author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. GREGORY WILLIAMS
    (12769)
    Foti, Lavery and Landau, Js.
    Submitted October 28, 1996
    officially released February 11, 1997

      Deborah DelPrete Sullivan, assistant public defender, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda N. Howe, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

This matter is before us on remand from our Supreme Court. State v. Williams, 237 Conn. 748, 679 A.2d 920 (1996). The defendant originally appealed to this court from a judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes § 53a-49 and § 53a-54a (a), and assault in the first degree in violation of General Statutes § 53a-59 (a) (l).

In his original appeal to this court, the defendant asserted that (1) the trial court improperly charged the jury that the law recognizes that a person can simultaneously possess both the intent to cause serious physical injury to a person and the intent to cause that person’s death, (2) the evidence was insufficient to support the convictions, (3) the trial court improperly allowed prior uncharged misconduct evidence to be introduced against the defendant, (4) the trial court abused its discretion when it allowed Michael Werdmann, the defendant’s physician, to testify as a rebuttal witness, (5) the trial court improperly submitted to the jury an alternative means of committing attempted murder for which there was no support in the evidence, and (6) the trial court improperly failed to instruct the jury on intoxication, sua sponte. We resolved the first and second issues but declined to afford him review on the other issues. State v. Williams, 39 Conn. App. 18, 21-25, 663 A.2d 436 (1995), rev’d, 237 Conn. 748, 679 A.2d 920 (1996).

Our Supreme Court granted certification limited to the following issue: “[D]id the Appellate Court properly conclude that, for purposes of General Statutes § § 53a-54a and 53a-59 (a) (1), intent to cause death and intent to cause serious physical injury are mutually exclusive states of mind?” State v. Williams, 235 Conn. 920, 921, 665 A.2d 909 (1995). The Supreme Court concluded that “a defendant can simultaneously intend to cause the death of, and intend to cause serious physical injury to, the same victim.” State v. Williams, supra, 237 Conn. 757. The Supreme Court reversed the judgment of this court and remanded the case to us for further proceedings according to law. Id. We now affirm the judgment of the trial court.

The facts that the jury could have reasonably found in this case are stated in both State v. Williams, supra, 237 Conn. 748, and State v. Williams, supra, 39 Conn. App. 18. Furthermore, any other facts relevant to this appeal will be mentioned as each of the defendant’s claims are addressed by this court.

The defendant’s first claim, concerning concurrent mental states for attempted murder and assault in the first degree, was resolved by our Supreme Court. State v. Williams, supra, 237 Conn. 748.The defendant’s second claim, which concerned the sufficiency of the evidence, was resolved by this court in our previous decision. State v. Williams, supra, 39 Conn. App. 23. This claim was not part of the issue certified by our Supreme Court and is thus res judicata. See CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 397-98, 685 A.2d 1108 (1996).

The defendant’s third claim is that the trial court improperly admitted evidence that the defendant threatened the victim’s father the day before the assault. We disagree. At trial, evidence was introduced that on the day before the assault the defendant told the victim’s father, “You’re going to be sorry—you and your daughter will be sorry.” It is well established that evidence of prior misconduct may be allowed for the purpose of proving intent, identity, malice, motive, or a system of criminal activity. See State v. Braman, 191 Conn. 670, 675-76, 469 A.2d 760 (1983). Moreover, evidence proving the defendant’s motive will significantly strengthen the state’s case, and is therefore admissible. State v. Harris, 182 Conn. 220, 224, 438 A.2d 38 (1980). Furthermore, we will reverse the trial court’s ruling only “ ‘where abuse of discretion is manifest or where an injustice appears to have been done.’ ” State v. Ramsunder, 204 Conn. 4, 15, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

In this case, the state bore the burden of proving that the defendant possessed the intent to kill and the intent to cause serious physical injury, as required by §§ 53a-54a and 53a-59 (a). The jury could have inferred from the defendant’s threatening the victim’s father on the day before the attack that the attack was planned, arising from the deteriorating relationship between the defendant and the victim. We conclude that this evidence was relevant to establish both the motive and intent of the defendant, and the trial court did not abuse its discretion by admitting it.

The defendant’s fourth claim is that the trial court improperly admitted the rebuttal testimony of Werdmann. The defendant contends that the state should have presented this evidence during its case-in-chief. We find that this claim is without merit.

During trial, the defendant presented the testimony of a physician, Jeremy August. August’s testimony concerned the use of the drug Ativan, which the defendant took the day before the assault. August testified that he would not have prescribed Ativan to someone in the defendant’s condition because it could extenuate depressive symptoms and impair a person’s reasoning. Following August’s testimony, the defendant testified that he had taken Ativan the night before the assault. The defendant also testified that on the day of the assault he felt sluggish and depressed.

After the defense had rested, the state called Werdmann, who had prescribed Ativan to the defendant on the night before the assault. At that point the defendant objected, arguing that the state should have presented Werdmann’s testimony during its case-in-chief. The trial court proceeded to overrule the defendant’s objection, yet informed the defendant that he was free to object to individual questions to keep the testimony within permissible parameters. Werdmann then testified that the two milligram dosage of Ativan that he prescribed for the defendant is a “standard dosage” for someone of the defendant’s size. Furthermore, Werdmann testified that the Bridgeport Hospital records concerning the defendant’s treatment noted no ill effects from the medication and listed as normal the defendant’s ability to concentrate and speak on the morning of the assault.

It is well settled that “ ‘[t]he admission of rebuttal evidence is ordinarily within the sound discretion of the trial court.’ ” State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986). Moreover, “[rjebuttal evidence is that which refutes the evidence presented by the defense, rather than that which merely bolsters the state’s case .... We will not disturb the trial court’s ruling absent a clear abuse of discretion ... or unless it appears that an injustice has been done.” (Citations omitted, internal quotation marks omitted.) State v. Young, 29 Conn. App. 754, 763, 618 A.2d 65 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993).

At trial, the issue of whether drugs affected the defendant’s mental state was introduced during the defendant’s case. The state was not obligated to address this issue in its case-in-chief. Therefore, it was proper for the trial court to give the state an opportunity to rebut the defendant’s evidence on this issue, which the state did by presenting Werdmann’s testimony.

The defendant’s fifth claim is that the trial court incorrectly charged the jury on both subsections of the attempt statute, § 53a-49 (a) (1) and (2). The defendant concedes that he failed to request a charge on attempt, to request a specific unanimity charge or to take an exception to the charge delivered by the trial court. The state argues that this issue is not reviewable because the claim is nonconstitutional, and that the claim is without merit because there was sufficient evidence to prove both statutory alternatives. Moreover, even if there was insufficient evidence on one of the alternatives, the defendant did not prove harm. We agree with the state that the federal claim is not reviewable under the second prong of State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989), because the claim is not of constitutional dimension. This is consistent with State v. Chapman, 229 Conn. 529, 543-44, 643 A.2d 1213 (1994), which held that due process is not offended by a general verdict of guilty that follows a charge on two alternative statutory bases for a crime, even though one of the alternatives was not supported by the evidence. The court stated, “We therefore consider, on a nonconstitutional basis, the harmfulness of the impropriety in the trial court’s instruction.” (Emphasis added.) Id., 544.

We find it unnecessary to review the defendant’s state constitutional claim because a review of the record and transcripts reveals there was an abundance of evidence to support both of the attempt alternatives. In State v. Green, 194 Conn. 258, 275, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985), our Supreme Court stated: “Under the evidence, the jury could have found this defendant guilty under both, although one would have been sufficient. The law recognizes, as it must, that the method of committing or attempting to commit a crime varies with the particular crime involved; some crimes may be attempted or executed with greater instantaneity than others.”

“Under 53a-49 (a) (1), a defendant acting with the required mental state is guilty of the crime of attempt where he ‘[ijntentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be . . . .’On the evidence, the jury could reasonably have found that his intentional conduct, which was beyond mere preparation, was to perform acts and accomplish a result that would constitute the crime charged inasmuch as the circumstances for doing so were, in his belief, accommodating to his criminal purpose. Moreover, under § 53a-49 (a) (2), a defendant with the required mental state is guilty of the crime of attempt when he ‘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.’ To constitute a ‘substantial step,’ the conduct must be ‘strongly corroborative of the actor’s criminal purpose.’ ” Id., 276.

The jury could have reasonably found that the defendant struck the victim in the head with a baseball bat a sufficient number of times to believe that she would die. The attempt to kill might have failed because the victim instantly received medical care that saved her life or because he defendant misjudged the number of blows with the bat it would take to kill the victim. We conclude that there was overwhelming evidence to satisfy both alternatives.

The defendant’s sixth claim is that the trial court improperly failed to charge the jury, sua sponte, on the issue of intoxication. We find that this claim is without merit.

The defendant never requested a jury instruction on the issue of intoxication. In addition, when the trial court: inquired about the type of charge that the defendant preferred, the defendant remarked that he would not be requesting instructions on extreme emotional distress, intoxication or self-defense. The defendant requested only the standard instruction, given the crimes charged. At trial, the defendant’s counsel stated, “I think that if the court just charges as they would normally on an intent and charge on the lesser included ... I think then that the jury can marshal the evidence and the facts as they choose to determine whether or not [the defendant] had the applicable elements to commit the offense charged.”

Generally, trial courts do not have an obligation, sua sponte, to instruct on any theory of defense that the evidence might support. See State v. Jacobowitz, 194 Conn. 408, 411-12, 480 A.2d 557 (1984) (trial court did not err when it did not charge, sua sponte, on extreme emotional disturbance); State v. Parham, 174 Conn. 500, 509-11, 391 A.2d 148 (1978) (trial court did not err in failing to charge on alibi, sua sponte); State v. Torrice, 20 Conn. App. 75, 82-83, 564 A.2d 330, cert. denied, 213 Conn. 809. 568 A.2d 794 (1989) (trial court not obligated to instruct, sua sponte, on theory that force used was reasonable way of disciplining minor). Furthermore, it would be inappropriate for the trial court to charge the jury, sua sponte, on a theory that was contrary to the defendant’s stated position. State v. Jeffrey, 220 Conn. 698, 717-19, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992) (improper for trial court to deliver, sua sponte, charge on consent when it was never requested and defendant did not raise it as theory of defense).

We conclude that while the evidence may have suggested that a charge on intoxication may have been appropriate, the trial court was not under any obligation to give the instruction sua sponte.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides: “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: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-59 (a) provides in pertinent 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 or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

      Ativan is an antianxiety drug in the same pharmaceul ical family as valium.

       General Statutes § 53a-49 provides in pertinent part: “Criminal attempt: Sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the land of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (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. . . .”

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court stated: “we hold 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.”

       The defendant claims that the trial court violated his rights pursuant to the Connecticut constitution, article first, §§ 8 and 9. This issue has never been decided by this court or our Supreme Court, and we decline to resolve this issue. See State v. Chapman, supra, 229 Conn. 543-44.

       Even if we reviewed the claim, there was overwhelming evidence in the record to support both of the attempt alternatives that were charged by the trial court.


source: Caselaw Access Project

author: FREEDMAN, J.

license: Public Domain

text:
    NEW ENGLAND SAVINGS BANK v. MEADOW LAKES REALTY COMPANY ET AL. ANGUS MCDONALD-GARY SHARPE AND ASSOCIATES, INC. v. GLEN LAKES REALTY COMPANY ET AL.
    (14162)
    Dupont, C. J., and Spear and Freedman, Js.
    Argued November 7, 1996
    officially released February 11, 1997

      John S. Bennet, with whom was Lorri A. Massa, for the appellant (Angus McDonald-Gary Sharpe and Associates, Inc.).

      Michael D. Colonese, with whom, on the brief, was Jeffrey F. Buebendorf for the appellee (National Loan Investors).
   FREEDMAN, J.

Angus McDonald-Gary Sharpe and Associates, Inc. (McDonald-Sharpe), brought an action to foreclose its mechanic’s lien filed against Meadow Lakes Realty Company, also known as Glen Lakes Realty Company (Meadow Lakes), for work done on property located in East Lyme. New England Savings Bank brought an action to foreclose its construction mortgage against Meadow Lakes. Subsequently, the mortgage in question was assigned by the Federal Deposit Insurance Corporation to ALI, Inc. (bank), which was substituted as plaintiff in the first case, a defendant in the second case. The actions were consolidated for trial. The trial court concluded that McDonald-Sharpe’s mechanic’s lien was invalid and discharged the lien. The trial court further found that the mechanic’s lien did not have priority over the bank’s mortgage.

McDonald-Sharpe appeals from the decision of the trial court, claiming that (1) the mechanic’s lien was valid even though it was claimed against only a portion of the land in the subdivision for which the work was performed, (2) the trial court’s finding that McDonald-Sharpe received consideration for the release of its mechanic’s lien from the back portion of the property was erroneous in light of the evidence presented and the record as a whole, (3) the trial court improperly found that the mechanic’s lien was not entitled to priority over the bank’s mortgage, and (4) the trial court improperly found that McDonald-Sharpe was bound by the obligations under the note and mortgage signed by Angus McDonald in his capacity as general partner of Meadow Lakes. We agree with the trial court’s conclusion that, because the lien was not claimed against all of the property for which work was performed, it was invalid. We therefore affirm the decision of the trial court.

The facts underlying this appeal are as follows. In 1986, a general partnership known as Meadow Lakes Realty Company was formed for the purpose of owning and developing property in the town of East Lyme. McDonald is a partner in the partnership known as Meadow Lakes. He is also the president and principal stockholder of McDonald-Sharpe, a firm that does site planning and designs commercial projects. Gary Sharpe is the vice president and a stockholder of McDonald-Sharpe.

Meadow Lakes initially requested that McDonald-Sharpe do a feasibility study concerning the residential development of a certain tract of land situated in East Lyme. No written contract existed between McDonald-Sharpe and Meadow Lakes concerning the feasibility study. At the time of the initial request for the feasibility study, the subject property was owned by Locarno and Romagna, Inc. (Locarno); Meadow Lakes did not hold title to any of the subject premises. McDonaid-Sharpe commenced the feasibility study in June, 1986, prior to Meadow Lakes’ taking title to the property. McDonaldShaipe continued to work on the feasibility study until late in 1986, at which time it concluded that the project was, in fact, feasible.

On December 15, 1986, Meadow Lakes acquired the ninety-seven acre front portion of the property from Locarno. At the same time, Meadow Lakes acquired an option to purchase from Locarno the rear portion consisting of an additional 127.24 acres. The primary reason that Meadow Lakes purchased only the front parcel was that the rear parcel shared a border with a parcel owned by Valentine and Irene Kowalski, and Meadow Lakes did not want to take title to the rear parcel until the boundaries with the Kowalskis and other issues regarding the Kowalski parcel were resolved. At all relevant times, the Kowalski parcel has been owned by the Kowalskis, and Meadow Lakes has had no interest in it.

McDonald-Shaipe performed work on the front and rear parcels throughout 1987. The front and rear parcels taken together contained several ponds that created planning and zoning considerations. All of the bills and statements rendered by McDonald-Sharpe during the first two years of their being involved in the site development were paid in full.

On March 31,1988, the bank provided Meadow Lakes with a construction mortgage in the amount of $400,000, which covered the front parcel only. At the time of the mortgage, McDonald-Sharpe had been paid in full for all of its work. The mortgage deed and note contained language to the effect that the signatories would keep the premises free and clear of liens and encumbrances. McDonald, as a partner in Meadow Lakes, was one of the signatories to the mortgage and note. Some of the proceeds of the bank loan were paid to McDonald-Sharpe for services rendered.

In May, 1988, after the mortgage was recorded, Meadow Lakes instructed McDonald-Sharpe to commence work on the Kowalski property. This became one of the principal activities of McDonald-Sharpe for the next year.

On January 31, 1990, Meadow Lakes purchased the rear parcel from Locarno. The purchase of the rear parcel was financed by a purchase money mortgage in favor of Locarno. Thereafter, McDonald-Sharpe continued to perform work on both the front and rear parcels until late in 1990.

In October, 1990, McDonald-Sharpe filed and served its mechanic’s lien on the East Lyme land records, claiming a balance due of $125,554.36. The lien, purporting to be for materials furnished and services rendered “in the subdivision, site development and improvement of a certain parcel of land,” covered the front and rear parcels, and included metes and bounds descriptions of each. The amount of the lien represented the aggregate amount for work performed on the front parcel, the rear parcel and the Kowalski parcel and was in addition to approximately $137,000 that McDonald-Sharpe had already been paid for its work. Despite the fact that much of the work claimed under the hen was performed on the Kowalski property, no lien was placed on the Kowalski property. No attempt was made to allocate the work among the different parcels.

In 1991, Locarno brought an action against Meadow Lakes to foreclose its purchase money mortgage on the rear parcel. McDonald-Sharpe was listed as a defendant in that action. McDonald-Sharpe issued a release of its mechanic’s lien with respect to the rear parcel only.

On October 8, 1991, the bank brought an action to foreclose its $400,000 mortgage on the front parcel and on October 9, 1991, McDonald-Sharpe commenced an action to foreclose its mechanic’s lien. The actions were consolidated and tried to the court. The trial court found, inter alia, that the mechanic’s lien was invalid because it was claimed against only one of three parcels of land on which work was performed. Even if the mechanic’s lien was valid, the trial court further found that it was not entitled to priority over the bank’s mortgage because much of the work represented by the mechanic’s lien was for a separate and distinct contract formed after the date of the bank’s mortgage. On that basis, the trial court ordered the mechanic’s lien discharged. The trial court further held that the bank’s $400,000 construction mortgage was a valid first mortgage subject only to taxes owed to the town. McDonald-Sharpe appealed from that decision.

McDonald-Sharpe argues that its mechanic’s lien is valid even though it was claimed against only the remaining portion of the land in the subdivision for which the work was performed. According to McDonald-Sharpe, the lien properly described the premises on which the work was performed pursuant to General Statutes § 49-34. McDonald-Sharpe argues that its lien described both the front and rear parcels, and that both parcels comprised the 225 acre “plot of land” that was being developed into the subdivision. McDonald-Sharpe also argues that it performed the survey and design work on the Kowalski property to resolve a boundary dispute and access problem, and that the work performed on the Kowalski property was for the benefit of the entire subdivision. The bank argues in response that the mechanic’s lien is invalid in that it attempts, by way of a single lien, to lien two distinct premises for services rendered on three separately owned properties.

Before addressing the merits of this issue, we note that “[ajppellate review of findings of fact is limited to deciding whether such findings were clearly erroneous. . . . Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996). A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached.” (Citation omitted; internal quotation marks omitted.) D'Angelo v. McGoldrick, 239 Conn. 356, 363-64, 685 A.2d 319 (1996).

The trial court held that the mechanic’s lien was “invalid because it is claimed against only one of three parcels of land on which the work was performed. There is no dispute that McDonald-Sharpe performed work on three distinct parcels of land: the front parcel, the rear parcel and the Kowalski parcel. This work was performed from June 24, 1986, to the date of the mechanic’s lien in September, 1990. At no time during this period was there unity of ownership of the three parcels.” Although McDonald-Sharpe argues that the front and rear parcels taken together comprise the “plot of land” subject to the mechanic’s lien, such a conclusion contravenes the finding reached by the trial court that “[t]he mechanic’s lien represents a claim for services rendered on three distinct plots of land. Only one of the three plots is the subject of this action.” (Emphasis added.) On the basis of the record before us, we agree with the trial court’s conclusion that McDonald-Sharpe performed work on three distinct plots of land.

The trial court further found that the $125,554.36 claimed in the lien did not represent work performed on the front parcel alone; rather, it represented work performed on the front parcel, the rear par cel and the Kowalski parcel. We conclude that McDonald-Sharpe’s mechanic’s lien may not be enforced against only one of the three parcels of land on which the work was performed. To hold otherwise would be contrary to our holding in Butch v. Thangamuthu, 37 Conn. App. 547, 657 A.2d 684 (1995). In Butch, the plaintiff contractor performed services for an eighteen lot subdivision. After completing the work on the subdivision, the plaintiff filed a mechanic’s lien on lot fourteen, which had been sold to the defendants, to collect the sum that remained outstanding on his contract to perform work for the entire subdivision. The plaintiffs liens against the other lots in the subdivision were extinguished by the foreclosure of the first mortgage on the subdivision. In the plaintiffs action to foreclose the mechanic’s lien against lot fourteen, the plaintiff declined to offer any evidence regarding the value of the services rendered and materials furnished for the benefit of lot fourteen, and the trial court therefore rendered judgment for the defendants. Id., 547-49

On appeal, we upheld the decision of the trial court, noting that “[n]owhere does the statute suggest that a single lot of land in a subdivided plot is subject to the payment of a claim for services rendered or materials furnished in the site development or subdivision of the entire plot. Instead, the statute unambiguously indicates that the subdivided plot of land is the property to which a mechanic’s lien must be attached when the plaintiff seeks to secure payment for materials and services provided to improve the plot being subdivided.” Id., 549-50.

We further stated in Butch v. Thangamuthu, supra, 37 Conn. App. 550, that “[u]nder the language of § 49-33 (a), the plaintiff had a choice of filing a blanket lien against the plot of land that had been subdivided, or filing hens against the individual lots to secure sums due for improvements to each lot. When the plaintiff chose to proceed against individual lots, he limited himself to claiming in each lien an amount commensurate with the materials furnished and services rendered to improve each individual lot.”

As in Butch, when McDonald-Shaipe chose to proceed against the front parcel only, it limited itself to claiming an amount commensurate with the materials furnished and services rendered to improve the front parcel. As the trial court found, however, no attempt was made to allocate the work among the different parcels and it is not presently possible to make such an allocation with reasonable certainty. This is fatal to McDonald-Sharpe’s lien.

The judgments are affirmed.

In this opinion the other judges concurred.

       On October 10, 1996, this court granted the motion of ALI, Inc., to substitute National Loan Investors, Inc., as the appellee in place of ALI, Inc.

       In light of this conclusion, we do not address McDonald-Sharpe’s remaining claims.

       In addition to the boundary dispute, a second access to the project was sought over the Kowalski property.

       McDonald testified at trial that it is not presently possible to make such an allocation with reasonable certainty.

       The parties dispute whether McDonald-Sharpe was paid any consideration in exchange for the release of its mechanic’s lien on the rear parcel.

       General Statutes § 49-34 provides in pertinent part: “A mechanic’s lien is not valid, unless the person performing the services or furnishing the materials, (1) . . . lodges with the town clerk of the town in which the . . . plot of land is situated a certificate in writing . . . (A) describing the premises ....’’

       The txial court further utilized the following table to summarize the status of the ownership of the property at various times during the project:
      Front Parcel Rear Parcel Kowalski Parcel
      6/24/86 -
      12/14/86 Locarno Locarno Kowalskis
      12/15/86 -
      1/31/90 Meadow Lakes Locarno Kowalskis
      1/31/90 -
      7/22/91 Meadow Lakes Meadow Lakes Kowalskis
      7/22/91 -
      Present Meadow Lakes Locarno Kowalskis

       In light of this conclusion, we do not reach McDonald-Sharpe’s claim that the trial court improperly found that its mechanic’s lien was not entitled to priority over the bank’s mortgage. We note, however, that the evidence in the record supports the trial court’s conclusion that much of the work performed by McDonald-Sharpe was done pursuant to a separate contract formed after the date of the bank’s mortgage.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. RUPERTO VINCENTE
    (15227)
    Dupont, C. J., and Foti and Heiman, Js.
    Submitted on briefs December 2, 1996
    officially released February 11, 1997

      Christopher P. DeMarco filed a brief for the appellant (defendant).

      Michael Dearington, state’s attorney, and Harry Weller and Elpedio Vitale, assistant state’s attorneys, filed a brief for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction rendered after the defendant’s conditional plea of nolo contendere to two counts of assault in the first degree, one count of conspiracy to commit assault in the first degree, and one count of criminal attempt to commit assault in the first degree. On appeal, the defendant asserts that the trial court improperly denied his motion to suppress* certain evidence that he claimed resulted from telephone conversations intercepted in violation of the Connecticut wiretapping statutes, General Statutes § 54-41a et seq. We are not persuaded and affirm the judgment of the trial court.

It is alleged in count one of the information that the defendant conspired with a number of other persons, including Pedro Milan and other gang members, to commit assault in the first degree. In the second and third counts of the information, the defendant is accused of having aided and abetted in the commission of an assault in the first degree against Jose Garcia and Edwin Nunez. In the fourth count of the information, the defendant is accused of criminal attempt to commit assault in the first degree against Hector Vasquez. The conspiracy is alleged to have occurred in Waterbury or Meriden during April, 1992, and the assaults are alleged to have occurred in Meriden on April 26, 1992.

After a full evidentiary hearing on the defendant’s motion to suppress, the trial court found the following facts. During the month of April, 1992, Milan was an inmate at the federal prison at Raybrook, New York. Milan had been incarcerated in a Pennsylvania state prison, as well as in another federal prison, before his transfer to Raybrook. When Milan was taken into the prison at Raybrook, he was advised that telephone calls made from the prison were monitored. This information was given to Milan in writing, and he signed a document that acknowledged the fact that telephone calls made from the prison were monitored and recorded. Additionally, a sign in both English and Spanish was located at each telephone in the prison, advising the person using the telephone that all calls were monitored and recorded.

The prison facility at Raybrook consisted of five housing units. Each unit had four telephones. The device that monitored and recorded the telephone calls made by the inmates ran twenty-four hours a day and could record all twenty telephones simultaneously.

The monitoring system in place at the prison was a hotel-motel system. Any inmate who wanted to make an outside call would pick up one of the twenty telephones in the institution and place a collect call. The operators who placed the calls for the inmates were New York Telephone Company employees and not employees of the Federal Bureau of Prisons.

When an inmate picked up a telephone receiver, the recording started immediately, without regard to whether anyone was speaking. The telephone number called by an inmate was recorded when it was dialed. The recording could be retrieved by computer and transcribed. When an inmate hung up the telephone, the recording stopped.

When Milan was sent to the institution at Raybrook, Lieutenant Michael Cross, the special investigative supervisor at the prison, was notified that Milan was a high profile inmate and that Cross was required to monitor him. Milan’s calls were monitored and recorded, and no effort was made to minimize either the recording or monitoring.

The trial court found that the defendant’s motion to suppress was based solely on noncompliance with the Connecticut wiretapping statutes. The trial court denied the defendant’s motion to suppress. The court found that the Connecticut wiretapping statutes do not apply to this interception because it occurred in a federal prison in New York state, and the Connecticut wiretapping statutes have no extraterritorial effect.

The defendant, at oral argument in the trial court, expressly eschewed any constitutional privacy claim as the basis for the motion to suppress. Further, the trial court determined that, had it been called on to decide the privacy issue, it would have found that Milan consented to having his telephone calls from prison monitored and recorded.

I

As the defendant has suggested, we must determine as a threshold matter whether this appeal is properly before the court under General Statutes § 54-94a. The statute limits appeals under a conditional plea of nolo contendere to those situations where a motion to suppress is predicated on an unreasonable search or seizure or on the involuntariness of a statement. The defendant claims that because his statements were recorded in violation of the Connecticut wiretapping statutes, there was an unreasonable search and seizure and § 54-94a applies.

We do not resolve this issue on that basis, however, but conclude that this appeal is properly before us under the provisions of Practice Book § 4003 (b). “If, at any time before the close of evidence—in short, either before or after the commencement of trial—the court denies any motion of the defendant, including but not limited to a motion specified in subsection (a), the provisions of subsection (b) come into play. In that instance, in order for the defendant to secure appellate review of the ruling without going through a full trial, the following requirements apply: (1) the defendant must reserve in writing the right, on appeal from the judgment, to review of the adverse determination made by the trial court; (2) the motion [that yielded the adverse determination] must be specified in such written reservation; (3) the trial court must give its approval; (4) the ruling must have had a significant impact on the disposition of the case; and (5) there must be an adequate record for appellate review. Practice Book § 4003 (b).” (Internal quotation marks omitted.) State v. Piorkowski, 236 Conn. 388, 418, 672 A.2d 921 (1996). We conclude that the conditions have been met, and that this appeal is properly before us pursuant to Practice Book § 4003 (b).

II

The defendant asserts that the trial court improperly determined that the Connecticut wiretapping statutes have no extraterritorial effect and thus do not apply to telephone calls that originate from a federal prison in New York state. We disagree.

We turn first to an examination of the Connecticut wiretapping statutes to determine whether they can be interpreted to regulate wiretap practices in other states. We conclude that the statutes regulate only practices within this state and do not apply to wire interceptions conducted outside the territorial limits of the state of Connecticut. General Statutes § 54-41b permits “[t]he Chief State’s Attorney or the state’s attorney for the judicial district in which the interception is to be conducted” to make application to a panel of judges for an authorization to conduct the interception of wire communications. See State v. Grant, 176 Conn. 17, 26, 404 A.2d 873 (1978). The panel of judges may authorize the interception of wire communications “within the state of Connecticut.” See General Statutes § 54-41d. Thus, it is clear that the Connecticut wiretapping statutes are designed to regulate the interception of wire communications within the state of Connecticut, and not to regulate the method that a sister state or the federal government may employ in regulating the interception of wire communications under their respective jurisdictions.

“To determine the intent of the legislature, we first consider whether the statutory language yields a plain and unambiguous resolution. . . .If the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature . . . and we need inquire no further. . . . The words of a statute must be interpreted according to their ordinary meaning unless their context dictates otherwise.” (Citations omitted; internal quotation marks omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989).

The clear and unambiguous language of General Statutes § 54-41a et seq. leads us to conclude that the legislature did not intend an extraterritorial application of our wiretapping statutes. We conclude, therefore, that the trial court correctly determined that the Connecticut wiretapping statutes were inapplicable to a wire communication interception that occurred at a federal prison in New York state, and thus the trial court properly denied the motion to suppress.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdietional defects in the criminal prosecution.”
      Practice Book § 4003 provides: “(a) When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement, or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this subsection shall not constitute a waiver by the defendant of nonjurisdietional defects in the criminal prosecution. The court shall not accept a nolo contendere plea pursuant, to this subsection where Ihe denial of the motion to suppress would not have a significant impact upon the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere plea where the record available for review of the denial of the motion to suppress or motion to dismiss is inadequate for appellate review of the court’s determination thereof.
      “(b) With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior t.o the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw the conditional plea of guilty or nolo contendere after the case has been remanded to the trial court. A plea of guilty or nolo contendere under this subsection shall not constitute a waiver of nonjurisdictional defects in the criminal prosecution. The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not have a significant impact on the disposition of the case in the trial court. The court, shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.”

       General Statutes § 54-41m provides: “Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regula! ory body or other authority of the state of Connecticut, or of a political subdivision thereof, may move to suppress the contents of any intercepted wire communication, or evidence derived therefrom, on the grounds that the communication was unlawfully intercepted under the provisions of this chapter; the order of authorization or approval under which it was intercepted is insufficient on its face; or the interception was not made in conformity with the order of authorization or approval. Such motion shall be made before the trial, hearing or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion, in which case such motion may be made at any time during the course of such trial, hearing or proceeding. If the motion is granted, the contents of the intercepted wire communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter and shall not be received in evidence in any such trial, hearing or proceeding. The panel, upon the filing of such motion by the aggrieved person, shall make available to the aggrieved person or his counsel for inspection the intercepted communication and evidence derived therefrom.”

      See footnotes 2 and 4.

         The lack of a constitutional basis for the motion is reflected in this colloquy between counsel and the court:
      “The Court: Tell me, your motion is based solely upon noncompliance with the state statute?
      “[Defense Counsel]: Yes.
      “The Court: There are no other claims other than—
      “[Defense Counsel]: I raise no constitutional right of privacy claim, Your Honor. I don’t believe one is appropriate.
      “The Court: That’s what I wanted to be sure of. Thank you.”

       See footnote 1.

       See footnote 1.

       General Statutes § 54-41b provides: “The Chief State’s Attorney or the state’s attorney for the judicial district in which the interception is to be conducted may make application to a panel of judges for an order authorizing the interception of any wire communication by investigative officers having responsibility for the investigation of offenses as to which the application is made when such interception may provide evidence of the commission of offenses involving gambling, bribery, violations of section 53-395, violations of section 21a-277 or felonious crimes of violence.”

       General Statutes § 54-41d provides in pertinent part: “Upon such application the panel of judges, by unanimous vote, may enter an ex parte order authorizing the interception of wire communications within the state of Connecticut . . . . ”

       Moreover, even if we were to conclude that under the provisions of our wiretapping statutes, the legislature intended to exercise control over the monitoring and recording of telephone communications from a federal prison in New York state, the Connecticut wiretapping statutes still would not apply to this interception. Our Supreme Court has held that “the [Connecticut] wiretapping statutes were intended to apply only to monitoring and recording done without the knowledge of either party to the conversation.” Washington v. Meachum, 238 Conn. 692, 714, 680 A.2d 262 (1996); see also State v. Grullon, 212 Conn. 195, 209-11, 562 A.2d 481 (1989). Here, Milan clearly had knowledge of the monitoring and recording of the intercepted conversation. Milan signed a form when he entered the Raybrook federal prison acknowledging that any telephone calls he made from the prison would be monitored and recorded. In addition, there were signs above the prison telephone used by Milan advising him in English and Spanish that all calls made from that telephone were monitored and recorded.


text:
    REBECCA WALLACE, ADMINISTRATRIX (ESTATE OF GEORGE WALLACE) v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER
    (15468)
    Lavery, Spear and Stoughton, ,Ts.
    Argued November 12, 1996
    officially released February 11, 1997

      John F. Wynne, Jr., for the appellant (plaintiff).

      Louis B. Blumenfeld, with whom, on the brief, were Eugene A. Cooney and Sharone G. Komman, for the appellee (defendant).
   LAVERY, J.

The plaintiff appeals from the judgment rendered following the trial court’s granting of the defendant’s motion for a directed verdict in a medical malpractice action. We affirm the judgment of the trial court.

The plaintiff administratrix of the decedent’s estate, in a one count amended complaint, alleged that the defendant Saint Francis Hospital and Medical Center negligently caused the plaintiffs decedent to lose his chance for successful treatment. At the close of the plaintiffs case, the trial court directed a verdict for the defendant because the plaintiff failed to prove that the defendant’s conduct led or contributed to the decedent’s death. The two issues that the plaintiff raises in this appeal are whether the trial court (1) improperly granted the defendant’s motion for directed verdict when there was sufficient evidence to allow the case to go to the jury and (2) abused its discretion when it precluded the plaintiffs expert from testifying as to the causal connection between the defendant’s alleged malpractice and the plaintiffs decedent’s injury.

The record reflects the following facts. On July 7, 1990, at approximately 9:44 p.m., the plaintiffs decedent, George Wallace, arrived at the defendant’s emergency room with complaints of stomach pain. Wallace had been chronically ill for many years and was previously discharged from the defendant hospital on July 6,1990, when he had undergone surgery for the removal of a Tenckhoff catheter.

When Wallace arrived at the emergency room on the night of July 7, 1990, he was assessed by a nurse, who noted that he had abnormal vital signs, and was put in an examining room so that a physician could examine him. At approximately 11:15 p.m., Wallace went into cardiac arrest and all efforts to resuscitate him failed. Wallace died from massive recent intraperitoneal hemorrhage at approximately 11:59 p.m.

An autopsy revealed that Wallace had a large quantity of blood in his abdomen at the time of his death. The autopsy, however, did not reveal the cause or origin of Wallace’s internal bleeding.

To examine the plaintiffs first claim properly, we must initially address the plaintiffs second claim. The second claim addresses the exclusion of portions of the plaintiffs expert testimony. The exclusion of the expert testimony led to the entry of a directed verdict by the trial court, the subject of the first claim.

The plaintiff contends that the trial court improperly excluded the testimony of her expert witness, Jacek Franaszek, a physician, as to the causal connection between the defendant’s malpractice and the decedent’s injury. The plaintiff further argues that the exclusion of Franaszek’s opinion on the probability of the decedent’s survival in surgery led the trial court to direct the verdict for the defendant.

“The trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear’ and involves a misconception of the law, its ruling will not be disturbed. ... In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion. . . . Some facts must be shown as the foundation for an expert’s opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence. ... It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony.” (Citations omitted; internal quotation marks omitted.) Madison Hills Ltd. Partnership II v. Madison Hills, Inc., 35 Conn. App. 81, 93, 644 A.2d 363, cert. denied, 231 Conn. 913, 648 A.2d 153 (1994).

At trial, Franaszek testified that the defendant hospital should have assessed and stabilized the patient more quickly so that he might have been admitted for surgery. The plaintiff then asked Franaszek the following question: “[BJased upon reasonable medical probability, in your opinion, did these deviations from the standard of care cause Mr. Wallace’s death?” The defendant objected to this question on two grounds. First, because Franaszek was not a surgeon, he was not qualified to render an opinion on the likelihood of a particular surgical outcome. Second, there was no evidence as to the cause or origin of the decedent’s internal bleeding. The trial court subsequently excused the jury, allowed the plaintiff to make an offer of proof and then sustained the defendant’s objections on both grounds. The trial court further instructed the plaintiff not to seek Franaszek’s opinion on the likelihood that surgery would have saved the decedent.

We conclude that the trial court properly sustained the defendant’s objection on the ground that Franaszek was not qualified to render opinions about a surgical outcome. “The determination of the qualification of an expert is largely a matter for the discretion of the trial court. Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964).” (Internal quotation marks omitted.) Knock v. Knock, 224 Conn. 776, 783, 621 A.2d 267 (1993). Furthermore, the question of a witness’ competency to testify on technical matters is an issue to be determined by the trier by assessing the nature of the technicality involved and the proposed witness’ level of expertise concerning these matters. Varley v. Varley, 189 Conn. 490, 501, 457 A.2d 1065 (1983). At trial, the defendant was permitted to voir dire Franaszek about his medical qualifications. From these questions the court learned that Franaszek was not a surgeon or a member of the American College of Surgeons, and had never practiced surgery. Therefore, it was within the trial court’s discretion to rule, on the basis of the record in this case, that Franaszek was not a surgeon and thereby not qualified to render an expert opinion on a surgical outcome.

We also conclude that the trial court did not abuse its discretion when it ruled that there was no foundation for Franaszek to render an expert opinion concerning the probable outcome of surgery. “ ‘In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.’ State v. Asherman, 193 Conn. 695, 716, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). Thus, ‘[t]he facts upon which an expert’s opinion is based are an important consideration in determining the admissibility of his [or her] opinion.’ Going v. Pagani, 172 Conn. 29, 34, 372 A.2d 516 (1976).” Borkowski v. Borkowski, 228 Conn. 729, 742, 638 A.2d 1060 (1994).

In the present case, the plaintiff offered no evidence as to the rate, cause or origin of the decedent’s internal bleeding. Yet, the plaintiff wanted Franaszek to render his expert opinion as to whether the defendant’s failure to deliver the decedent to surgery led to his death. If Franaszek had been permitted to render an opinion on the question of a surgical outcome on the decedent, however, it would have been based not on fact but on speculation.

This court has long held that “[t]he facts assumed in a hypothetical question must have their basis in the evidence on the record. . . . Whether a proper foundation has been laid to support a hypothetical question is an issue of fact for the trial court. . . .A hypothetical question may not be asked of an expert where it is so lacking in material, relevant and essential facts. . . . [W]here the admissibility of evidence depends upon a preliminary question of fact, to be determined by the court, its decision is not to be reversed unless there is clear and manifest error.” (Citations omitted; internal quotation marks omitted.) Sochard v. St. Vincent’s Medical Center, 8 Conn. App. 6, 9-10, 510 A.2d 1367 (1986). Therefore, because no evidence was introduced concerning the source or cause of the decedent’s internal bleeding, we conclude that it was within the trial court’s discretion to conclude that there was not a substantial factual basis on which an expert opinion could be rendered.

In her next claim, the plaintiff contends that there was sufficient evidence presented by the plaintiff at trial to allow the case to go to the jury. The plaintiff argues that the defendant’s failure to evaluate and treat the decedent caused him to lose a “chance for survival.” “To prevail on this claim, a plaintiff must show (1) that he has in fact been deprived of a chance for successful treatment and (2) that the decreased chance for successful treatment more likely than not resulted from the defendant’s negligence. Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). “In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.” ’ Id.” LaBieniec v. Baker, 11 Conn. App. 199, 207, 526 A.2d 1341 (1987).

This court in Borkowski v. Sacheti, 43 Conn. App. 294, 682 A.2d 1095 (1996), recently addressed the causation analysis that must take place in a loss of chance case. In Borkowski, this court stated that of the many different theories of causation that have been applied to loss of chance cases, Connecticut will continue to apply the traditional approach as articulated in LaBieniec v. Baker, supra, 11 Conn. App. 199. Borkowski v. Sacheti, supra, 311.

“ [T] he LaBieniec court, further evincing its adoption of the traditional approach of reasonable medical probability, stated: The loss of a speculative chance of recovery alone is not an injury from which damages flow. We are convinced that the better rule to follow is the one which requires the plaintiff to prove that the defendants’ negligence in all probability, proximately caused the injury. Only by such proof will the plaintiff have proven proximate cause. . . . After again stressing that the chain of causation, in establishing liability, is concerned only with reasonable probabilities and not possibilities . . . the LaBieniec court opined that [i]n this case, the evidence failed to remove the decreased chance of successful treatment theory from the realm of speculation. . . . LaBieniec then clearly stated that [sjince there was no evidence which could have led the jury to a reasonable inference that the defendants’ acts of malpractice were the direct and proximate cause of a decrease in the chance of successful treatment, it was proper for the trial court to direct a verdict on this issue.” (Citations omitted; internal quotation marks omitted.) Borkowski v. Sacheti, supra, 43 Conn. App. 310-11.

The plaintiff in the present case, as did the plaintiff in LaBienic, failed to produce sufficient evidence that the decedent had a better than even chance for survival if brought to surgery. At trial, Franaszek was asked by the plaintiffs counsel, “Do we know, with any certainty, whether surgery would have been successful on [the decedent]?” To this question, Franaszek replied, “No.” The plaintiffs counsel then asked, “[H]e could have died in the operating room?” Franaszek replied, “Yes.” Furthermore, the plaintiff did not offer any evidence pertaining to either the cause or source of the decedent’s internal bleeding.

The jury was left without any evidence to show that the decedent would have had a better than even chance at survival if the defendant’s employees had brought him to surgery. The plaintiffs contention that the decedent lost a chance of survival due to the defendant’s alleged negligence is based on speculation and not on the reasonable probability that LaBieniec requires. We conclude that the trial court properly granted the defendant’s motion for a directed verdict because the plaintiff offered no evidence that the defendant’s alleged negligence was the proximate cause of the decedent’s injury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also suggests that General Statutes § 52-184c, which applies to the standard of care in amedical malpractice case, also applies to the causation element in the action. We disagree. General Statutes § 52-184c pertains only to the standard of care in medical malpractice cases, not causation.

       This court in Borkowski v. Sacheti, supra, 43 Conn. App. 294, addressed three types of causation with regard to loss of chance cases: the relaxed causation approach, the proportional approach, and the traditional approach.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. NATHANIEL NELSON
    (14946)
    Dupont, C. J., and Foti and Healey, Js.

      Argued December 13, 1996
    officially released February 11, 1997

      Michael J. Lefebvre, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John H. Maloney, supervisory assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of rioting at a correctional institution in violation of General Statutes § 53a-179b. He was found not guilty on a count of assault of a department of correction employee in violation of General Statutes § 53a-167c (a) (l). On appeal, the defendant claims that the trial court improperly denied his request to charge the jury that an adverse inference could be drawn because of the state’s failure to produce a witness at trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 23, 1992, a riot took place at the Enfield medium security prison. A correction officer may have incited the riot by improperly challenging an inmate to fight. At some time during the fight, the correction officer pressed his body alarm indicating to other correctional personnel that he was in danger of physical harm. In response to this alarms, Lieutenant Ernest Nemath arrived and was told by the officer who had signaled the alarm that the inmate had assaulted him. The officer was taken for medical attention to Building A and the inmate was placed into segregation in Building A. Thereafter, between fifty and 100 inmates gathered in front of Building A demanding that the inmate be removed from segregation. At that time, Correction Officers Norman Rodriguez and George Nosaluk responded to the scene. The defendant, an inmate serving a sentence for a felony murder conviction, was one of the inmates gathered there. He told Nemath that he wanted the inmate removed from segregation. He was told that there would be an investigation in the morning. The defendant then said: “So this is the way you want it ... . [W]ell, it’s on, I guess.” He was loud and commanding in his actions. The defendant and the inmates then left.

During the next forty-five minutes, groups of inmates, some carrying weapons, destroyed a surveillance camera, looted the commissary, set fires, broke lighting fixtures and beat at least one guard. The inmates wore hoods, towels and pillowcases covering their faces, making their identification difficult.

During the riot, several inmates jumped Rodriguez and beat and kicked him, causing him to sustain three broken ribs, a broken nose and a traumatic brain injury. Nosaiuk rushed to the aid of Rodriguez. As he began pulling inmates off Rodriguez, he grabbed one, whom he had seen kicking and punching the now unconscious Rodriguez, and saw his face, recognizing that inmate as the defendant. Nosaiuk attempted to drag Rodriguez to safety, but was himself attacked and hit by someone swinging a sock containing a lock. Nosaiuk could not identify any other inmates attacking Rodriguez. Rodriguez could not identify any of his attackers and remembered nothing of the attack.

The following facts are relevant to the defendant’s claim on appeal. After the defendant and the others had left Building A, Nosaluk and his partner, Correction Officer Michael Youman, were told by Nemath to check the prison yard. Upon seeing a group attacking Rodriguez, Nosaiuk ran to assist Rodriguez, leaving Youman behind. According to Nosaiuk, Youman would not have seen what or whom Nosaiuk had seen because he was behind Nosaiuk.

At trial, in a hearing conducted in the absence of the jury, the trial court determined that Youman was on vacation in Florida, and that he would be returning in five days. A report submitted by Youman indicated that as he approached the Rodriguez assault, he was chased by a group of inmates. He ran into a building and locked himself in with other corrections officers. Nowhere in the report did he indicate that he could identify anyone involved in the riot.

The defendant claims that the trial court should have instructed, pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), in accordance with his request to charge. He does not challenge the sufficiency of the evidence for the jury’s finding of guilt on the charge of rioting at a correctional institution.

The trial court ruled that, although Youman was available, the defendant’s request to charge was deficient. The trial court denied the request to charge, but allowed the defendant, in closing argument, to point out that Youman had not testified for the state.

The state argues that we should not review the defendant’s claim in that his request to charge fails to comply with Practice Book § 852 because the request did not contain any citation of authority and, moreover, failed to set forth any facts that would justify such a request. Should we review this claim, the state claims that Youman was not a witness who would naturally be produced by the state and, therefore, the requested instruction was not proper. In the alternative, the state contends that if we conclude that the trial court should have instructed as requested, its failure to do so was harmless error.

We conclude that it is unnecessary for us to determine whether the trial court’s failure to give the requested charge was improper. If Youman’s testimony was relevant, it was as to not having seen the defendant involved in the assault on Rodriguez, which is not an element of the crime of rioting at a correctional institution.

“In order for a defendant to be found guilty of rioting at a correctional institution, he must plan or lead the disturbance, or take part in the disturbance at the correctional facility.” State v. Rivera, 30 Conn. App. 224, 232, 619 A.2d 1146, cert. denied, 225 Conn. 913, 623 A.2d 1024 (1993). There are nine actions described as violations of § 53a-179b, whether as leader, planner or follower. State v. Roque, 190 Conn. 143, 152-53, 460 A.2d 26 (1983). The nine verbs set out in § 53a-179b, “incites, investigates, organizes, connives at, causes, aids, abets, assists or takes part in,” are not nine separate statutorily proscribed methods of violating this statute, but “are verbs ‘pertaining to the bringing about’; see State v. Pascucci, [164 Conn. 69, 71, 316 A.2d 750 (1972)]; of any occurrence, spontaneous or organized, under the statute.” State v. Roque, supra, 153. Moreover, the offense of rioting at a correctional institution does not require any particular scienter; it is not a specific intent crime. State v. Nixon, 32 Conn. App. 224, 250, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995).

Even if we determined that there was substantial compliance with Practice Book § 852, that Youman was a witness that the state would naturally have produced because he was present in the yard when Rodriguez was assaulted, and that the defendant was entitled to a missing witness charge, such a determination would be irrelevant. The requested charge could apply only to the crime of assault of a department of correction employee. The defendant was acquitted of that charge. It is, therefore, unnecessaiy for us to reach the Secondino issue, because it is not relevant to the appeal from the judgment of conviction of rioting at a correctional institution.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-179b (a) provides: “A person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.”

       General Statutes § 53a-167c (a) provides in pertinent part: “A person is guilty of assault of a peace officer, fireman, employee of an emergency medical service organization, emergency room physician or nurse, employee of the Department of Correction, employee or member of the Board of Parole or probation officer when, with intent to prevent a reasonably identifiable peace officer, fireman or employee of an emergency medical service organization, as defined in section 53a-3, emergency room physician or nurse, employee of the Department of Correction, employee or member of the Board of Parole or probation officer from performing his duty, and while such peace officer, fireman, employee, physician, nurse, member or probation officer is acting in the performance of his duties, (1) he causes physical iqjury to such peace officer, fireman, employee, physician, nurse, member or probation officer . . .

       The correction officer was subsequently fired from his position because of this conduct.

       The defendant’s request to charge is as follows: “The defendant in the above entitled matter hereby moves that the court include the following in it’s instructions to the jury:
      “You will recall that in final argument the defendant asked you to infer, from the fact that Youman was not called as a witness, that his testimony would have been unfavorable to the state. I will now instruct you on the circumstances under which you may, or may not, draw such an inference.
      “The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence by the witness would be unfavorable to the party’s case. I emphasize to you, first, that this adverse inference—this inference that the person, if called as a witness, would have given unfavorable evidence—is a permissive inference. That is, you may draw the inference, but you are not required to, depending on whether you think it is a reasonable and logical inference. The party who wants you to draw this inference—in this case the defendant—must show that he is entitled to it.
      “There are two requirements which you must find are met before you may draw this unfavorable inference against the state in this case. I will outline these requirements for you in a moment. First, however, you must know that whether both of these requirements have been met are factual questions which you must first determine before you may draw this unfavorable inference. That is, you must first determine that both of these requirements have been established. If you determine that either one of the requirements has not been established, you should disregard the request to draw an unfavorable inference. If you determine that both the requirements have been established, you may draw the unfavorable inference if you think it is a reasonable and logical inference.
      “The first requirement is that the witness, Youman, was available. Whether a potential witness is available, within the meaning of the rule, does not mean merely whether the witness was, during the course of the trial, within this state and therefore able to be subpoenaed to come into court and testily. A witness who is within this state at the time of trial, and whose location and identity are known to the party, is of course available. But even a witness outside the state but not in a difficult place to locate or remote from the place of trial may be considered to be available, if the facts and circumstances indicate reasonably to you that the party could have produced him. Furthermore, the failure of a party to call as a witness a person who is available to both parties does not provide the basis for an unfavorable inference. Whether a party is equally available to both parties does not mean merely whether he is accessible by a subpoena from both parties. It involves the consideration of many factors, such as one parly’s superior means of knowing of the existence and testimony of the witness and of the testimony that might be expected of him. You must, in determining whether a party is equally available to both parties, take into account all the facts and circumstances bearing on the situation of the witness with relation to the two parties.
      “The second requirement is that Youman was a witness whom the state would naturally produce. This means that he is someone known to the state and who, because of his relationship to that party or to the issues in the case, or to both, could reasonably be expected to have particular' or superior information material to the case which the party would produce if that information were favorable. If the likely subject matter of the testimony of the absent witness was so related to the whole proof in the case that one of the parties, and not the other, would be expected to produce him, an inference would be justified that his testimony, if he had been produced as a witness, would be unfavorable to that party. The state is not required, however, to call every witness who might be able to give some evidence about the crime charged. A possible witness, whose testimony is for any reason comparatively unimportant, cumulative or inferior to what has been offered, should not be called, on the general ground of expense and inconvenience; and a party who does not call such a witness should not be penalized by having an adverse inference drawn against him.
      “As I said before, whether the defendant has met the two requirements for the drawing of that inference, and, if those requirements have been met, whether you think it is reasonable and logical to draw that inference, are factual questions for you to determine.”

       Practice Book § 852 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of exception. The exception shall be taken out of the hearing of the jury.”

       During oral argument, the state withdrew its claim that if Youman were available to the state, he was equally available to the defendant, and therefore a Secondino charge was not warranted. Hines v. St. Vincent's Medical Center, 232 Conn. 632, 637 n.8, 657 A.2d 578 (1995) (mere fact that witness is equally available to both parties does not preclude Secondino charge).


author: HENNESSY, J.

text:
    ROBERT L. ANNECHARICO, COADMINISTRATOR (ESTATE OF LISA R. ANNECHARICO), ET AL. v. WILLIAM J. PATTERSON ET AL.
    (15013)
    Spear, Hennessy and Shea Js.

      Argued December 6, 1996
    officially released February 18, 1997

      Charles J. Goddard, for the appellants (plaintiffs).

      Robert L. Trowbridge, with whom, on the brief, was Michael J. Rose, for the appellees (defendants).
   HENNESSY, J.

The plaintiffs, Robert L. Annecharico and Barbara Writz, coadministrators of the estate of Lisa Annecharico, appeal from the judgment of the trial court in favor of the defendants, William Patterson and James Alligood, rendered after a jury trial in a wrongful death action. On appeal, the plaintiffs claim that the trial court improperly (1) barred the plaintiffs from questioning Trooper Stephen Wengloski of the Connecticut state police on a portion of a police report that he had prepared and from introducing that report as evidence, (2) allowed Robert Mantho to testify as an expert witness and admitted as evidence his diagram of the accident scene, (3) refused the plaintiffs’ request for a missing witness jury instruction, and (4) granted the motion to strike Robert Annecharico’s bystander emotional distress claim.

The jury reasonably could have found the following facts. On May 19, 1986, Robert Annecharico’s daughter, Lisa Annecharico (decedent), was driving on Route 6 in Windham. She was killed when her 1973 Chevrolet Vega collided head-on with a tractor trailer, operated by Patterson and owned by Alligood.

The plaintiffs brought an action against the defendants alleging negligence and bystander emotional distress. The jury returned a verdict in favor of the defendants and this appeal followed.

The sole factual issue at trial was which vehicle crossed the center line. Ann Insalaco, an eyewitness, testified that she was driving directly ahead of the decedent and that she saw the tractor trailer in her side and rear view mirrors cross the center line and collide with the Vega. Insalaco further testified that she told Wengloski, the state trooper investigating the accident, that she saw the tractor trailer cross the center line. The plaintiffs then placed into evidence her signed statement, in which she stated: “It appeared to me that the truck might have cut the corner a little close, but both the blue car and truck seemed to be nearly within their respective lanes.” Insalaco was given the opportunity to testify about why there was a discrepancy between her statement to the police and her in-court testimony.

The plaintiffs also called Wengloski as a witness. The plaintiffs sought to question the trooper about whether Insalaco had told him after the collision that she saw the tractor trailer cross the center line. The court barred that line of questioning as inadmissible hearsay. The plaintiffs then attempted to introduce a portion of the police report that Wengloski had prepared, which stated: “Ann Insalaco stated she saw part of the accident in her rear view mirror and thought that [the defendants’ vehicle] crossed the center line slightly and collided with [the decedent’s vehicle].” The court excluded the evidence on the same ground.

The defendants called Robert Mantho, a former state police trooper, to testify during their case-in-chief. Man-tho had participated in the investigation of the accident and had prepared a diagram of the accident scene, which became incorporated into the police report. The plaintiffs objected to Mantho’s testimony because he had not been disclosed as an expert witness. The plaintiffs also objected to the introduction of the diagram because it contained Mantho’s opinion as to the point of impact. The trial court overruled both objections.

The defendants did not call Anibal Jiminez, another eyewitness to the accident. According to the police report, Jiminez had stated that he saw the decedent cross the center line. The plaintiffs requested a Secondino instruction based on the defendants’ failure to call Jiminez as a witness. The trial court denied the plaintiffs’ request.

I

In the plaintiffs’ first claim on appeal, they argue that the trial court should have admitted as evidence the police report that Wengloski had prepared, or allowed them to question him about the report. They assert that the evidence is not hearsay because it was not offered to prove the truth of the matter asserted. Instead, the plaintiffs argue that the evidence was admissible because it proved Insalaco’s then existing state of mind, or, in the alternative, that the statement was a verbal act. We agree with the trial court and find that the evidence was appropriately excluded as inadmissible hearsay.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these 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. . . . In reviewing claims that the trial court; abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . . State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993), appeal withdrawn January 7, 1994.” (Internal quotation marks omitted.) State v. Rogers, 38 Conn. App. 777, 796, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995).

We first address the plaintiffs’ assertion that the police report should not have been excluded as hearsay because it tended to prove the witness’ state of mind. “It is an elementary premise of evidentiary law that a statement made out-of-court that is offered to establish the truth of the facts contained in the statement is hearsay. ...” (Citations omitted; internal quotation marks omitted.) State v. Robinson, 213 Conn. 243, 258, 567 A.2d 1173 (1989). “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).

We find that the statement recorded by Wengloski in his police report was offered for the truth of the matter asserted and, therefore, it is inadmissible hearsay. The plaintiffs state that the purpose of the proffered evidence was to show that immediately after the event, Insalaco believed it was the tractor trailer that crossed the center line. The plaintiffs also submit that they offered the evidence to corroborate Insalaco’s testimony at trial. The plaintiffs’ stated reasons for introducing the statement show that the evidence was offered for the truth of the matter asserted and not to illustrate the witness’ then present state of mind.

We next address the plaintiffs’ contention that the statement was not hearsay because it was a verbal act. “A verbal act is an out-of-court statement that causes certain legal consequences, or, stated differently, it is an utterance to which the law attaches duties and liabilities.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.3.1, p. 321. The plaintiffs analogize the case to the situation in Gyro Brass Mfg. Corp. v. United Automobile Workers, 147 Conn. 76, 157 A.2d 241 (1959). In Gyro Brass Mfg. Corp., the plaintiff sought to introduce as evidence, through testimony of its president, the content of a conversation between him and the sales manager of its supplier in which it claims the parties agreed orally to modify the terms of their sales agreement. The Supreme Court held that testimony of the contents of the utterance, offered only to prove that it was made, is not hearsay. Id., 79-80. In the present case, the plaintiffs sought to introduce evidence through Wengloski’s testimony and the police report, not only to prove that Insalaco had made the prior statement to the police, but also to prove that this initial statement corroborated her testimony at trial. 5The evidence, therefore, was not offered as a verbal act and was properly excluded as hearsay.

II

In the second claim on appeal, the plaintiffs contend that the trial court improperly allowed Mantho to testify as an expert witness and improperly admitted as evidence a diagram of the accident scene that he had prepared for the police report. The plaintiffs argue that the trial court should not have allowed Mantho’s opinion testimony because the defendants failed to disclose him as an expert witness as required by Practice Book § 220 (D). The plaintiffs further argue that Mantho’s diagram depicting the point of impact of the collision was inadmissible because it contained his conclusion as to causation.

We begin by analyzing the admissibility of the diagram as a business record. “A police report may be admitted as a business entry once the court finds that the requirements of General Statutes § 52-180 have been satisfied. . . . For an item contained in a report to be admissible, it must be based on the entrant’s own observation or on information of others whose business duty it was to transmit it to the entrant.” (Citations omitted; internal quotation marks omitted.) Mucci v. LeMonte, 157 Conn. 566, 569, 254 A.2d 879 (1969). “Opinions contained in business records are admissible provided the person making the opinion would have been qualified to give such an opinion in oral testimony.” C. Tait & J. LaPlante, supra, § 11.14.8, p. 392; see also Mucci v. LeMonte, supra, 569-70.

The plaintiffs do not contest that Mantho was qualified to render the opinion contained in the diagram of the collision or that the report met the statutory requirements for a business record. The plaintiffs’ sole objection to the introduction of the diagram as a business record is based on their assertion that the depiction of the point of impact is an expression of Mantho’s conclusion as to causation. We disagree and conclude that the diagram was properly admitted as a business record.

In Turbert v. Mather Motors, Inc., 165 Conn. 422, 334 A.2d 903 (1973), our Supreme Court held that the trial court properly refused to admit the testimony or the report of a police officer that contained the officer’s unsubstantiated conclusion as to what caused a two car collision. Id., 434. In the present case, Mantho’s testimony as to the point of impact was based on his visit to the accident site, measurements, and his observations of “gouge marks in the pavement, the debris, and the area of the debris.” In addition, Mantho testified that he considered the resting positions of the two vehicles. Because the witness was qualified to render an opinion on the point of impact and the opinion was based on his own observations of the accident scene, it was proper for the trial court to admit Mantho’s testimony and the diagram as a business record. See Lovely v. Caplan, 11 Conn. App. 327, 331, 565 A.2d 1347 (1987).

The plaintiffs’ argument that the defendants should have disclosed Mantho as an expert witness is also without merit. The defendants called Mantho primarily as a fact witness. A trial court has broad discretion to allow a witness to testify despite noncompliance with § 220 (D) if good cause is shown. Knock v. Knock, 224 Conn. 776, 782, 621 A.2d 267 (1993); Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992). “In determining whether the trial court has abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court’s decision.” Knock v. Knock, supra, 783.

In this case, Mantho was identified as a witness to be called at trial and was interviewed by the plaintiffs’ counsel before trial. The plaintiffs also had a copy of the police report containing Mantho’s diagram. There was no showing that the plaintiffs were unduly prejudiced or surprised by the lack of disclosure. In addition, Mantho’s testimony as an expert was required only for his discussion of the diagram. We conclude that the trial court properly allowed Mantho’s testimony.

Ill

The plaintiffs’ last claim on appeal is based on the trial court’s refusal to give a missing witness jury instruction under Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The plaintiffs maintain that the trial court should have given this instruction because the defendants failed to call Anibal Jiminez to the stand. In the police report, Jiminez was identified as an eyewitness who stated to the police that he saw the decedent’s car cross the center line. At his deposition, Jiminez again stated that the Vega crossed the center line.

According to Secondino, “ ‘[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” Id., 674-75, quoting Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A.2d 461 (1928). “In such a situation there is a logical nexus between the failure to call the witness and an adverse inference. In other words, it makes sense to infer that the witness’ testimony, had the available witness testified, would be adverse to the party who would naturally be expected to call that witness but failed to do so. . . . An inference to be drawn must be logical and reasonable and strong enough so that it can be found that it is more probable than not that the fact to be inferred is true.” (Internal quotation marks omitted.) State v. Santangelo, 205 Conn. 578, 596-97, 534 A.2d 1175 (1987)

In the present case, there is no logical nexus between the defendants’ failure to call Jiminez to testify and an inference that if he had testified, it would have been favorable to the plaintiffs and adverse to the defendants. On the basis of the information contained in the police report and the deposition, the trial court determined that Jiminez’ testimony would have been favorable to the defendants. The plaintiffs, therefore, were not entitled to an instruction that would have allowed the jury to infer that Jiminez’ testimony would have been adverse to the defendants. The trial court’s refusal to provide the jury with an adverse inference instruction was not improper under the circumstances. See State v. Figueroa, 235 Conn. 145, 174-75, 665 A.2d 63 (1995); State v. Lyle, 40 Conn. App. 288, 294, 670 A.2d 871, cert. denied, 237 Conn. 903, 674 A.2d 1332 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       This claim was withdrawn at oral argument.

       The plaintiffs’ emotional distress claim was subsequently stricken.

       We note that the statement offered to demonstrate Insalaco’s state of mind also could have been excluded as irrelevant. “Evidence is relevant only if it has some tendency to establish the existence of a material fact.” (Internal quotation marks omitted.) State v. Duntz, 223 Conn. 207, 233, 613 A.2d 224 (1992). Here, Insalaco’s state of mind does not tend to establish any material fact.

       The plaintiffs had already established that Insalaco had made the prior statement to Wengloski through Insalaco’s testimony at trial.

       General Statutes § 52-180 (a) provides in pertinent part: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any . . . occurrence or event, shall be admissible as evidence ... if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the . . . occurrence or event or within a reasonable time thereafter.”