three year marriage, the parties, who were residents of New Hampshire, entered into a stipulation for permanent orders wherein they agreed that the plaintiff would make alimony payments to the defendant for a period of five years in the amount of $2000 per month for the first two years and $1200 per month for the next three years, at which time the plaintiffs alimony obligation would terminate. The parties also agreed that the defendant would receive the entire net proceeds from the sale of the jointly owned marital residence and one-half of the plaintiffs pension plan. The plaintiff filed a financial affidavit in conjunction with the stipulation. On January 26,1993, the New Hampshire Superior Court entered judgment dissolving the marriage and establishing financial orders in accordance with the stipulation.

The plaintiff subsequently moved to Connecticut. The defendant, believing that the plaintiffs financial affidavit did not accurately reflect his income and assets, filed the New Hampshire judgment in the Superior Court pursuant to General Statutes § 46^714 Thereafter, the defendant moved to open the judgment.

On June 14, 1996, the court, Axelrod, J., found that the plaintiff had failed to include in his financial affidavit a guaranteed $20,000 minimum commission over and above his $80,000 salary, the pro rata share of which he received during the last week of December, 1992. On the basis of this finding, the court granted the defendant’s motion to open the judgment and ordered that all previous financial orders be set aside and vacated. The court concluded that “the plaintiff made a fraudulent representation as to his income for the purpose of and with the intention of causing the defendant to act upon it, and that the defendant in fact did act upon the fraudulent representation. The plaintiffs misrepresentation was intended to induce and was material to the defendant’s decision to enter into the stipulation that she entered into in justifiable reliance upon the plaintiffs representation of income. The misrepresentation by the plaintiff of his income was intended to induce and was material to the defendant’s decision to enter into the separation agreement between the parties. The court, therefore, concludes that the defendant has met her burden of proving by clear and convincing evidence fraud on behalf of the plaintiff.”

Thereafter, the matter was tried to the court, Owens, J., in October, 1998. The court considered all of the financial issues, including the alimony award and the property distribution, in determining the amount due and owing the defendant as a result of the plaintiffs failure to disclose the $20,000 commission. The court also considered the cause of the marital breakdown and heard testimony regarding the education, employment history, financial condition and health of the parties from the beginning of the marriage in 1969 until the October, 1998 trial.

The court rendered its decision on October 26, 1998, and made the following findings as to the parties’ respective financial positions at the time of the 1993 judgment of dissolution. The defendant was a college graduate who had worked as a real estate agent and an interior designer during her marriage. The court thus concluded that the defendant “was and still is highly employable.” During the parties’ two year separation prior to the dissolution, the plaintiff paid the defendant temporary alimony of $1000 per month. At the time of the dissolution, the defendant also received $38,700 from the sale of the jointly owned marital home and $65,000 from the plaintiffs pension plan. In addition, the defendant received paintings, antiques and most of the parties’ other personal property. The court further noted that the plaintiff had paid to the defendant an additional sum of $44,052 as temporary alimony as of October 16, 1998. The plaintiff, by contrast, kept only a few articles of personal property. The court found that, “[e]xcept for his employment . . . [the plaintiff] left the marriage with no assets other than one-half of his pension.”

Applying New Hampshire law, the court concluded that “the fraud that was perpetrated can best be redressed by readjusting the alimony that had been agreed upon by the parties in January of 1993.” The court took cognizance of the fact that “[o]ther than [the] plaintiffs employment, there were no assets that would appreciate in the future. The marital residence was sold, and the other assets were readily disposed of. None of the assets in the present case were prone to substantial fluctuations at the time of the original dissolution. When there is a clearly delineated item that is fraudulently omitted and that is easily juxtaposed, there is no need or requirement to destroy the efficacy of the original voluntary agreement.”

The court determined that it was not necessary to ignore the original agreement between the parties, stating that “[i]t would strain judicial resources and could lead to serious injustices if a party to a marital dissolution who subsequently discovers some omission that is determined to be fraud to then allow that party to come back at a later date and completely extinguish and destroy the original agreement. Obviously, if there is a pattern of fraud that completely permeates the dissolution and causes a serious injustice, the court would be justified in not restoring . . . the parties to the position they were in.”

Consequently, in considering both the alimony award and the property distribution set forth in the 1993 agreement, the court decided that no change was required with regard to the property distribution, and ruled that “[t]he parties shall retain all property, personal and real estate that they may each own free and clear of any claims of the other.” The court found that a change was required, however, in the alimony award. Utilizing the 1993 agreement as a starting point, the court added $7500 in alimony to each of the first two years of the five year agreement and $5000 per year to each of the next three years. In addition, the court ordered that the plaintiff pay interest to the defendant at the rate permitted under New Hampshire law, which amounted to $12,270. The court also ordered the plaintiff to pay attorney’s fees to the defendant in the amount of $7000 plus costs of $37.74. The court observed that because the plaintiff had conceded, pursuant to his proposed orders dated October 14,1998, that all temporary alimony paid to that date should be the property of the defendant, the court did not consider this concession in making its determination. The court thus determined that the $44,052 in temporary alimony was the property of the defendant.

The plaintiff contested the $44,052 temporary alimony award by filing apostjudgment motion to reargue, which the court denied. Thereafter, each party filed a separate appeal.

“Our standard of review is well settled. We review financial awards in dissolution actions under an abuse of discretion standard. ... In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Lake v. Lake, 49 Conn. App. 89, 91, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998).

I

In appeal no. 19019, the defendant claims that the court abused its discretion and committed error as a matter of law when it fashioned the new financial orders by using as a framework the parties’ original stipulation for permanent orders, which thereafter was set aside on the basis of fraud. The defendant cites Gunnison v. Abbott, 73 N.H. 590, 592, 64 A. 23 (1906), for the proposition that once a final judgment is set aside or vacated, it becomes absolutely void. She claims that the court should have conducted a trial de novo on the financial issues, but failed to do so. We find no merit to the defendant’s claim.

General Statutes § 46b-71 (b) provides in relevant part: “[I]n modifying, altering, amending, setting aside, vacating, staying or suspending ... [a] foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.” See also Vitale v. Krieger, 47 Conn. App. 146, 149, 702 A.2d 148 (1997) (“when modifying a foreign matrimonial judgment, the courts of this state must apply the substantive law of the foreign jurisdiction”).

Under New Hampshire law, the court is not compelled to alter an existing divorce decree, even where fraud is shown, if it concludes that the decree was “fair and equitable under all the circumstances.” Rollins v. Rollins, 122 N.H. 6, 9, 440 A.2d 438 (1982). It therefore stands to reason that under Rollins, the court, Owens, J., did not act improperly when it fashioned new financial orders by making appropriate adjustments and alterations to the original orders.

Moreover, contrary to the plaintiffs claim, the court did conduct a complete trial de novo. At trial, the court heard evidence concerning the duration of the marriage, the cause of its breakdown, and evidence regarding the parties’ ages, education, health, employment and financial circumstances throughout the marriage. The court also considered the parties’ stipulation for permanent orders and the New Hampshire judgment which, by virtue of § 46b-71 (b) became “a judgment of the court of this state.” Indeed, the court could not ignore that agreement, because most of its terms already had been executed. The marital home had been sold, the plaintiff had paid the capital gains tax and proceeds from the sale had been distributed to the defendant. The defendant also had received one-half of the plaintiffs pension and most of the parties’ personal property. These actions could not be undone.

The court, under these circumstances, was required to exercise its equitable powers and broad discretion in framing new financial orders. See Abrams v. Abrams, 131 N.H. 522, 524, 556 A.2d 1173 (1989) (scope of discretion in divorce action is broad). In fashioning these orders, the court observed that “serious injustices” could result if a party found responsible for a fraudulent omission could come back at a later date and completely extinguish and destroy the original agreement, absent a “pattern of fraud.” Here, where no such pattern of fraud was found, the court was not obligated to completely reject the parties’ stipulation merely because the judgment was vacated. See Rollins v. Rollins, supra, 122 N.H. 9. The court, however, did not simply adopt the terms of the parties’ previous stipulation, as the defendant suggests. It also considered New Hampshire law, all of the evidence adduced at trial and the parties’ respective financial positions in 1993. Accordingly, the court reasonably could have determined that the best way to redress the plaintiffs fraud was to adjust the alimony award previously agreed on by the parties in January, 1993.

The defendant argues that the holding in Rollins applies only to the standard a court must employ in the preliminary hearing when a motion to open is before the court and not to the standard used in the de novo trial conducted after a judgment is opened. We do not agree. The Rollins court specifically referred to the fact that its holding applied to the underlying judgment when it stated that, “[t]hough the master must hear the evidence, he is not compelled to alter the existing decree if he concludes that it was fair and equitable under all the circumstances.” (Emphasis added.) Id. The court, therefore, acted in accordance with applicable law and did not abuse its discretion in rendering the new financial orders.

II

A

In appeal no. 19191, the plaintiff first claims that the court abused its discretion by improperly awarding alimony to the defendant in contravention of New Hampshire law. He argues that the parties had a relatively moderate standard of living during their marriage, and that the defendant was self-supporting and did not need alimony. He also argues that even if alimony was properly awarded, the amount was excessive. We disagree.

“[Tjrial courts have broad discretion in matters involving alimony . . . .” See Marsh v. Marsh, 123 N.H. 448, 451, 462 A.2d 126 (1983). Under New Hampshire law, on the motion of either party for alimony payments, the court shall make orders for the payment of alimony to the party “in need of alimony,” or may order alimony “when such orders would be just and reasonable.” N.H. Rev. Stat. Ann. § 458:191, II. In making such a determination, “[t]he court ... is in the best position to assess and weigh the evidence before it because it has the benefit of observing the parties and their witnesses. This is especially true in cases dealing with family law . . . where not only the financial health and stability of the parties are at stake, but also the actual quality of their post-divorce Uves.” Abrams v. Abrams, supra, 131 N.H. 525.

In the present case, it was within the discretion of the court to determine that the parties enjoyed a station of life during their marriage that justified an award of alimony to the defendant. See Marsh v. Marsh, supra, 123 N.H. 451. Furthermore, the fact that the court reaffirmed the prior award of alimony and increased it due to the plaintiffs fraud imphes that the court determined that there was a need for alimony, and that such an award was just and equitable. See N.H. Rev. Stat. Ann. § 458:19,1, II. The question on appeal is whether there was sufficient evidence to support such a determination. See Lake v. Lake, supra, 49 Conn. App. 91.

Our review of the record and briefs discloses that ample evidence was presented at trial to support the conclusion that the defendant was in need of financial support, and that the alimony awarded was just and equitable. See id. The plaintiffs contention that the defendant did not need alimony is somewhat disingenuous in light of the fact that the parties voluntarily agreed on alimony payments in their prior stipulation for permanent orders. That being said, New Hampshire law permits the court to take into account the style of living to which the parties were accustomed during the marriage in deciding whether to award alimony. See N.H. Rev. Stat. Ann. § 458:19 I. Here, testimony indicated that during the late 1980s, the family lived comfortably in New Hampshire. The parties sent both of their children to private school, maintained a horse, owned several automobiles, including an Acura, a Volvo and a Saab, and took numerous vacations, including trips to Jamaica and ski trips to Switzerland. It was also clear from the evidence adduced at trial that the plaintiff was the primary wage earner and that, absent financial assistance from the plaintiff, the defendant would be unable to continue supporting herself in accordance with the parties’ marital lifestyle, despite the court’s finding that she “was and still is highly employable.” Accordingly, the court did not abuse its discretion in making adjustments to the original financial orders and increasing the alimony award. See id.

The plaintiff nonetheless argues that the court abused its discretion when it failed to credit him for the $44,052 in temporary alimony previously paid to the defendant. We do not agree.

In its October 26, 1998 memorandum of decision, the court stated that “[t]he [plaintiff], pursuant to his proposed orders dated October 14,1998, concedes that all temporary alimony paid to date shall be the property of the defendant, and the court has not considered this concession in making its determination.” The plaintiff subsequently filed a motion to reargue this issue, which was thoroughly briefed. In his motion, the plaintiff contended, as he does on appeal, that he was willing to concede the temporary alimony only if the court did not award additional alimony as part of a final court order. The court denied the plaintiffs motion. It is settled law that the court has broad discretion in matters involving alimony; see Marsh v. Marsh, supra, 123 N.H. 451; and is in the best position to assess and weigh the evidence before it. See Abrams v. Abrams, supra, 131 N.H. 525. We conclude, therefore, that the judgment of the trial court was not unreasonable, given the facts and circumstances of this case, and did not constitute an abuse of discretion.

B

The plaintiff next claims that the court improperly failed to classify the new alimony order as either periodic or lump sum. We have found no statutory or deci-sional law in New Hampshire or Connecticut requiring a court to classify alimony as either a periodic or lump sum payment. The nature of the order speaks for itself.

The applicable New Hampshire statute, § 458:19 IV (a), provides that “[t]he court may make orders for alimony in a lump sum, periodic payments, or both.” To be considered periodic, an alimony order must include more than one payment. In this case, the court ordered the alimony to be paid in one payment. Under the plain language of the New Hampshire statute, the alimony as framed by the court thus constituted a lump sum payment.

We also note that this court, in ruling on the defendant’s motion for review, reversed the trial court’s granting of the plaintiffs motion for a stay of judgment, which claimed that the alimony order, being periodic, was exempt from the automatic stay provision of Practice Book § 61-11. Our vacation of the order of the court indicates our determination that the alimony order was lump sum in nature and subject to an automatic stay.

Accordingly, we hold that in appeal no. 19019, the trial court acted properly and in accordance with applicable law in fashioning the new financial orders.

We also hold that in appeal no. 19191, the trial court properly awarded alimony in accordance with New Hampshire law and properly awarded a lump sum alimony payment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-71 provides in relevant part: “(a) Any parly to an action in which a foreign matrimonial judgment has been rendered, shall file, with a certified copy of the foreign matrimonial judgment, in the court in this state in which enforcement of such judgment is sought, a certification that such judgment is final, has not been modified, altered, amended, set aside or vacated and that the enforcement of such judgment has not been stayed or suspended ....
      “(b) Such foreign matrimonial judgment shall become a judgment of the court of this state where it is filed and shall be enforced and otherwise treated in the same manner as a judgment of a court in this state; provided such foreign matrimonial judgment does not contravene the public policy of the state of Connecticut . . . .”

       The plaintiff commenced employment as a salesman with Steag Industries, Inc., in 1992.

       N.H. Rev. Shit. Ann. § 458:19 IV (b) (1999), provides in relevant part: “In determining the amount of alimony, the court shall consider the length of the marriage; the age, health, social or economic status, occupation, amount and sources of income, the property awarded . . . vocational skills, employ-ability, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; the fault of either party . . . and the federal tax consequences of the order.”
      Section 458:19 IV (d) further provides: “The court may also consider the contribution of each of the parties in the acquisition, preservation, or appreciation in value of their respective estates and the noneconomic contribution of each of the parties to the family unit.”


text:
    STATE OF CONNECTICUT v. KENYATTA WOODS
    (AC 17664)
    Landau, Mihalakos and Spallone, Js.

      Argued November 1, 1999
    officially released July 18, 2000

      Eugene P. Falco, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, senior assistant state’s attorney, for the appellee (state).
   Opinion

SPALLONE, J.

The defendant, Kenyatta Woods, appeals from the judgment of conviction, rendered following a jury trial, of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-8, carrying a pistol without a permit in violation of General Statutes § 29-35 and risk of injury to a child in violation of General Statutes § 53-21 (1). The defendant claims that the trial court improperly declined to deliver a Secondino missing witness instruction. We affirm the judgment of the trial court.

The sole issue on appeal is whether the trial court improperly refused to instruct the jury, pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), that it could draw an adverse inference from the state’s failure to call a witness. Subsequent to the trial court’s decision in the present case, but prior to oral argument in the Appellate Court, our Supreme Court decided State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000).

In Malave, our Supreme Court revisited the rule that allowed a jury to draw an adverse inference from the failure of a party to call a particular witness and concluded that “the time has come to abandon the missing witness rule.” Id., 738. The Malave decision applies retroactively to this case. State v. Quinones, 56 Conn. App. 529, 533, 745 A.2d 191 (2000).

The trial court here declined to give the Secondino missing witness instruction. In view of Malave, we need not analyze whether that decision was correct because the defendant was not entitled to the instruction under any circumstances. See State v. Bailey, 56 Conn. App. 760, 762, 746 A.2d 194 (2000). Malave also renders it unnecessary for us to recite the facts of this case. Such recitation would serve no useful purpose because the only claim raised by the defendant concerns an eviden-tiary rule that is no longer viable in Connecticut.

The judgment is affirmed.

In this opinion the other judges concurred.

         Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).


author: LAVERY, C. J.

text:
    FRANK J. LAUDANO, ADMINISTRATOR (ESTATE OF ANTHONY H. LAUDANO) ET AL. v. CITY OF NEW HAVEN ET AL.
    (AC 18498)
    Lavery, C. J., and Hennessy and Pellegrino, Js.
    Argued May 5
    officially released July 18, 2000

      Martin S. Echter, for the appellants (defendants).

      David K. Jaffe, with whom was Joel M. Ellis, for the appellee (substitute plaintiff).
   Opinion

LAVERY, C. J.

The defendants appeal from the judgment of the trial court awarding the substitute plaintiff, Ann Marie Laudano, administratrix of the estate of Anthony H. Laudano, attorney’s fees and costs pursuant to 42 U.S.C. § 1988. On appeal, the defendants claim that the court improperly (1) determined the hourly rate of attorney’s fees, (2) awarded fees for the services of several attorneys and (3) determined the number of hours of legal service to be compensated. We affirm the judgment of the trial court.

The following facts provide the context of the appeal. On the night of June 17, 1991, the plaintiff’s decedent, Anthony H. Laudano, was driving his motor vehicle on a street in the city of New Haven when he was shot and mortally wounded by Officer Giro Esposito of the New Haven police department, who was on foot patrol. At the time, Esposito was accompanied by Officer Thomas Herbert of the New Haven police department. In March, 1992, Frank J. Laudano, the decedent’s brother, commenced this action against Esposito, Herbert, New Haven Chief of Police Nicholas Pastore and the city of New Haven. He alleged claims for violations of his decedent’s constitutional rights arising from police brutality. In the original complaint, Frank Lau-dano alleged twenty-one counts against the four defendants in both his representative and individual capacities. Thereafter, Ann Marie Laudano was substituted as plaintiff, and the individual claims were dropped.

Trial took place in the fall of 1997, with jury selection beginning on October 30 and the verdict being returned on December 23. Jury selection took eight days, evidence was presented over sixteen days and the jury deliberated for two days. Only four counts of the original complaint, which alleged violations of 42 U.S.C. § 1983, one against each of the defendants, were submitted to the jury. The jury found in favor of Herbert and in favor of the substitute plaintiff against the other defendants. The jury awarded the estate of the substitute plaintiffs decedent compensatory damages of $250,000, but no punitive damages. In February, 1998, the substitute plaintiff applied for attorney’s fees and costs pursuant to 42 U.S.C. § 1988. The defendants vigorously opposed the application, and a hearing on the substitute plaintiffs application was held before the court on May 11, 1998. The parties offered no testimonial evidence but submitted numerous affidavits in support of their briefs and arguments. The court awarded the substitute plaintiff attorney’s fees in the amount of $297,645 and costs in the amount of $13,642.40. The defendants appealed.

The purpose of § 1988 is to make sure that competent counsel is available to civil rights plaintiffs. Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S. Ct. 939, 103 L. Ed. 2d 67 (1989). The amount of attorney’s fees awarded is left to the discretion of the trial court. Weyel v. Catania, 52 Conn. App. 292, 302, 728 A.2d 512, cert. denied, 248 Conn. 922, 733 A.2d 846 (1999). “ ‘No one can state the reasonable value of legal services as a fact. He can only express his opinion. The value is based upon many considerations.’ Hoenig v. Lubetkin, 137 Conn. 516, 524, 79 A.2d 278 (1951). With respect to awards pursuant to § 1988, those considerations include the rates ‘prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.’ Blum v. Stenson, 465 U.S. 886, 895-96 n.11, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). ‘A court has few duties of a more delicate nature than that of fixing counsel fees. The degree of delicacy increases when the matter becomes one of review on appeal. The principle of law, which is easy to state but difficult at times to apply, is that only in case of a clear abuse of discretion by the trier may we interfere. Hayward v. Plant, 98 Conn. 374, 382, 119 A. 341 [1923]; Golstein v. Handley, 390 Ill. 118, 125, 60 N.E.2d 851 [1945]. The trier is always in a more advantageous position to evaluate the services of counsel than are we.’ Hoenig v. Lubetkin, supra, 525.” Weyel v. Catania, supra, 302-303.

On appeal, the defendants claim that the court improperly determined the hourly rate of attorney’s fees, awarded fees for the services of several attorneys and determined the number of hours of legal services. The federal courts have addressed the proper method by which a trial court should award a prevailing party attorney’s fees in a civil rights action. “[T]he initial estimate of a reasonable attorney’s fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. Blum v. Stenson, [supra, 465 U.S. 888]. The courts may then acljust this lodestar calculation by other factors. . . . The Johnson factors may be relevant in adjusting the lodestar amount, but no one factor is a substitute for multiplying reasonable billing rates by a reasonable estimation of the number of hours expended on the litigation.” Blanchard v. Bergeron, supra, 489 U.S. 94; see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).

The court’s memorandum of decision is comprehensive. It provides the factual and procedural background under which the case was tried and addresses the complexity of the issues. It reflects the court’s accurate understanding of the law regarding the award of attorney’s fees pursuant to § 1988. The court held a hearing on the substitute plaintiffs application and received the billing records of the substitute plaintiffs counsel and affidavits of attorneys who try civil rights cases in this jurisdiction stating the fees that they charge. The court assessed the time records of each of the attorneys involved in the case and commented on the reasonableness of the fees charged for attorneys of varying experience who worked on the case. In reaching its conclusion, the court adhered to the lodestar method and made adjustments that are consistent with the Johnson factors. Furthermore, we are not aware of any law prohibiting a court from awarding fees for services performed by multiple attorneys who work together to prosecute a civil rights action, and the defendants have not provided any. On this record, we conclude that the court did not abuse its discretion in awarding the substitute plaintiff attorney’s fees in the amount of $297,645.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants at trial were the city of New Haven, Giro Esposito, Thomas Herbert and Nicholas Pastore. The jury returned a verdict in favor of Herbert and in favor of the substitute plaintiff as to the other three defendants. In this opinion, we refer to the city, Esposito and Pastore as the defendants.

       Frank Laudano commenced this action in 1992, alleging claims in both his administrative and individual capacities. In 1997, Ann Marie Laudano was substituted as the plaintiff in her administrative capacity, at which time Frank Laudano withdrew his individual claims.

       The defendants claimed that the substitute plaintiffs decedent attempted to strike Esposito with his vehicle.

       Shortly after the action was commenced, the plaintiff obtained different counsel, whose fees are at issue here.

       Due to the court’s additional responsibilities, trial was conducted only three or four days per week.

       The substitute plaintiff sought attorney’s fees of $348,972.50.

       Title 42 of the United States Code, § 1988 (b) provides in relevant part: “In any action or proceeding to enforce a provision of [section] . . . 1983 ... of this title . . . the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.”

       The defendants attacked the reasonableness of the fees and took the position that the substitute plaintiff was entitled to attorney’s fees of $59,512.50.

       See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The Johnson court set forth twelve factors for determining the reasonableness of an attorney’s fee award, and they are: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal services properly; the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the “undesirability” of the case; the nature and length of the professional relationship with the client; and awards in similar cases. Id., 717-19.


author: Per Curiam.

text:
    IN RE SHAREEF J. ET AL.

    (AC 19171)
    Laveiy, G. J., and Hennessy and Pellegrino, Js.
    Argued May 5
    officially released May 30, 2000

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal axe not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. MARK JENKINS
    (AC 19516)
    Landau, Spear and Freedman, Js.
    Argued April 24
    officially released May 30, 2000
   Per Curiam.

The judgment is affirmed.


text:
    ANN P. COONLEY v. JOHN BARRY III ET AL.
    (AC 19496)
    Laveiy, C. J., and Zarella and Dupont, Js.
    Submitted on briefs April 24
    officially released May 30, 2000
   Per Curiam.

The judgment is affirmed.


text:
    TOWN OF NEWTOWN v. TRUDEAU SERVICE CENTER, INC., ET AL.
    (AC 19198)
    Schaller, Pellegrino and Dupont, Js.
    Argued April 25
    officially released May 30, 2000
   Per Curiam.

The judgment is affirmed.


text:
    HERBERT PRIOLEAU v. COMMISSIONER OF CORRECTION
    (AC 18930)
    Lavery, C. J., and Foti and Dupont, Js.
    Argued May 2
    officially released May 30, 2000
   Per Curiam.

The appeal is dismissed.


text:
    WILLIAM F. VAN ECK ET AL. v. NATIONWIDE MUTUAL INSURANCE COMPANY
    (AC 18190)
    Hennessy, Zarella and Pellegrino, Js.
    Argued May 9
    officially released May 30, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. AUGUSTUS J. SIMMONS
    (AC 18814)
    Laveiy, C. J., and Landau and Zarella, Js.
    Argued May 10
    officially released May 30, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. LIONEL REDDING
    (AC 19787)
    Lavery, C. J., and Spear and Pellegrino, Js.
    Submitted on briefs May 11
    officially released May 30, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. DUANE ZIEMBA
    (AC 19229)
    Lavery, C. J., and Landau and Zarella, Js.
    Argued May 10
    officially released May 30, 2000
   Per Curiam.

The judgment is affirmed.


text:
    ROUTE CINQUENTA E NOVE COMERCIO IMPORTACAO E EXPORTACAO DE VEICULOS LTDA. v. CENTRAL SPORTS, INC.
    (AC 20138)
    Hennessy, Zarella and Peters, Js.
    Argued May 3
    officially released May 30, 2000
   Per Curiam.

The judgment is affirmed.


text:
    GARY E. TALLMAN v. ADY SAI-KUEN TONG ET AL.
    (AC 19737)
    Schaller, Hennessy and Mihalakos, Js.
    Submitted on briefs May 11
    officially released June 6, 2000
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.


text:
    STATE OF CONNECTICUT v. RICHARD E. SMITH
    (AC 19978)
    Schaller, Hennessy and Daly, Js.
    Argued May 9
    officially released June 6, 2000
   Per Curiam.

The judgment is affirmed.


text:
    MAUREEN J. KHAN-LACOSS v. DAVID B. LACOSS
    (AC 19541)
    Schaller, Hennessy and Pellegrino, Js.
    Submitted on briefs May 11
    officially released June 6, 2000
   Per Curiam.

The judgment is affirmed.


text:
    TOWN OF WATERFORD v. STEPHEN KRIJGER
    (AC 19832)
    Lavery, C. J., and Spear and Pellegrino, Js.
    Submitted on briefs May 11
    officially released June 6, 2000
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM X. JONES v. COMMISSIONER OF CORRECTION
    (AC 19601)
    Landau, Schaller and Mihalakos, Js.
    Argued May 4
    officially released June 6, 2000
   Per Curiam.

The judgment is affirmed.


text:
    BEN GYADU v. D’ADDARIO INDUSTRIES, INC., ET AL.
    (AC 19844)
    Foti, Landau and Zarella, Js.
    Submitted on briefs May 11
    officially released June 6, 2000
   Per Curiam.

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


text:
    FLEET MORTGAGE CORPORATION v. TABATHA CANDELARIO ET AL.
    (AC 19720)
    Foti, Landau and Zarella, Js.
    Submitted on briefs May 11
    officially released June 6, 2000
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM F. BENNETT v. JOHN H. LINDSAY
    (AC 19364)
    Hennessy, Pellegrino and Dupont, Js.
    Argued May 30
    officially released June 27, 2000
   Per Curiam.

The judgment is affirmed.


text:
    SHANTA PHILLIPS v. BIRCH REALTY, INC.
    (AC 19030)
    Lavery, C. J., and Schaller and Mihalakos, Js.
    Argued May 30
    officially released June 27, 2000
   Per Curiam.

The judgment is affirmed.


text:
    KENNETH T. HENTON v. COMMISSIONER OF CORRECTION
    (AC 19870)
    Foti, Landau and Dupont, Js.
    Argued June 1
    officially released June 27, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. OMAR J. MILLER
    (AC 20162)
    Foti, Mihalakos and Pellegrino, Js.
    Submitted on briefs June 5
    officially released June 27, 2000
   Per Curiam.

The judgment is affirmed.


text:
    BEVERLY HAYES GENGARELLY v. WALTER J. GENGARELLY
    (AC 19045)
    Lavery, C. J., and Foti and Daly, Js.
    Argued June 6
    officially released June 27, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATEWIDE GRIEVANCE COMMITTEE v. EDAN F. CALABRESE
    (AC 19545)
    Lavery, C. J., and Foti and Landau, Js.
    Argued June 6
    officially released June 27, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ROBERT HAYNES
    (AC 19138)
    Schaller, Zarella and Peters, Js.
    Argued June 6
    officially released June 27, 2000
   Per Curiam.

The judgment is affirmed.


text:
    DOMINIC DIBIASO, JR. v. MICHAEL L. SMETANO ET AL.
    (AC 19407)
    Foti, Zarella and Healey, Js.
    Argued June 8
    officially released July 11, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JACOB CARATTINI v. COMMISSIONER OF CORRECTION
    (AC 19872)
    Hennessy, Pellegrino and Daly, Js.
    Submitted on briefs June 12
    officially released July 11, 2000
   Per Curiam.

The judgment is affirmed.


text:
    THOMAS GRAHAM v. COMMISSIONER OF CORRECTION
    (AC 18296)
    Foti, Hennessy and Pellegrino, Js.
    Submitted on briefs June 14
    officially released July 11, 2000
   Per Curiam.

The appeal is dismissed.


text:
    WILLIAM F. BENNETT v. BIRBARIE MARINE SALES, INC.
    (AC 19391)
    Foti, Hennessy and Pellegrino, Js.
    Submitted on briefs June 14
    officially released July 11, 2000
   Per Curiam.

The judgment is affirmed.


text:
    YALE-NEW HAVEN HOSPITAL, INC. v. SUSAN SANDERS ET AL.
    (AC 19999)
    Foti, Hennessy and Pellegrino, Js.
    Submitted on briefs June 14
    officially released July 11, 2000
   Per Curiam.

The judgment is affirmed.


text:
    ROY SMITH v. COMMISSIONER OF CORRECTION
    (AC 19248)
    Foti, Hennessy and Pellegrino, Js.
    Submitted on briefs June 14
    officially released July 11, 2000
   Per Curiam.

The appeal is dismissed.


text:
    MARK P. MELLY v. COMMISSIONER OF MOTOR VEHICLES
    (AC 19662)
    Lavery, C. J., and Mihalakos and Zarella, Js.
    Submitted on briefs June 14
    officially released July 11, 2000
   Per Curiam.

The judgment is affirmed.


text:
    GREENWOOD TRUST COMPANY v. LESLIE S. HOLLO
    (AC 20277)
    Lavery, C. J., and Mihalakos and Zarella, Js.
    Submitted on briefs June 14
    officially released July 11, 2000
   Per Curiam.

The judgment is affirmed.


text:
    GARY N. POLYVIOU ET AL. v. MARIA J. NOLASCO ET AL.
    (AC 20008)
    Lavery, C. J., and Mihalakos and Zarella, Js.
    Submitted on briefs June 14
    officially released July 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    PAUL A. NELSON v. MARGARET M. NELSON
    (AC 19332)
    Landau, Schaller and Spear, Js.
    Submitted on briefs June 14
    officially released July 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    SAM LIVIERI v. KEN RICH ET AL.
    (AC 20177)
    Landau, Schaller and Spear, Js.
    Submitted on briefs June 14
    officially released July 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    ANNMARIE KASLAITIS v. RICHARD J. KASLAITIS
    (AC 19803)
    Landau, Schaller and Spear, Js.
    Submitted on briefs June 14
    officially released July 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    JULIA H. MCCONNON v. JAMES R. MCCONNON
    (AC 19300)
    Landau, Schaller and Spear, Js.
    Submitted on briefs June 14
    officially released July 18, 2000
   Per Curiam.

The judgment is affirmed.


text:
    DONALD C. MAHONEY v. BAHAMA BOB’S HARTFORD, INC., ET AL.
    (AC 17226)
    Lavery, C. J., and Landau and Mihalakos, Js.
    Argued June 8
    officially released July 18, 2000
   Per Curiam.

The stay of the bankruptcy court was vacated on March 21, 2000.

The judgment is affirmed.


author: PER CURIAM.

text:
    PETER ROCK ASSOCIATES v. TOWN OF NORTH HAVEN
    (AC 18793)
    Foti, Landau and Daly, Js.
    Argued March 30
    officially released July 25, 2000

      Jack G. Steigelfest, with whom, on the brief, were John Stephen Papa and James F. Sullivan, for the appellant (plaintiff).

      Jeffrey M. Donofrio, with whom, on the brief, was Robert K. Ciulla, for the appellee (defendant).
   Opinion

PER CURIAM.

The appeal arises out of the defendant’s taking by eminent domain real property owned by the plaintiff pursuant to a recommendation of the defendant’s board of selectmen and subsequent approval by its electorate in July, 1996. After the defendant filed a statement of compensation in the trial court, the plaintiff appealed, challenging the amount of compensation. Prior to trial, the defendant filed a motion in limine to preclude the plaintiff from presenting certain evidence concerning an option to purchase and proposed zoning changes. The motion in limine was granted and the matter proceeded to trial, where the court found that the plaintiff was aggrieved as to the fair market value of the property and rendered judgment in its favor. The plaintiff appealed.

This court “may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law . . . .” Practice Book § 60-5. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [T]he trial court has broad discretion in ruling on the admissibility . . . of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). . . . State v. Berger, 249 Conn. 218, 229, 733 A.2d 156 (1999). Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [challenging party] of substantial prejudice or injustice. . . . State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).” (Internal quotation marks omitted.) Drea v. Silverman, 55 Conn. App. 107, 109, 737 A.2d 990 (1999). “The party making the claim of error has the burden of showing that the court clearly abused its discretion.” (Internal quotation marks omitted.) Pelarinos v. Henderson, 34 Conn. App. 726, 728-29, 643 A.2d 894, cert. denied, 231 Conn. 909, 648 A.2d 155 (1994). “The questions of the highest and best use of property and of the reasonable probability of a zone change are . . . questions of fact for the trier. . . . We will not disturb the court’s findings on those issues unless they are clearly erroneous. . . . Greene v. Burns, [221 Conn. 736, 748, 607 A.2d 402 (1992)].” (Citations omitted; internal quotation marks omitted.) South Farms Associates Ltd. Partnership v. Burns, 35 Conn. App. 9, 16, 644 A.2d 940, 231 Conn. 912, 648 A.2d 157 (1994).

After reviewing the record and briefs and hearing the parties at oral argument, we are persuaded that the judgment of the trial court should be affirmed. The issue regarding the underlying dispute was resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. See Peter Rock Associates v. North Haven, 46 Conn. Sup. 458, 756 A.2d 335 (1998). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. ... It would serve no useful purpose for us to repeat the discussion contained therein.” (Citations omitted; internal quotation marks omitted.) East v. Labbe, 252 Conn. 359, 361, 746 A.2d 751 (2000); In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgment is affirmed.

       General Statutes § 52-434a provides: “(a) In addition to the powers and jurisdiction granted to state referees under the provisions of section 52-434, a Chief Justice or judge of the Supreme Court, a judge of the Appellate Court, a judge of the Superior Court or a judge of the Court of Common Pleas, who has ceased to hold office as justice or judge because of having retired and who has become a state referee and has been designated as a trial referee by the Chief Justice of the Supreme Court shall have and may exercise, with respect to any civil matter referred by the Chief Court Administrator, the same powers and jurisdiction as does ajudge of the court from which the proceedings were referred.
      “(b) In condemnation proceedings in which the assessment fixed by the condemning authority exceeds the sum of two hundred thousand dollars the court may, at the request of either party, or on its own motion, refer the proceedings to the Chief Court Administrator for referral to a committee of three such referees who, sitting together, shall hear and decide the matter. In such matters in which the fees payable to a referee are to be paid by the state, each such referee shall be reimbursed as provided in section 52-434.
      “(c) The power conferred by this section may be exercised by any such state referee, whether acting in his capacity as a state referee, or as an auditor, or as a committee of one, or by any committee composed of not more than three such state referees, with respect to any civil matter referred to him or to it, the provisions of any general or special law to the contrary notwithstanding.”

       See General Statutes § 8-132.


text:
    STATE OF CONNECTICUT v. DARRELL TINSLEY
    (AC 18368)
    Laveiy, C. J., and Schaller and Zarella, Js.

      Argued March 27
    officially released July 25, 2000

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Rosita M. Creamer, senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Darrell Tinsley, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-142, § 1. On appeal, the defendant claims that the trial court improperly (1) excluded evidence concerning the motive of the victim’s mother to implicate him in the victim’s death, (2) failed to instruct the jury not to discuss the case at the end of the first day of trial, which violated his constitutional right to a fair and impartial jury, and (3) improperly instructed the jury as to reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Georgia Graham, the victim’s mother, and the defendant met at an office building in downtown Hartford, where they worked as security personnel. Although the defendant and Graham had an unstable relationship, they cohabited in a one bedroom apartment along with the victim, Daquan Roberts, Graham’s fifteen month old son. During the course of the adults’ relationship, individuals who knew the victim noticed a marked change in his behavior when he was in the presence of the defendant. At such times, the victim was timid, withdrawn and afraid of the defendant. The defendant’s attitude toward the victim ranged from indifference to dislike. When Graham was no longer able to avail herself of professional child care, the defendant sometimes took care of the victim while Graham worked.

Prior to his death, the victim was in good health. On December 8, 1996, between 8 a.m. and 8:30 a.m., the defendant drove Graham to her place of employment. According to Graham, there was nothing wrong with the victim when she went to work. During the morning, Graham and the defendant spoke by telephone several times concerning the victim. At approximately 11:15 a.m., the defendant telephoned Graham, stating that there was something wrong with the victim and that he did not know what was the matter. The defendant then drove the victim to Graham’s place of employment, and from there all three proceeded to the Connecticut Children’s Medical Center (medical center) in Hartford. They were involved in a motor vehicle accident en route.

When he arrived at the medical center, the victim was in critical condition because he was not breathing and had little heart activity. The victim died when resuscitation efforts failed. An autopsy revealed bruises on the victim’s right cheek, left leg and chest, which an associate medical examiner from the office of the chief medical examiner determined occurred shortly before the victim’s death. The injuries were inconsistent with an automobile accident, a twelve inch fall into a bathtub, cardiopulmonary resuscitation or bumping into a fire door, which were explanations offered by the defendant. The victim also suffered significant internal injuries, namely, multiple fresh cranial hemorrhages, a broken rib and a lacerated liver that caused three quarters of his blood to enter his abdominal cavity. According to the associate medical examiner, the victim’s liver was lacerated by blunt trauma that occurred within an hour of death and was the cause of death.

After the victim died, the defendant was taken to the police station, where he gave a statement and repeatedly denied injuring the victim. The police inspected the apartment where the defendant and victim were alone prior to the victim’s death. They found vomit and feces on the victim’s clothes, a bedspread and the floor. The victim’s blood was found on the bathroom door. When he was informed of the autopsy results, the defendant insisted that the doctors were wrong, a position he maintained throughout trial. The defendant was arrested on December 12, 1996, and the court, after a hearing in February, 1997, found probable cause. Subsequent to trial, the defendant appealed.

I

The defendant’s first claim is that the court improperly excluded evidence concerning Graham’s motive to implicate him in the victim’s death. The defendant claims that the evidence was admissible under three exceptions to the hearsay rule, i.e., (a) present state of mind, (b) state of mind to prove future conduct and (3) the residual exception. We do not agree.

The following additional facts are necessary for our resolution of this claim. Graham was called as a witness by the state and testified that the defendant had told her that he wondered what it would be like if the victim were not around anymore. During the defendant’s case, counsel attempted to present evidence to demonstrate that Graham’s testimony concerning the defendant’s statement was a recent fabrication. Defense counsel theorized that Graham did not tell authorities of the defendant’s statement about the victim at the time of his death because the statement was never made. Defense counsel intended to call Rosemarie Hill, a woman who worked with both Graham and the defendant, to offer testimony to support the defense theory.

Hill was called to testify in an offer of proof that she and Graham had a conversation in January, 1997, concerning the defendant’s infidelity to Graham. Graham was upset and reported to Hill “that she [Graham] told him [the defendant] if he ever messed around on her that he would pay for it for the rest of his life.” The victim was never mentioned during the conversation between Hill and Graham. Defense counsel sought to have Hill’s testimony admitted under one of the three exceptions to the hearsay rule for the purpose of impeaching Graham’s credibility by showing that her testimony on direct examination was a recent fabrication because she did not testify about the defendant’s statement during the probable cause hearing in February, 1997. According to defense counsel, Hill’s testimony was to offered to show Graham’s state of mind at the time of the victim’s death, which caused her to fabricate the defendant’s statement when she testified at trial. Following the offer of proof, the court sustained the state’s objection to Hill’s proffered testimony.

We review the court’s preclusion of the proffered evidence by an abuse of discretion standard. Ormsby v. Frankel, 54 Conn. App. 98, 101, 734 A.2d 575, cert. granted on other grounds, 250 Conn. 926, 738 A.2d 658 (1999). “It is a fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153 (1960); State v. Kwaak, 21 Conn. App. 138, 150-51, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990).” (Internal quotation marks omitted.) State v. Suckley, 26 Conn. App. 65, 73, 597 A.2d 1285, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991). The court’s rulings “will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ” (Internal quotation marks omitted.) State v. Rivera, 40 Conn. App. 318, 324, 671 A.2d 371 (1996).

“Because the admission of such evidence involves judicial discretion, [o]ur review is limited to whether [the] ruling exceeded the latitude accorded to the exercise of [such] discretion. State v. Smith, 198 Conn. 147, 158, 502 A.2d 874 (1985); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982).” (Internal quotation marks omitted.) State v. Thomas, 205 Conn. 279, 288, 533 A.2d 553 (1987). “We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Rivera, supra, 40 Conn. App. 324.

“Hearsay is an out-of-court statement offered into evidence to establish the truth of the matters contained therein. . . . State v. Duntz, 223 Conn. 207, 232, 613 A.2d 224 (1992). As a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions. State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992). If such evidence is offered to establish the truth of statements contained therein, the burden is on the proponent of the evidence, upon timely objection, to establish that the evidence is admissible.” (Internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 753, 680 A.2d 301 (1996).

The defendant argues that he proffered Hill’s testimony to demonstrate Graham’s state of mind in January, 1997, with respect to her feelings about his infidelity to her and that the evidence therefore was not hearsay because it was not offered for the truth of the matter contained therein. We disagree. Hill’s proffered testimony was not simple hearsay; it was double hearsay. Hill testified: “She said that she told him if he ever messed around on her that he would pay for it for the rest of his life.” (Emphasis added.) The defendant believes that Hill’s testimony is reliable because she was a friend of both Graham and the defendant. Hill had known Graham for only four months at the time of their conversation. Such testimony does not carry the hallmark of reliability our rules of evidence require.

“The reason for the general rule which excludes hearsay evidence unless it comes within one of the recognized exceptions is basically that the sanction of an oath and the test of cross-examination are absent; and the exceptions to the rule have been fashioned where the statements are made under conditions judged to render them equal in reliability and trustworthiness to those which are made under the sanctions described.” State v. Barlow, 177 Conn. 391, 396, 418 A.2d 46 (1979); see State v. Hernandez, 204 Conn. 377, 389-94, 528 A.2d 794 (1987); State v. Gold, 180 Conn. 619, 630-31, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980).

“ ‘[T]he risk of fabrication and distortion is significantly increased when a witness purports merely to repeat another’s out-of-court declaration. It is always easier to say that X said something than to report personal observations of the event. Even if X did in fact tell the witness something, it would not be unusual for the person asserting to have overheard the out-of-court declaration to inject, intentionally or otherwise, additional or different statements into the conversation. Unfortunately, these fabricated or distorted statements will often be highly damaging admissions or confessions not easily discounted by the jury.’ ” State v. Green, 16 Conn. App. 390, 399, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988).

The defendant also claims that the court’s failure to admit Hill’s testimony violated his sixth amendment right to present a defense. We do not agree.

“[E]very evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. . . . The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses. ... In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure. . . . State v. Boles, 223 Conn. 535, 550, 613 A.2d 770 (1992). Excluding certain evidence does not vitiate the defendant’s constitutional right to present a defense.” (Internal quotation marks omitted.) State v. Smith, 35 Conn. App. 51, 57, 644 A.2d 923 (1994).

“[A hearsay challenge] is a claim of an erroneous evidentiary ruling and as such does not implicate the constitution. . . . State v. Walsh, 52 Conn. App. 708, 720, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999).” In re Brandon W., 56 Conn. App. 418, 424, 747 A.2d 526 (2000). “In nonconstitutional claims, the [party challenging the ruling] has the burden of demonstrating the harmfulness of the claimed error. ... He [or she] must show that it is more probable than not that the claimed error affected the verdict.” (Internal quotation marks omitted.) Id.

Here, the defendant has failed to explain how he was prejudiced by excluding Hill’s testimony. The defendant does not deny that he was taking care of the victim during the morning of December 8, 1996, that he telephoned Graham to say that something was wrong with the victim, and that he drove the victim and Graham to the medical center. The defendant also has not challenged the associate medical examiner’s testimony that the victim died as the result of blunt trauma to his liver, an injury that occurred within an hour of his death.

The defendant claims that he was not able to demonstrate Graham’s bias, motive or interest in testifying falsely and relies primarily on State v. Colton, 227 Conn. 231, 249, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). We are mindful that, in his brief, the defendant states that his defense was that he was not responsible for inflicting all of the victim’s injuries. We see no relationship between that theory of defense and Graham’s state of mind concerning the defendant’s lack of fidelity to her. As noted, the associate medical examiner testified that the victim’s death was caused by blunt trauma to his liver that occurred shortly before his death. There was no serious question about the defendant’s being the only person with the victim during the morning of December 8, 1996.

Furthermore, the facts of this case are distinguishable from Colton, in which the state’s entire case rested on the testimony of one witness who came forward one year after the victim’s murder, claiming that she saw the defendant commit the crime. Prior to the witness’ identification, the defendant was not a suspect in the case. The defendant sought to impeach the witness’ testimony by showing that she had come forward only to obtain the reward money that was offered shortly before she identified herself. Id., 234. The witness, who at the time of the murder was a known drug user and prostitute, testified that she did not immediately come forward with information about the crime because she did not want to be viewed as a “snitch” on the street and thereby hamper her ability to obtain drugs. Id., 237. She came forward later because she needed to unburden herself of the emotional anguish she was suffering from not having revealed what she knew about the murder. She denied any interest in the reward. Id., 240. She also testified that at the time of trial, she was no longer addicted to drugs or involved in prostitution, and that her financial needs were provided for by her former husband or her boyfriend. Id., 241. In other words, she was leading a new life.

To discredit the witness, the defendant in Colton offered various information, including the testimony of two witnesses that during 1990, including the time of the defendant’s second trial, the witness continued to engage in illegal drug use, which she funded through prostitution. Id., 243-44. The trial court did not allow the evidence, ruling that it was collateral, cumulative and irrelevant. Id., 242-44. Our Supreme Court reversed the judgment of conviction because the case turned on the credibility of this sole witness. The court held that “the exclusion of extrinsic evidence ... so significantly bore on the motive, bias and interest of [the witness] that the exclusion infringed on the defendant’s confrontation rights.” Id., 250.

The state’s case here did not hinge solely on Graham’s testimony. There was evidence from the associate medical examiner and others from which the jury could infer that the defendant was responsible for the victim’s death. The defendant thus has not shown that it is more probable than not that the court’s ruling affected the jury’s verdict. See State v. Nguyen, 52 Conn. App. 85, 93, 726 A.2d 119 (1999), aff'd, 253 Conn. 639, 756 A.2d 833 (2000). The court therefore properly exercised its discretion in excluding Hill’s testimony.

II

The defendant’s second claim is that the court violated his constitutional right to a fair and impartial jury, and violated Practice Book § 42-14 by failing to tell the jurors at the end of the first day of evidence not to discuss the case. The defendant did not preserve this claim at trial and seeks review under the plain error doctrine pursuant to Practice Book § 60-5 or, in the alternative, under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the court’s failure to tell the jury at the end of the first day of evidence not to discuss the case does not constitute plain error and fails to meet the third prong of Golding, the defendant cannot prevail on this claim.

The following facts are relevant to this claim. Evidence began, on December 1, 1997. At various times that day, prior to excusing the jury, the court told the jury “not to discuss the case” outside the courtroom. When the jury was excused for the luncheon recess, the court told the jury, “Do not discuss the case among yourselves or with anyone else.” When the jury was excused at the end of the day, the court stated: “Ladies and gentlemen, we’re going to suspend now for the day. The balance of the testimony to be offered by Ms. Graham will be done in the morning, and then the state will call further witnesses, which may well take the full day.

“There may be some expression of this case by journalists or some other person in the media. You must avoid it and not read it, and not listen to anybody’s comments that might come either through that source or through any o ther source as I indicated to you before this trial started, before the evidence staited, so that’s most important. This may well continue through the trial or it may be on and off and not on a daily basis, but there may well be reportings of this case, so please be very mindful of that and not be exposed to it.

“So, when you come in in the morning, which will be the same—approximately the same time as today, go up to the fourth floor, and I will expect that we will—unless something unforeseen happens—that we will be proceeding at 10 a.m. so that prior to 10 a.m. you’ll be brought down here, if all is well at that time. If not, we’ll approximate some other time, but I don’t expect any other time than 10 a.m. for starting tomorrow. So, you’re excused for the night. We’ll see you all in the morning.

“Adjourn court, sheriff.” (Emphasis added.)

When construing our rules of practice, we are guided by the well known principles of statutory construction. “The rules of statutory construction apply with equal force to Practice Book rules. Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984). Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction. . . . Id.” (Internal quotation marks omitted.) Pitchell v. Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999).

Practice Book § 42-14 simply requires the judicial authority to tell “the jurors not to read, listen to or view news reports of the case or to discuss with each other or with any person not a member of the jury the cause under consideration” until the jury retires to deliberate. Section 42-14 does not say when the court is to admonish the jury nor how many times the jury is to be told not to pay attention to news reports or discuss the case with anyone until deliberations begin. We have reviewed the transcript of the first day of trial and determined that the court did everything required under our rules of practice with respect to admonishing the jury. The defendant has not pointed to any statute or case law to the contrary.

“Plain error is reserved for instances where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Thomas, 214 Conn. 118, 120-21, 570 A.2d 1123 (1990). Our Supreme Court has stated that a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures or to follow a procedural rule constitutes plain error. State v. Johnson, 214 Conn. 161, 171 n.10, 571 A.2d 79 (1990); State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981).” State v. Robins, 34 Conn. App. 694, 706, 643 A.2d 881 (1994), aff'd, 233 Conn. 527, 660 A.2d 738 (1995). The third prong of Golding requires that a constitutional violation must clearly exist before a defendant can prevail on an unpre-served claim of constitutional error. The defendant has not demonstrated that the court failed to follow the mandate of Practice Book § 42-14 and, thus, there is no plain error or constitutional violation.

Ill

The defendant’s third claim is that the court improperly diluted the state’s burden of proof when it instructed the jury that “a reasonable doubt is a doubt for which a valid reason can be assigned” and that it “is a doubt which you can in your own mind give a reasonable—give a reason for conscientiously.” The defendant failed to submit a request to charge and failed to take an exception to the charge that was given. He therefore seeks review under State v. Golding, supra, 213 Conn. 239-40. The defendant concedes that our Supreme Court has upheld similar language. He therefore is unable to show that he was clearly deprived of a constitutional right.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant offered the testimony of Rosemarie Hill, a coworker of the defendant and Graham, to show that Graham had motive, bias or interest in falsely implicating him in the victim’s death. The defendant sought to have Hill testify that Graham had told her of the defendant’s infidelity and that Graham had warned him that “he would pay for it for the rest of his life. ” Because we conclude that Hill’s proffered testimony was not admissible on the ground that it was double hearsay, as we discuss in this opinion, we need not address the defendant’s specific claims. The proffered testimony was not admissible, however, under any of the hearsay exceptions offered by the defendant:

        Present state of mind: “An out-of-court statement is not hearsay, however, if it is offered to illustrate circumstantially the declarant’s then present state of mind, rather than to prove the truth of the matter asserted.” State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993). The defendant wanted to use Graham’s statement, allegedly made in January, 1997, to establish a motive on her part to implicate him in the victim’s death. Hill’s proffered testimony, however, was double hearsay and, thus, inadmissible.

        State of mind to prove future conduct: “The hearsay statements of an unavailable declarant, made in good faith and not for a self-serving purpose, that express his or her present intentions to [do something] in the immediate future are admissible and allow the trier of fact reasonably to infer that the declarant’s expressed intention was carried out.” (Emphasis added.) State v. Santangelo, 205 Conn. 578, 592, 534 A.2d 1175 (1987). “Further, this court has acknowledged the Supreme Court’s rule requiring the declarant to be unavailable. State v. Jurgensen, 42 Conn. App. 751, 757, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996).” Ormsby v. Frankel, 54 Conn. App. 98, 108, 734 A.2d 575, cert. granted on other grounds, 250 Conn. 926, 738 A.2d 658 (1999). Here, Graham was available to testify, and the defendant had the opportunity to cross-examine her.

        Residual exception: “It is well established that all hearsay exceptions are rooted in the notion that they contain a sufficient guarantee of trustworthiness to serve as a sufficient surrogate for cross-examination of testimony in court. Chambers v. Mississippi, [410 U.S. 284, 298-99, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)]; State v. Stange, [212 Conn. 612, 625, 563 A.2d 681 (1989)]. The ‘residual,’ or ‘catch-all,’ exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions. . . . We have stated that the necessity requirement is met when, unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources. . . . State v. Oquendo, 223 Conn. 635, 664-65, 613 A.2d 1300 (1992).” (Emphasis in original; internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 805, 717 A.2d 1140 (1998). Here, again, Graham was available to testify.

       The defendant was incarcerated in January, 1997.

       During cross-examination at trial, defense counsel questioned Graham extensively as to why she did not report the defendant’s statement to (he authorities at the time of the victim’s death. Graham testified that at the time of her child’s death she was upset and did not think about or remember the defendant’s words. In response to why she did not testily about the statement during the probable cause hearing, Graham testified that she answered only the specific questions that she was asked. She could not remember when she recalled the defendant’s statement, but did so in response to the authorities’ repeatedly asking her to think of any reason the defendant might have to harm the victim. Graham testified that given the shock of her baby’s death, it took her some time to remember events and their sequence.

       Our review of the transcript also revealed that the state, in objecting to Hill’s testimony, argued that if the defendant had wanted to impeach Graham he could have done so during cross-examination. Defense counsel countered that such an argument presumed that the defendant knew of Graham’s threat at the time of her cross-examination. Defense counsel’s argument is disingenuous, as Hill’s proffered testimony was to repeat what Graham told the defendant the consequences of his infidelity would be.

       The defendant claims that the court violated his rights pursuant to the fourth, fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.

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

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

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

       During jury selection, the court instructed the venire panels in substantial compliance with Practice Book § 42-14.

       In Ms brief, the defendant argues that we should be guided by State v. Robins, supra, 34 Conn. App. 694, stating that in that case, this court “held that a similar failure to follow [Practice Book] § 42-14 rose to the level of plain error.” That statement is a patent misreading of the facts of Robins, in wMch the trial corut told the jurors that they could discuss certain aspects of the trial with their families. Id., 705.

       In his brief to this court, the defendant concedes that our Supreme Court has upheld similar jury instructions: “The defendant is aware that [our] Supreme Court has previously rejected claims challenging similar language in the trial court’s instructions. See, e.g., State v. Ellis, 232 Conn. 691, 705, [657 A.2d 1099] (1995), and cases cited therein. Nevertheless, the defendant continues to believe this language is constitutionally deficient.”
      This court has repeatedly said that as an intermediate appellate court, it is not our role to overturn our Supreme Court’s holdings, and we decline fhe defendant’s invitation to do so. See, e.g., State v. Fuller, 56 Conn. App. 592, 609, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298 (2000); State v. Oliver, 41 Conn. App. 139, 146, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996).