author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. KENNETH LAMBERT
    (AC 18345)
    Foti, Landau and Pellegrino, Js.
    Argued March 27
    officially released June 20, 2000

      Cheryl E. Heffeman, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Kenneth Lambert, appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49 (a) (2) and assault in the first degree in violation of General Statutes §§ 53a-59 and 53-202k. On appeal, the defendant claims that his constitutional right to confront witnesses under the sixth amendment to the United States constitution, as incorporated into the fourteenth amendment, was abridged when he was not permitted to elicit testimony from the victim concerning names she used as aliases, the illegal purposes for which the aliases were used and her use of a false identification to obtain an illegal job. We affirm the judgment of the trial court.

The juiy reasonably could have found the following facts. At the time of the crimes, the defendant and the victim, a seventeen year old woman, were neighbors in the same apartment building in Hartford. Both were drug users and engaged in the sale of drugs. On June 21, 1996, the victim asked the defendant if he would sell some crack cocaine for her and the defendant agreed. The following day, June 22, 1996, between 11 p.m. and 11:30 p.m., the defendant asked the victim if she would go with him to Windsor while he picked up the money he owed her and more drugs. She consented and they left in a blue Dodge Neon parked beside the apartment building.

After driving for ten to fifteen minutes, the defendant stopped the car in a remote area in north Bloomfield and got out. The defendant walked to the victim’s side of the car, opened the door, grabbed her by her arm and pulled her out. He then went back into the car and reached under the front seat. When the defendant got out, the victim noticed that he was holding a gun. The defendant told the victim to run, but before she could move he began firing the gun at her. Two shots struck her in the abdomen. As the victim turned and started to run, the defendant continued shooting at her until she collapsed to the ground. The victim asked the defendant to take her to a hospital, but the defendant refused, and instead kicked her and jumped on her. Sometime before midnight, the defendant departed.

The victim, wounded by five gunshots, remained in the area for the next thirty hours until she was discovered on the morning of June 24, 1996, and taken to a hospital. There, she underwent surgery and recuperated for two and one-half months. The incident left her with permanent injuries in several parts of her body.

The day after the victim was discovered, the police found the blue Dodge Neon parked in front of the defendant’s apartment building. Subsequent testing revealed gunpowder residue on the exterior of the passenger side of the vehicle. The victim later identified the defendant from a photographic array as being her assailant. After the jury returned its verdict, the defendant filed a motion to set aside the verdict, which the court denied. This appeal followed.

The defendant claims that the court deprived him of his constitutional right to confront and cross-examine the victim about names she used as aliases, the illegal purposes for which she used the aliases and her use of a false identification to obtain an illegal job. We disagree.

The following additional facts are necessary for the resolution of this appeal. Before trial, the state filed a motion in limine to preclude the defendant from introducing evidence regarding the victim’s work as a prostitute in a massage parlor and her sale of drugs as a gang member. The state argued that such evidence would not impeach the victim’s credibility and that its only significance would be to attack her character, which had not been placed in issue. The court decided to defer its ruling until after the witness had testified on direct examination.

At trial, the victim was the state’s principal witness, and the defendant challenged her credibility. Prior to cross-examination and outside the presence of the jury, the victim proffered to the court that she had used the names “Squirrel” and “Baby Thug” while selling drugs on the street as a gang member, and was known as “Danielle” while working as a prostitute in a massage parlor. Thereafter, the court granted the state’s motion in limine and ruled that the victim’s work as a prostitute could not be admitted into evidence because it did not reflect on her credibility. The court also ruled that revealing the names of the victim’s aliases “might become, at some point, admissible but at this point the court does not believe that it has probative value that would outweigh the prejudice to the state and ... in looking specifically at gang membership ... I don’t see [the] link [with the crime], nor do I believe that the probative value of going into the other names, Danielle and Baby Thug, have any relevance to credibility at this point. This may change, but it hasn’t reached that point yet . . . .” The defense was permitted, however, to ask the victim if she had used aliases in the past and if she had used a fake identification to obtain a job. The defense also was permitted to question the victim about the assumed name, “Marianne Morrison,” which she used when she was admitted to a hospital for treatment of her injuries and about some of her past drug dealing activities. The defense subsequently decided to question the victim about her use of aliases and her drug dealing activities, but not about whether she had used the fake identification to obtain a job.

“The standard to be used to review a trial court’s decision on the relevance and admissibility of evidence is abuse of discretion.” (Internal quotation marks omitted.) State v. Markeveys, 56 Conn. App. 716, 718, 745 A.2d 212, cert. denied, 252 Conn. 953, 749 A.2d 1203 (2000). It is a well established principle of law that the trial court has wide discretion to determine the relevance of evidence and the scope of cross-examination, and that the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. See State v. Mann, 56 Conn. App. 856, 857, 747 A.2d 19, cert. denied, 253 Conn. 906, 753 A.2d 941 (2000); see Baughman v. Collins, 56 Conn. App. 34, 35, 740 A.2d 491 (1999), cert. denied, 252 Conn. 923, 747 A.2d 517 (2000). “Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . Furthermore, [t]o establish an abuse of discretion, [the defendant] must show that the restrictions imposed upon [the] cross-examination were clearly prejudicial. . . . Finally, [t]he proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant.” (Citations omitted; internal quotation marks omitted.) State v. Provost, 251 Conn. 252, 257, 741 A.2d 295 (1999).

“Our analysis of the defendant’s claim begins with the axiom that the defendant is entitled to confront and cross-examine fairly and fully the witnesses against him. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry [and] whether the field of inquiry was adequately covered by other questions that were allowed .... This right is not absolute . . . but may bow to other legitimate interests in the criminal trial process. . . . Such an interest is the trial court’s right, indeed, duty, to exclude irrelevant evidence. . . . The confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.” (Citations omitted; internal quotation marks omitted.) Id., 256-57.

The defendant claims that the assumed name used by the victim was a proper subject of cross-examination for the purpose of assessing her credibility, citing as authority State v. Dolphin, 195 Conn. 444, 458-59, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985), and State v. Huckabee, 41 Conn. App. 565, 573, 677 A.2d 452, cert. denied, 239 Conn. 903, 682 A.2d 1009 (1996). We find, to the contrary, that neither of these cases supports the defendant’s claim.

In Dolphin, our Supreme Court held that cross-examination of a witness about his use of an alias is relevant to the issue of veracity, but the court did not address the narrower question, raised here, of whether testimony as to the specific name used also is relevant. See State v. Dolphin, supra, 195 Conn. 458-59. Similarly, in Huckabee, the issue before the court was not whether the defendant’s street name, “Snake,” was relevant to the issue of veracity, but whether the name, and how the police officer investigating the crime came to know about the name, constituted evidence of the defendant’s prior misconduct. State v. Huckabee, supra, 41 Conn. App. 573.

In the present case, our review of the record and briefs discloses that during the trial, the defense asked the victim if she had used aliases in the past, to which she responded, “Yes,” and about the assumed name, “Marianne Morrison,” which she used when she was admitted to a hospital for treatment of her injuries. Having permitted the jury to hear this testimony, the court’s conclusions that the victim’s other aliases were not relevant in assessing her credibility and that excluding such evidence would not prejudice the defendant were reasonable. See State v. Provost, supra, 251 Conn. 257. Revealing that the victim had used the assumed names of “Squirrel,” “Baby Thug” and “Danielle” might have raised questions regarding her character and distracted the jury from considering the issue of her truthfulness. Furthermore, in upholding the trial court’s ruling in Dolphin, our Supreme Court reiterated the well established principle that a “trial court enjoys a liberal discretion in fixing the limits of cross-examination, particularly as it affects credibility.” State v. Dolphin, supra, 195 Conn. 459. Accordingly, we conclude that the court did not abuse its discretion in excluding testimony as to three of the four names that the victim used as aliases.

The defendant next claims that the court improperly precluded him from'eliciting testimony about the context in which the aliases were used. He relies on Vogel v. Sylvester, 148 Conn. 666, 677, 174 A.2d 122 (1961), in contending that when aliases are used in connection with illegal activities such as drug dealing and prostitution, “a new and additional element is injected,” which may affect the relevance of such activities to the issue of veracity.

“A witness may be impeached by evidence of specific acts of misconduct that relate to veracity, but not by those that merely illustrate general bad behavior.” State v. Lewis, 26 Conn. App. 574, 579, 602 A.2d 618, cert. denied, 221 Conn. 923, 608 A.2d 688 (1992). Furthermore, “[o]ur Supreme Court has specifically recognized that a witness’ sexual conduct does not reflect upon his or her credibility.” State v. McIntosh, 12 Conn. App. 179, 184, 530 A.2d 191, cert. denied, 205 Conn. 808, 532 A.2d 77 (1987). “It is also generally held that a witness’ reputation for being ... a prostitute [is] not, in and of [itself], relevant to her credibility or veracity as a ■witness.” Demers v. State, 209 Conn. 143, 156-57, 547 A.2d 28 (1988).

The defendant’s reliance on Vogel is misplaced. In that case, the trial court permitted testimony as to the defendant’s extramarital affair for the pmpose of impeaching his credibility. Vogel v. Sylvester, supra, 148 Conn. 675. On appeal, our Supreme Court stated that although only a few types of sexual misconduct are indicative of a lack of veracity, “where the witness was married at the time of the act... a new and additional element is injected which may affect the question of relevancy to the issue of veracity. ... It cannot be said that [the defendant’s] course of conduct in entering into an extramarital sexual relationship . . . had no logical tendency to indicate a lack of veracity on his part.” Id., 677. By contrast, we have expressly upheld a trial court’s ruling that evidence of drug dealing is not relevant to veracity; State v. Carter, 34 Conn. App. 58, 69, 640 A.2d 610 (1994), rev’d on other grounds, 232 Conn. 537, 656 A.2d 657 (1995); and our Supreme Court has held that prostitution may be relevant to veracity only if it is related to a substantive or material issue in the case. Demers v. State, supra, 209 Conn. 157. Here, however, the victim’s work as a prostitute in a massage parlor was not related to the defendant’s criminal acts or to any substantive or material issue in the case. Moreover, the defendant cites no authority, and we have found none, for the proposition that the use of an alias while engaging in prostitution or drug dealing enhances the deception associated with the alias or makes such activities more relevant to the question of veracity. Accordingly, we conclude that it was not an abuse of discretion for the court to preclude the defendant from introducing testimony as to the victim’s prior activities as a prostitute and a gang member.

The defendant also claims that the court improperly excluded evidence that the victim used a false identification to obtain her illegal job at the massage parlor. Under the principles previously articulated, we conclude that the court did not abuse its discretion in determining that testimony regarding her illegal job was inadmissible for purposes of impeaching her credibility. See State v. McIntosh, supra, 12 Conn. App. 179; see also Demers v. State, supra, 209 Conn. 157; State v. Lewis, supra, 26 Conn. App. 579.

The defendant finally contends that the court’s preclusion of cross-examination about the victim’s prior misconduct constitutes prejudicial error. He relies for authority on United States v. Leake, 642 F.2d 715, 719 (4th Cir. 1981), and State v. Ouellette, 190 Conn. 84, 103, 459 A.2d 1005 (1983). We do not agree and find both cases inapposite.

In Leake, the United States Court of Appeals for the Fourth Circuit found that the trial court had abused its discretion in prohibiting the defense from attacking the credibility of the primary prosecution witness by eliciting testimony as to her prior fraudulent activities. United States v. Leake, supra, 642 F.2d 719. Here, however, where the defendant has not made allegations that the victim’s activities were fraudulent, Leake does not apply. The defendant also improperly relies on Ouel-lette. In that case, the trial court precluded the defense from questioning a sexual assault victim regarding her past failure to file complaints of similar sexual misconduct against others. State v. Ouellette, supra, 190 Conn. 103. Our Supreme Court concluded that “[t]he prevention, throughout the trial of a criminal case, of all inquiry in fields where cross-examination is appropriate, and particularly in circumstances where the excluded questions have a bearing on credibility and on the commission by the accused of the acts relied upon for conviction, passes the proper limits of discretion and is prejudicial error.” (Internal quotation marks omitted.) Id. Here, by contrast, the defendant does not allege that the victim’s prior misconduct had any bearing whatsoever on the crime for which he was convicted.

Moreover, the court permitted the defendant to elicit testimony that the victim had sold crack on the street, had been involved in selling drugs for several years, had a boyfriend who was in jail for selling drugs, that on one occasion the victim and the defendant arranged for the defendant to sell drugs for the victim, and that on the night of the shooting she and the defendant were doing a drug-related errand. The victim also testified that she had used a New Jersey identification even though she had never lived in New Jersey. The defendant could have elicited additional testimony that the victim had used a false identification to obtain a job, but chose not to do so. The only information relating to the victim’s prior misconduct not brought to the jury’s attention was that she previously had sold drugs while a member of a gang and had worked as a prostitute in a massage parlor.

Accordingly, we conclude that the court’s ruling did not unduly restrict the scope of the cross-examination and that it was not an abuse of the court’s discretion to preclude the defense from eliciting testimony as to three of the names the victim used as aliases, her prior misconduct as a prostitute and gang member and her use of the fake identification to obtain an illegal job. See State v. Provost, supra, 251 Conn. 256-57.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person; or . . . (5) with intent to cause physical injury to another person, he causes such injury to such person ... by means of the discharge of a firearm.”

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       The court permitted testimony about the alias used at the hospital because the police had suggested using the alias for purposes of protection.

       We also conclude that because the issue of the victim’s veracity was adequately covered by oilier questions that were allowed, the restrictions placed on her testimony were not clearly prejudicial to the defendant. See State v. Provost, supra, 251 Conn. 256-57.


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    TOWN OF GROTON v. CATHY LEWIS ET AL.
    (AC 18497)
    Foti, Landau and Stoughton, Js.

      Argued February 16
    officially released June 20, 2000

      Eustace H. Lewis, Jr., pro se, the appellant (defendant).

      RaymondL. Baribeault, Jr., with whom, on the brief, was Andrew J. Brand, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

This is an appeal from the judgment of the trial court approving a sale after a judgment of foreclosure by sale. On appeal, the defendant Eustace H. Lewis, Jr., claims that the court improperly (1) granted the committee’s motion for the approval and acceptance of the committee report, deed, and sale, and for allowance of fees and costs, and (2) failed to disqualify itself from ruling on the committee’s motion. We affirm the judgment of the trial court.

The following facts appear to be undisputed. On October 1, 1987, Eustace H. Lewis, Sr., was the owner of premises known as 40-42 Depot Road in Groton. On December 16, 1993, Eustace H. Lewis, Sr., and his conservator, Eustace H. Lewis, Jr., conveyed the premises to Cathy Lewis by a conservator’s deed. Also on December 16, 1993, Cathy Lewis granted to Eustace H. Lewis, Jr., a life use in 42 Depot Road, which was one-half of the premises.

The plaintiff, the town of Groton, commenced this action in 1995 seeking foreclosure of hens for town taxes, which had been assessed yearly since 1987. There were a number of encumbrances on the property in addition to the tax liens. Eventually, on December 1, 1997, the court rendered a judgment of foreclosure by sale. There was no appeal from that judgment. The sale did not take place on January 24,1998, as ordered in the judgment because the defendant filed for bankruptcy protection. After relief from the automatic stay was granted by the United States Bankruptcy Court, the foreclosure judgment was opened and the trial court ordered a sale on April 18, 1998. Thereafter, the court, over the defendant’s objections, approved the committee sale, deed and report, allowed the committee fees and expenses, and ordered that the purchasers be given possession. The defendant has appealed from these orders of the court.

I

The defendant claims first that the court improperly granted the committee’s motion for the approval and acceptance of the committee report, deed and sale, and for allowance of fees and costs. We disagree.

In a judicial sale, “[t]he court is the vendor and the [committee] appointed to make the sale is the mere agent of the court.” (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 120, 629 A.2d 410 (1993). A foreclosure action is an equitable proceeding, and the balancing of the equities in a particular case is a matter for the discretion of the trial court. Id.

Although he had been represented by counsel in some of the earlier proceedings, the defendant represented himself in briefing and arguing his appeal. “Where a defendant acts as his own counsel, as he has every right to do, ‘his rights are subject to and will receive the same consideration as if he had been represented by an attorney.’ . . . Such a litigant is bound by the same rules of evidence and procedure as those qualified to practice law.” (Citation omitted.) Cersosimo v. Cersosimo, 188 Conn. 385, 394, 449 A.2d 1026 (1982); see also Maloney v. Maloney, 17 Conn. App. 829, 830, 553 A.2d 1169 (1989) (per curiam). “ ‘Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.’ Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 586, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998).” State v. Vlasak, 52 Conn. App. 310, 315, 726 A.2d 648, cert. denied, 249 Conn. 912, 733 A.2d 232 (1999).

In his objection to the committee’s motion to approve the sale, the defendant claimed that (1) the cost of the sign advertising the sale listed in the report as $265 exceeded the “mandated” amount by $15, and that the cost of $310 for liability insurance for one day was unreasonable, (2) the sale price of $38,000 was more than 20 percent below the appraisal of $50,000 and (3) possession should not be ordered because of his objections to the acceptance of the committee report and to the approval of the sale, fees and costs. The court overruled the defendant’s objection.

The defendant has simply repeated in his brief the claims made in his objections to the acceptance of the committee report. He has filed an extensive appendix to his brief, which includes transcripts revealing that the court found that the insurance cost and the sale price were reasonable. These are essentially findings of fact and our review of them is “limited to whether the determination of the trier was clearly erroneous in the light of the evidence and the pleadings in the record as a whole.” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 180, 491 A.2d 1084 (1985).

Here, the court observed that the insurance cost was similar to insurance costs in other cases. Although the premises were sold for less than the appraisal amount, “an appraisal made pursuant to a foreclosure by sale is not conclusive as to the value of the property”; Danbury Savings & Loan Assn., Inc. v. Hovi, 20 Conn. App. 638, 641, 569 A.2d 1143 (1990); and the court found that the amount was reasonable. The defendant has pointed to nothing in the evidence or record to support a claim that these findings are clearly erroneous. The claims in his brief that no bill from the sign maker was presented and that there was no photograph to show that the sign was ever erected were not made in the trial court and we will, therefore, not consider them. The claim that possession should not have been granted to the purchasers is merely mentioned, but not argued, and is deemed abandoned.

II

The defendant also claims that the trial judge improperly failed to disqualify herself from ruling on the committee’s motion. Specifically, he claims that the trial judge should have disqualified herself because she formerly practiced law at the same firm where the attorney appointed committee for the sale, Michael W. Sheehan, now practices. Although this claim was not raised in the trial court, the defendant claims that he learned of it only after reading a newspaper article after the judgment, which is now on appeal, had been rendered, and seeks review pursuant to the plain error doctrine. See Practice Book § 60-5. He claims further that because the committee’s motion for approval was contested, the court should have disclosed this relationship. We disagree.

The article, which appears to have been published in the New London Day on July 25, 1997, long before the sale in the present case took place, is not a part of the record. The defendant, however, has provided a copy of it in the appendix to his brief. The article mentions, in passing, the law firm that the trial judge practiced at before her appointment to the bench in 1992. This appears to be the same firm at which Sheehan practices.

The defendant did not move to open the judgment after he became aware of the fact that Sheehan practices at the trial judge’s former law firm. In addition, there is nothing in the record to suggest that Sheehan and the trial judge practiced at that firm at the same time or that they had ever practiced together. Moreover, canons 2 and 3 of the Code of Judicial Conduct, cited by the defendant, are not applicable to these circumstances. There is no indication in the record that the judge was anything but impartial and we can discern no reason why her impartiality should be called into question.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff brought this foreclosure action against the following defendants: Cathy Lewis; Zalá Abdul Salaam; Mark Robinson; Derrick Robinson; Jane Doe; John Doe; Michael Robinson; Rodney Robinson; Shawn Robinson; Lawrence and Memorial Hospital; Groton Dental Group; the city of Groton; state of Connecticut commissioner of revenue services; Eustace H. Lewis, Jr.; First National Bank of Boston, now known as Bank of Boston; state of Connecticut department of housing; and the United States of America acting by and through the Internal Revenue Service. This appeal concerns only Eustace H. Lewis, Jr. We refer in this opinion to Eustace H. Lewis, Jr., as the defendant.

       The defendant has not appealed from the judgment of sale and has appealed from the confirmation of sale only.

       The defendant concedes that the allowance for the cost of the sign was reduced to $250.


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. WILSON J. BOLANOS
    (AC 19404)
    Schaller, Spear and Daly, Js.
    Argued December 8, 1999
    officially released June 20, 2000

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Sarah Steere, deputy assistant state’s attorney, for the appellant (state).

      Gregg W. Wagman, with whom, on the brief, was Jeffrey LaPierre, law student intern, for the appellee (defendant).
   Opinion

SPEAR, J.

The state appeals from the judgment of the trial court dismissing the informatio'n that charged the defendant, Wilson J. Bolanos, with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The state claims that the trial court improperly granted the defendant’s motion to suppress all evidence seized as a result of his arrest because the arresting officer had a reasonable and articulable suspicion that the defendant was operating under the influence and properly stopped him. We agree and reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On August 23, 1998, Officer Andre G. Parker of the Waterford police department was working general patrol on the midnight shift. At that time, he had fifteen years of law enforcement experience and had received specialized training in making drunk driving stops. In the early morning of August 23, Parker received a dispatch that an individual was leaving a nightclub known as Flashbacks. Parker was told that a nightclub employee had called to report that an intoxicated person had left the establishment and was driving a car east on Route 1. The caller further identified the car by make, model and color.

Flashbacks is on Route 1, and Parker knew that employees of Flashbacks had reported intoxicated drivers in the past. Within a few minutes of receiving the information, Parker noticed a red Pontiac Grand Am that fit the description he had received pass by his location. He followed the Grand Am for approximately one mile, but noted no irregular operation. Parker stopped the Grand Am at a safe place in the area of the Waterford Shopping Center. This area is approximately three miles from Flashbacks. The defendant was the only person in the car, and Parker noticed that his eyes were glassy and that his actions were slow and unsteady. Parker also smelled an odor of liquor on the defendant’s breath. After administering field sobriety tests, Parker arrested the defendant for operating his motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a.

The following procedural history is relevant to this appeal. The defendant filed a motion to suppress all evidence that had been obtained pursuant to the stop of his motor vehicle on the ground that Parker did not have a reasonable and articulable suspicion to stop his car pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The court granted the defendant’s motion and, after dismissing the case, granted the state permission to appeal.

The court concluded that Parker lacked a reasonable and articulable suspicion to stop the defendant because (1) prior to the stop, Parker did not know the name of the Flashbacks employee who had furnished the information, (2) Parker had no information that this particular employee had had any training in detecting intoxicated drivers, (3) the employee did not state that he had observed the defendant driving erratically, (4) there was no corroboration as to the identity of the defendant and (5) Parker did not observe any erratic driving by the defendant.

Our review of the trial court’s determination of whether reasonable and articulable suspicion existed “involves a two-part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts give rise to such a suspicion is legally correct.” State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). A stop by the police is warranted only if the officer can point to specific and articulable facts that, together with rational inferences from those facts, reasonably warrant the intrusion. State v. Cofield, 220 Conn. 38, 45, 595 A.2d 1349 (1991). The state agrees with the trial court’s finding of facts, but asserts that its legal conclusion is incorrect.

“An investigatory stop is authorized if the police officer had a reasonable and articulable suspicion that a person has committed or is about to commit a crime. State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990).” (Internal quotation marks omitted.) State v. Coardes, 51 Conn. App. 112, 115-16, 720 A.2d 1120 (1998), cert. denied, 247 Conn. 957, 723 A.2d 814 (1999), cert. denied, 526 U.S. 1094, 119 S. Ct. 1511, 143 L. Ed. 2d 663 (1999). “Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion. . . . The police officer’s decision . . . must be based on more than a hunch or speculation. . . . In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Internal quotation marks omitted.) State v. Wilkins, 240 Conn. 489, 496, 692 A.2d 1233 (1997).

We conclude that under the facts of this case, Parker had a reasonable and articulable suspicion that the defendant committed or was about to commit a crime. First, although the informant’s identity was not known to Parker at the time that he received the information, the informant’s identity was ascertainable because he was an employee of Flashbacks, a nightclub familiar to the police through past contacts. “When an informant provides sufficient information so that he may be located and held accountable for providing false information, the officer is justified in assuming the caller is being truthful in so identifying himself.” Playle v. Commissioner of Public Safety, 439 N.W.2d 747, 748 (Minn. App. 1989). In Playle, the police had a tip from an unnamed employee of a local restaurant that a drunk driver was leaving the premises. The court deemed that sufficient information to identify the informer. See Minnetonka v. Shepherd, 420 N.W.2d 887, 890 (Minn. 1998); Glover v. State, 870 S.W.2d 198, 200 (Tex. App. 1994). Moreover, citizen informers are presumptively reliable if they are identifiable. See State v. Barrett, 40 Conn. Sup. 547, 551, 525 A.2d 558 (1985), aff'd, 10 Conn. App. 667, 525 A.2d 139 (1987); see also State v. Rodriguez, 223 Conn. 127, 141 n.11, 613 A.2d 211 (1992); State v. Daley, 189 Conn. 717, 723-25, 458 A.2d 1147 (1983).

Second, it is reasonable to infer that the employee who furnished the information knew when a person was under the influence of intoxicating liquor because of his job in a nightclub that serves alcoholic beverages. Additionally, “laymen may testify as to their opinion of whether a person is intoxicated.” (Internal quotation marks omitted.) State v. Lamme, 19 Conn. App. 594, 606, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990).

Third, we note that the information was corroborated by Parker’s own observations as to the make, model, color and, more importantly, the direction the car was traveling. In State v. Anderson, 24 Conn. App. 438, 445, 589 A.2d 372, cert. denied, 219 Conn. 903, 593 A.2d 130 (1991), this court affirmed a conviction in a case in which apolice officer had stopped a vehicle after receiving an anonymous telephone call that a brown Mack garbage truck, owned by a certain sanitation company and containing two occupants, was being operated by a person whose driver’s license was suspended. This court concluded that the officers had a reasonable and articulable suspicion sufficient to stop the vehicle because of the officer’s visual confirmation of the details of the tip.

We must also note the state’s pervasive interest in preventing drunk driving and the attendant tragedies that often result from the operation of a motor vehicle by intoxicated persons. See State v. Lamme, supra, 216 Conn. 184; State v. Pierog, 33 Conn. App. 107, 111-12, 634 A.2d 301 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994). Because of this pervasive public interest, the officer was not required to wait for erratic driving or an accident to occur before pulling over the defendant.

Under these facts, the trial court improperly determined that Parker did not have a reasonable and articu-lable suspicion to stop the defendant’s vehicle. For that reason, the trial court’s legal conclusion was incorrect.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       Pursuant to General Statutes § 54-96, the trial court granted the state’s motion for permission to appeal.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       The state notes that the police report referred to the nightclub as “Flash Baxx.”


author: PER CURIAM.

text:
    HECTOR GONZALEZ v. COMMISSIONER OF CORRECTION
    (AC 18865)
    O’Connell, C. J., and Foti and Spear, Js.

    Argued November 29, 1999
    officially released June 20, 2000

      Sandra J. Crowell, special public defender, for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PER CURIAM.

The petitioner, Hector Gonzalez, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner had been convicted of capital felony murder in violation of General Statutes § 53a-54b (8) and attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a. Our Supreme Court affirmed his conviction in State v. Gonzalez, 206 Conn. 213, 537 A.2d 460 (1988).

The petitioner filed a petition for a writ of habeas corpus in the United States District Court raising the same issues that he had raised on direct appeal. That court’s dismissal of the petition was affirmed by the United States Court of Appeals for the Second Circuit. The petitioner next filed the present petition. After an evidentiary hearing, the habeas court denied relief and also denied the petitioner’s request for certification to appeal to this court. The habeas court found, inter aha, that the petitioner was totally lacking in credibility and that his testimony was inconsistent and at times contradictory.

On appeal, the petitioner claims that the habeas court improperly (1) denied his petition for certification to this court, (2) dismissed his claims of ineffective assistance of counsel and (3) failed to conclude that the Connecticut constitution requires a canvass of a defendant who elects not to testify.

“Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

After a thorough review of the record and briefs and having heard from the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal from the denial of his habeas corpus petition was a clear abuse of discretion or that an injustice has been done. See id.; Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.


text:
    SUZANNE M. SEARLES v. NATALIE SCHULMAN ET AL.
    (AC 19075)
    Schaller, Pellegrino and Dupont, Js.
    Argued March 28
    officially released June 20, 2000

      Suzanne M. Searles, pro se, the appellant (plaintiff).

      Nicole D. Dorman, for the appellees (defendants).
   Opinion

PELLEGRINO, J.

The plaintiff, Suzanne M. Searles, appeals from the trial court’s denial of her motion to open the judgment dismissing her complaint because of her failure to appear at a trial management conference. We affirm the order of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On April 24, 1995, the plaintiff, pro se, instituted the present action against the named defendant, Natalie Schulman, alleging an assault in a local grocery store. The complaint also named a codefendant who was a member of the West Hartford board of education (board), claiming that the board illegally had terminated her contract as a teacher. On the day following the filing of the complaint, April 25, 1995, the plaintiff filed an amended complaint, the first of many amended complaints, adding four additional members of the board as defendants. The allegations in the amended complaint concerning the claim of wrongful termination gave rise to the board’s motion to strike, which was granted in August, 1995. On July 18, 1995, the plaintiff again filed an amended complaint seeking redress for her alleged wrongful termination. The board then filed another motion-to strike that was granted as to the wrongful termination claim. Three additional amended complaints thereafter were filed.

On April 1,1996, the plaintiff sought to join this action with the matters pending in this court and other actions pending in the federal court system. On May 10, 1996, the plaintiff sought to join as parties the River Mead Homeowners’ Association, Imagineers, and the Windsor Management Company. On May 23, 1996, the plaintiff again sought to join the board and the assistant superintendent of schools for the town of West Hartford. On November 26, 1996, the plaintiff attempted to consolidate into the present case a foreclosure action pending against her. All of those motions were denied.

On January 6, 1997, the named defendant filed an answer and special defense. Before this matter was scheduled for trial, there were not fewer than 224 docket entries, representing both the coding of motions and court action. In addition, the record discloses that eight judges were called upon to deal with the voluminous pretrial motions. The court set a trial date of September 25, 1998, and scheduled a trial management conference for September 8, 1998. The plaintiff filed a motion to postpone the scheduled trial date, but that motion was denied on August 24, 1998. The plaintiff failed to appear at the trial management conference scheduled for September 8,1998, and it was because of her failure to appear that the court dismissed this case.

On October 26, 1998, the plaintiff filed a motion to open the judgment of dismissal, which motion the court denied on November 9,1998. The plaintiff has appealed from this order. The sole issue on appeal is whether the trial court abused its discretion when it refused to open the judgment dismissing the present action following the plaintiffs failure to appear at the trial management conference.

“The denial of a motion to open is an appealable final judgment. . . . Although a motion to open can be filed within four months of a judgment . . . the filing of such a motion does not extend the appeal period for challenging the merits of the underlying judgment unless filed within the [twenty day period provided by Practice Book § 63-1]. . . . When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused it discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment.” (Citations omitted; internal quotation marks omitted.) Alix v. Leech, 45 Conn. App. 1, 3-4, 692 A.2d 1309 (1997).

The plaintiff is not able to attack the trial court’s decision dismissing her complaint because she failed to file an appeal within twenty days after her complaint was dismissed on September 11, 1998, and the motion to open the judgment was also not filed within the twenty day period. See Charbonneau v. Charbonneau, 51 Conn. App. 311, 312, 721 A.2d 565 (1998), cert. denied, 247 Conn. 964, 724 A.2d 1125 (1999) (precluding party from appealing merits of case because neither motion to open nor appeal from underlying judgment was filed within twenty day appeal period). The only issue for us to decide, therefore, is whether the trial court abused its discretion in failing to open the judgment.

It is well established that “[a] motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did. ” (Citations omitted; internal quotation marks omitted.) Alix v. Leech, supra, 45 Conn. App. 4; see also Grunschlag v. Ethel Walker School, Inc., 190 Conn. 679, 684, 462 A.2d 1 (1983) (action of court in refusing to open judgment generally will not be disturbed on appeal unless court has abused its discretion); Danise v. Budget Rent-A-Car of Westchester, Inc., 41 Conn. App. 297, 299, 675 A.2d 464 (1996) (“[w]here a court has the power to open a judgment, its action represents the exercise of discretion . . . [and this court] will not disturb that decision on appeal unless the court acted unreasonably and in clear abuse of its discretion”).

Although the plaintiff in her motion to open dated October 26, 1996, stated that she was unable to attend the scheduled trial management conference because of out of state medical “appointments,” there is nothing in the record verifying the appointments or indicating why these appointments could not be rescheduled. The other reason advanced by the plaintiff in her motion, also unsubstantiated, was that the wrongful termination of her teaching contract had left her homeless. The plaintiff has not met her burden of demonstrating that the court abused its discretion. See Burke v. Ruggerio, 24 Conn. App. 700, 706, 591 A.2d 453, cert. denied, 220 Conn. 903, 593 A.2d 967 (1991). After examining the entire record and making every reasonable presumption in favor of the court’s action; Brunswick School, Inc. v. Hutler, 53 Conn. App. 455, 460, 730 A.2d 1206 (1999); we conclude that the court did not abuse its discretion in denying the motion to open the judgment of dismissal.

The denial of the plaintiffs motion to open the judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff had instituted prior actions alleging wrongful termination of her teaching contract, which were resolved in favor of the board. Searles v. Board of Education, 40 Conn. App. 901, 668 A.2d 399, cert. denied, 236 Conn. 917, 673 A.2d 1143 (1996); Searles v. Board of Education, 40 Conn. App. 902, 668 A.2d 399, cert. denied, 236 Conn. 916, 673 A.2d 1142 (1996). Both of these matters were on appeal in this court at the time the present action was instituted.

       The additional amended complaints were dated October 30, 1995, April 1, 1996, and April 12, 1996.

       According to the plaintiffs motion for joinder, there were two matters pending in federal court.

       According to the plaintiffs motion for joinder, these entities were defendants in an unrelated action filed by the plaintiff: Searles v. River Mead Homeowners’ Assn., Superior Court, judicial district of Hartford, Docket No. CV-96-0557401-S.

       According to the plaintiffs motion for joinder, the foreclosure action was River Mead Condominium Assn., Inc. v. Searles, Superior Court, judicial district of New Britain, Docket No. 95-0467666-S.

       Because the cases against all of the codefendants were dismissed, the defendant, when mentioned herein, refers to Schulman only.

       The plaintiff raises several other claims, which we need not address because our resolution of this claim is dispositive.

       Practice Book § 63-1 (a) provides in relevant part that “an appeal must be filed within twenty days of the date notice of the judgment ... is given. ...”


text:
    LISA BARBIERI v. DENNIS GUAGLIANONE
    (AC 18508)
    O’Connell, C. J., and Landau and Daly, Js.

    Argued February 17
    officially released June 20, 2000

      Dennis J. Guaglianone, pro se, the defendant (appellant).

      Jeffrey D. Ginzberg, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PER CURIAM.

The defendant, Dennis Guaglianone, appeals from the postjudgment orders rendered in this marriage dissolution action. The defendant raises eleven issues and asks us to reverse the judgment of the trial court. We affirm the judgment of the trial court.

A trial court, in deciding family matters, is vested with broad discretion. Yontef v. Yontef 185 Conn. 275, 279, 440 A.2d 899 (1981); Cotton v. Cotton, 11 Conn. App. 189, 193, 526 A.2d 547 (1987). Appellate review of the exercise of that discretion is limited to determining whether the trial court correctly applied the law and whether the court could reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985). “[E]very reasonable presumption must be given in favor of its correctness.” (Internal quotation marks omitted.) Id., 206. The appearance and attitude of the parties and all of the surrounding factual circumstances are uniquely significant in domestic relations cases. Yontef v. Yontef, supra, 279.

A dissolution action is essentially equitable in nature. LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983); Seymour v. Seymour, 180 Conn. 705, 710, 433 A.2d 1005 (1980). The trial court’s equity powers are essential to the task of fashioning relief out of the infinite variety of factual situations presented in family cases.

Decision making in family cases requires “flexible, individualized adjudication of the particular facts of each case.” This court will not substitute its own opinion for the factual findings of the trial court. Hill v. Hill, 35 Conn. App. 160, 166, 644 A.2d 951, cert. denied, 231 Conn. 914, 648 A.2d 153 (1994), cert. denied, 513 U.S. 1059, 115 S. Ct. 669, 130 L. Ed. 2d 603 (1995). The trial court has a distinct advantage over a reviewing court in determinations of fact in domestic relations matters because all of the surrounding circumstances, including the appearance and attitude of the parties, axe so important. Weinstein v. Weinstein, 18 Conn. App. 622, 625, 561 A.2d 443 (1989). The trial court has the “unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold printed record which is available” to the reviewing court. Lupien v. Lupien, 192 Conn. 443, 442-46, 472 A.2d 18 (1984), citing Styles v. Tyler, 64 Conn. 432, 450, 30 A. 165 (1894); Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982).

In reviewing the record and the arguments presented in this appeal, it is clear that the trial court properly applied the law and reasonably rendered its orders on the basis of all of the facts.

The judgment is affirmed.

       The defendant’s issues include matters of evidence, trial court procedure, attorney’s fees and contempt.


text:
    IN RE CHRISTOPHER L. ET AL.

    (AC 19723)
    Landau, Zarella and O’Connell, Js.
    Argued March 21
    officially released June 20, 2000

      Maureen E. Donahue, for the appellant (respondent mother).

      Maureen D. Regula, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Thomas S. Becker, for the minor children.

       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 are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her three minor children. She challenges the court’s determination that the petitioner, the commissioner of children and families, proved by clear and convincing evidence (1) that the children had been denied, by reason of an act or acts of parental commission or omission, the care, guidance, or control necessary for the children’s physical, educational, moral or emotional well-being, (2) that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the children, she could assume a responsible position in the lives of the children, and (3) that termination of the respondent’s parental lights would be in the best interests of the children.

Our examination of the record and briefs and consideration of the arguments of the parties persuades us that the judgment of the court should be affirmed. The court issued a memorandum of decision setting forth detailed findings of fact. “It is well established that an appellate court cannot retry the facts. Our review is limited to determining whether the court’s judgment was clearly erroneous or contrary to law.” In re Martin K., 56 Conn. App. 10, 11, 741 A.2d 10 (1999); see also In re Luis C., 210 Conn. 157, 169, 554 A.2d 722 (1989). We, therefore, will not disturb the court’s factual findings, as they are not clearly erroneous.

Additionally, the court properly considered the relevant case law and weighed the factors enumerated in the statutes, and we therefore find the court’s conclusions fully supported by the record. In re Felicia D., 35 Conn. App. 490, 504, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994).

The judgments are affirmed.

       The court terminated the parental rights of the respondent mother, who participated in the termination proceedings, and two putative fathers, who did not appear at trial. Only the respondent mother has appealed. We refer to her as the respondent in this opinion.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. GABRIEL SANCHEZ
    (AC 18878)
    Mihalakos, Zarella and Daly, Js.
    Argued March 1
    officially released June 20, 2000

      Richard Hustad Miller, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Gabriel Sanchez, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the second degree in violation of General Statutes § 53a-102 (a). On appeal, the defendant claims that (1) the trial court improperly admitted testimony regarding a threat that the defendant made against a witness and (2) the admission of the threat testimony was harmful error. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 7,1994, at approximately 9 p.m., Victor Mason was exiting a restaurant in Hartford when the defendant, whom Mason had known for about five or six months, approached him. The defendant asked Mason if he had seen Troy Hunter, someone with whom Mason had had a prior confrontation. The defendant recruited Mason to help him find Hunter.

Mason informed the defendant that Hunter was at the apartment of Shari Gallagher, Mason’s former girlfriend. Mason knew that Hunter had stayed at Gallagher’s apartment on occasion. Mason and the defendant walked to Gallagher’s apartment intending to confront Hunter. On the way, they passed Mason’s uncle, Michael Fitch, who joined them. All three men had a mutual dislike for Hunter. Gallagher observed them through her window prior to their entry into her apartment building.

The three men entered the apartment building and walked to the third floor. Mason and the defendant stood by Gallagher’s door while Fitch stood in the hallway stairwell. Mason proceeded to knock on the door, but Gallagher refused to open it. The defendant then kicked the door open, and he and Mason entered the apartment and inquired of Gallagher as to the whereabouts of Hunter. Mason displayed a handgun in the apartment. Gallagher, who had her daughter beside her, said that Hunter was not there and told the men to leave or she would call the police. The men refused to leave, and Gallagher called out of her window to the building’s security guards to call the police.

Mason, Fitch and the defendant then left the apartment building and went their separate ways. All three men were arrested a short time later, and Gallagher identified all three of them that same night. On April 13, 1998, the defendant was found guilty of burglary in the second degree and on August 31, 1998, was sentenced to ten years incarceration, execution suspended after five years, with five years probation. This appeal followed. Additional facts will be discussed where necessary to the resolution of this appeal.

I

The defendant first claims that the court improperly admitted testimony regarding a threat that the defendant made against a witness. The defendant claims that this testimony was inadmissible evidence of other misconduct because he did not initiate any inquiry that would have allowed its admission and because the evidence was more prejudicial than it was probative. We do not agree.

The following facts are necessary to the resolution of this issue. At trial, the state presented the testimony of Mason, a participant in the burglary. Mason had pleaded guilty to burglary in the first degree prior to the defendant’s trial. During direct examination, Mason admitted that when he pleaded guilty in court, he told the judge that he did not possess or see a handgun during the burglary. On cross-examination, defense counsel questioned Mason regarding his reason for denying possession of the handgun. At the time he entered his plea, Mason attempted to explain that he was young and scared, and had never before been to court. Defense counsel challenged Mason by asking him whether he knew, regardless of his youth and inexperience, that it was wrong to lie to the judge. Mason responded that he “didn’t like know exactly what to do in that predicament, so I was trying to save myself and my codefendants.”

On redirect examination, the state attempted to rehabilitate Mason by asking whether, at the time he entered his plea, he had any fear of the defendant. Mason testified that he had a discussion with the defendant about pleading guilty in which the defendant told Mason to “cop out” or risk getting hurt. Mason explained that he understood “getting hurt” to mean that he would “get jumped.” Mason testified that the conversation had influenced how he described to the judge what occurred during the burglary. During this portion of the state’s redirect examination of Mason, the defendant objected three times, once on the ground of relevance, once claiming that the questioning was outside of the scope of cross-examination and once on both of those grounds. The court overruled the objections without explanation.

“The basic purpose of redirect examination is to enable a witness to explain and clarify relevant matters in his testimony which have been weakened or obscured by his cross-examination. . . . The scope of redirect examination, however, is limited by the subject matter of cross-examination.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 205 Conn. 638, 666, 534 A.2d 1199 (1987). “The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Oliver, 48 Conn. App. 41, 51, 708 A.2d 594, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998).

In this case, the court properly exercised its discretion in allowing the state to introduce evidence of the conversation between the defendant and Mason regarding Mason’s guilty plea because the defense counsel opened the door to that evidence. The state did not elicit the testimony from Mason regarding the defendant’s threat until redirect examination, and questions on this subject during the redirect examination were in response to the defendant’s question on cross-examination as to why Mason had lied to the judge during his plea hearing. “The litigant who initially elicits testimony on a certain issue is said to have opened the door to rebuttal by the opposing party.” (Internal quotation marks omitted.) State v. Jones, supra, 205 Conn. 666. Through its attack on Mason’s credibility, defense counsel opened the door for the court to admit evidence of other factors that influenced Mason’s guilty plea, including the defendant’s threat made to him.

Once the defendant opened the door to the admission of the threat evidence, the court properly determined that the evidence was more probative than prejudicial. Clearly, the conversation between Mason and the defendant was probative because it enabled Mason to further explain what motivated him to plead guilty in the manner that he did. Furthermore, defense counsel attempted to undermine Mason’s credibility by suggesting that he knowingly lied to the court. Consequently, the state was justified in rehabilitating Mason. In doing so, the state properly questioned Mason further about what influenced his plea, which, in turn, resulted in testimony about the conversation between Mason and the defendant. This evidence was, therefore, probative of Mason’s credibility.

The defendant contends that the evidence of the conversation between the defendant and Mason was prejudicial because the defendant’s threat was almost identical to the offense being tried. We are not persuaded. The crime the defendant intended to commit in Gallagher’s apartment was an assault, while the crime the defendant may have committed in his conversation with Mason was threatening. Also, the time, place and manner of the defendant’s threat was not in any way similar to that of the assault he intended to commit. The defendant’s threat was made to Mason in the courthouse lockup while the intended assault occurred in Gallagher’s apartment. As a result, the defendant’s threat made to Mason was different from the crime the defendant intended to commit upon entering Gallagher’s apartment, and the defendant’s contention, therefore, is without merit.

Finally, the defendant never requested a cautionary jury instruction on the use of the threat or other misconduct evidence, nor did he make this request when the evidence was admitted or in his request for final instructions. “[W]here counsel does not choose to make . . . a [curative] request or to seek a mistrial, he presumptively does not view the remarks as so prejudicial that his client’s right to a fair trial is seriously jeopardized.” State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983). Furthermore, the failure to request cautionary instructions weakens the defendant’s claim of prejudice. See State v. Conroy, 194 Conn. 623, 628, 484 A.2d 448 (1984). We therefore conclude that the evidence of the conversation between the defendant and Mason was more probative than prejudicial and that the court did not abuse its discretion in admitting that evidence.

II

The defendant next claims that the admission of the threat testimony was harmful error. We do not agree.

“[T]he burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant.” State v. McIntyre, 242 Conn. 318, 329, 699 A.2d 911 (1997). “One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result. ... A second line of cases indicates that the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict.” (Internal quotation marks omitted.) State v. McNair, 54 Conn. App. 807, 814, 738 A.2d 689, cert. denied, 251 Conn. 913, 739 A.2d 1249 (1999).

Under either analysis, the admission of the threat testimony was not improper nor was there substantial prejudice such that confidence in the fairness of the verdict was undermined. As we concluded in part I of this opinion, the threat evidence was properly admitted at trial and was more probative than it was prejudicial. The defendant’s claim that the court’s admission of threat evidence was a harmful error is, therefore, without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       Fitch was Gallagher’s friend and neighbor.

       The cases against Mason and Fitch were resolved without trials. Mason pleaded guilty to burglary in the first degree and risk of injury to a child. Fitch pleaded guilty to being an accessory to burglary in the second degree.


author: SCHALLER, J.

text:
    IN RE TERRANCE C.

    (AC 19491)
    Schaller, Hennessy and Daly, Js.
    Argued January 18
    officially released June 27, 2000

      Walter D. Hussey, for the appellant (respondent father).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

       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 are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SCHALLER, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his son on the ground of abandonment. On appeal, the respondent claims that the trial court improperly (1) found that the respondent abandoned his son, (2) determined that the petitioner, the commissioner of children and families, established by clear and convincing evidence that reasonable efforts to unify the respondent with his son were made and (3) failed to make factually supported and legally correct dispositional findings. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The respondent’s child was born on March 12, 1996. He was removed from his mother’s care when he was a few days old and placed with his maternal great grandmother with whom he resides today. The respondent visited the hospital upon the birth of his son, but did not see the child. At that time, the respondent was seventeen years old and had not completed high school. During the pending proceedings, the respondent was sporadically employed and periodically incarcerated. His last contact with the petitioner was on April 22, 1996. He wrote letters to the child at Christmas, his birthday and Thanksgiving; the maternal great grandmother sent pictures of the child to the respondent.

On March 17,1996, the petitioner filed a neglect petition with respect to the child. Thereafter, on August 20, 1996, the child was adjudicated neglected and committed to the care of the petitioner. On August 19, 1997, the court extended the commitment and found that further reunification efforts between the child and his mother and the respondent were not appropriate. The respondent did not attend those hearings.

On February 11, 1998, the petitioner filed a termination of parental rights petition against the parents with respect to the child, alleging that the respondent abandoned the child in the sense that he failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the child pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (A). The trial concerning termination was held on February 11, 1999. At that time, the respondent signed an acknowledgment of paternity. The child has never been in the custodial care of either parent.

In its memorandum of decision dated March 10,1999, the trial court found by clear and convincing evidence that the child was abandoned by the respondent father in the sense that the father has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child. See General Statutes (Rev. to 1997) § 17a-112 (c) (3) (A). The court further found that the statutory grounds for termination had existed for more than one year as required by General Statutes - (Rev. to 1997) § 17a-112 (c) (3) and made the mandatory findings required by General Statutes (Rev. to 1997) § 17a-l 12 (e), now (d). Specifically, the trial court found that the respondent was offered visits and administrative case reviews, but did not act upon those offers. Further, no expectations were set for the respondent due to his lack of involvement in his son’s life. The trial court then terminated the parental rights of both parents, finding that it was in the best interest of the child. This appeal followed. Additional facts and procedural history will be set forth as necessary.

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous.” (Internal quotation marks omitted.) In re Hector L., 53 Conn. App. 359, 364, 730 A.2d 106 (1999). “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) Id., 364-65.

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the disposi-tional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child.” (Internal quotation marks omitted.) Id., 364.

I

The respondent claims that the trial court; improperly found that he abandoned his son because his conduct did not amount to abandonment. The respondent claims that his conduct must be judged in light of the fact that he was not given any assistance, a service agreement or a statement of expectations. We disagree.

“Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare. In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 14, 438 A.2d 801 (1981).” In re Kezia M., 33 Conn. App. 12, 18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993). “Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child.” (Internal quotation marks omitted.) In re Drew R., 47 Conn. App. 124, 129, 702 A.2d 647 (1997). “Section 17a-112 (b) (1) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child.” (Internal quotation marks omitted.) In re Roshawn R., 51 Conn. App. 44, 53, 720 A.2d 1112 (1998).

In this case, the respondent’s contact with his son was minimal at best. Although the respondent attempted to visit the child when he was bom, he did not actually see the child. He made one further attempt to see the child, one week later. The respondent has sent the child only a few items of correspondence and has not shown concern regarding the child’s progress, including walking, talking or religious exposure.

“The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.” (Internal quotation marks omitted.) Id.

The respondent’s incarceration undoubtedly has hindered his ability to provide these essentials for his son. Incarceration alone, however, is not sufficient to establish the statutory grounds for abandonment. “[T]he inevitable restraints imposed by incarceration do not in themselves excuse a failure to make use of available though limited resources for contact with a distant child.” In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982); see also In re Hector L., supra, 53 Conn. App. 367-68 (incarcerated respondent could not avail himself of rehabilitative programs available through department because of incarceration, but that did not excuse failure to use resources offered by department of correction).

In this case, the respondent did not acknowledge paternity until the time of trial, some three years after the child was born. An earlier social study conducted by the petitioner, referring to the respondent as the “putative” father, indicated that he had not acknowledged paternity and had expressed interest in seeing his child only once since the child’s birth. Also, the respondent’s mother contacted the petitioner expressing uncertainty regarding paternity. The social worker advised her that the respondent must request a paternity test conducted by the correctional institution. Neither the respondent nor his mother pursued this course of action.

It is evident, therefore, that the respondent failed to manifest a reasonable degree of interest, concern or responsibility for his son’s welfare. In light of these findings, as supported by the record, we conclude that the trial court’s conclusion that the respondent abandoned the child was not clearly erroneous.

II

The respondent next claims that the trial court improperly determined that the petitioner established by clear and convincing evidence that reasonable efforts were made to unify the respondent with his son. We disagree.

General Statutes (Rev. to 1997) § 17a-112 (c) (1) requires that the department of children and families make “reasonable efforts ... to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 that such efforts are not appropriate . . . .” On August 19, 1997, the court found that further reunification efforts were no longer appropriate. Because this finding was made, the petitioner was not required to continue reunification efforts.

“Before a termination of parental rights can be granted, the trial court must be convinced that the department has made reasonable efforts to reunite the child with his or her family.” (Internal quotation marks omitted.) In re Hector L., supra, 53 Conn. App. 371. “The trial court’s ruling on [reasonable efforts] should not be disturbed on appeal unless, in light of the evidence in the entire record, it is clearly erroneous.” Id. “The question of whether the commissioner was required to prove that the department had made reasonable efforts to reunify [the family] under the applicable statutory scheme is a matter of statutory interpretation, which is a matter of law, requiring plenary review.” (Internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 690, 741 A.2d 873 (1999).

Notwithstanding the finding that further reunification efforts were no longer appropriate or required, we note that the petitioner had made efforts to unify the respondent with his child. In July, 1997, the petitioner contacted the respondent with regard to his child, but the respondent did not pursue the services offered. Also, the petitioner contacted the respondent’s correctional institution concerning his options with regard to paternity. A second social worker met with the respondent and questioned him regarding his future plans for the child. The respondent did not inquire about, nor did he attempt to proceed with, scheduled visitations. In fact, the respondent indicated that he wished that his mother would care for the child.

Considering the lack of interest expressed by the respondent, the department made reasonable reunification efforts. We conclude, for the foregoing reasons, that the trial court’s finding that the petitioner proved by clear and convincing evidence that the department made reasonable reunification efforts was not clearly erroneous.

Ill

Finally, the respondent claims that the trial court failed to make factually supported and legally correct dispositional findings. We disagree.

“During the dispositional phase of the hearing, the evidence must show by a clear and convincing standard that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at that decision, the trial court is mandated to consider and make written findings regarding the seven factors delineated in General Statutes (Rev. to 1997) § 17a-112 (e), now § 17a-112 (d).” In re Galen F., 54 Conn. App. 590, 597, 737 A.2d 499 (1999). Pursuant to § 17a-112 (e), the trial court, in its memorandum of decision, made specific findings regarding the seven enumerated factors. Our discussion is limited to the first and second factors, which require the trial court to make written findings regarding “[t]he timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent”; General Statutes (Rev. to 1997) § 17a-112 (e) (1); and “whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended . . . .” General Statutes (Rev. to 1997) § 17a-112 (e) (2).

The court found by clear and convincing evidence that the respondent was offered visits and administrative case reviews, but he did not act on those offers. The court further found by clear and convincing evidence that there was a previous court determination that further reunification efforts were no longer appropriate. In addition, the court found that the petitioner made reasonable efforts to reunify the family under all the circumstances prior to the entry of the court order ending such efforts despite this prior determination.

The court’s findings concerning the petitioner’s efforts at reunification are factually supported by the record and are not clearly erroneous. Two social workers contacted the respondent to no avail. The correctional institution was also contacted with regard to the paternity issue. The respondent, himself, made no attempt to contact the petitioner. In fact, his last contact with the petitioner was on April 22, 1996. Also, the order of the court determining that further reunification efforts were no longer appropriate was entered on August 19, 1997.

In light of the trial court’s findings and conclusions and on the basis of our thorough review of the record, we are not persuaded, considering the circumstances of this case, that the trial court’s conclusion that the petitioner made reasonable efforts to reunite the family was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court terminated the parental rights of both respondent parents. The respondent mother has not appealed from that judgment. We refer in this opinion to the respondent father as the respondent.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: "The Superior Court, upon hearing and notice . . . may grant a [termination] petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Depart ment of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding 1 hat the parent is unable or unwilling to benefit from reunification efforts provided such finding is not required if the court has determined at a hearing pursuant to subsection (b) of section 17a-110 that such efforts are not appropriate, (2) that termination is in the best interest of the child, and (3) that over an extended period of time, which . . . shall not be less than one year ... (A) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . .”

       General Statutes (Rev. to 1997) § 17a-112 (e) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to a<(just his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance or regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”