author: Dupont, C. J.

text:
    In re Michael B.

    (13105)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued September 14
    decision released December 13, 1994

      Paul F. Chinigo, with whom, on the brief, was Arthur P. Meisler, for the appellant (respondent).

      C. Robert Satti, Sr., state’s attorney, with whom were Francis J. Carino, chief state’s advocate, Sarah Steere,
      legal intern, and, on the brief, Kevin T. Kane, assistant state’s attorney, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, 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.

   Dupont, C. J.

The respondent Michael B., a juvenile, appeals from the granting of the motion by the state’s advocate and the state’s attorney to transfer his case from juvenile matters to the adult criminal docket on the charges of two counts of murder in violation of General Statutes § 53a-54a, one count of capital felony in violation of General Statutes § 53a-54b (8), and one count of felony murder in violation of General Statutes § 53a-54c. In order to transfer the respondent’s case to the adult criminal docket, the transfer court was required to find probable cause as to the elements of each of the crimes with which the respondent is charged.

The respondent contends that the order transferring his case to the adult criminal docket was improperly-entered because there was insufficient evidence to support a finding of probable cause as to any of the crimes with which he is charged and because he was not allowed to present evidence that would rebut any finding of probable cause. At stake is whether the respondent will be tried as though he were an adult at the time of the commission of the crimes, thereby becoming susceptible to the penalties prescribed by the statutes he allegedly violated. On the date of the alleged offenses, the respondent was more than fourteen years old and less than sixteen years old.

We affirm the transfer court’s rulings that probable cause existed to believe the respondent committed all of the crimes with which he is charged, and that the respondent’s proffered evidence was properly excluded.

The facts surrounding the crimes are set out in the concise and clear memorandum of the transfer court. John Cluny, the husband of the victim Elaine Cluny and the father of the victim David Cluny, called the Norwich police at approximately 5:25 p.m. on May 24,1993, to report that he had found the victims’ bodies in a bedroom of the family’s home. Approximately eight hours later, the respondent was apprehended in a vehicle owned by Elaine Cluny. The case against the respondent is circumstantial in nature.

The circumstantial evidence included certain facts. The respondent and David Cluny were friends. They played together, spent time at each other’s homes, went to school together and rode the same school bus. The respondent was aware of the fact that John Cluny kept firearms in his home, and the respondent had in the past fired certain of those weapons on the Cluny property with John Cluny’s permission.

On May 24, 1993, David Cluny attended school, but the respondent did not. One witness, a neighbor, reported seeing someone riding a bicycle during the morning hours in the vicinity of the Cluny home. The neighbor’s description of the rider was consistent with a description of the respondent, and her description of his clothing was consistent with the clothes that the respondent was wearing at the time of his subsequent apprehension. A fellow student at the respondent’s school identified a photograph of a bicycle found parked within the Cluny residence as being of a bicycle belonging to the respondent. The bicycle in the photograph was consistent with the description of the bicycle given by the neighbor.

During the late morning and early afternoon of May 24,1993, none of the three Clunys was seen near the residence. Gunshots were heard at various times during that period.

The driver of the school bus that both David Cluny and the respondent took to school reported that she dropped off David after school at approximately 2:30 p.m., that the respondent was not on the bus that day, and that the Cluny dog was not there to greet David when he exited the bus, as it usually was.

Several witnesses testified that Elaine Cluny, a teacher at Griswold High School in Jewett City, left the high school at the same time she usually did, approximately 2:50 p.m. Elaine Cluny was expected to attend a meeting of the Norwich parking commission at 3:30 p.m. It is estimated that she arrived at home at approximately 3:05 p.m.

A phone call from a member of the Norwich parking commission at 3:38 p.m. produced no answer. Shortly thereafter, two witnesses saw Elaine Cluny’s vehicle being driven erratically at a high rate of speed. It was coming from the direction of the Cluny house and was being driven by a young white male with short hair and wearing a light colored shirt.

John Cluny arrived home at approximately 3:45 p.m. He noted that his wife’s car was not there, that the door to the house was not locked, which was not unusual, that the television was on, and that no one appeared to be home. He watched television, had a snack, and took a nap on the couch. Twice during the afternoon, he received telephone calls from the respondent’s mother, expressing concern about the whereabouts of her son. Following the second of these calls, at approximately 5:20 p.m., he checked his son’s bedroom and found the lifeless bodies of his wife and son. He immediately called the police.

The bodies were found together in David Cluny’s bedroom. Each had sustained a single gunshot wound to the head, and the deputy chief medical examiner certified that the gunshot wounds were the cause of death of both victims. On the basis of the nature of the wounds, the chief medical examiner concluded that the weapon could not have been .22 or .25 caliber, but could have been a .357 magnum or a .38 caliber weapon or, as he acknowledged on cross-examination, could have been a 9 or 10 millimeter weapon. The wounds caused immediate loss of consciousness with death ensuing within a few moments. The medical examiner is of the opinion that the weapon was held at close range to both of the victims.

The police officers also found a trail of blood leading from the hallway to a bathroom. Behind the tub, they found the body of the Cluny dog, which had sustained gunshot wounds to the chest and head. Its wounds, while fatal, were not immediately so, allowing it to walk some distance to the place where its body was eventually found.

John Cluny subsequently noticed that a holster containing a Ruger .357 magnum handgun had been removed from its usual location and that the handgun and live ammunition kept in the Ruger holster gunbelt were missing. He also noticed that boxes of bullets found on the living room couch had not been there previously, that a .22 caliber rifle and a shotgun had been moved from their usual locations to David’s room, and that the boxes in which he kept his handguns had been tampered with. He also noted bullet holes in a canoe in the backyard that had not been there previously, bullet holes in the window of his van, and bullet holes in his son’s bedroom and the master bedroom. In addition, he discovered that although his wife’s briefcase was in its usual place on the dining room table, her key ring was not there.

Following the issuance of a police alert on the Cluny vehicle, the respondent was eventually spotted in that vehicle, followed, and then stopped at approximately 1:30 a.m. Subsequent scientific testing revealed gunshot residue on his hands and on the steering wheel of the vehicle. Human blood was found on his shirt and sock. Canine blood was found on one of his sneakers.

The respondent was subsequently arrested pursuant to a warrant signed by a judge of the Superior Court charging him with two counts of murder. He was presented to the Superior Court for juvenile matters pursuant to two petitions of alleged delinquency, the first charging him with the theft of the Cluny vehicle and the second charging him with the murders of David and Elaine Cluny. Subsequent amendment of the latter petition left the respondent charged with two counts of murder in violation of General Statutes § 53a-54a, one count of capital felony in violation of General Statutes § 53a-54b, and one count of felony murder in violation of General Statutes § 53a-54c.

At the close of the state’s case, the court indicated that it was inclined to find probable cause, at least as to the charges of murder under General Statutes § 53a-54a. The respondent requested permission to introduce into evidence two documents, which were marked for identification as respondent’s exhibits A and B. These were preliminary and supplemental reports from the state police forensic science laboratory. The request was denied.

The transfer court subsequently concluded in a written decision that there was probable cause as to each of the charges against the respondent. Accordingly, the court ordered the respondent’s case transferred to the regular criminal docket of the Superior Court.

On appeal, this court’s function is to determine whether the transfer court’s decision that probable cause existed as to each of the crimes with which the respondent was charged was clearly erroneous. In re David M., 29 Conn. App. 499, 503, 615 A.2d 1082 (1992), citing Practice Book § 4061 and In re Lloyd W., 28 Conn. App. 608, 611, 611 A.2d 461 (1992). Probable cause exists when “the state’s evidence would warrant a person of reasonable caution to believe the respondent had committed the crime with which he was charged.” In re Edwin N., 215 Conn. 277, 284, 575 A.2d 1016 (1990). The quantum of evidence required to establish probable cause is less than that required to establish proof beyond a reasonable doubt at trial. It is more than mere suspicion but substantially less than that required for conviction. In re Keijam T., 221 Conn. 109, 115-16, 602 A.2d 967 (1992). In reviewing the evidence and the permissible inferences drawn from it to determine whether the transfer court’s decision was clearly erroneous, we do so in the light most favorable to sustaining that court’s determination of probable cause. In re David M., supra, 503.

I

The Murder Charges

We first review the transfer court’s finding of probable cause with regard to the two counts of murder in violation of General Statutes § 53a-54a. The state’s circumstantial evidence compels the conclusion that there is probable cause to believe that the respondent caused the deaths of Elaine and David Cluny. While the respondent argues that the evidence that he caused the victims’ deaths is “only” circumstantial, there is no legal distinction between direct and circumstantial evidence as far as probative force is concerned. In re David M., supra, 29 Conn. App. 505. The element of intent required by General Statutes § 53a-54a can be established by circumstantial evidence or inferred from a party’s statements or actions. State v. Smith, 198 Conn. 147, 154-55, 502 A.2d 874 (1985); State v. DeForge, 194 Conn. 392, 399, 480 A.2d 547 (1984). Here, the fact that both victims were shot in the head at close range with a high caliber weapon supports the finding of probable cause that the person who fired those shots intended the victims’ deaths. The other evidence, as previously recited, is more than sufficient to support a finding that it was the respondent who fired the shots and caused the deaths. We conclude that the evidence was sufficient to support a finding of probable cause as to the two counts of murder.

II

The Felony Murder Charges

In order to sustain the court’s finding of probable cause as to the felony murder charge, there must be sufficient evidence that the respondent was committing or attempting to commit one of certain enumerated crimes and “in the course of and in furtherance of” or in “flight therefrom” he caused the deaths of the victims. There is no requirement under the felony murder statute, nor was there such a requirement under common law felony murder, that the state prove that the respondent had the general intent to commit the murders. State v. Kyles, 221 Conn. 643, 666, 607 A. 2d 355 (1992). The state must simply prove all the elements of the underlying felony and then prove that the deaths were in the course of and in the furtherance of that felony, or that the deaths were caused in flight from the commission of the felony. Id. The killing of a nonparticipant “in the course of and in furtherance of [a felony] or of flight therefrom” are two methods of committing the same crime. State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987).

The information alleges that the underlying felony in this case is burglary. The information does not specify which degree of burglary the respondent allegedly committed, but the least serious charge of burglary is burglary in the third degree, which is defined by General Statutes § 53a-103 as “entering] or remain[ing] unlawfully in a building with intent to commit a crime therein.” Section 53a-103 does not enumerate specific crimes that one must intend to commit in order to be guilty of burglary in the third degree. The “enters or remains unlawfully” elements of burglary in the third degree are disjunctive and a jury can convict on either element. State v. Belton, 190 Conn. 496, 502, 461 A.2d 973 (1983); State v. Mankus, 16 Conn. App. 184, 187, 547 A.2d 84, cert. denied, 210 Conn. 801, 553 A.2d 616 (1988).

Although the respondent and David Cluny were friends, there was no direct evidence that on the day of the killings the respondent was in the Cluny home with the permission of any member of the Cluny family. There was circumstantial evidence, however, indicating that the respondent entered the home at a time when he knew none of the Clunys was in it. Although there was no direct evidence that at the time of his unlawful entry into the Cluny home the respondent intended to commit a crime therein, there was circumstantial evidence that the respondent did formulate such an intent during the period of time that he unlawfully remained in the home.

There was also sufficient evidence to conclude that there was probable cause to believe that at some time while unlawfully remaining in the Cluny home, the respondent intentionally shot the Cluny dog, an act that would constitute the crime of cruelty to animals under General Statutes § 53-247, and that he committed the crime of criminal mischief in violation of General Statutes § 53a-117 by causing the bullet holes in the bedrooms. Finally, there is the circumstantial evidence that the respondent took Elaine Cluny’s car keys and the direct evidence that he used her car without permission in violation of General Statutes § 53a-119b. He might also have formulated the intent to commit larceny of a motor vehicle, the value of which exceeds $10,000, in violation of General Statutes § 53a-122.

The respondent argues that there is no evidence that he formulated the intention to commit any criminal acts prior to his alleged murder of the two victims. Evidence was introduced, however, from which it could be inferred that criminal acts had been committed prior to the murders. It could be inferred that the respondent entered the Cluny home sometime in the late morning, that he fired shots in it sometime in the late morning or early afternoon, and that he had already shot the Cluny dog by the time David Cluny arrived on the school bus. It was, therefore, proper for the transfer court to conclude that at some time while the respondent was in the Cluny home, he formulated the intention to commit a variety of crimes involving weapons, ammunition, car keys and an automobile.

We now turn to the issue of whether the killings of David and Elaine Cluny occurred in the course of and in the furtherance of or in flight from the respondent’s alleged burglary of the Cluny home. “In the course of” has been held to denote a temporal limitation. State v. Young, 191 Conn. 636, 643-44, 469 A.2d 1189 (1983). The state’s evidence is sufficient to support a belief that probable cause existed to find that the murders of David and Elaine Cluny occurred after the respondent unlawfully entered the home and before he left the Cluny home in Elaine Cluny’s automobile, and therefore within the temporal limitation of when the alleged burglary began and ended.

In conjunction with a finding that the killings occurred “in the course of” the burglary, there must also be evidence that the killings occurred “in furtherance of” the burglary. The case of State v. Young, supra, 191 Conn. 640-41, summarizes the history and purpose of the “in furtherance” phrase of § 53a-54c. An issue of that case was whether the phrase “and in furtherance of such crime or of flight therefrom” imposed a requirement of mens rea in the form of a specific intent or scienter with respect to the death itself. Id., 639-40. The defendant in Young argued that “furtherance” meant “promotion” or “advancement” and did not imply merely a causal relationship between the underlying felony and the death. Id., 640.

In rejecting this argument, the Young court noted that Connecticut’s penal code was taken from the New York code and deviates substantially from the recommended felony murder provisions of the Model Penal Code. Id., 641. New York courts have construed the phrase “in furtherance of” to impose the requirement of a logical nexus between the felony and the homicide. Specifically, “ ‘[m]ore than the mere coincidence to time and place . . . the nexus must be one of logic or plan. Excluded are those deaths which are so far outside the ambit of the plan of the felony and its execution as to be unrelated to them.’ ” Id., quoting People v. Lewis, 111 Misc. 2d 682, 686, 444 N.Y.S.2d 1003 (1981); see also State v. Gomez, 225 Conn. 347, 622 A.2d 1014 (1993). Our Supreme Court agreed with the New York courts that the phrase “in the furtherance of” is intended to impose the requirement of a relationship between the underlying felony and the homicide beyond that of mere causation in fact, similar to the concept of proximate cause in the law of torts. State v. Young, supra, 191 Conn. 642. The phrase serves to exclude those murders that are committed during the course of an underlying felony but that are wholly unrelated; id., 643; but does not serve to exclude killings that were not intended. State v. Cobbs, 203 Conn. 4, 6, 522 A.2d 1229 (1987).

In order to sustain a conviction of felony murder, it is “not enough . . . that the defendant committed [the crime] and caused the death of the victim unless the death was part of the [crime] and directly involved in it.” Id., 6. In overturning the conviction in Cobbs, the Supreme Court noted that “the connection between [the crime] and the murder was that the two crimes involved the same participants and victim. This answer falls far short of establishing beyond a reasonable doubt that the victim was killed in the course of being robbed and in furtherance of that crime. . . . [There was] no evidence from which a trier of fact could reasonably have concluded, without resort to speculation or conjecture, that this element of the crime was established.” Id., 13. The court stated that there was no convincing evidence that the underlying felony, robbery, had been committed at all. It, therefore, concluded that the victim was not killed in the course of being robbed and in furtherance of a robbery. Id.

In order for Elaine and David Cluny’s deaths to be considered “in the course of and in furtherance of” the respondent’s alleged burglary of their home, there must be evidence to support a burglary, as well as a nexus of logic or plan such that the killings were directly involved in the burglary, and there must be sufficient evidence that there was such a nexus without resort to speculation or conjecture.

It is very likely that in the course of committing a burglary a burglar will encounter an occupant of the dwelling, who may resist, and, in furtherance of the burglary, death of the dweller may likely result. State v. MacFarlane, 188 Conn. 542, 553, 450 A.2d 374 (1982). There is probable cause to believe, on the basis of the direct and circumstantial evidence and the reasonable inferences to be drawn therefrom, that there is a nexus between the two crimes because it is probable that the respondent killed David and Elaine Cluny while committing burglary.

Ill

The Capital Felony Charge

General Statutes § 53a-54b defines capital felony as, inter alia, the “(8) murder of two or more persons at the same time or in the course of a single transaction.” That there were two victims is clearly not at issue, and we have already established that there is sufficient evidence to sustain a finding of probable cause as to the two counts of murder. The third element is the requirement that the murders occur either at the same time or in the course of a single transaction. The state alleges that the two murders of Elaine and David Cluny constituted a single transaction. Both the state and the respondent have noted in their briefs and at oral argument that there is no Connecticut case law squarely determining the issue of when two murders have been committed in the course of a single transaction for the purposes of § 53a-54b. The transfer court found that the two murders were a single transaction because there was probable cause to believe that the respondent committed the murders as part of a series of related acts constituting a single course of conduct over a period of time that could not have lasted longer than one hour and fifteen minutes, specifically from 2:30 p.m. when David Cluny arrived home to 3:45 p.m. when John Cluny arrived home.

In its brief, the state argues that the first step in interpreting “in the course of a single transaction” is to examine the words “in the course of,” which denote a temporal limitation. State v. Young, supra, 191 Conn. 636. The state then contends that two murders constitute a single transaction when they are committed within the bracket of time between the commencement and end of a sequence of events of an unlawful nature. Here, the state argues, the unlawful events began with the respondent’s entry into the Cluny home and ended with his flight from the scene.

The respondent argues that there is no forensic evidence to support the conclusion that both of the deaths occurred in the course of a single transaction, and that, given the relationship he had with David Cluny, as well as the lack of evidence as to motive, it is a reasonable conclusion that at least David Cluny’s death was not intentional. The gist of this argument appears to be that without the requisite intent to murder David Cluny, the respondent could at most have committed the murder of only Elaine Cluny and the manslaughter of David Cluny, and therefore there were not two murders for the purposes of General Statutes § 53a-54b.

The reported case law better supports the state’s argument. While our Supreme Court has never interpreted the phrase “in the course of” in the context of the double murder provision of the capital felony statute, it has done so for the purposes of the kidnapping provision of the capital felony statute. State v. Ross, 230 Conn. 183, 194-95, 200, 646 A.2d 1318 (1994). General Statutes § 53a-54b (5) proscribes “murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety.” In Ross, our Supreme Court held that Connecticut had jurisdiction over two murders committed in Rhode Island because the two murders were the consequences of a kidnapping that began in Connecticut. Id., 195. The reasoning behind the court’s decision was that kidnapping is a continuous crime, namely, a crime that consists of a series of acts, rather than one act. Id., 196.

The reasoning in another kidnapping case, State v. Gomez, supra, 225 Conn. 347, involving felony murder rather than capital felony, is also useful in our analysis. The defendant in Gomez was charged with felony murder, the predicate crime being kidnapping. Id., 348. The defendant in that case argued that since all the elements necessary to establish the crime of kidnapping had occurred prior to the murder, the murder could not have occurred ‘ ‘in the course of” and “in furtherance of” the kidnapping as required by the felony murder statute. Id., 350. The court disagreed, noting that “[k]idnapping is a continuous crime.” Id., 351. The court reasoned that the victim’s death occurred “in the course of” the kidnapping because that phrase “focuses on the temporal relationship between the murder and the underlying felony.” Id., 352. It had previously defined “in the course of” to include “the period immediately before or after the commission of the crime.” Id. The court concluded that if “in the course of” included the periods before and after the crime, the phrase must encompass the “murder in this case, which took place during the period of the crime itself.” (Emphasis added.) Id.

The reasoning in both State v. Ross, supra, 230 Conn. 183, and State v. Gomez, supra, 225 Conn. 347, is applicable by analogy to the present case. We conclude that the respondent’s alleged burglary and his alleged murders were committed along a continuum where the elements of space and time were so closely interrelated that the murders can be considered to have been committed in the course of a single transaction, namely, the burglary.

The phrase “a single transaction” has also been interpreted in other contexts, such as assault and resisting arrest, to mean a series of related but separate events occurring within a brief interval. See State v. Laffin, 155 Conn. 531, 235 A.2d 650 (1967); State v. Hassett, 155 Conn. 225, 230 A.2d 553 (1967). “ ‘[A] crime’ ” means a single criminal act or transaction, out of which one or more criminal charges might arise.” State v. Tyler, 6 Conn. App. 505, 506 A.2d 562 (1986). A single transaction is a series of events with a “temporal continuity or clear connection.” Id., 511.

The transfer court drew reasonable inferences from the state’s evidence. Because David Cluny arrived home at 2:30 p.m. and Elaine Cluny at 3:05 p.m., and because the perpetrator had already fled by 3:45 p.m. when John Cluny arrived home, the deaths could not have been more than one hour and fifteen minutes apart. The position of the bodies indicates that Elaine Cluny had been kneeling over her son’s body when she was shot, which suggests that the actual time between their deaths was less than one hour, perhaps as little as thirty-five to forty minutes, if she discovered her son’s body as soon as she arrived home, or even less time than that if David Cluny was killed after 2:30 p.m. There was sufficient evidence to conclude that the two murders were committed during the course of a series of events directly related to the respondent’s alleged unlawful entry of the Cluny home and his departure therefrom in the Cluny vehicle, all comprising a single transaction. See State v. Velicka, 143 Conn. 368, 122 A.2d 739 (1956).

We therefore agree with the transfer court’s finding of probable cause to believe that the respondent had violated General Statutes § 53a-54b (8) because of the probability that the murder of the two victims occurred in the course of a single transaction.

IY

The Evidentiary Claim

The respondent claims that the transfer court improperly denied his request to admit evidence that he claims would rebut a finding of probable cause. The proffered evidence at issue was the preliminary and supplemental criminal reports from the state police forensic science laboratory, which indicate that there was no evidence to establish that the human blood found on the respondent’s clothing was that of either Elaine or David Cluny, and that John Cluny’s hands tested positive for lead. Our analysis of challenges to the evidentiary rulings by a trial court is guided by a well settled standard of review. “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. ...” (Citations omitted; internal quotation marks omitted.) Curry v. Burns, 33 Conn. App. 65, 68, 633 A.2d 315 (1993).

Prior to 1990, the rules of evidence did not apply to hearings on transfers from the juvenile docket to the criminal docket under General Statutes § 46b-127. See In re Ralph, 211 Conn. 289, 307, 559 A. 2d 179 (1989). Section 46b-127 has since been amended to provide that the procedures required by General Statutes § 54-46a, the statute governing probable cause hearings on the adult criminal docket, apply to juvenile transfer hearings as well. The rules of evidence, therefore, now apply to juvenile transfer hearings. See In re Jose M., 30 Conn. App. 381, 384-85, 620 A.2d 804, cert. denied, 225 Conn. 921, 625 A.2d 821 (1993).

Under § 54-46a (b), and therefore under § 46b-127, if the court finds probable cause based on the state’s evidence, then the accused may make a specific offer of proof to rebut the finding of probable cause. In re Keijam T., supra, 221 Conn. 126. The accused gains the right to present that evidence only “if the court determines [in its discretion] that such evidence would be sufficient to rebut the finding of probable cause.” General Statutes § 54-46a (b); In re Keijam T., supra, 126; State v. Zaporta, 36 Conn. App. 250, 252, 650 A.2d 582 (1994). The purpose of this procedure is to exclude evidence that, even if believed, would not undermine the court’s antecedent finding of probable cause while, at the same time, safeguarding the accused’s interest in attempting to persuade the court that, despite the state’s evidence, probable cause is lacking. In re Keijam T., supra, 126. Here, the court ruled that the evidence sought to be offered was not sufficient to rebut its finding of probable cause as to any of the charges.

Giving the proffered items their most favorable construction, the court acknowledged the fact that the blood on the respondent’s clothing was never positively identified as that of either Elaine or David Cluny, and that that might be an issue at trial. The court ruled, however, that that was not enough, in light of the state’s circumstantial evidence, to rebut probable cause to believe that the respondent had committed the murders. Similarly, the court ruled that although John Cluny’s hands tested positive for lead, there were no traces of barium and antimony, which would have been expected in the presence of gunshot residue. There was, however, sufficient evidence, specifically the gunshot residue on the respondent’s hands and on the steering wheel of the Cluny car, to support a finding that the respondent had fired a weapon that day. The court, therefore, concluded that the evidence of lead on John Cluny’s hands was insufficient to rebut the finding of probable cause as to the murder charges.

The court then ruled that with respect to the felony murder and capital felony counts, the proffered evidence did not relate to any element of those two offenses except the identity of the person who entered the Cluny home and caused the victims’ deaths. The court, therefore, concluded that the proffered evidence was insufficient to rebut the state’s evidence that there was probable cause to believe that that person was the respondent.

The transfer court appropriately exercised its discretion in not admitting the proffered evidence.

The order of transfer is affirmed.

In this opinion the other judges concurred.

       The state’s attorney was granted permission by the trial court to participate in matters related to the transfer hearing. In re Michael B., 43 Conn. Sup. 38, 638 A.2d 651 (1993). That court ruled that both officials had a legitimate interest in the outcome of the transfer hearing and, therefore, both should be permitted to participate fully in the proceedings. Id. That ruling is not involved in this appeal.

       The motion was made pursuant to General Statutes § 46b-127, which provides in relevant part: “(a) The court shall transfer to the regular criminal docket of the superior court from the docket for juvenile matters: (1) Any child referred for the commission of a murder under sections 53a-54a to 53a-54d, inclusive, provided any such murder was committed after such child attained the age of fourteen years ....
      “(b) No such transfer shall be valid unless, prior thereto, the court has made written findings, after a hearing, that there is probable cause to believe that the child has committed the act for which he is charged. . . .”

       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 or of a third person . . . .”

       General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of . . . (8) murder of two or more persons at the same time or in the course of a single transaction.”

       General Statutes § 53a-54c provides in relevant part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary . . . and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . . .”

       Adult defendants found guilty of capital felony charges under General Statutes § 53a-54b can receive the death penalty under General Statutes § 53a-46a. The fact that the respondent was under the age of eighteen at the time he allegedly committed the murders would be a mitigating factor preventing the imposition of the death penalty. General Statutes § 53a-46a (g) (1).

       The respondent was born on March 21,1978. The alleged offenses took place on May 24, 1993.

       There were no eyewitnesses to the killing of Elaine and David Cluny, and the state offered no inculpatory statements by the respondent.

       The neighbor’s testimony at the transfer hearing indicates that she did not personally know the respondent.

       The weapon used to commit those murders was never found.

       The transfer court noted that, at a minimum, the respondent was trespassing.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    State of Connecticut v. Paul Angell
    (12359)
    Landau, Speak and Freedman, Js.
    Argued September 19
    decision released December 20, 1994

      R. Jeffrey Lyman and Patricia E. McCooey, with whom, on the brief, was Linda L. Morkan, for the appellant (defendant).

      Pamela S. Meotti, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Turcotte, assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from the judgment of conviction of sexual assault in the second degree and risk of injury to a child in violation of General Statutes §§ 53U-71 and 53-21 respectively. He claims that the trial court improperly (1) permitted the state to introduce constancy of accusation evidence, (2) refused to instruct the jury on the credibility of a child witness, and (3) abused its discretion by refusing to give a missing witness jury instruction. We affirm the trial court’s judgment.

The jury reasonably could have found the following facts. The nine year old victim lived with her family in Wallingford. One night during the late spring or early summer of 1989, the victim spent the night at the apartment of Karen and Michael Gaube. She went to sleep on the couch in the living room, but was awakened at approximately 1 a.m. because the defendant was touching her between her legs. Approximately thirty minutes later, the defendant took the victim into a bedroom. He told the victim to pull down her pants because he wanted to lick her private parts when he returned from the bathroom. While the defendant was in the bathroom, the victim went back into the living room where Karen Gaube and one of her children were sleeping. The victim positioned herself on the floor between them and the wall, and fell asleep.

After the defendant and Michael Gaube left the apartment the following morning, the victim told Karen Gaube what had occurred during the night. Karen then took the victim home where she related the events to her father and later to her mother. The victim’s parents did not notify the police because the father intended to “take care of” the defendant himself.

In December, 1990, the victim’s fifth grade teacher read about the incident in the victim’s school journal. After speaking to the victim about the journal entry, the teacher notified another teacher, the school nurse and the principal. On December 13,1990, the victim’s father notified Officer Thomas Francolo of the Wallingford police department of the incident, and, on January 10, 1991, Detective Patricia Miranda interviewed the victim. The defendant was thereafter arrested, prosecuted and convicted.

I

The defendant first asserts that the trial court improperly admitted constancy of accusation evidence. He claims that the admission of the victim’s journal entry, her statement to Miranda, and the testimony of Karen Gaube and the victim’s parents violated his right to confront witnesses under the sixth amendment to the United States constitution.

Before we address the merits of the defendant’s claims, we must determine whether they were properly preserved. We turn first to the journal entry and Miranda’s testimony. At trial, the defendant objected to the admissibility of the victim’s statement to Miranda and the journal entry on evidentiary grounds. On appeal, the defendant did not brief the evidentiary claims asserted at trial, but instead raised a constitutional basis for his objection. Pursuant to Practice Book § 288, an objecting party must state the grounds on which an objection is taken. See State v. Harrison, 34 Conn. App. 473, 482, 642 A.2d 36, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994). As in Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988), the defendant’s failure to make the confrontation claim in the trial court denied that court “an opportunity to reexamine its ruling at a time when it could still be modified and any defect cured.” Id., 385.

The defendant’s reliance on a footnote in State v. Bethea, 24 Conn. App. 13, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991), is misplaced. In Bethea, this court held that when the defendant objected to a police officer’s relating what he had been told by the victim of a sexual assault, an objection to the admission of a tape recording of that interview on “essentially the same” grounds adequately preserved the constancy of accusation claim as to the tape recording. In Bethea, we rejected the state’s claim that admission of the tape recording should not be reviewed because the defendant neither submitted a proposed jury instruction to limit the use of the evidence for corroboration nor objected to the limiting instruction given by the court. Our review in Bethea included “the subissues of whether that matter involved a hearsay exception or corroboration of a prior statement of the victim.” Id., 17 n.2. We ruled that those subissues, relating only to the nature of constancy evidence, were sufficiently subsumed within the defendant’s objection to allow review. That ruling is not authority for the proposition that the evidentiary objection here preserved a completely unarticulated constitutional claim. As the trial court had no opportunity to rule on the confrontation issue, the journal and Miranda’s testimony were not properly preserved for appellate review.

We next address the question of whether these claims, as well as the concededly unpreserved claims as to the constancy testimony of Karen Gaube and the victim’s parents are reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). In Golding, the Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id.

“The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852 (1994); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).” State v. Smith, 35 Conn. App. 51, 55, 644 A.2d 923 (1994); State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994).

Although the record is adequate to review the confrontation claims and they are of constitutional magnitude, we conclude that the defendant’s claim founders on the third prong of Golding because the alleged violation does not clearly exist.

The defendant relies on White v. Illinois, 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992), for the proposition that Connecticut’s constancy of accusation hearsay exception is not “firmly rooted” enough to withstand a sixth amendment confrontation clause challenge. In White, the victim, who was four years old at the time of trial, never testified because she experienced emotional difficulties each time she was brought into the courtroom. The child’s mother, a babysitter, a police officer, an emergency room nurse and a physician were all allowed to relate the child’s statements describing the assault. The testimony was admitted under the “spontaneous declaration” and “statements made in the course of seeking medical treatment” exceptions to the hearsay rule. The issue in that case was “whether the Confrontation Clause of the Sixth Amendment requires that, before a trial court admits testimony under the ‘spontaneous declaration’ and ‘medical examination’ exceptions to the hearsay rule, the prosecution must either produce the declarant at trial or the trial court must find that the declarant is unavailable.” Id., 348-49. The Supreme Court affirmed the Illinois Appellate Court’s holding that such procedures are not constitutionally required.

The petitioner in White made no claim that, had the victim testified, the other testimony would, nevertheless, have violated the confrontation clause. The defendant here does not rely on the holding in White, but rather asserts that a footnote in the opinion mandates a reversal here. He claims that the White footnote dictates that only “firmly rooted” exceptions to the hearsay rule are considered sufficiently reliable to satisfy the reliability requirement of the confrontation clause and that Connecticut’s constancy of accusation doctrine meets none of the criteria laid down in the footnote for determining whether a hearsay exception is “firmly rooted.” We disagree.

In Idaho v. Wright, 497 U.S. 805, 817, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), the United States Supreme Court stated: “Admission under a firmly rooted hearsay exception satifies the constitutional requirement of reliability because of the weight accorded long standing judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.” (Emphasis added.) In Connecticut, constancy of accusation evidence is indeed a long standing exception to the hearsay rule. In State v. Kelley, 229 Conn. 557, 563-64, 643 A.2d 854 (1994), our Supreme Court rejected the defendant’s claim that constancy testimony did not fall within a recognized hearsay exception. In State v. Bethea, supra, 24 Conn. App. 18, this court stated: “The constancy of accusation doctrine has its origin in the common law. Since 1876, statements admitted under the constancy of of accusation theory have been labeled by Connecticut courts as exceptions to the hearsay rule . . . .”

Our Supreme Court has recently rejected a sixth amendment confrontation clause challenge to constancy of accusation testimony. State v. Kelley, supra, 229 Conn. 557. In explaining why the constancy doctrine did not offend the confrontation clause, the Kelley court stated: “In approving the admission of constancy of accusation testimony, we have explained that it would be natural for the victim of actual or attempted sexual assault to relate the incident to others if it had actually happened, but not if the incident had not occurred. Similarly, the victim’s recitation of the details of the incident would likely be consistent if the claim were true, but discrepancies would be more likely to appear if the incident had not occurred.” Id., 565-66. The court went on to say that “[rjather than disadvantaging a defendant, such a doctrine supplies a fertile field for cross-examination of a complainant with reference to ascertaining where the truth lies. . . . In addition to providing additional information on which the defendant can cross-examine the victim, the defendant can cross-examine the constancy of accusation witnesses.” (Citations omitted; internal quotation marks omitted.) Id., 566.

Numerous Connecticut Supreme and Appellate Court decisions have allowed such constancy evidence over a span of 164 years. From State v. De Wolf, 8 Conn. 92 (1830), through State v. Kelley, supra, 229 Conn. 557, our courts have upheld the admission of constancy of accusation testimony. See State v. Kinney, 44 Conn. 153 (1876); State v. Orlando, 115 Conn. 672, 163 A. 256 (1932); Pierzanowski v. Jezewski, 116 Conn. 704, 164 A. 207 (1933); State v. Purvis, 157 Conn. 198, 251 A.2d 178, cert. denied, 395 U.S. 928, 89 S. Ct. 1788, 23 L. Ed. 2d 246 (1969); State v. Savage, 161 Conn. 445, 290 A.2d 221 (1971); State v. Parris, 219 Conn. 283, 592 A.2d 943 (1991); State v. Bethea, supra, 24 Conn. App. 13.

Our review of the history of constancy of accusation evidence leads us to conclude that such evidence is indeed a firmly rooted hearsay exception. As such, constancy evidence satisfies the reliability requirement of the sixth amendment confrontation clause for the reasons laid out in State v. Kelley, supra, 229 Conn. 557. Under the circumstances here, a ruling by this court that the subject constancy evidence violated the confrontation clause would be contrary to the Kelley holding. As we are bound by Supreme Court precedents, we cannot rule contrary to Kelley. State v. Cecarelli, 32 Conn. App. 811, 826 n.1, 631 A.2d 862 (1993); Greger v. Greger, 22 Conn. App. 596, 599, 578 A.2d 162, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990); State v. Napoleon, 12 Conn. App. 274, 282, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987); Gibbs v. Mase, 11 Conn. App. 289, 290 n.1, 526 A.2d 7 (1987).

II

The defendant next claims that the trial court abused its discretion by failing to instruct the jury on the credibility of a child witness. He argues that this issue is reviewable on the basis of an exception taken immediately after the jury charge or, in the alternative, under Golding.

We will not review this claim because the defendant failed to comply with Practice Book § 852. There was no written request to charge on the credibility of a child witness and the defendant’s exception immediately following the charge is unavailing. The defendant’s argument that the claim is preserved by the exercise of either option as set forth in Practice Book § 852 was rejected in State v. Frye, 26 Conn. App. 472, 478, 602 A.2d 601, rev’d on other grounds, 224 Conn. 253, 617 A.2d 1382 (1992). We said in Frye that “Practice Book § 852 applies only where the trial court has misstated the applicable law or where there is ambiguity in the jury charge. It does not apply where there is a failure to instruct on something that was never requested in writing prior to the jury instructions. It cannot be used to cure a failure to file a written request to charge.” Id. As there was no written request here, the exception after the charge is ineffective under Frye.

A Golding review is unavailable because the second prong of the test is not satisfied. For an unpreserved claim to be reviewed by this court, the appellant must show that “the claim is of constitutional magnitude alleging the violation of a fundamental right.” State v. Golding, supra, 213 Conn. 239. Our courts have held that a child witness instruction is not constitutionally mandated, but is within the trial court’s discretion to give. See State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989); see also State v. Hayes, 20 Conn. App. 737, 749, 570 A.2d 716, cert. denied, 215 Conn. 802, 574 A.2d 218 (1990). “The prevailing view ... is that a trial judge retains discretion to determine whether the jury should receive a special instruction with respect to the credibility of a young witness, and, if so, the nature of that instruction.” State v. James, supra, 567-68, quoting Commonwealth v. Avery, 14 Mass. App. 137, 141, 437 N.E.2d 242 (1982). The defendant cannot show that the failure to give a child witness charge was of constitutional magnitude, therefore, his claim is not reviewable under Golding.

Ill

The defendant’s final claim is that the trial court improperly refused to give the jury a missing witness instruction. In order to be entitled to a review of a missing witness instruction, a defendant is required to file a written request to charge or take an exception immediately after the charge is delivered. Practice Book § 852.

The defendant acknowledges that no written request to charge was submitted on this issue, but contends that his exception, which was taken immediately after the trial court’s denial of his oral request, preserved the claim. He claims that State v. Kish, 186 Conn. 757, 770, 443 A.2d 1274 (1982), supports his position. We are unpersuaded. In Kish, an exception was taken after the court delivered its charge, even though no written request for a Secondino charge had been filed. Kish is distinguishable from this case because here the defendant did not take an exception after the charge.

This court has previously rejected the argument that a discussion with the court prior to the charges obviates the need to follow the rules. “[We are not] persuaded by the defendant’s contention that an in-court discussion of whether the missing witness charge was warranted, held immediately before the court’s charge to the jury, is an acceptable alternative to the rules of practice. First, the rules of practice do not give oral argument as an alternative to a written request to charge. Second, the purpose of the provision, that attorneys help rather than hinder the trial court in its determination of whether a particular instruction should be given . . . is not well served by oral argument.’’(Citation omitted.) State v. Ramirez, 16 Conn. App. 284, 289, 547 A.2d 549, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988). “It is well established that [t]he ever increasing refinement of our law justifies the cooperation of counsel in stating requests for jury instructions, and this cooperation is mandated, at least to the extent of substantial compliance with Practice Book § 852. The minor burden of cooperation imposed by this section is neither unreasonable nor novel.” Id., 288, quoting State v. McIntosh, 199 Conn. 155, 160-61, 506 A.2d 104 (1986). As the defendant neither filed a written request to charge nor took an exception after the charge was given, the claim was not preserved. Accordingly, we decline review.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such person is (1) under sixteen years of age . . . .”

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       This jury instruction is known as a Secondino charge. See Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 145 A.2d 598 (1960).

       The victim was thirteen years old when she testified at trial.

       The defendant, Karen Gaube’s brother-in-law, was spending the night at the Gaube apartment.

       The defendant raised the following objection to Miranda’s testimony: “Judge, the witness, the victim, alleged victim, in this case has already testified. Her testimony is the best evidence. This officer prepared reports. She can testify from her recollection of what she remembers. If there is anything she doesn’t remember from her reports, her memory can be refreshed and recollected. There is absolutely no purpose to admitting the statement of the alleged victim in this case, and I can only assume that the claim is going to be by Attorney Turcotte that this statement is going to constancy of accusation.” The defendant’s objection to the journal entry was: “My exception is under the rule of completeness as well as my other objections . . . .”

       Practice Book § 288 provides in pertinent part: “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as counsel desires it to go upon the record . . . .” Section 288 should be read in conjunction with Practice Book § 4185, which provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .”

       The footnote in White states: “Indeed, it is this factor that has led us to conclude that ‘firmly rooted’ exceptions carry sufficient indicia of reliability to satisfy the reliability requirement posed by the Confrontation Clause. See Idaho v. Wright, 497 U.S. 805, 817, [820-21, 110 S. Ct. 3139, 111 L. Ed. 2d 638] (1990); Bourjaily v. United States, 483 U.S. 171, [182-84, 107 S. Ct. 2775, 97 L. Ed. 2d 144] (1987). There can be no doubt that the two exceptions we consider in this case are ‘firmly rooted.’ The exception for spontaneous declarations is at least two centuries old, see 6 J. Wig-more, Evidence, § 1747, 195 (J. Chadbourn rev. 1976), and may date to the late 17th century. See Thompson v. Trevanion, 90 Eng. Rep. 179 (K.B. 1694). It is currently recognized under Federal Rule of Evidence 803 (2), and in nearly four-fifths of the States. See Brief for State of California et al. as Amici Curiae 15-16, n.4 (collecting state statutes and cases). The exception for statements made for purposes of medical diagnosis or treatment is similarly recognized in the Federal Rule of Evidence 803 (4), and is equally widely accepted among the States. See Brief for State of California et al. as Amici Curiae 31-32, n. 13 (same).” White v. Illinois, supra, 502 U.S. 355-56 n.8.

       Practice Book § 852 provides in pertinent part: “The [Appellate Court] shall not be bound to consider error as to the giving of, or 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 objection. . . .”

       The exception was phrased as follows: “I take, first, exception as to the court not giving the jury a charge on the credibility of a child witness.”

       See footnote 8.


text:
    Sanitary Services Corporation v. Greenfield Village Association, Inc.
    (12421)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued September 26
    decision released December 20, 1994

      Thomas P. Moriarty, for the appellant (plaintiff).

      Kurt F. Zimmermann, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the judgment rendered in favor of the defendant on the trial court’s granting of the defendant’s motion for summary judgment. The plaintiff, a refuse collection service, brought an action against the defendant, a condominium association, alleging that the defendant had breached a written contract for refuse collection services. The plaintiffs demand for relief included damages, liquidated damages, attorney’s fees, costs and interest.

The defendant moved for summary judgment, admitting a breach of the contract, but asserting two alternative theories to refute the plaintiff’s claim for damages, as a matter of law. The defendant contended that the liquidated damages provision in the contract was a penalty, and, in the alternative, that if the liquidated damages provision did apply to an award of damages, then the plaintiff would be entitled to zero damages under the express terms of that provision.

The plaintiff, in opposing the defendant’s motion for summary judgment, argued that the liquidated damages clause could not be enforced, and that, therefore, the plaintiff should be given an opportunity to prove actual damages, a question of fact.

The trial court concluded that, under the express terms of the liquidated damages clause, the plaintiff was not entitled to any damages. The court granted summary judgment to the defendant and stated in its memorandum of decision: “There are no damages due the plaintiff under the express terms of the contract as drafted by the plaintiff and signed by the defendant. Where the intent of the parties is expressed in language that is clear and unambiguous, the contract must be given effect according to its terms. Bialowans v. Minor, [209 Conn. 212, 217, 550 A.2d 637 (1988)].” (Internal quotation marks omitted.) The judgment file states that the court “finds the issues for the defendant.”

The plaintiff appealed, arguing that the trial court improperly applied and construed the contract’s liquidated damages provision, and improperly determined, as a matter of law, that the plaintiff was not entitled to any damages. We reverse the judgment and remand the case for further proceedings.

The first question to be resolved is whether, in view of the fact that the trial court and the parties agreed that the defendant had breached the contract by notifying the plaintiff prior to the plaintiff’s beginning any performance that the defendant was terminating the contract, judgment could be rendered for the defendant, the defaulting party.

“ ‘Practice Book § 384 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” ’ ” Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). In this case, the court should not have found, as it did, the issues for the defendant because the plaintiff had alleged and the defendant had admitted that the defendant had breached the contract. The defendant, therefore, was not entitled to judgment as a matter of law. The court’s judgment should have been for the plaintiff, and, in fact, the court acted as though that were the case because it considered what damages, if any, were due to the plaintiff. We, therefore, treat the case as though judgment, albeit a “Pyrrhic victory,” had been rendered for the plaintiff. See Tedesco v. Stamford, 215 Conn. 450, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992).

The following are relevant facts. In February, 1991, the plaintiff and the defendant entered into a written contract for refuse collection. The signed document was a two page standard form contract, supplied by the plaintiff, which included the following provision near the bottom of the second page: “LIQUIDATED DAMAGES. In the event the Customer terminates this agreement other than as provided above, Customer shall pay to Contractor as liquidated damages, a sum calculated as follows: (a) if the remaining term under this agreement is six or more months, Customer shall pay the greater of its most recent monthly charge multiplied by six, or its most recent monthly charge multiplied by one half of the number of months remaining in the term, (b) if the remaining term under this agreement is less than six months, Customer shall pay its most recent charge multiplied by the number of months remaining in the term.” The contract also included a handwritten sentence that stated: “First three (3) months free.”

The trial court did not reach the question of actual damages, a common law contract remedy, because it determined that the contract contained a valid liquidated damages clause. Both actual damages and liquidated damages cannot be awarded. Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 64, 485 A.2d 1296 (1985); see also Vines v. Orchard Hills, Inc., 181 Conn. 501, 511, 435 A.2d 1022 (1980) (liquidated damages provisions are “private agreements to supplant judicially determined remedies for breach of contract” [emphasis added]).

The plaintiff claims to be due actual damages because the liquidated damages clause could not be enforced on the facts of this case. The trial court concluded that the liquidated damages clause could be enforced but that its provisions provided the plaintiff with zero damages.

The defendant claimed, in its argument and briefs in support of its motion for summary judgment, that because the plaintiffs service under the contract was to be free for the first three months of performance, the charge for those months would be zero. Thus, the defendant argues that zero should be the amount of the “most recent monthly charge” for purposes of the computation of liquidated damages, and when multiplied by any number, as provided in the contract, damages must be zero.

“Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990). The unambiguous language of the liquidated damages clause, here, states that the calculation of liquidated damages is based on a “most recent monthly charge.” (Emphasis added.) The word “charge” has been variously defined as: “An obligation or indebtedness to be paid”; Ballentine’s Law Dictionary (3d Ed. 1969); “expenses which have been incurred ... in connection with a contract”; Black’s Law Dictionary (6th Ed. 1990); “[t]o hold financially liable; demand payment from.” American Heritage Dictionary (New College Ed. 1981). These definitions all assume that financial liability has been incurred. Here, the contract was repudiated prior to any invoice or bill for services and prior to any financial liability. Thus, there was no “charge” by which liquidated damages could be determined.

When the calculation of a liquidated damages clause is based on revenue, and the contract is breached before there is any revenue, the liquidated damages clause is impossible to apply and does not control the award of damages. Granato v. Benettiere, 5 Conn. Cir. Ct. 150, 246 A.2d 901 (1968). This case is similar to Granato in that the language of this contract conditions the application of the liquidated damages clause on the occurrence of a “charge,” yet no “charge” was ever incurred. Under these circumstances, the liquidated damages clause does not control the award of damages.

Having concluded that the plaintiff cannot be awarded liquidated damages, we must next consider whether the plaintiff is entitled to seek actual damages. Under circumstances where liquidated damages clauses are found invalid as penalties, the nonbreaching party is entitled to recover actual damages. See Camp v. Cohn, 151 Conn. 623, 626, 201 A.2d 187 (1964). Where a contract’s liquidated damages clause has not been implemented because a condition to its application has not been satisfied, a court can award damages equal to lost profits. See Granato v. Benettiere, supra, 5 Conn. Cir. Ct. 150. We hold that where a liquidated damages clause cannot be enforced because the party liable for payment of those damages has breached the contract, and by the breach has made it impossible to calculate those damages, the nonbreaching party may seek actual damages. The principal purpose of the remedies for a breach of contract is to provide compensation for loss. Vines v. Orchard Hills, Inc., supra, 181 Conn. 506. The plaintiff, here, should be given the opportunity to prove actual damages.

The amount, if any, of the plaintiff’s actual damages is a question of fact. See Amwax Corp. v. Chadwick, 28 Conn. App. 739, 745, 612 A.2d 127 (1992); L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 41, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986). The plaintiff, in its opposition to summary judgment, submitted an affidavit from its accountant estimating the plaintiff’s loss of profits resulting from the defendant’s breach of the contract. The defendant, on the other hand, claims that the plaintiff suffered no actual damages. Thus, the amount of the plaintiff’s actual damages is a disputed issue of fact to be determined at a hearing in damages.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff and for further proceedings to determine the amount of damages, if any, to which the plaintiff is entitled.

In this opinion the other judges concurred.

       The plaintiff did not seek summary judgment in its favor.

       The preceding contract term states in pertinent part: “TERM AND AUTOMATIC RENEWAL. . . .
      “Contractor further agrees that if Customer no longer requires any collection and disposal service for its waste materials, through discontinuance of its business or relocation outside the state of Connecticut, Customer may terminate this agreement upon written notice by Certified Mail to the Contractor at least sixty (60) days prior to the intended termination date, but only upon payment of all amounts then due Contractor. . . .”

       Even if the contract had been breached during its first three months of free service, the result would be the same. The defendant could incur no financial liability until month four and therefore, the liquidated damages clause would not apply until that time.


author: Hennessy, J.

text:
    State of Connecticut v. Keith Dwayne Laws
    (13325)
    Foti, Heiman and Hennessy, Js.

      Argued September 29
    decision released December 20, 1994

      Edward M. Brown, with whom, on the brief, were Stanley A. Twardy, Jr., and Matthew E. Winter, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda Howe, asisstant state’s attorney, for the appellee (state).
   Hennessy, J.

The defendant, Keith Dwayne Laws, appeals from the judgment of conviction, after a jury trial, of robbery in the second degree in violation of General Statutes § 53&-135. He claims (1) that he was illegally arrested and the evidence seized in connection with his arrest was improperly admitted at his trial, (2) that the prosecutor’s improper suggestion to the jury concerning his prior felony convictions deprived him of a fair trial, (3) that the cumulative effect of the government’s actions deprived him of a fair trial, and (4) that the evidence was insufficient to allow a jury to find him guilty of robbery in the second degree. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On August 8,1991, at approximately 12:45 p.m., Carolyn Hyder, secretary at the Longfellow School in Bridgeport, was at work in her office at the school. A black male entered her office and asked her to give him her money. The man was wearing a hooded short sleeve shirt with the hood pulled down tight over his head so that only his eyes and nose were visible. He pulled out a gun, said, “Don’t make me shoot you,” and again asked for money. Hyder gave him $15 that she had in her pocket. As that was occurring, the phone in her office rang, she answered it and the robber left her office.

At the same time, Charles Ortiz, a security guard at Longfellow School, was patrolling the hallway of the school. He observed a man leaving Hyder’s office, then he heard Hyder scream. Ortiz approached her office, and Hyder told Ortiz that she had been robbed. Ortiz ran out the front door of the school in pursuit of the man he had seen leaving Hyder’s office. Ortiz spotted a man wearing a hooded short sleeve shirt approximately fifty feet from the front door of the school. Ortiz ran after the man yelling for him to stop. The man turned, aimed a gun at Ortiz, and turned and ran away.

Two children witnessed Ortiz’ pursuit of the man in the hooded short sleeve shirt. One child, age twelve, saw the man point the gun at Ortiz and identified the man as the defendant. That child knew the defendant as a friend of his mother. The other child, age fourteen, saw the man in the hooded shirt pull out “something black” that looked like a gun. On the day after the robbery, that child identified that man as the defendant from a photographic array.

Later that day, Ortiz received a telephone call from a woman telling him that the robber was a man known as “Keithy” who lived in the P. T. Barnum housing development. One of the children who was a witness to the chase outside of the school told Ortiz that Laws lived in the P. T. Barnum housing development with Devoya Gathers.

On the basis of this information, the Bridgeport police determined that the defendant was the person responsible for the robbery at the Longfellow School. The day after the robbery, at approximately 1 p.m., Detective Gregory Iamartino and five or six other Bridgeport police officers went to Gathers’ apartment to arrest the defendant. They did not have an arrest warrant or a search warrant. They knocked on the door, identified themselves as police officers, and asked if they could enter. The man who opened the door allowed them in. The police asked if Laws was there and a child who was in the room said that Laws was in the back. The officers went to a bedroom, opened the door, and saw the defendant sleeping in a bed. The defendant was awakened, and, after a brief struggle, arrested. As the police officers were preparing to transport the defendant to the police station, the defendant asked for some clothing to bring with him. Iamartino checked a pile of clothing and found an inoperable pellet gun, which the police seized.

Following his arrest, the defendant was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The case proceeded to trial. During its case-in-chief, the state introduced the inoperable pellet gun into evidence, and it was identified by Ortiz as the gun in the defendant’s possession on the day of the robbery.

At trial, the defendant testified in his own defense. He neither denied that he was present in the area outside of the school at the time of the robbery, nor denied that he ran away from Ortiz. He claimed that he was walking past the school on his way home when a stranger came running at him. He explained that he thought the stranger wanted to steal his radio, and that was why he ran away.

The defendant was found guilty of robbery in the second degree as a lesser included offense of robbery in the first degree. Thereafter, the defendant entered a plea of nolo contendere to being a persistent dangerous felony offender in violation of § 53a-40 of the General Statutes.

I

The defendant’s first claim is that he was illegally arrested and the admission of evidence seized in connection with his arrest tainted his trial. The defendant contends that his warrantless arrest in the apartment where he was sleeping, and the seizure of the gun at the time of the arrest, violated his constitutional rights under article first, § 7, of the Connecticut constitution and the fourth amendment to the United States constitution. He argues that that unconstitutional arrest and seizure tainted his prosecution in three ways. First, he claims that the gun seized in the course of the unconstitutional arrest should not have been admitted into evidence. Second, he claims that Iamartino’s testimony about his resistance in the course of the arrest was improperly admitted into evidence and resulted in an improper jury charge on consciousness of guilt. Third, he claims that the fruits of the illegal arrest tainted the prosecution to such an extent that the entire prosecution should have been dismissed. We disagree.

A

The state notes that although the defendant filed a motion to dismiss the prosecution or to exclude evidence stemming from the defendant’s arrest, that motion was never ruled on by the trial court, and that at trial the defendant withdrew his objection to the admission of evidence seized during the arrest. In light of that, the state argues that the defendant’s claims arising from the allegedly illegal arrest have not been properly preserved for appeal.

As a general rule, an appellate court will not review claims that were not raised at the trial level. Practice Book § 4185. One of the reasons for this rule is that only the trial court has the power and authority to take evidence and make judgments concerning any contested aspects of the trial. State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). Without a trial court ruling to review, we must be wary of overstepping the bounds of our power.

In this case, the issues relating to the warrantless arrest and warrantless seizure were not ruled on by the trial court. Prior to trial, the defendant moved to dismiss the information or, in the alternative, to suppress the evidence seized in violation of his constitutional rights. No hearing was held on this motion, and no decision on the motion was issued by the trial court. During trial, the defendant objected to the introduction of the gun taken from the apartment where he had been arrested. This objection was withdrawn by the defendant, and, before the trial continued, the court noted that there was no suppression motion to be decided.

In light of the absence of action by the trial court on the motion to dismiss and suppress evidence, and the withdrawal of the objection to allowing the gun into evidence at trial, questions as to the illegality of the arrest or seizure tainting the defendant’s trial were not preserved for appellate review. The defendant claims that he is nevertheless entitled to appellate review under the constitutional bypass doctrine of Evans-Golding. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, supra, 165 Conn. 70.

Under the Evans-Golding doctrine, unpreserved claims are reviewed and the requested relief granted “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

In response to the defendant’s claim that the gun was obtained in violation of his constitutional rights, the state argues that any possible error in admitting the gun into evidence was harmless. We agree, and conclude that the claim is subject to harmless error analysis and that the state has demonstrated harmlessness beyond a reasonable doubt. See id., 241-42.

In conducting an analysis to determine if the state has demonstrated harmlessness of the claimed error beyond a reasonable doubt, we will consider all the evidence that did not stem from the illegal arrest of the defendant to determine if it was sufficient to support the jury’s verdict that the defendant was guilty of robbery in the second degree. Id.

In order for a jury to find a defendant guilty of robbery in the second degree, it would have to find that in the course of committing a larceny, the defendant used or threatened the immediate use of physical force on another person for the purpose of compelling the owner of such property to deliver up the property and in the course of the commission of the crime or of the immediate flight therefrom displayed or threatened the use of what he represented by his words or conduct to be a deadly weapon or a dangerous instrument. See General Statutes §§ 53a-133 and 53a-135. The jury can make such a finding from the facts in evidence and the reasonable and logical inferences that can be drawn from those facts. State v. Turner, 24 Conn. App. 264, 268, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991).

Hyder testified that a man took money from her while displaying a gun and threatening to shoot her. Ortiz saw a man leaving the school immediately after the robbery. Within moments of this incident, the defendant was seen walking approximately fifty feet from the front door of the school. The defendant was dressed in clothing matching the description of that worn by the person who had taken Hyder’s money. The defendant also matched the description of the man Ortiz had seen leaving the school. When Ortiz requested that the defendant stop, the defendant pointed a gun at him and ran toward a nearby housing development. While Ortiz gave chase, two children saw the person he was chasing who they later identified as the defendant. One child saw the defendant point a gun at Ortiz, the other saw the defendant pull out something black that looked like a gun.

On the basis of all of this testimony and the logical inferences that could be drawn therefrom, a jury could reasonably conclude that the defendant was guilty of robbery in the second degree. Although the defendant contested being inside the school and taking money from Hyder, the jury is the sole judge of the witness’ credibility and is free to find the defendant’s version of events less credible than that offered by the prosecution. State v. Salz, 226 Conn. 20, 38, 627 A.2d 862 (1993). The introduction of the inoperable pellet gun into evidence did not make the defendant’s denial of being inside the school any less credible, or the inference that he was the person inside the school any stronger. We conclude that even if the admission of the gun into evidence was error, it was harmless beyond a reasonable doubt. State v. Golding, supra, 213 Conn. 241-42.

B

The defendant also argues that testimony regarding his resistance to his arrest was improperly admitted in light of the illegality of the arrest. As no objection was made at the time of trial, we review this claim pursuant to the Evans-Golding doctrine. State v. Golding, supra, 213 Conn. 239-40; State v. Evans, supra, 165 Conn. 70. The testimony challenged here is that of Iamartino, who stated that the defendant, upon being awakened, gave minor resistance and while handcuffed and in the presence of five or six officers attempted to open a window. This testimony also served as one basis for a consciousness of guilt charge.

The defendant contends that this evidence and the resulting consciousness of guilt instruction were so detrimental to his case that he was deprived of a fair trial. We are not persuaded. Under Golding, a defendant “bears the responsibility of demonstrating that his claim is indeed a violation of a fundamental constitutional right. Patently nonconstitutional claims that are unpreserved at trial do not warrant special consideration simply because they bear a constitutional label.” State v. Golding, supra, 213 Conn. 240. “[OJnce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” Id., 241.

This court has previously declined to review a consciousness of guilt charge under the second prong of Evans-Golding, holding that “[consciousness of guilt instructions, which permit, but do not mandate, an inference of a guilty conscience, are evidentiary rather than constitutional in nature. State v. Smith, 219 Conn. 160, 165-66, 592 A.2d 382 (1991); see also State v. Adams, 225 Conn. 270, 289-90, 623 A.2d 42 (1993).” State v. Merritt, 36 Conn. App. 76, 96, 647 A.2d 1021, cert. granted on other grounds, 231 Conn. 926, 648 A.2d 165 (1994). Here, the defendant’s challenges to Iamartino’s testimony and the consciousness of guilt charge are evidentiary and not constitutional in nature. We find it unnecessary to consider this claim of error further.

C

The defendant also argues that his illegal arrest and the use of evidence gathered therefrom should result in all charges being dismissed. In support of this argument he cites State v. Federici, 179 Conn. 46, 425 A.2d 916 (1979). We conclude that Federici is inapposite. In Federici, illegally seized weapons were the only evidence supporting probable cause to arrest the defendant. In this case, there was significant evidence of guilt apart from the pellet gun. This case is controlled by State v. Fleming, 198 Conn. 255, 263, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986), in which our Supreme Court held that “[w]here the fairness of a subsequent prosecution has not been impaired by an illegal arrest, neither the federal nor the Connecticut constitution requires dismissal of the charges or a voiding of the resulting conviction. ‘[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.’ Frisbie v. Collins, [342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541 (1952)] . . . .” (Citations omitted.) Because we are convinced of the harmlessness of any error resulting from the admission of evidence stemming from the allegedly illegal arrest and seizure, we conclude that even if the arrest of the defendant was illegal, it did not taint the prosecution so as to compromise the defendant’s right to a fair trial.

II

The defendant’s second claim is that the prosecutor’s improper reference to the defendant’s thirteen prior felony convictions during closing argument deprived him of a fair trial under article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution. The defendant argues that during closing argument the prosecutor invited the jury to convict the defendant of the crime charged on the basis of his prior convictions. Because the defendant failed to make a timely objection to the prosecutor’s closing argument, he requests that we review this claim pursuant to the Evans-Golding doctrine. See State v. Golding, supra, 213 Conn. 239-40; State v. Evans, supra, 165 Conn. 70. We find that the defendant has failed to demonstrate that “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial” and, thus, we dispose of his claim under the third Golding criteria. State v. Golding, supra, 239-40.

“In analyzing the defendant’s claim [of prosecutorial misconduct], we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. ... We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 539-40, 529 A.2d 653 (1987); see also State v. Robinson, 227 Conn. 711, 745-46, 631 A.2d 238 (1993).

There are no allegations of prosecutorial misconduct outside closing argument. When the defendant took the stand on his own behalf he was cross-examined by the state about his thirteen prior felony convictions. In keeping with the trial court’s ruling on a motion in limine, the state confined its inquiry into these prior convictions to the purpose of impeaching the defendant’s credibility. During his own closing argument, the defendant brought up the thirteen prior felony convictions and suggested that he had been arrested and tried for this crime only because of those convictions. The state, in its closing argument, then responded to this argument, contending that when police act swiftly in apprehending a suspect it is natural for them to take into consideration his or her prior record, and that the defendant’s criminal history might also be a factor in guiding the defendant’s own actions during and after the commission of a crime. The prosecutor never suggested that the jury could convict the defendant of this crime because of his prior record of thirteen felony convictions.

Viewed in this context, the defendant’s claim that the words used by the prosecutor amounted to serious misconduct, depriving him of a fair trial, cannot succeed. The alleged misconduct is restricted to a single incident at the end of the trial, and, when the closing arguments of both sides are scrutinized, no misconduct can be found. Furthermore, the trial court clearly instructed the jury as to the presumption of innocence and explicitly directed that the defendant’s thirteen prior felony convictions should be considered in connection only with the defendant’s credibility, not with the defendant’s guilt in this instance. We conclude that the defendant has not demonstrated that the alleged misconduct during closing argument clearly existed or that it in any way deprived him of a fair trial. State v. Golding, supra, 213 Conn. 239-40.

Ill

The defendant next argues that the cumulative effect of the state’s actions deprived him of his due process rights under article first, § 8, of the Connecticut constitution. The defendant argues that his illegal arrest, the admission of the illegally seized gun into evidence, and the prosecutor’s suggestion that the defendant’s felony convictions could be considered as evidence of guilt, taken together, compel a finding that the defendant’s conviction must be set aside. Our previous holdings, that the state has demonstrated the harmlessness of any error resulting from the testimony and evidence derived from the allegedly illegal arrest, and that no prosecutorial misconduct occurred, lead us to reject this claim of error.

IV

The final argument presented by the defendant is that the evidence was insufficient to allow the jury to find him guilty of robbery in the second degree. The defendant claims that the evidence proves, at the most, that he was present outside the school, near the time of the robbery, with an inoperable gun, and that there is no direct evidence that he was the robber. As we have discussed, from the evidence presented, even disregarding the inoperable pellet gun, the jury could reasonably have inferred that the defendant entered the school, displayed a gun' and took money from Hyder. Therefore, the jury could reasonably have found the defendant guilty of robbery in the second degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-135 provides in relevant part: “(a) A person is guilty of robbery in the second degree when he commits robbery . . . and ... (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.
      “(b) Robbery in the second degree is a class C felony.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... or of immediate flight therefrom, he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”

       General Statutes § 53a-40 provides in relevant part: “(a) A persistent dangerous felony offender is a person who (1) stands convicted of manslaughter, arson, kidnapping, sexual assault in the first or third degree, aggravated sexual assault in the first degree, sexual assault in the third degree with a firearm, robbery in the first or second degree, or assault in the first degree, and (2) has been, prior to the commission of the present crime, convicted of and imprisoned under a sentence to a term of imprisonment of more than one year or of death, in this state or in any other state or in a federal correctional institution, for any of the following crimes: (A) The crimes enumerated in subdivision (1) of this subsection, murder, or an attempt to commit any of said crimes or murder . . . .”

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”

       The fourteenth amendment to the United States constitution, which guarantees citizens that the states will not infringe their due process rights, provides in relevant part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law . . . .”

       In closing argument the defendant’s counsel stated: “Defendant testified, defendant said, ‘I not only spoke to [Mr. Ortiz] once, I spoke to him twice.’ . . . You’re permitted as to every witness to accept some, all or none of what anybody says on the stand. If I were the state’s attorney I would tell you that that statement that Mr. Laws made when he testified is capable of being believed, but not the rest. After all, a guy with thirteen felonies, or what is he, he’s nothing. He committed thirteen felonies he must have committed this one. You see, what you see in this case is the development of a snowball, it’s the old fashion snowball. Something happens in the school and there’s an assumption that the man walking outside the gate is the person that held the lady up, an assumption. And there is a subsequent confrontation .... [Then] he gets a telephone call from an unnamed person, unnamed person. The person that stuck up the secretary is Keithie, so he goes back outside and he says to the two kids, ‘Anybody know who Keithie is?’ They says, ‘Yeah, he just walked by here a few minutes ago.’ Cops get involved. Keithie, Keithie, who’s Keithie? Keith Laws. That dude he’s got thirteen felonies, let’s go get him. They go get him the next day, never thinking about getting a warrant, forget that, that doesn’t mean nothing. If he committed those thirteen crimes he had to commit this one. . . . So we get the telephone call .... Who creates a name, that name was fed back to the kids, the kids know the person, hey, we got the crime solved, we don’t need a trial and we don’t need anything, let’s go pick him up and slam him in. After all, this is easy, this is like — this is like shooting fish in a barrel. This dude lives in the project, thirteen crimes. It must be, I mean, if he committed the thirteen crimes he must have committed this one. The court will give you instructions on that. . . . The significance of who put Keith’s name into whose minds is very important. . . . See, that’s the whole key, it’s thirteen times before, that’s why we’re here. Because it could be any black guy but now we’ve got a guy who’s been in trouble thirteen times. I mean, maybe the state does, I mean, the state figures if he doesn’t want another odd number so we make it an even number, we’ll make it fourteen times. Unfortunately, I think that’s the cement that [holds] this whole thing together, that’s the cement that caused everybody to run and — and to do things a little bit out of the ordinary and a little bit outside the rules, but nonetheless, because we have so-called a bad guy that we’re looking for we can do whatever we have to do. . . . You may choose because of his record not to believe a darn thing he said, that’s your privilege, that’s essentially, and I’m — I’m thinking whether he’s with the— the definition of law, but it’s essentially what — what could happen, you can disbelieve him because of his record, but you can’t convict him because of his past deeds.”

       In her closing argument, the prosecutor stated: “Ladies and gentlemen, the defense raised an argument concerning the defendant’s prior conviction. Now I am not allowed to argue that if someone has committed a crime before they’ll commit a crime again, that — that’s not an appropriate argument, the case law claims it’s not appropriate, the judge will tell you what you can use a prior conviction for. Counsel did make a remark though, concerning the defendant’s background which you [have] come to hear, of something affecting, somehow making a foregone conclusion that the only reason that Keith Laws was arrested is because of his prior convictions. Now I would agree with counsel that the fact that a person does have thirteen prior felony convictions is a factor a police officer can reasonably consider in acting swiftly to apprehend that person. That’s a logical thing to consider for the officer’s conduct. And I would also agree with counsel that the fact that the remark he made, ‘Well, a person’s done his time and then . . . the state may argue to you well he hasn’t learned his lesson.’ And I am arguing that does make sense, yes, when a person can go to prison or be convicted of a felony and not learn their lesson, absolutely. That— that’s a matter of human nature. There are also things that a person can realize if the background counsel is referring to, defense counsel is referring to which are things like, a person can commit a crime and a witness can see that crime and that witness can be afraid to come forward. That witness may want to help the authorities but they’re not going to give them a call, they’re not going to come forward to court, that’s something you can learn also, they haven’t been through the criminal justice system. You can learn that you can commit a crime, in particular in a housing project and people who know you can see you do it or can see part of it and they’ll be afraid to come to court, you can know that. You can learn that not every crime that’s committed, a person gets caught. You can learn that if you commit a crime, it’s wise when you’re committing it to try to conceal your identity and then after you commit it, it’s wise to act as normal as possible. You can learn that too.”

       The court addressed the subject of the defendant’s credibility as a witness in light of his prior felony convictions as follows: “You’ll learn that while he was on the witness stand that [the defendant] admitted to having been convicted previously of thirteen crimes which were classified as felonies. . . . Now evidence of such conviction may be considered by you as affecting the credibility of such a witness. ... I emphasize, however, that it may only be used in connection with the witness’ credibility. Whereas here the witness is also the defendant you may not use the evidence of the prior felony convictions as evidence of his guilt of this offense that is charged. You may not infer that because he was convicted of a felony before that he is likely to have committed this offense. You may, however, if you find that it bears on his credibility, use those convictions to find that he is not a believable witness and that therefore all or some of his — of his versions of the events in question is not true. ... In other words, the — the proof of the prior criminal record is to be used by you as affecting the witness’ testimony only.”

       See footnote 6.