author: Freedman, J. Landau, J.,

text:
    State of Connecticut v. Troy Jaynes
    (13074)
    O’Connell, Landau and Freedman, Js.

      Argued March 23
    decision released August 23, 1994

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a, and possession of a firearm without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that (1) the trial court improperly found that testimony regarding alleged attempts by police officers to bribe defense witnesses was inadmissible hearsay, (2) the trial court improperly refused to give an addict-informant instruction, (3) the trial court improperly instructed the jury regarding reasonable doubt and the presumption of innocence in violation of the constitutional guarantees of due process and the right to a fair trial, (4) the trial court should have declared a mistrial, sua sponte, and improperly denied the defendant’s motion for a new trial because of threats to a juror, and (5) the defendant’s constitutional and statutory rights to be tried by a jury composed of twelve sworn jurors were violated. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On March 29, 1990, the police were dispatched to investigate a report of gunshots in the area of Southwest and Dixwell Avenues in New Haven. Upon arrival, Officer Kelly Dillon observed a male in his late twenties lying on the side of the street. He was not moving and appeared to be unconscious. Dillon observed blood on and around the victim. There were no people on the street and Dillon’s attempt to locate any witnesses that night was fruitless. The paramedics arrived and moved the victim, revealing a .38 caliber revolver underneath him. No fingerprints were found on the gun or on the shells inside it. The victim was taken to the Hospital of St. Raphael where he was pronounced dead.

The police conducted an investigation of the neighborhood in search of witnesses to the events of the night of March 29. They located two eyewitnesses, Bernard Draughn and James Taft. Both were drug runners who had worked for the defendant. They had observed the defendant shoot the victim at close range. The victim had been shot five times at close range. The ballistics report revealed that the gun found at the scene was not the gun used to shoot the victim.

Additional facts will be set forth as necessary for the resolution of this appeal.

I

The defendant first claims that the trial court improperly found that testimony regarding alleged attempts by police officers to bribe defense witnesses was inadmissible hearsay.

The following additional facts are necessary for the proper resolution of this issue. At trial, the defendant offered the testimony of two witnesses, Marcus Thomas and Dwayne Branch. Both men testified that they had been questioned by police with respect to the shooting on March 29. Out of the presence of the jury, they further testified that during their respective questionings, Detectives Joseph Greene and Tony DiLullo had offered them “girls or money” in exchange for their giving false statements incriminating the defendant. Thomas also testified that DiLullo had directed a racial slur at him.

A

The defendant called Thomas as his first witness. Out of the presence of the jury, he testified that during one of his many questionings by Officer Dirkey McCoy and DiLullo, he got upset and asked the officers to leave. In response to Thomas’ request that the officers leave, he testified that DiLullo said, “Who you think they going to believe, you niggers or me?” and “That’s all right, you ain’t got to help because I’ll put in the report what I want to put in the report.” The state objected on hearsay and relevancy grounds. The court sustained the objection.

“ ‘[Ejvidence is relevant if it has a tendency to establish the existence of a material fact.’ State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978). ‘ “One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. ... No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason ....”’ State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985).” State v. Woodson, 227 Conn. 1, 16, 629 A.2d 386 (1993).

The transcript reveals that the defendant may have offered this testimony in anticipation of the state’s offering a statement given by Thomas to the police that was contradictory to the testimony Thomas gave at trial. At the time of this offer of testimony, the state had not introduced the statement to the police, nor would it do so at any subsequent time. Because the statement by DiLullo was relevant only for the purpose of explaining why Thomas’ testimony at trial differed from his statement to the police, and the statement to the police had not been introduced at the time of the offer of testimony, the trial court properly sustained the objection on the ground that it was not relevant.

Because we conclude that the trial court properly excluded this statement on relevancy grounds, we need not determine whether the trial court also properly sustained the objection on the ground that the statement was hearsay.

B

Out of the presence of the jury, Thomas later testified that when he would not say what the police wanted to hear, DiLullo had asked him, “What do you want, girls, money, what do you want?” The state objected on the grounds of relevancy and hearsay. The court ruled that the statement may be relevant because it may support the defendant’s defense that he had been railroaded by the police, but that the statement was, nonetheless, inadmissible because it was hearsay. The court informed the defendant that he was free to pursue this defense, as long as the questions were phrased so as not to elicit a hearsay response. The defendant took an exception. After the court’s ruling, the defendant did not ask Thomas any further questions regarding the alleged bribery attempt.

Branch later testified, also out of the presence of the jury, that he too had been offered “girls and money,” and that he perceived the offer as an attempt by Greene and DiLullo to induce him to perjure his testimony. The state again objected on the ground that the statement was hearsay. The trial court heard argument from both sides and sustained the objection.

The defendant claims that the statements with regard to the offers of girls and money were not hearsay, and, therefore, the trial court improperly precluded their admission. We agree. We conclude, however, that the error was harmless.

The defendant claims the statements were not hearsay on two grounds. First, the question, “What do you want, girls, money, what do you want?” was not offered to prove the truth of the matter asserted but to prove that the police officers had offered him a bribe, and, second, the statement was offered to show the effect on the witness. We are not persuaded by the defendant’s second argument because the effect of the words on the witness is not relevant in this case. It is true that “[a] statement that is offered to show its effect upon the hearer . . . is not hearsay. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Alvarez, 216 Conn. 301, 310, 579 A.2d 515 (1990). Because the state, however, had not offered the statement given to the police by Thomas that purportedly conflicted with his testimony at trial, there was no issue as to the effect of the statement on the witness. We conclude, therefore, that to the extent that the question, “What do you want, girls, money, what do you want?” was offered to show the effect on the witness, it was properly excluded because the effect on the witness was not relevant.

With regard to the defendant’s claim that the questions were not hearsay because they were not offered to prove the truth of the matter asserted, we agree with the defendant. Hearsay is an out-of-court statement that is offered to establish the truth of the facts contained in the statement. C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.1.1, citing State v. Miller, 154 Conn. 622, 629, 338 A.2d 167 (1967), and Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718, 52 A. 722 (1902). A statement may or may not be hearsay, depending upon the purpose for which it is offered. “When declarations are offered . . . for the purpose of showing that such statements were made and not that what was declared was true, they do not come within the rule.” 2 B. Holden & J. Daly, Connecticut Evidence (1988) § 93a, citing McDermott v. McDermott, 97 Conn. 31, 37-38, 115 A. 638 (1921); Engel v. Conti, 78 Conn. 351, 354, 62 A. 210 (1905).

Here, the defendant offered the question, “What do you want, girls, money, what do you want?” to show that the police had in fact attempted to bribe the witnesses to falsify their testimony. It was not offered to show either that Thomas wanted girls or money or that the police would have given him girls or money had he in fact perjured his testimony, but only to show that the police had attempted to bribe him. The trial court, therefore, improperly excluded the offered statement on the ground that it was hearsay.

Nevertheless, the error was harmless. The defendant claims that the trial court’s exclusion of the statement was harmful in that it denied him his constitutional right to present a defense. We do not agree.

“Whether a trial court’s erroneous restriction of a defendant’s or defense witness’s testimony in a criminal trial deprives a defendant of his due process right to present a defense is a question that must be resolved on a case-by-case basis. See State v. Bryant, 202 Conn. 676, 704, 523 A.2d 451 (1987).” State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988). The defendant argues that the trial court’s exclusion of the statement deprived him of his due process right to present a defense. He further argues that the burden is on the state to prove that this error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824,17 L. Ed. 2d 705 (1967). Despite these claims, we conclude that the trial court’s error in this regard was not of constitutional magnitude. See State v. Jones, supra, 731.

Because we have concluded that the trial court’s exclusion of the statement was not of constitutional magnitude, “the burden rests upon the defendant to demonstrate the harmfulness of the court’s ruling. State v. Jones, [supra, 205 Conn. 732]; State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980); but see State v. Torres, 210 Conn. 631, 642-43, 556 A.2d 1013 (1989) (state required to prove harmlessness where the court made a series of fundamentally unfair evidentiary rulings, escalating the error to a constitutional violation). To sustain this burden, the defendant must demonstrate that ‘it is more probable than not that the erroneous action of the court affected the result.’ State v. Jones, supra, 732; State v. Ruth, supra, 196-97; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).” State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991).

The defendant claims that the exclusion of the statement was harmful in that it denied the defendant his constitutional right to present a defense. In sustaining the hearsay objection to the statements regarding the offer of girls and money, however, the court ruled that the evidence may very well have been relevant and, thus, the defendant was free to pursue his defense that he had been railroaded, as long as the questions were phrased so as not to elicit a hearsay response. The defendant, however, did not ask any further questions regarding the alleged bribery attempts. In addition, he failed to cross-examine the state’s witnesses, Draughn and Taft, regarding whether the police had in fact bribed them to perjure their testimony, and he also failed to call the police officers to testify. The defendant, therefore, was not prevented from presenting his defense; he simply did not pursue it any further.

Because the defendant was free to pursue his defense in ways other than asking Thomas and Branch what the detectives had said to them, and failed to do so, we conclude that the defendant cannot demonstrate that it was more probable than not that the trial court’s exclusion of the statement affected the result.

II

The defendant next claims that the trial court improperly refused to give an addict-informant charge. Specifically, he claims that the trial court’s refusal to charge as requested or to give any charge regarding the special credibility concerns of the testimony of addicts deprived the defendant of his “constitutional rights to an adequately instructed jury and to a fair trial by failing to provide the jury with complete instruction . . . .” State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986).

The following facts are necessary for the resolution of this issue. Two of the state’s witnesses, Draughn and Taft, identified the defendant as the shooter. Both admitted that they had used narcotics at the time of the shooting. Draughn testified that he was not high the night of the shooting and that he had stopped using narcotics in June, 1990. Taft testified that he was not sure whether he was high at the time of the shooting. At trial, Taft was never asked whether he still used narcotics; thus, it was never established that he was an addict at that time.

The defendant filed the following request to charge: “If a witness for the State of Connecticut is also a narcotics addict, there are additional reasons why his testimony should be considered with great care. An addict has a constant need for a supply of drugs and for money to support his habit and also may have an abnormal fear of imprisonment in which his supply of drugs might be cut off. These are special circumstances which you may consider in weighing testimony of this kind. You, of course, may give the testimony such weight as you think proper after considering all relevant circumstances.” The trial court did not charge as requested and the defendant took an exception. This claim, therefore, was adequately preserved. See Practice Book §§ 852, 4185.

The defendant asserts that because the defendant properly requested an addict-informant charge the trial court was required to give such a charge. We do not agree.

An addict-informant charge is a specialized instruction given in cases where a government informant was addicted to narcotics at the time of his or her informant activities. United States v. Kinnard, 465 F.2d 566, 571 (D.C. Cir. 1972); Government of Virgin Islands v. Hendricks, 476 F.2d 776, 779 (3d Cir. 1973). The charge directs the jurors’ attention to the potential unreliability of an addict-informant’s testimony. An informant’s testimony, in particular, is potentially unreliable because the credibility of a paid informant is suspect when, by placing the guilt on another, the informant-witness’ furthers his or her own interest. Fletcher v. United States, 158 F.2d 321, 322 (D.C. Cir. 1946). There is a dispute among the United States Courts of Appeals as to when such a charge is required. United States v. Hoppe, 645 F.2d 630, 633 (8th Cir. 1981). We conclude that an addict-informant instruction is not appropriate in this case.

It is obvious that before a charge regarding the testimony of a witness who is an addict-informant would be required, there must be evidence tending to show that the witness in fact is an addict-informant. Although, the two witnesses may have been addicts at the time they witnessed the shooting, there was no evidence that they were addicted to narcotics at the time of trial, nor was there any evidence that they were government informants. The two men were simply witnesses to a shooting. Draughn testified that he was not addicted to narcotics at the time of trial and that he had not used drugs since June, 1990. With regard to Taft, it is not clear from the evidence that he was or was not addicted to narcotics at the time of trial. The defendant, thus, has not established that either Draughn or Taft was an addict at the time of trial or that either was an informant. Because the witnesses were not informants, nor were they shown to be addicts at the time of trial, the concerns regarding the testimony of addicts and informants were not present in this case. There was, therefore, no need for a charge addressing those concerns and the trial court properly refused to give an addict-informant instruction.

The defendant claims, in the alternative, that, even if the addict-informant instruction was not required, the trial court was required to give at least some sort of instruction regarding the unique credibility concerns of narcotics addicts. The trial court charged the jury on the issue of the credibility of witnesses in general. The defendant claims that this charge was inadequate. We do not agree.

“Our review of the defendant’s claim requires that we examine the court’s entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction. See State v. Rollinson, 203 Conn. 641, 665, 526 A.2d 1283 (1987); State v. Utz, 201 Conn. 190, 209, 513 A.2d 1191 (1986). While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a court need not tailor its charge to the precise letter of such a request. State v. Bennett, 172 Conn. 324, 330, 374 A.2d 247 (1977). If a requested charge is in substance given, the court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. See State v. Jennings, 216 Conn. 647, 663, 583 A.2d 915 (1990); State v. Casey, [supra, 201 Conn. 178]. ‘ “Whether a charge is possibly misleading depends on the substance rather than the form of what is said.” ’ State v. Stevenson, 198 Conn. 560, 571, 504 A.2d 1029 (1986); see State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991); State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982).” State v. Ortiz, 217 Conn. 648, 661-62, 588 A.2d 127 (1991). In addition, “[w]hether certain factors relating to witness credibility need to be stressed will largely be left to the trial court’s discretion and will not be overturned on appeal absent a clear abuse of discretion. State v. Mancinone, 15 Conn. App. 251, 280 [545 A.2d 1131] (1988).” J. Bruckmann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook: A Practitioner’s Guide (1989), p. 399.

Under this standard of review, we conclude that the trial court properly discharged its duty to instruct the jury in a manner calculated to give a clear understanding of the issues regarding the credibility of witnesses. The trial court instructed the jury extensively on the subject of credibility of witnesses. Throughout its instructions, the trial court stressed the different ways of evaluating the truthfulness of testimony, it specifically pointed out that the jury should consider possible bias or prejudice, interest or lack of interest in the outcome, and the ability to observe and relate accurately. It is, therefore, not reasonably possible that the jury was misled.

III

The defendant next claims that the trial court improperly instructed the jury regarding reasonable doubt and the presumption of innocence. Specifically, the defendant claims the trial court’s instructions to the jury that a reasonable doubt “is a doubt for which you can in your own minds conscientiously find a reason,” and that “the rules of evidence are made to protect the innocent and not the guilty” taken together, violate the constitutional guarantees of due process and the defendant’s right to a fair trial. We do not agree.

The following additional facts are necessary for the proper resolution of this issue. The defendant submitted a written request to charge that specifically excepted to a charge on reasonable doubt that included an articulation or explanation of what a reasonable doubt includes. Thus, this claim is properly preserved for our review. See Practice Book § 852. With respect to the defendant’s claim regarding the presumption of innocence, the defendant did not file a request to charge, nor did he take an exception at the time of trial; he, therefore, seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Under State v. Golding, supra, 213 Conn. 239-40, a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

“The first two conditions of Golding 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. Walker, 33 Conn. App. 763, 769, 638 A.2d 1084 (1994). “In harmony with the objective of Golding, the defendant’s claim may be disposed of by focusing on whichever condition is most relevant in the particular circumstances. . . .” (Citations omitted; internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 440, 630 A.2d 1043 (1993). “A defendant may prevail under the third prong of Golding on a claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled. [State v. Walton, 227 Conn. 32, 65, 630 A.2d 990 (1993).]” (Internal quotation marks omitted.) State v. Walker, supra, 769.

The trial court charged the jury with regard to the presumption of innocence as follows: “It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with a crime by respecting the presumption of innocence, and by making the state meet its burden of proving guilt beyond a reasonable doubt, but you must keep in mind that these rules of evidence are made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime or crimes as charged, then it is your sworn duty to enforce the law and to render a verdict of guilty on that charge or charges. By the same token, if you are not satisfied beyond a reasonable doubt, it’s your sworn duty to find the accused not guilty of that charge or charges.”

Our Supreme Court previously has approved the same or similar jury instructions. State v. Walton, supra, 227 Conn. 66-67; State v. Stanley, 223 Conn. 674, 695, 613 A.2d 788 (1992). We conclude that this instruction, regarding the presumption of innocence, taken as a whole, adequately informed the jury that the state had the burden of proving the defendant guilty beyond a reasonable doubt. As a result, we also conclude that no constitutional violation exists that clearly deprived the defendant of his right to due process or a fair trial. We decline, therefore, to grant review of this claim pursuant to Golding.

With regard to the charge on reasonable doubt, our Supreme Court in State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980), considered the identical language as that presently before us. In Derrico, the court held that the trial court’s charge, including the language defining a reasonable doubt as a doubt “for which you can in your own minds conscientiously give a reason,” when considered together with the rest of the charge “was proper and sufficient guidance for the jury, and fairly presented the case to the jury so that no injustice resulted. . . .” (Citations omitted.) Id., 170-71. Our review of the charge given to the jury in this case reveals that the charge, taken as a whole, also provided the jury with proper and sufficient guidance such that the defendant was not denied due process or a fair trial. We conclude, therefore, that the trial court did not improperly charge the jury with respect to “reasonable doubt” or the “presumption of innocence” in violation of the defendant’s right to due process and a fair trial.

The defendant claims that the combination of these two improper charges violated his constitutional right to due process and a fair trial. Because we conclude that neither charge was improper, taking them together would not change that result.

IV

The defendant next claims that the trial court improperly failed to declare a mistrial sua sponte, and, further, improperly denied the defendant’s motion for a new trial based on threats to a juror. We do not agree.

The following additional facts are necessary for the proper resolution of this issue. After the conclusion of evidence, but before closing arguments, a juror notified the court that he had received a threatening telephone call the previous night. The court called the juror to testify regarding the telephone call. The juror testified that he had been awakened by a telephone call around 1:30 a.m. and that a male voice on the line threatened him. The only part of the message that he recalled was the end when he heard “or you are a dead man.” He testified that he did not recall most of the call because he was in the process of waking up. He assumed that the threat was related to the trial, and told the other jurors about the call.

At that point, the trial court excused the juror to a room so that he was separated from the other jurors and spoke to counsel in chambers. Upon returning to the courtroom, the trial court stated that there was nothing in the juror’s testimony that would clearly tie the threat to this particular case. The trial court then explained that he intended to call in the other jurors, and to ask them collectively whether anyone else had received a telephone call or any other communications during the course of the trial. The trial court further stated that if none of the other jurors had received any communications, then the court would instruct them to disregard anything regarding the threatening telephone call because, after questioning the single juror in private, it was apparent that the threatening call was not related to this case. The trial court then explained that it intended to excuse the single juror and that they would select an alternate by lot at a later time.

At that point, the defendant requested that the trial court inquire into whether the ability of any of the remaining jurors to decide the case fairly and impartially might be affected by their knowledge of the threatening telephone call. The trial court then called in the remaining jurors, and proceeded in accordance with its previously stated plan. The trial court also asked, “Now, did any of you have any particular problems in sitting on this case at this time?” The jurors responded in the negative. The jury was excused and the defendant again expressed a concern regarding the ability of the jurors to decide the case fairly and impartially. The trial court summoned the jury and further stated to the jury, “Now, I would assume that all of you can still be fair and impartial sitting on this matter, if you can’t, kindly let me know now. Seeing no hands, thank you, because I think you could do it.” The defendant did not object. After the jury returned its verdict finding the defendant guilty, the defendant filed a motion for a new trial on the ground that “the jury’s verdict of guilty reflects that the jury may have considered and likely did consider [the threatening telephone call] in reaching their verdict.”

The defendant claims that the trial court improperly failed to declare a mistrial sua sponte after learning of the threatening telephone call. The defendant asserts that because there is a presumption of prejudice where a juror in a criminal case is contacted, shifting the burden to the state to prove that the contact was harmless, the trial court should have declared a mistrial sua sponte. We do not agree.

“ ‘The trial court has great latitude in ruling on motions for mistrial. State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982); State v. Perez, 181 Conn. 299, 310, 435 A.2d 334 (1980).’ Holbrook v. Casazza, 204 Conn. 336, 355, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). ‘The general rule is that a mistrial is granted only where it is apparent to the court that, as a result of some occurrence during trial, a party has been deprived of the opportunity for a fair trial. State v. Gaston, 198 Conn. 490, 495, 503 A.2d 1157 (1986); State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982).’ Id., 356.” State v. Cooper, supra, 227 Conn. 441-42.

Here, we cannot say that it should have been apparent to the trial court that the jurors’ knowledge of the threatening telephone call deprived the defendant of the opportunity for a fair trial. It certainly was not apparent to the defendant, who did not make a motion for a mistrial. The trial court did not abuse its broad discretion by not declaring a mistrial sua sponte. State v. Smith, 200 Conn. 544, 548, 512 A.2d 884 (1986); State v. Fleming, 198 Conn. 255, 264, 502 A.2d 866, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 347 (1986).

The defendant alternatively claims that the trial court improperly denied his motion for a new trial. We do not agree.

“[T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. ... A necessary component of the right to an impartial jury is the right to have the jury decide the case solely on the basis of the evidence and arguments given them in the adversary arena after proper instructions on the law by the court. . . . Consideration of extrinsic evidence is jury misconduct and has been found to be sufficient to violate the constitutional right to trial by an impartial jury. . . .Whether juror consideration of extrinsic evidence was prejudicial to a defendant depends on the magnitude of the juror’s deviation from his proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury’s verdict. . . . Although the trial court enjoys broad discretion in determining whether jury misconduct occurred, and, if so, whether such misconduct prejudiced the defendant . . . the court must have some factual basis on which to exercise that discretion. . . . State v. Migliaro, 28 Conn. App. 388, 395, 611 A.2d 422 (1992).” (Citations omitted; internal quotation marks omitted.) State v. Brown, 33 Conn. App. 339, 344, 635 A.2d 861, cert. granted, 228 Conn. 925, 926, 638 A.2d 40 (1994).

The defendant claims that the trial court’s inquiry was inadequate, and that “it was factually impossible to ascertain [on the basis of that inquiry] whether the jurors were able to remain fair and impartial after learning of a death threat to a fellow juror.” Here, the trial court asked the jurors: “Now, did any of you have any particular problems in sitting on this case at this time?” The jurors responded in the negative. The court further stated: “Now, I would assume that all of you can still be fair and impartial sitting on this matter, if you can’t, kindly let me know now.” The jurors did not respond.

“A trial judge is generally in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure to improper matter has prejudiced a defendant. ... A trial court has wide discretion in deciding how to pursue an inquiry into the nature and effect of information that comes to a juror improperly as well as its potential effect upon the jury if it learns of it. . . (Citations omitted.) State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989). We conclude that the trial court’s inquiry provided it with a sufficient basis on which to determine whether the jury was able to act fairly and impartially in spite of its knowledge of the threatening telephone call. The defendant, therefore, has failed to demonstrate that the trial court abused its discretion in denying the motion for a new trial.

V

The defendant’s final claim is that his constitutional and statutory rights to be tried by a jury composed of twelve sworn jurors were violated. We do not agree.

Certain additional facts are necessary for a proper resolution of this issue. The original jury consisted of twelve sworn jurors and two sworn alternate jurors. After the close of evidence, but before closing arguments and the jury charge, the juror who had received the threatening telephone call was excused. The trial court explained, in the presence of the jury, that it would not select one of the alternates until the conclusion of the charge to the jury and that the alternate selected would deliberate with the jury. The trial court selected the alternate juror, in accordance with its explanation, at the conclusion of the charge to the jury but prior to deliberations.

The defendant claims that during the closing arguments, during the charge to the jury and, arguably, during deliberations, only eleven members of the jury were sworn as regular jurors and, therefore, the defendant was deprived of his right to a jury trial. The defendant did not object at the trial; he seeks review, however, under State v. Golding; supra, 213 Conn. 233. “In harmony with the objective of Golding, the defendant’s claim may be disposed of by focusing on whichever condition is most relevant in the particular circumstances. . . .” (Citations omitted; internal quotation marks omitted.) State v. Cooper, supra, 227 Conn. 440.

In State v. Carter, 34 Conn. App. 58, 93, 640 A.2d 610 (1994), we held that, “while the defendant does have a statutory right to a twelve person jury, he does not have such a constitutional right.” The defendant, therefore, cannot meet the second prong of Golding and is not entitled to review.

The judgment is affirmed.

In this opinion O’Connell, J., concurred.

Landau, J.,

concurring. I agree with the majority that the judgment of the trial court should be affirmed. I disagree, however, with the majority’s conclusion that the trial court improperly found that the proffered defense witnesses’ testimony was violative of the rule that “is peculiar to Anglo-American jurisprudence and did not obtain an established foothold in it until the close of the seventeenth century”; Engel v. Conti, 78 Conn. 351, 354, 62 A. 210 (1905); the hearsay rule.

The facts are set out in the majority opinion and for purposes of this concurrence I repeat those relevant to the hearsay issue. Marcus Thomas and Dwayne Branch, the defendant’s witnesses, testified that when they would not tell the police what they wanted to hear, Officer Tony DiLullo asked them, “What do you want, girls, money, what do you want?” It is clear that the introduction of this statement through the testimony of Thomas and Branch was intended to present to the jury the fact that the police would provide girls, money or whatever Thomas and Branch wanted in exchange for a statement that would inculpate the defendant. This testimony would support, therefore, the defendant’s defense that he was “railroaded” by the police.

While no precise and universal test of relevancy is furnished by the law, we can safely define relevancy as evidence that conduces in any reasonable degree to establish the probability or improbability of a fact in controversy. 1 B. Holden & J. Daly, Connecticut Evidence (1988) § 67b. It is apparent that the testimony of Thomas and Branch was relevant. The testimony establishes the probability of a fact at issue, i.e., the defendant’s defense that the police railroaded him. When the defendant, through Thomas, offered the testimony, the state objected on the grounds of relevancy. The court ruled that the statement was relevant because it supported the defendant’s defense. The testimony could be relevant only if it -established the probability of a fact at issue and it could do that only if offered to prove the truth of the matter asserted; therefore, it is hearsay. B. Holden & J. Daly, supra, § 93. Because the hearsay testimony does not qualify as an exception to the rule against hearsay evidence, the trial court was correct in its ruling.

I agree with the remainder of the majority’s well reasoned opinion.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-54a (a) provides: “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 or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 29-35 provides in pertinent part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. ...”

       Our review of Connecticut case law reveals that the propriety of an addict-informant charge has not been addressed. In addition, neither the Federal District Court not the Court of Appeals of the Second Circuit has addressed the propriety of an addict-informant charge. The parties cite solely to federal cases from various circuits for their authority. Because our resolution of this issue turns on the fact that the relevant witnesses were not informants, nor was the evidence clear that they were addicts, we do not address the questions of whether and when an addict-informant charge is relevant or required under Connecticut law.

       “Several circuits have indicated that upon request such an instruction must be given. Virgin Islands v. Hendricks, 476 F.2d 776, 779 (3d Cir. 1973); United States v. Collins, 472 F.2d 1017, 1018-19 (5th Cir. 1972), cert. denied sub nom. Branch v. United States, 411 U.S. 983, 93 S. Ct. 2278, 36 L. Ed. 2d 960 (1973). See generally United States v. Kinnard, 465 F.2d 566, 569 (D.C. Cir. 1972) (Bazelon, C. J.). . . . [Other] circuits [have held] that the circumstances of each case determine the need of an addict-informant instruction. United States v. Tousant, 619 F.2d 810, 812 (9th Cir. 1980); UnitedStates v. Wright, 542 F.2d 975, 988-89 (7th Cir. 1976), cert. denied 429 U.S. 1073, 97 S. Ct. 810, 50 L. Ed. 2d 790 (1977); United States v. Gregorio, 497 F.2d 1253, 1261-63 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S. Ct. 501, 42 L. Ed. 2d 298 (1974).” United States v. Hoppe, 645 F.2d 630, 633 (8th Cir. 1981).

       “In United States v. Shigemura, 682 F.2d 699, 702-703 (8th Cir. 1982), cert. denied, 459 U.S. 1111, 103 S. Ct. 741, 74 L. Ed. 2d 962 (1983), the following four factors were considered in determining whether an addict instruction was necessary: (1) was the informant an addict at the time of the trial, not when the alleged transactions occurred; (2) was her addiction subject to cross-examination; (3) was the jury instructed that the addict’s testimony should be particularly scrutinized; and (4) was the addict’s testimony corroborated. See also United States v. Tousant, 619 F.2d 810, 812 (9th Cir. 1980) (‘Where the fact of addiction is not clear and where the district court has not precluded the defendant from establishing it, it is not error to reject an instruction on addiction.’) (citation omitted). The concerns with respect to assuring a fair trial are that the jury be properly instructed about addiction and its effects if a witness is an addict. The jury must also be appraised of the particular facts of a witness’ drug use through direct and cross-examination.” United States v. Manganellis, 864 F.2d 528, 543 (7th Cir. 1988); see also United States v. Smith, 692 F.2d 658, 661 (10th Cir. 1982); United States v. Hoppe, 645 F.2d 630, 633 (8th Cir. 1981); United States v. Gregorio, 497 F.2d 1253, 1262 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S. Ct. 501, 42 L. Ed. 2d 298 (1974).

       The trial court charged the jury regarding the credibility of witnesses as follows: “The credibility of witnesses and the weight to be given their testimony are matters which are properly your function to determine, however, it’s proper for me to make a couple of suggestions. Now, no fact is, of course, to be determined merely because of the number of witnesses testifying for or against it. It is the quality and not the quantity of testimony which is to be controlling. In weighing the testimony of a witness, you should consider his or her appearance on the witness stand, in other words, you should try to size the witness up, you should have in mind all those little circumstances which point to his or her truthfulness or untruthfulness. You should consider any possible bias or prejudice that he or she may have whether for or against the state or for or against the accused, the interest of the witness or the lack of interest of whatever sort in the outcome of the trial, his or her ability to observe facts correctly and to remember and relate them truthfully and accurately. You should test the evidence that the witness gives by your own knowledge of human nature and the matters which influence and control human actions. If any facts are admitted or otherwise proven to you, you may well bring those into relationship with the testimony and see if they fit together. In short, you are to bring to bear upon such testimony the same considerations and use the same sound judgment that may apply to questions of truth and veracity which are daily presenting themselves for your decision in the ordinary affairs of life. The credit with which you will give the testimony to be offered by the various witnesses is, as I have said, something for you alone to determine. Whether a witness testifies inaccurately and you do not think that the inaccuracy was consciously dishonest, you should bear that in mind and scrutinize the whole testimony of that witness. Thus, if you find that there is an inaccuracy in any one respect on the part of a witness, remember that in judging the rest of his or her testimony and give it the weight which you in your own mind leads you to think it ought to have and which you would attach to it in the ordinary affairs of life where someone came to you in a matter and you found that in some particulars they may have been inaccurate. If, however, you conclude that a witness was not only testifying falsely, but that he or she had done so intentionally or willfully, this fact casts a very serious doubt upon all of his or her testimony and you might well conclude that you could not accept any of it. That fact, however, is a matter for you to determine, and even though you find that he or she essentially gave false testimony to certain matters, you may find that as to certain other matters their testimony was worthy of acceptance by you as being true. After all, whether you should believe all of the witness’ testimony, or believe only some portions of it, or none of it, it’s entirely up to you, the ladies and gentlemen of the jury, to decide.”

       The trial court charged on reasonable doubt as follows: “Now, reasonable doubt is a doubt that is based upon reason and grows out of the evidence or lack of evidence in the case. A reasonable doubt is not such a doubt as may be raised by one questioning merely for the sake of raising a doubt. It is not a surmise, a guess, or a conjecture. Obviously, under our system, a defendant should never be convicted on a mere conjecture or suspicion. A reasonable doubt is not a hesitation springing from any feelings of sympathy or pity for the accused or for any other person or persons who might in any way be affected by your decision. It is a doubt that is reasonable in light of the evidence and is honestly entertained by a juror after a fair comparison and careful examination of the entire evidence in the case. It is a doubt for which you can in your own minds conscientiously find a reason. However, the state of Connecticut is not required to absolutely demonstrate the guilt of the accused, but that proof must be beyond a reasonable doubt, and this reasonable doubt is one which reasonably arises from the evidence or want of evidence in the case, and any other doubt than this is not a reasonable doubt. The state of Connecticut does not desire the conviction of an innocent person, nor any person who is presented on evidence where there is reasonable doubt. The state does not wish to have an innocent person punished or have a guilty person acquitted. But for the safety and well-being of society and the protection of life and property, the state is concerned in securing the conviction of individuals who have been proven guilty of committing the crimes charged beyond a reasonable doubt. It is the law of this state that a man shall not be convicted upon a mere suspicion or speculation. The state must prove his guilt beyond a reasonable doubt.”

       The defendant claims that the trial court’s failure to administer the oath of a regular juror to the previously sworn alternate juror deprived him of his right to a jury trial. “Alternate jurors, by statute, must have the same qualifications and be selected in the same manner as regular jurors. General Statutes § 54-82h (a). Further, the alternate jurors sit in the trial for the entire case and hear and observe the trial in the same manner as the regular jurors until the time of deliberation. General Statutes § 54-82h (c). An alternate juror, once selected to be part of the regular jury, becomes part of the regular jury ‘as though such juror had been a member of the regular panel from the time when [the case] was begun.’ General Statutes § 54-82h (c). Thus, the jury at all time consisted of twelve regular jurors.” State v. Carter, 34 Conn. App. 58, 93-94, 640 A.2d 610 (1994).


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Philip F. Wieler II
    (11428)
    (11429)
    Dupont, C. J., and Foti and Heiman, Js
    Argued April 28
    decision released July 26, 1994

      Ira B. Grudberg, with whom was David A. Leff for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Sullivan, supervisory assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals, in appeal number 11428, from the judgment of conviction, rendered after a jury trial, of two counts of larceny in the first degree by embezzlement in violation of General Statutes § 53a-122 (a) (2) and, in appeal number 11429, from the judgment of conviction rendered after a jury trial of twenty counts of larceny in the first degree by embezzlement in violation of General Statutes § 53a-122 (a) (2) and two counts of larceny in the second degree by embezzlement in violation of General Statutes § 53a-123. On appeal, the defendant claims that the trial court improperly (1) precluded the defendant, from offering evidence that he lacked the criminal intent necessary to commit the crime of larceny by embezzlement and (2) instructed the jury as to the criminal intent necessary to commit the crime of larceny by embezzlement. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. In 1989, the defendant, Philip F. Wieler II, was the president and sole stockholder of NW Group, Inc., a New Haven based company that provided property management services for various condominium associations throughout Connecticut. The services of NW Group, Inc., included snow removal and repairs, collecting rent, and resolving tenant and owner complaints for the individual client associations. From 1986 to 1989, NW Group, Inc., managed the properties of approximately fifty condominium associations, approximately fifteen of which were owned in whole or in part by the defendant. NW Group, Inc., consisted of four divisions: commercial sales, residential sales, rental, and property management. In addition, NW Group, Inc., maintained both an accounting and a legal department. The accounting department was headed by the comptroller, Thaddeus Kubow, who had been hired in 1986 by the defendant and the defendant’s business partner at the time, Salvatore Nicotra. Kubow worked closely with the defendant who was involved in the day-to-day operations of NW Group, Inc., and who directed Kubow in his activities.

In his position as comptroller of the accounting department, Kubow oversaw the work of various NW Group, Inc., employees. These included a corporate bookkeeper, Lisa Nardello, who worked closely with both Kubow and the defendant. In addition, the accounting department included a payroll clerk, a part-time employee in charge of reconciliation of bank statements, two employees who handled accounts receivable, one employee who handled accounts payable for the properties in which the defendant had an interest, and one employee who handled accounts payable for the remaining properties managed by NW Group, Inc.

The procedure for the management of various condominium associations was in place when Kubow was hired and was not changed. Each property managed by NW Group, Inc., had its own individual checking account. Rents and fees paid on behalf of each individual condominium association were mailed to NW Group, Inc., and deposited into the individual accounts by the employees handling accounts receivable. The checkbooks for each of these accounts were kept by NW Group, Inc., and the bank statements for the accounts were mailed to NW Group, Inc., rather than to the individual condominium associations. Many of the properties also purchased certificates of deposit as reserve funds to meet any large or unusual expenses. These certificates were also held by NW Group, Inc., in a fireproof safe in the accounting department.

Bills for expenses incurred by the individual condominium associations were also mailed directly to NW Group, Inc., for payment. Each bill was coded with a three digit identification code and sent to the property manager in the property management division of NW Group, Inc., who handled that individual association. The property manager would review the bill for accuracy and then submit it to the accounting department for payment. At this time, the employees handling accounts payable would enter the amount of the bill into NW Group’s computers as an open payable.

Two to three times a month, the accounting department would generate a list of open payables for review by the property managers. The property managers would mark the lists as to which bills were “okay to pay” at that time. Usually, mortgages were paid at the beginning or first “check run” of the month, utilities on the second check run, and miscellaneous invoices on the third check run at the end of the month. The defendant personally reviewed the invoices for the properties in which he had an interest. Once an invoice was marked okay to pay, the accounts payable employees of the accounting department would print out checks from NW Group’s central disbursement account. Checks were printed by computer and contained a three digit code that indicated for which of the managed properties the payment was made. The actual invoice being paid was attached to the back of the check for review before signing. The checks were signed by Kubow, William Charbonneau, who was vice-president of NW Group, Inc., or by the defendant. Before the checks were actually paid, the accounting department would also print out a total of the expenses that each property had incurred. That exact amount was withdrawn from the property’s individual checking account and placed in NW Group’s central disbursement account to reimburse the central account for disbursements made on behalf of each property. Only the funds necessary to cover the expenses of each individual property were withdrawn from that property’s account. This central account was also used to pay corporate bills incurred by NW Group, Inc.

During the period between June, 1986, and the end of 1989, properties in which the defendant had an interest began to experience financial difficulties. These properties did not generate sufficient income to pay their bills in full. Despite this, the bills for the defendant’s properties were paid. When the individual accounts of the defendant’s properties could not reimburse the central account for moneys expended on their behalf, an overdraft would result on the central account. The bank would call Nardello to inform her of the overdraft and give NW Group, Inc., a specified period of time in which to deposit sufficient funds in the account. Nardello would then inform Kubow who was directed by the defendant to withdraw funds from the accounts of properties not owned by the defendant that had large balances. Checks drawn on the accounts of these associations to pay the bills of the defendant’s properties were marked “PRE” for “prereimbursement” and were treated as loans. By 1989, the overdrafts were occurring as frequently as four times per week.

The properties managed by NW Group, Inc., but not owned by the defendant, never authorized the defendant to withdraw moneys from their accounts other than to pay bills on their behalf. Nor had any of the properties ever authorized a loan to the defendant. In fact, the properties had no way of knowing about this prereimbursement procedure. Although the individual properties received monthly statements of the activities involving their accounts, these monthly statements were prepared by NW Group, Inc., and did not reflect prereimbursements withdrawn from the accounts. Monthly statements received by the individual condominium associations contained the beginning balance, total income received on their behalf, total bills paid on their behalf, and an ending balance. Because the individual condominium associations did not receive statements from the bank, they did not know that the amounts on the statements from NW Group, Inc., were higher than the amounts actually on deposit in their accounts at the bank.

Throughout 1989, the financial situation of the properties owned by the defendant steadily worsened. Overdrafts occurred more and more frequently. Kubow repeatedly informed the defendant of the seriousness of the problems and began to hold checks that were cut in payment of client association accounts in his desk drawer because he knew sending them out would result in overdrafts.

In July, 1989, the defendant purchased Terrance Cooke & Company, a similar property management company. This purchase increased the number of properties managed by NW Group, Inc., by another thirty-five to forty. By August or September, 1989, the merger of the two companies was complete and all bills were paid out of NW Group’s single central disbursement account. Several Cooke employees were retained and became employees of NW Group, Inc., including Laurie Whitney, who continued as assistant comptroller in the accounting department.

On October 25, 1989, Whitney received a telephone call from First National Bank informing her that one of the former Cooke property’s accounts was overdrawn. Whitney was surprised and alarmed as this account was normally a very healthy account with a large balance. Whitney asked the bank to fax to her information on the activity on this account. She immediately noticed large, unexplained withdrawals. When Whitney examined the actual checkbooks for the former Cooke properties, she found that the unexplained withdrawals were marked “PRE.” Whitney immediately informed Edward Duval, vice-president of the property management division, who in turn contacted Kubow.

A meeting was called on October 27, 1989, by the defendant, who asked to speak with Whitney alone. The defendant attempted to justify the withdrawals as advances to cover future invoices, but could not explain why the individual properties were not notified. Whitney accused him of stealing the money and the defendant stated that he intended to pay it back.

At about this time, Terrance Cooke, the previous owner of Terrance Cooke & Company, began receiving complaints from vendors that serviced the former Cooke properties. The vendors complained about not having been paid and about having received checks that were returned for insufficient funds. Two checks due Cooke from the defendant for the sale of Terrance Cooke & Company were also returned for insufficient funds. Cooke then received a telephone call from Whitney regarding the events of October 25, 1989.

On November 1, 1989, Cooke and his attorneys met with the defendant. The defendant admitted to the withdrawals but never explained them to Cooke’s satisfaction. The defendant insisted that the funds were in other accounts and that it was merely an accounting error that had caused the overdrafts. On November 7, 1989, the defendant entered into a forbearance agreement with Cooke in which the defendant admitted that transfers were made without proper authorization and promised to undertake various immediate steps to restore the funds taken, including setting up a $500,000 escrow account by November 10, 1989, for that purpose.

By November 16, 1989, the escrow account had not been established nor were funds restored as promised. Cooke informed the defendant that he had not met his obligations under the forbearance agreement and that Cooke planned to disclose the problems to the individual condominium associations, beginning with Brook-side Condominium Association at a regularly scheduled meeting at 6 that night. Cooke invited the defendant to attend. At that meeting, the defendant informed the Brookside Condominium Association of the problems. He assured the members that it was merely an accounting error and that he would have the funds restored by the end of the year. When pressed by the president of the Brookside Condominium Association, Julie Profetti, to restore the funds by the next day, the defendant reluctantly promised to do so.

On November 17,1989, the defendant asked Kubow to bring him all of the certificates of deposit held at NW Group, Inc., on behalf of various condominium associations. After reviewing them, the defendant brought two certificates of deposit to Founder’s Bank in New Haven to be closed. These certificates of deposit were owned by Breaker Beach Condominium Association, managed by NW Group, Inc., and were purchased with the funds of the Breaker Beach Condominium Association. The face value of the certificates were $20,000 and $75,000. The defendant was authorized to sign the certificates of deposit at the request of the condominium associations as part of the management agreement with NW Group, Inc.

Michelle Piccolo, branch manager of Founder’s Bank, informed the defendant that penalties would be incurred by closing the certificates of deposit before their maturity dates. Despite this, the defendant signed and closed the accounts. The total yield from the certificates was $98,583.57. To restore as promised the funds taken from Brookside Condominium Association, $84,295.95 of the proceeds was wired to them. The remaining funds from the certificates of deposit $14,287.62, were given to the defendant in the form of a check payable to NW Group, Inc., as agent for Breaker Beach Condominium Association.

Also in November, 1989, Virginia Patrick, president of Breaker Beach Condominium Association, became concerned about the financial condition of NW Group, Inc. After speaking with the defendant and Duval, Patrick was not satisfied that the situation was under control. Lucy Colangelo, treasurer of the Breaker Beach Condominium Association, went directly to Founder’s Bank to make sure that its certificates of deposit were intact. Colangelo was shown the closed certificates of deposit as well as records of the distribution of their proceeds. She immediately contacted NW Group, Inc., and recovered the check that was made payable to NW Group, Inc., as agent for Breaker Beach Condominium Association. Breaker Beach Condominium Association did not recover the money wired to Brookside Condominium Association. Patrick informed NW Group, Inc., that she or another representative of Breaker Beach Condominium Association would be over the next day to pick up their records, accounts and checkbook held at NW Group, Inc. Patrick then contacted the New Haven police to file a complaint.

At trial, the defendant was precluded from presenting evidence regarding his intent, ability and efforts to repay the moneys taken from the various condominium associations managed by NW Group, Inc. The court held that such evidence was irrelevant because the intent required for the commission of the crime of larceny by embezzlement did not require an intent permanently to deprive the owners of the funds. The defendant was found guilty on all counts in both informations. This appeal followed.

I

The defendant first claims that the trial court improperly excluded evidence of his lack of intent permanently to deprive the condominium associations of their property. We are unpersuaded.

The following additional facts are necessary for a proper resolution of this issue. On March 2,1992, during the trial, the state abandoned its claim of larceny by embezzlement under General Statutes § 53a-119 (1) against the defendant as defined in General Statutes § 53a-118 (a) (4) (A) and proceeded against the defendant for larceny by embezzlement under General Statutes § 53a-119 (1) as defined in General Statutes § 53a-118 (a) (4) (B). The defendant then sought to introduce evidence showing his lack of intent permanently to deprive the condominium associations of their property. The state objected and the trial court sustained the objection because it found the evidence irrelevant. In the trial court and on appeal, the defendant asserts that the evidence is admissible because his intent permanently to deprive the condominium associations of their property is an essential element of the crime charged.

“[Tjhere are two components to relevant evidence: materiality and probative value. C. McCormick, Evidence (3d Ed. 1984) § 185, p. 541.” State v. Jeffrey, 220 Conn. 698, 709, 601 A.2d 993 (1991), cert. denied, U.S. , 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992). “ ‘[Ejvidence is relevant if it has a tendency to establish the existence of a material fact.’ State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978). ‘ “One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. ... No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason . . . .” ’ State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985).” State v. Woodson, 227 Conn. 1, 16, 629 A.2d 386 (1993).

Here, the evidence would not have the tendency to establish a material fact. The evidence would have the tendency to establish a material fact only if the intent permanently to deprive the associations of their property was an element of the offense. See id. The only issue that remained in the case when the defendant attempted to offer evidence of his lack of intent permanently to deprive the associations of their property was whether the defendant committed larceny by embezzlement in violation of General Statutes § 53a-119 (1) by appropriating the property as defined in General Statutes § 53a-118 (a) (4) (B).

Embezzlement “is a purely statutory offense, rather than a common law crime.” 2 F. Bailey & H. Rothblatt, Defending Business and White Collar Crimes (2d Ed. 1984) § 25:1. Our courts have consistently excluded as an element the intent of the accused permanently to deprive the victims of their property. See State v. MacCullough, 115 Conn. 306, 312, 161 A. 512 (1932); State v. Parker, 114 Conn. 354, 365-66, 158 A. 797 (1932). “ ‘Perhaps in a majority of cases the party who violates his trust in such a manner does not expect or intend that ultimate loss shall fall upon the person whose property he takes and misuses. But no hope or expectation of replacing the funds abstracted can be admitted as an excuse before the law. The forger who means to take up the forged paper, the thief who contemplates making eventual restitution, and the man who embezzles money or bonds with the design of restoring them, all fall under the like condemnation in courts of justice and wherever the rules of sound morality are respected.’ ” State v. Parker, supra, 365-66.

The development of the embezzlement statute in Connecticut indicates that the requirement that the accused intend permanently to deprive the victims of their property was added by No. 828, § 120, of the 1969 Public Acts. See General Statutes § 53a-118 (a) (4) (A); General Statutes (Rev. to 1958) § 53-355; General Statutes (1949 Rev.) § 8693; General Statutes (1930 Rev.) § 6365; General Statutes (1918 Rev.) § 6517; General Statutes (1902 Rev.) § 1413. The intent permanently to deprive, however, is only one of two alternative theories in the embezzlement statute. The other alternative requires disposal of the property without the intent permanently to deprive the victims of their property. See General Statutes § 53a-118 (a) (4) (B). This alternative is the theory on which the state pursued conviction. It is established that under this theory that “[t]he fact that he intended, and might be able, to replace the [property] entrusted to him with other [property] would not absolve him from guilt; when he sold the [property], [the defendant] placed it beyond his power to restore the [property] to [the victims], and not only did this constitute an unlawful appropriation of it, but it also established his felonious intent to deprive [the victims] of it.” State v. MacCullough, supra, 115 Conn. 312. Thus, evidence tending to show the defendant’s lack of intent permanently to deprive the victims of their property was not an element of the offense and not a material fact. See State v. Woodson, supra, 227 Conn. 16. As such, the evidence was irrelevant and properly excluded by the trial court.

II

The defendant next claims that the trial court improperly refused to instruct the jury that the state was required to prove he intended permanently to deprive the associations of their property. The defendant requested that the trial court charge the jury that the state was required to prove that the defendant intended permanently to deprive the victims of their property. See General Statutes § 53a-118 (a) (4) (A). The trial court, instead, charged the jury that the state was required to prove only that the defendant disposed of the property. See General Statutes § 53a-118 (a) (4) (B). After completion of the charge, the defendant objected to the charge and took exception. See Practice Book § 852.

“ ‘Our standard of review in cases when the defendant claims that the instructions [were deficient] is whether . . . it was reasonably possible that the jury was misled.’ State v. Wolff, [29 Conn. App. 524, 530, 616 A.2d 1143 (1992)]; State v. Campbell, 225 Conn. 650, 661, 626 A.2d 287 (1993). ... A jury instruction [must provide] the jury with a ‘clear understanding of the elements of the crime[s] charged, and affords them proper guidance for their determination of whether those elements were present.’ (Internal quotation marks omitted.) State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992); State v. Plude, 30 Conn. App. 527, 537, 621 A.2d 1342, cert. denied, 225 Conn. 923, 625 A.2d 824 (1993). . . . ‘If justice is to be done . . . it is of paramount importance that the court’s instructions be clear, accurate, complete and comprehensible, particularly with respect to the essential elements of the alleged crime[s]. . . .’(Citations omitted; internal quotation marks omitted.) State v. Roque, [190 Conn. 143, 157, 460 A.2d 26 (1983)]; State v. Wolff, supra [530]. ‘[I]n reviewing jury instructions our task is also to view the charge itself as part of the whole trial.’ ” State v. Lemoine, 33 Conn. App. 743, 750-51, 638 A.2d 622 (1994).

As we stated previously, the defendant’s intent permanently to deprive the associations of their property is not an essential element of the offense of larceny by embezzlement. Thus, there is no reasonable possibility that the trial court’s refusal to instruct on it misled the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-122 provides in pertinent part: “(a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-l 19 and . . . (2) the value of the property or service exceeds ten thousand dollars . . .
      General Statutes § 53a-119 provides in pertinent part: “larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to:
      “(1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property in his care or custody.”
      General Statutes § 53a-118 provides in pertinent part: “(a) The following definitions are applicable to this part ... (4) To ‘appropriate’ property of another to oneself or a third person means (A) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (B) to dispose of the property for the benefit of oneself or a third person.”
      The state charged the defendant with appropriation under General Statutes § 53a-118 (a) (4) (B).

       The defendant was convicted by the jury of twenty-one counts of larceny in the first degree, but his postverdict motion for judgment of acquittal was granted as to count eleven of the information, thus reducing to twenty the number of counts as to which judgment of conviction entered.

       General Statutes § 53a-123 provides in pertinent part: “(a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property . . . exceeds five thousand dollars . . . .”

       The defendant and Nicotra were partners in Nicotra-Wieler Management, Inc., the predecessor to NW Group, Inc. In 1987, the defendant purchased Nicotra’s interest in the company and renamed it NW Group, Inc.

       See footnote 1.

       See footnote 1 supra.

       General Statutes (Rev. to 1958) § 53-355 provides in pertinent part: “Any . . . private individual, who takes, purloins or secretes, or in any way appropriates to his own use or to the use of others, any . . . moneys . . . in his care or custody . . . with intent to defraud another . . . shall be [punished.]”

       General Statutes (1949 Rev.) § 8693 provides in pertinent part: “Any . . . private individual, who shall take, purloin or secrete, or in any way appropriate to his own use or to the use of others, any . . . moneys . . . in his care or custody . . . with intent to defraud another . . . shall be [punished.]”

       General Statutes (1930 Rev.) § 6365 provides in pertinent part: “Any . . . private individual, who shall take, purloin or secrete, or in any way appropriate to his own use or to the use of others, any . . . moneys . . . in his care or custody . . . with intent to defraud another . . . shall be [punished.]”

       General Statutes (1918 Rev.) § 6517 provides in pertinent part: “Every . . . private individual, who shall take, purloin or secrete, or in any way appropriate to his own use or to the use of others, any . . . moneys . . . in his care or custody . . . with intent to defraud another . . . shall be [punished.]”

       General Statutes (1902 Rev.) § 1413 provides in pertinent part: “Every . . . private individual who shall take purloin or secrete, or in any way appropriate to his own use or to the use of others, any . . . moneys . . . in his care or custody . . . with intent to defraud another . . . shall be [punished.]”


author: Lavery, J. Freedman, J.,

text:
    Virginia Remington, Administratrix (Estate of William K. Remington) v. Aetna Casualty and Surety Company
    (12560)
    Lavery, Landau, Heiman, Freedman and Spear, Js.
    Argued May 9

    decision released August 23, 1994

      Christopher Carrozzella, for the appellant (plaintiff).

      Michael P. Del Sole, with whom, on the brief, was Paula S. Giles, for the appellee (defendant).

       This case was originally heard on March 24, 1994. It was reheard en banc on May 9, 1994.

   Lavery, J.

The plaintiff, Virginia Remington, appeals from the trial court’s judgment granting the defendant’s motion for summary judgment. The plaintiff claims that the trial court improperly determined as a matter of law that the decedent, William K. Remington, was not a resident of the plaintiff’s household and, thus, was not a family member eligible for underinsured motorist coverage under the terms of the plaintiff’s automobile insurance policy issued by the defendant. We agree with the plaintiff and reverse the judgment of the trial court.

William K. Remington, the stepson of the plaintiff, was killed in an automobile accident in 1990. At the time of the decedent’s death, the plaintiff was insured by the defendant under an automobile policy that included underinsured motorist coverage for all covered persons. The policy defined “covered person” as “you or any family member.” “Family member” was defined as a “person related to you by blood, marriage or adoption who is a resident of your household. This includes a ward or foster child.”

After the plaintiff received $10,000 in reparations from the driver responsible for the accident, she filed a claim for underinsured motorist coverage with the defendant. The plaintiff claimed that the decedent was a “covered person” under the policy. The defendant moved for summary judgment on the amended complaint, claiming that the decedent was not a “covered person” because (l)he was not a resident of the insured’s household at the time of the accident, and (2) he was no longer related to the plaintiff. The trial court granted the motion, ruling that because the defendant had shown that the decedent was not a resident of the plaintiff’s household at the time of the accident, there existed no genuine issue of material fact and the defendant was entitled to judgment as a matter of law. The plaintiff appealed.

I

The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, 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.” Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991). A “material fact” is a fact that will make a difference in the result of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). Once the movant demonstrates the nonexistence of any genuine issue of material fact, Practice Book § 380 requires the nonmovant to present “affidavits and other documentary proof” establishing the existence of a genuine issue of material fact. Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781; Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1990). The trial court must view the evidence in the light most favorable to the nonmovant. Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781.

In this case, the defendant had to show the absence of a genuine issue regarding whether the decedent was a covered person at the time of the accident. The trial court found that the defendant had sustained this burden by demonstrating that the decedent was not a resident of the plaintiff’s household at the time of the accident. The record on which this ruling was based reveals the following. Born in 1952, the decedent lived with his father, Robert Remington, and the plaintiff from the time of their marriage, in 1966, until his father’s death in 1987. The decedent suffered head injuries in a 1965 automobile accident that were serious enough to cause temporary blindness and permanently impair his vision. The plaintiff testified that she handled the decedant’s financial affairs and generally “guided him along.”

When the plaintiff moved to Cheshire after her husband’s death, the decedent took up residence with his brother in Hamden. Although she lived in Cheshire, the plaintiff’s name was on the lease for the Hamden apartment. When the decedent moved with his brother to a different apartment in Hamden in 1989, the plaintiff paid rent on his behalf. The decedent returned to live with the plaintiff in January, 1990. Shortly thereafter, the decedent moved to a nearby motel. He again returned to the plaintiff’s home one week later. In February, 1990, the decedent moved to the Hamden apartment, where he resided until his death. The plaintiff had found the apartment, rented it and listed the telephone in her name, and paid the rent from her own funds.

While the decedent lived in Hamden, the plaintiff and decedent visited often and spoke by telephone several times each day. The plaintiff kept some of her late husband’s clothes at her home for the decedent’s use. She also maintained one of the bedrooms at her home as the decedent’s although others used the room. The plaintiff received the decedent’s unemployment checks at her home as well as the majority of his mail. Although the decedent used the plaintiff’s home as his permanent residence, he was registered to vote in Hamden, and listed Hamden as his address on his 1990 federal tax return.

In light of this evidence, the trial court stated that it found that the decedent was not a resident of the plaintiff’s household at the time of the accident that resulted in his death. Accordingly, the trial court ruled that the defendant was entitled to judgment as a matter of law.

“[Construction of a contract of insurance presents a question of law for the [trial] court which this court reviews de novo.” Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991). Policy language must be interpreted reasonably; words are to be given their ordinary meaning in order to deduce the intent of the parties. Aetna Casualty & Surety Co. v. CNA Ins. Co., 221 Conn. 779, 786, 606 A.2d 990 (1992); Hammer v. Lumberman’s Mutual Casualty Co., supra, 214 Conn. 583. Any ambiguity in the meaning of the terms of the policy is resolved against the insurance company. Hammer v. Lumberman’s Mutual Casualty Co., supra, 584; LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970).

In defining “resident of the same household,” our courts have construed the term “household” in accordance with its ordinary, dictionary meaning. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 686, 590 A.2d 957 (1991); Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 492, 616 A.2d 806, cert. denied, 224 Conn. 923, 618 A.2d 528 (1992); see also Griffith v. Security Ins. Co., 167 Conn. 450, 454, 356 A.2d 94 (1975) (phrase resident of same household is not ambiguous). The 1991 edition of the American Heritage Dictionary defines household as “[a] domestic establishment including the members of a family and others who live under the same roof.” Thus, the definition of household reveals two primary characteristics: a close, familial relationship and joint occupation of a dwelling. D’Addio v. Connecticut Ins. Guaranty Assn., 30 Conn. App. 729, 734, 622 A.2d 609, cert. denied, 226 Conn. 903, 625 A.2d 1375 (1993); Lawrence v. New Hampshire Ins. Co., supra, 492.

Although the familial bond between the decedent and the plaintiff is not seriously disputed, a conglomeration of factors, including the intent of the decedent, must be considered to determine whether the plaintiff and the decedent shared a dwelling. See Middlesex Mutual Assurance Co. v. Walsh, supra, 218 Conn. 687. “Intent is clearly a question of fact that is ordinarily inferred from one’s conduct or acts under the circumstances of the particular case.” Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). “[Sjummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of . . . intent . . . .” Id. In finding that no genuine factual dispute existed regarding the decedent’s residency, the trial court must have found that the defendant would be entitled to a directed verdict on the basis of these facts. Connell v. Colwell, supra, 214 Conn. 247. Viewing the evidence in the light most favorable to the plaintiff, however, we cannot agree that the defendant would be entitled to judgment as a matter of law on the issue of the decedent’s residence. Despite the existence of significant evidence that the decedent was not a resident of the plaintiff’s household, the plaintiff introduced evidence sufficient to support a determination in her favor by a reasonable fact finder. We hold, therefore, that the trial court improperly granted summary judgment on the issue of the decedent’s residency.

II

The defendant also claims that, as a matter of law, the decedent was not a covered person because he was not related to the plaintiff at the time of the accident. Although the trial court based its ruling solely on its residency determination, and although our resolution of that issue disposes of this appeal, we consider the defendant’s assertion because it may recur on remand. If, on remand, the plaintiff establishes that the defendant was a resident of her household, she will then have to prove that the decedent was related to her at the time of the accident.

When the plaintiff married Robert Remington, she became the decedent’s stepmother. “The stepparent-stepchild relationship is one based on affinity. Affinity is ‘the connection existing in consequence of marriage between each of the married persons and the kindred of the other.’ In re Bordeaux’s Estate, 37 Wash. 2d 561, 565, 225 P.2d 433 (1950); annot., 26 A.L.R.2d 271.” Lavieri v. Commissioner of Revenue Services, 184 Conn. 380, 383, 439 A.2d 1012 (1981). Affinity is distinguished from consanguinity, which is relationship by blood. In re Bordeaux’s Estate, supra, 565.

The defendant asserts as a general proposition that affinity terminates with the end of the marriage that created it. Thus, the defendant asserts that when Robert Remington died, thereby terminating the marriage, the plaintiff and decedent were no longer stepchild and stepparent, regardless of their intent and their conduct toward each other. Conversely, the plaintiff claims that her affinal relationship with the decedent survived her husband’s death.

As a general statement of law, the defendant’s assertion is incorrect. In 1950, in a scholarly and persuasive discussion, the Supreme Court of Washington demonstrated that there was no absolute principle, nor had one ever existed at common law, that affinity was broken on the death of the spouse whose marriage created it. In re Bordeaux’s Estate, supra, 37 Wash. 2d 565-74. Rather, the survival of affinal relationships depends on the context in which they are asserted. Lavieri v. Commissioner of Revenue Services, supra, 184 Conn. 384. Thus, in the context of succession taxes, step relationships are not terminated by either divorce or death. Id., 386; see also Depositors Trust Co. of Augusta v. Johnson, 222 A.2d 49, 52 (Me. 1966); In re Bordeaux’s Estate, supra, 589 and cases cited therein. Our Supreme Court based its ruling in Lavieri, at least in part, on the modern tendency “ ‘to assimilate the stepchild to the natural child.’ ” Lavieri v. Commissioner of Revenue Services, supra, 385.

In other contexts, however, step relationships have not been extended beyond the end of the marriage that created them. For example, a stepfather did not commit incest when he cohabited with his stepdaughter after the death of her mother. Wilson v. Connecticut, 6 Law Rptr. 452 (Conn. 1843). Similarly, where a party had been married to a judge’s aunt, that judge was not disqualified from hearing a suit involving the party after the aunt died. Winchester v. Hinsdale, 12 Conn. 88 (1837).

In the context of underinsured motorist coverage, we conclude that affinity does not necessarily terminate at the end of the marriage that created it by the death of the biological parent. The definition of affinity leads us to this result. As we have noted, affinity is the connection between a married person and their spouse’s kindred. Although that connection can be terminated voluntarily, the death of the biological parent does not necessitate the end of that connection. B. Berkowitz, “Legal Incidents of Today’s ‘Step’ Relationships: Cinderella Revisited,” 4 Fam. L.Q. 209, 226-27 (1970). Indeed, the death of a spouse and parent can strengthen the ties of affinity. Where the stepparent continues in the role of a parent to the child after the death of the biological parent, the nature of the actual connection between the two — the essence of affinity— has not changed. Neither should it be deemed to have changed in law.

We also note that the contrary conclusion, that affinity terminates automatically with the end of a marriage through the death of the biological parent, would lead to absurd results. If, for example, the stepparent is the insured, it would make no sense for a stepchild to be excluded from coverage if killed moments after the death of his or her biological parent in the same accident but covered if killed moments before the biological parent. We decline to adopt an interpretation that could cause such arbitrary and inconsistent results. See Lavieri v. Commissioner of Revenue Services, supra, 184 Conn. 383-84, citing Sullivan v. Union & New Haven Trust Co., 147 Conn. 178, 181, 158 A.2d 174 (1960).

Our conclusion in this case also comports with our general policy in interpreting insurance contracts. Where the terms of an insurance policy can be interpreted in two ways, we adopt the construction that covers the loss. Avis Rent A Car System, Inc. v. Liberty Mutual Ins. Co., 203 Conn. 667, 672, 526 A.2d 522 (1987). Finally, our conclusion accords with our Supreme Court’s observation of the appropriate policy toward stepchildren. “ ‘[T]he rights of stepchildren have been but slowly established through the years, and always in direct opposition to the common law, “whose fundamental pronouncement is that the mere relationship of stepparent and stepchild confers no rights and imposes no duties.” 4 Vernier, American Family Laws, 485 § 268. But the modern tendency has been, and rightly so, to assimilate the stepchild to the natural child. See Note, 52 Harv. L. Rev. 515 [1939].’ ” Lavieri v. Commissioner of Revenue Services, supra, 184 Conn. 385.

In sum, we conclude that, in the context of underinsured motorist coverage, affinity does not terminate automatically upon the termination of the marriage that created it by the death of the biological parent. Rather, where the stepparent voluntarily continues in the role of parent to the stepchild after the death of the biological parent, the incidents arising out of that relationship also continue.

The defendant also claims that only a minor can be a stepchild and, thus, regardless of whether affinity survives death, the decedent was not related to the plaintiff because he was thirty-eight when he died. This claim is without merit. Age is not relevant to the affinal relationship. The stepchild in Lavieri was in her midforties when her affinal relationship was upheld by our Supreme Court. The definition of affinity does not depend on the age of the parties or the kindred.

Therefore, if the evidence establishes that the decedent was a resident of the plaintiff’s household, the relationship between the plaintiff and decedent will need to be considered. If the evidence establishes that the plaintiff voluntarily continued in the role of parent to the decedent, then the plaintiff and the decedent were related by affinity, regardless of the death of Robert Remington.

We conclude that the trial court improperly granted the defendant’s motion for summary judgment on the issue of the decedent’s residence.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion Landau, Herman and Spear, Js., concurred.

Freedman, J.,

concurring. I concur in part I of the majority opinion and I concur in the result reached in part II of the majority opinion. I write separately in order to voice my disagreement with the test enunciated by the majority in part II regarding when a stepparent-stepchild relationship should be deemed to outlive the marriage that created that relationship.

The majority holds that “in the context of underinsured motorist coverage, affinity does not terminate automatically upon the termination of the marriage that created it by the death of the biological parent. Rather, where the stepparent voluntarily continues in the role of parent to the stepchild after the death of the biological parent, the incidents arising out of that relationship also continue.” The majority goes on to say “[i]f the evidence establishes that the plaintiff voluntarily continued in the role of parent to the decedent, then the plaintiff and the decedent were related by affinity, regardless of the death of Robert Remington.” I believe this holding to be inappropriate to the stepparent-stepchild relationship as it exists today.

The current state of the law in Connecticut on the topic of stepparent-stepchild relationships is anything but clear and uniform. Instead, we have nineteenth century case law holding that in some contexts death or divorce terminates the affinal relationship between a stepparent and stepchild, and twentieth century case law holding that in other contexts neither death nor divorce terminates the affinal relationship between stepparent and stepchild. The law from other jurisdictions is equally conflicted.

In light of the contradictory and at times confusing jurisprudence on the issue of stepparent-stepchild relationships, we would do a far better service to the development of the law, and would be in keeping with the times, by holding that a stepparent-stepchild relationship, though created by a marriage, endures beyond that marriage, no matter how the marriage is terminated.

Although the conclusion I reach is a departure from the common law “ ‘ “whose fundamental pronouncement is that the mere relationship of stepparent and stepchild confers no rights and imposes no duties” ’ Lavieri v. Commissioner of Revenue Services, 184 Conn. 380, 385, 439 A.2d 1012 (1981), citing 4 C. Vernier, American Family Laws (1936) § 268, p. 485; such a departure is called for in light of the profound ways in which the structure of the American family has changed. There is no question that the incidence of marriage dissolution, remarriage and the creation of stepparent-stepchild relationships has risen dramatically in the last few decades.

A recognition of the enduring affinity between stepparents and stepchildren would also be a realistic accommodation to the reality that in many situations children are not able to be adopted by their stepparents because they have noncustodial biological parents whose rights have not been terminated. Despite the absence of a formal adoption proceeding, many stepparent-stepchild relationships are as close or closer than biologic parent-child relationships. It has long been recognized that a stepparent and stepchild can develop a significant emotional relationship regardless of the biological or legal relationship between them.

The law of Connecticut should move toward supporting and recognizing this relationship, through the protection of stepparent-stepchild relationships unless there is some specific exclusion of the stepparent or stepchild from the provisions of a statute, contract, or other vehicle being examined. In this case, where the underlying context is an underinsured motorist policy, the contractual language covers those persons related by blood, marriage or adoption. The plaintiff and the decedent are clearly related through the marriage of the plaintiff and the decedent’s father. In the absence of contractual language excluding from coverage persons related by marriage after the death of the person whose marriage initiated their relationship, there is no justifiable reason for the courts to find that the stepparent-stepchild relationship terminated by operation of law upon the death of the biological parent. Nor is there any reason to impose a test that requires a subjective examination of the physical and emotional ties surrounding the stepparent-stepchild relationship.

The majority holds that the affinal relationship between stepparent and stepchild “does not terminate automatically” leaving our state’s lower courts to engage in cumbersome, awkward, situational analysis of whether affinity continues beyond the termination of a marriage in any given case. A court should not be forced to decide how much contact, how much financial support, how many telephone calls, how many birthday cards, or how many conversations constitute the continuation of the stepparent-stepchild relationship. I would instead hold that once a stepchild, always a stepchild, in all contexts, regardless of how a marriage between the biological parent and stepparent has terminated, unless the statute, contract or other vehicle being examined provides otherwise.

Because I believe it is time for our law to recognize that once a stepchild, always a stepchild, regardless of the state of the marriage creating the step relationship, I cannot join in the reasoning of the majority in part II of the majority opinion.

       Webster’s Third New International Dictionary similarly defines household as “those who dwell under the same roof and compose a family: a domestic establishment; specif: a social unit comprised of those living together in the same dwelling space.” See Middlesex Mutual Assurance Co. v. Walsh, supra, 218 Conn. 686; Griffith v. Security Ins. Co., supra, 167 Conn. 454.

       General Statutes § 46b-40 (a) provides in part that “[a] marriage is dissolved ... by (1) the death of one of the parties . . . .”

       See Winchester v. Hinsdale, 12 Conn. 87 (1837) (judge is not disqualified from hearing suit involving party who was previously married to judge’s aunt); Wilson v. Connecticut, 6 Law Rptr. 452 (Conn. 1843) (stepfather does not commit incest by cohabiting with daughter of his deceased wife).

        Lavieri v. Commissioner of Revenue Services, 184 Conn. 380, 383, 439 A.2d 1012 (1981) (stepdaughter is still relative for purposes of inheritance tax, even though her mother had divorced and predeceased her stepfather from whom she was inheriting).

       See In re Bordeaux’s Estate, 37 Wash. 2d 561, 225 P.2d 433 (1950), for an in depth, scholarly, though dated, discussion of legal decisions relating to the existence of an affinal step relationship after the termination of the marriage that created that relationship.

       See S. Bysiewicz, “Steprelationships in Connecticut,” 60 Conn. B.J. 378, 382-83 n.4 (1986).

       J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1973) p. 19.

       Such a holding would also be inconsistent with the established principle that we should construe an insurance contract strictly against the insurance company. LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970).