author: Foti, J.

text:
    State of Connecticut v. John Wideman
    (13385)
    Foti, La very and Schaller, Js.
    Argued September 14
    decision released November 22, 1994

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

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky, Jr., assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), conspiracy to commit kidnapping in the first degree and sexual assault in the first degree in violation of General Statutes §§ 53a-92 (a) (2) (A), 53a-70 (a) (1) and 53a-48 (a), aiding sexual assault in the first degree in violation of General Statutes §§ 53a-8 and 53a-70 (a) (1), and sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1). He was sentenced to a total effective sentence of twenty years imprisonment. On appeal, the defendant claims (1) that the trial court violated the rules of evidence and denied him a fair trial and due process by allowing the testimony of the victim regarding her knowledge of the defendant’s prior homicide convictions and pending homicide charges, (2) that the trial court abused its discretion in relying on the coconspirator exception to the hearsay rule to allow testimony concerning an assault on the victim’s boyfriend, (3) that the evidence was insufficient to sustain a conviction for aiding sexual assault in the first degree, and (4) that the trial court’s failure to ascertain which of the substantive offenses the jury found the defendant had conspired to commit violated the defendant’s due process rights.

The jury could reasonably have found the following facts. On August 24, 1991, the victim was living with her boyfriend, Michael Epps, in an apartment located in building seventeen of Father Panik Village in Bridgeport. On the evening of August 24,1991, as the victim was walking down a hallway in her building, she had a confrontation with the defendant, John Wideman. The two argued about the gates that were placed at the end of each hallway. The defendant wanted the gates to be left open to facilitate the sale of drugs in the building. The victim returned to her apartment after the confrontation. About fifteen minutes later, as she was leaving the building, she was confronted by the defendant and six other men, Kevin Rogers, Reggie Rogers, Nate Rogers, Maurice McNeil, Gene Black and Nicholas Wardlaw. Kevin Rogers told the victim that she was going to be punished for keeping the gates closed. He told her that she had a choice between being “beat down” or performing fellatio on each of them. She understood that to be “beat down” meant to be beaten to the point that she would not be able to get up. The defendant was going in and out of the building during this time but was present when Kevin Rogers gave the victim the two options.

The victim told the men she did not want to be beaten, and they took her to another building in Father Panik Village. The victim testified that she was afraid of what the men would do to her if she ran. She testified that two weeks prior to this incident, Kevin Rogers had beaten her with a belt. She also testified that she had seen Kevin Rogers, along with several of the men, attack and beat people. The victim testified that she was especially afraid of the defendant because, approximately one month prior to this incident, Epps had told her that the defendant had served time for killing two people and he was out on bond for a double homicide.

The victim was taken to a third floor apartment in building thirteen. The defendant was in the apartment at this time. The victim performed fellatio on three of the men. One of the men inserted a beer bottle into the victim’s vagina as the others, including the defendant, watched and cheered. The victim was hit with a belt. When she said she wanted to stop, Nate Rogers pushed her into a stereo and bruised the back of her head.

The victim was then forced to perform fellatio on the defendant. As this was occurring, Epps, who had been looking for the victim, knocked on the apartment door after he had heard the victim crying. Kevin Rogers opened the door and threw a bottle at Epps. Epps then ran to his sister’s apartment and called the police. Epps gave the police an incorrect apartment number and the police went to the wrong apartment.

When Epps knocked on the apartment door, the victim went into the bathroom and dressed. Four of the men left the apartment, but the others, including the defendant, remained. The defendant forced the victim to undress and to perform fellatio on him. While this was going on, someone called the defendant’s name. The victim got dressed and left the apartment.

After calling the police, Epps tried to return to building thirteen. He encountered Kevin Rogers, Reggie Rogers and McNeil. They started beating Epps because he had called the police. They put a belt around his neck and tried to bring him back to the apartment in building thirteen. When this failed, they beat him and left him lying on the ground. An unidentified woman found him and brought him to Bridgeport Hospital. The victim met Epps at the hospital where he was treated for his injuries and released.

The next day, as the victim was returning to her apartment, she met Kevin Rogers, Nate Rogers and Reggie Rogers. She did not see the defendant. Epps was looking out of his apartment window, however, and saw the three men approach the victim with the defendant behind them. Kevin Rogers told the victim that she was not done yet and that they were coming back to get her that night. Epps called the police and both he and the victim went to Bridgeport Hospital. The treating physician found that the victim had superficial bruises and lacerations. The victim told the physician what had happened to her.

I

The defendant first claims that the trial court’s denial of his motions in limine and for mistrial based on the victim’s testimony regarding the defendant's prior criminal record and pending criminal charges violated the rules of evidence and denied the defendant a fair trial and due process. We disagree.

Prior to trial, the state indicated that it would seek to offer the victim’s testimony regarding her knowledge of the defendant’s criminal activities. This testimony was being offered to show the victim’s state of mind. The defense filed a motion in limine seeking to preclude the testimony. The trial court ruled the evidence admissible under the state of mind exception to the hearsay rule. It determined that the probative value of the evidence outweighed its prejudicial effect. Immediately following the testimony, the court gave a cautionary instruction, limiting the use of the testimony to a consideration of its impact on the victim’s state of mind,

The defendant subsequently filed a motion for mistrial arguing that the victim’s testimony had prejudiced the defendant’s case. This motion was denied. During the jury charge, the court again instructed the jury that the testimony was admissible only to prove the victim’s state of mind, and not as substantive evidence. The defendant now argues that the trial court improperly admitted the victim’s testimony because it was hearsay, irrelevant and prejudicial.

The defendant describes the victim’s testimony as inadmissible hearsay. “A statement made out-of-court that is offered to establish the truth of the matter contained in the statement is hearsay, and as such is inadmissible.” State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993). “An out-of-court statement is not hearsay, however, if it is offered to illustrate circumstantially the declarant’s then present state of mind, rather than to prove the truth of the matter asserted.” Id. Here, the testimony in question was not hearsay. It was not offered for the truth of the matter asserted, but rather for the purpose of showing the victim’s state of mind, i.e., her fear of the defendant.

The defendant contends that the victim’s fear of him was not relevant because he claims that, although he was present, he did not participate in the initial coercion by the group of men who confronted the victim.

A victim’s fear of another individual is admissible when relevant to the issues at trial. Id., 633. “A trial court has broad discretion in determining the relevancy of evidence . . . and its ruling will be disturbed only upon a showing of a clear abuse of discretion.” (Citation omitted.) State v. Peruta, 24 Conn. App. 598, 610, 591 A.2d 140, cert. denied, 219 Conn. 912, 593 A.2d 137 (1991). Here, the defendant was charged with, among other things, the crimes of kidnapping and sexual assault. The state of mind of the victim is a relevant consideration in both of these crimes. The statutes focus on the mental state of the victim when the crimes are accomplished by the “threat of force.” The evidence produced at trial showed that the kidnapping was a result, in part, of the fear that the victim had of the assailants and that this fear caused her to be intimidated into going to building thirteen with them. Therefore, the victim’s testimony, which revealed her fear of the defendant, was relevant to the kidnapping and sexual assault counts. The fact that the defendant did not participate in the initial coercion does not change this conclusion. The victim first argued with the defendant alone in the hallway. The victim was aware of the defendant’s presence during the subsequent occurrences. Her state of mind explains why she performed fellatio on the defendant without the use of any physical force by him. Under these circumstances, the challenged testimony was relevant.

We note that other jurisdictions have permitted similar testimony by a victim where it tended to show the victim’s fear of the defendant. See People v. King, 162 App. Div. 2d 473, 474, 556 N.Y.S.2d 166 (1990); State v. Scarborough, 92 N.C. App. 422, 427-28, 374 S.E.2d 620 (1988); State v. Pancake, 170 W. Va. 690, 693-94, 296 S.E.2d 37 (1982).

The defendant places some reliance on State v. Duntz, 223 Conn. 207, 613 A.2d 224 (1992), in which our Supreme Court addressed the admissibility of a victim’s out-of-court statements made to a witness regarding the victim’s fear of the defendant. The court held that the statements were irrelevant to the issues raised at trial and, therefore, were inadmissible. Id., 233. The court has subsequently stated, however, that its decision in Duntz “does not stand for the proposition that all statements of a victim’s fear of a defendant are irrelevant, regardless of the reason for which they are offered.” State v. Blades, supra, 225 Conn. 634. In the present case, the trial court determined that the victim’s testimony was relevant to show her state of mind. We find no reason to disturb this ruling.

The defendant also contends that the testimony in question was inadmissible because the prejudicial effect of the testimony outweighed any evidentiary value. The record reflects that the trial court carefully balanced the probative value of the evidence against its prejudicial effect and determined that the prejudice to the defendant did not outweigh its probative value. “We recognize that this balancing process is an inherently difficult one, and will reverse the trial court’s decision only when it is manifest that an abuse of discretion or an injustice has occurred.” State v. Marra, 215 Conn. 716, 738, 579 A.2d 9 (1990). We will indulge every reasonable presumption in favor of the trial court’s ruling. State v. Sierra, 213 Conn. 422, 435, 568 A.2d 448 (1990).

There was no abuse of discretion or injustice in this case. The evidence was probative because it tended to convey to the jury the victim’s fear of the defendant and to explain why she did not try to run away. Under these circumstances, the trial court’s decision will be upheld, especially in light of the limiting instructions given to the jury on this issue. Our Supreme Court has “always given great weight to such instructions in assessing claimed errors.” State v. Binet, 192 Conn. 618, 632, 473 A.2d 1200 (1984).

The defendant additionally argues that the trial court’s evidentiary ruling and refusal to declare a mistrial violated his right to a fair trial and due process of law under the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The defendant relies on State v. Binet, supra, 192 Conn. 632, where a mistrial was sought on the ground that the prosecutor’s improper remarks violated the defendant’s constitutional right to due process of law. “The general principle is that a mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial.” (Internal quotation marks omitted.) State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982). Because the trial court has broad discretion in passing on motions for mistrial and immediately gave a curative instruction, we conclude that the denial of the motion did not violate the defendant’s right to a fair trial and due process of law.

II

Next, the defendant claims that the trial court abused its discretion and committed reversible error in relying on the coconspirator exception to the hearsay rule to deny the defendant’s motion in limine that sought to preclude the state from offering the testimony of Epps concerning the assault inflicted on him by individuals other than the defendant. The defendant points out that he was not present during nor charged with the assault on Epps, and that introduction of evidence on this topic was highly prejudicial. Following argument on the issue, the trial court ruled that the proposed testimony was relevant and admissible under the coconspirator exception to the hearsay rule.

Epps testified that after he left his sister’s apartment, where he had telephoned the police, he was accosted by Kevin Rogers, Nate Rogers and Maurice McNeil. They tried to put a belt around his neck and drag him back to the apartment where the victim was being held. Unable to do so, they beat him and left him lying on the ground. Epps also testified that the next day he overheard Kevin Rogers, Nate Rogers and Reggie Rogers tell the victim that they were going to kill Epps. He also heard Kevin Rogers say that he was going to return that evening to continue sexually assaulting the victim.

The defendant argues that this evidence should not have been admitted. He argues that the coconspirator exception to the hearsay rule should not have been applied because there was no proof (1) that a conspiracy remained in existence at the time of the beating and threats, (2) that Kevin Rogers’ actions were made in furtherance of the conspiracy, or (3) that a new conspiracy existed between Kevin Rogers and the defendant. The defendant contends that any conspiracy to abduct and sexually assault the victim ceased to exist at the time that the three Rogers and McNeil left the apartment. The defendant points to the fact that he remained in the apartment with the victim when his companions left. He argues that there was no evidence to link the attack on Epps and the threats made the following day to the victim to any plan of concerted activity in which the defendant was involved.

“Before out-of-court statements of a coconspirator can be admitted into evidence, a trial court must make a preliminary determination, by a fair preponderance of the evidence, that there is sufficient independent evidence of a conspiracy still in existence at the time of the declaration, and that the declaration was made in furtherance of the conspiracy in which both coconspirators were participants.” State v. Lynch, 21 Conn. App. 386, 391, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990). We must review the sufficiency of the evidence to sustain the trial court’s finding, by a fair preponderance of the evidence, of the existence of a conspiracy. State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986).

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. ...” (Citations omitted; internal quotation marks omitted.) State v. Lynch, supra, 21 Conn. App. 392. Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. Id.

“The evidence will be construed in a way most favorable to sustaining the preliminary determinations of the trial court; its conclusions will not be disturbed on appeal unless found to be clearly erroneous.” State v. Vessichio, supra, 197 Conn. 656.

The state cites certain evidence as establishing that the conspiracy to abduct and assault the victim remained in existence at the time of the attack on Epps and at the time of the threats made to the victim. The state argues that these actions were committed in furtherance of that conspiracy. Specifically, Epps was beaten to keep him from interfering with the sexual assault on the victim, which was the object of the conspiracy. The defendant was participating in the conspiracy when he was forcing the victim to perform fellatio at the time Epps was assaulted. The object of the conspiracy was not completed when the assault on Epps took place or when, the next day, the victim was confronted by the three Rogers and the defendant. Kevin Rogers told the victim that she was “not done yet” and that they would be coming back that night.

We conclude from our review of the record that sufficient evidence existed for the trial court to find the existence of a conspiracy by a fair preponderance of the evidence, and that, therefore, the testimony of Epps was admissible under the coconspirator exception to the hearsay rule. See United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978).

III

Next, the defendant claims that the evidence was insufficient to sustain the conviction for aiding sexual assault in the first degree. The defendant was charged, in count three of the substitute information, with accessory liability for the offense of sexual assault in the first degree in violation of General Statutes § 53a-8 and § 53a-70 (a) (l). On appeal, the defendant asserts that the state failed to adduce any evidence to support its claim that he intentionally assisted another in performing a sexual assault and that the trial court was thus obligated to render a judgment of acquittal with respect to that charge. We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). “ ‘In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.’ ” State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993).

When a defendant is charged as an accessory, the state must prove “ ‘criminality of intent and community of unlawful purpose.’ ” State v. Simmons, 201 Conn. 395, 418, 518 A.2d 35 (1986). “The accessory statute, § 53a-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.” (Emphasis in original.) State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979).

The defendant argues that there was no basis in the evidence to support the inference that he intentionally aided another in the commission of a sexual assault. He asserts that he was a mere bystander, passively observing the sexual activities of his cohorts. Contrary to the defendant’s claim, there was sufficient evidence for the jury reasonably to conclude that he was guilty of aiding sexual assault in the first degree. The defendant was present the entire time the sexual assaults took place. The victim testified that, in addition to laughing and jeering, the defendant was sitting in a chair in front of the mattress on which she was forced to perform sexual acts. The victim had also testified that her fear of the defendant was one of the reasons she went to the apartment without trying to escape.

The jury’s function as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). The jury could have inferred that the defendant’s presence intimidated the victim to the extent that she feared that she would sustain physical harm if she did not perform the sexual acts demanded of her. The findings show that the defendant was not passively acquiescent. He shared the requisite criminality of intent and the community of unlawful purpose of his confederates. See State v. Castillo, 11 Conn. App. 621, 626, 528 A.2d 860, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987).

IV

The defendant’s final claim is that the trial court’s failure to ascertain which of the substantive offenses the jury found that the defendant had conspired to commit contravened due process.

The second count of the information charged the defendant with conspiracy to commit two substantive offenses: first degree kidnapping, a class A felony; and first degree sexual assault, a class B felony. The trial court instructed the jurors that they had to be unanimous in their finding as to which offense the defendant conspired to commit and that they could find either one or both, as long as they were unanimous. The court did not ask the jurors to announce which crime they found the defendant had conspired to commit.

The defendant did not object at trial to the court’s acceptance of the conspiracy verdict. He now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “Under Golding, 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.’ ” State v. Bush, 33 Conn. App. 253, 261-62, 635 A.2d 820 (1993), cert. denied, 228 Conn. 923, 638 A.2d 37 (1994), quoting State v. Golding, supra, 239-40.

“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.” State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994). This court “remain[s] free to dispose of the claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992). Here, the defendant has not satisfied the third condition enunciated in Golding. He has failed to show that a constitutional violation clearly exists and that he was deprived of a fair trial.

The defendant originally argued that since the trial court did not know which offense he was found guilty of conspiring to commit, it could not properly impose a criminal sentence. This argument was based on General Statutes § 53a-51, which requires that the penalty for conspiracy be determined by the penalty for the most serious offense that is the object of the conspiracy. In his reply brief, the defendant withdrew this argument because of the exception in § 53a-51 that “conspiracy to commit a class A felony is a class B felony.” Under this statute, the range of permissible punishment is the same for both of the substantive offenses that the defendant was charged with conspiring to commit.

The defendant raises a different argument in his reply brief. He argues that the trial court should have instructed the jury to indicate which crime he was found to have conspired to commit because “the collateral consequences differ depending on the offense for which the defendant is convicted.” We find this argument to be wholly speculative and without merit. The defendant provides us with no case law or legal precedent to support this argument. He raises the argument for the first time in his reply brief. The state had no opportunity to respond. It is difficult to understand the defendant’s argument in light of the fact that the defendant was also convicted of both underlying offenses, kidnapping and sexual assault. We find no violation of due process in the trial court’s acceptance of the conspiracy verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       The relevant portion of the cautionary instruction provided: “I would just further caution the jury that that type of evidence cannot be used to determine the defendant’s guilt of the crimes that he is presently charged with. The fact that he may have had, if you believe that . . . the fact that he may have been involved in another crime or crimes is not proof of the fact that he committed these crimes, but it may be used by you only to determine whether or not, if that knowledge was within the mind of this victim, whether or not it is true . . . whether that’s what she believed and whether it affected her state of mind.”

       A portion of the jury charge provided: “This type of testimony which is not normally allowed was allowed under these circumstances for a limited purpose only. It was not allowed certainly to prove the truth of [it] but merely to show what her state of mind was at that time as it related to the reasonableness of her fear of physical injury being imposed upon her if she did not comply.”

       General Statutes § 53a-92 provides in pertinent part: “kidnapping in the FIRST degree: class a felony, (a) A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”
      General Statutes § 53a-91 (2) (B) defines “abduct” as “using or threatening to use physical force or intimidation.”
      General Statutes § 53a-70 provides in pertinent part: “sexual assault in the first degree: class b felony .... (a) A person is guilty of sexual, assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       See footnotes 2 and 3.

       The court stated: “The statements attributed to the coconspirators can be used if the circumstances are part and parcel of the overall circumstances claimed here even though there is no charge of assault against this individual. The court does feel that this is part and parcel of the overall scenario and also can go towards the question of threatening of someone who may be witnessing the case . . . and coconspirators’ actions can be attributed to a defendant and I think under these circumstances the court will allow it.”

       The state asserts that the challenged testimony is alternatively admissible as “uncharged misconduct,” admissible “to complete the story of the crime by placing it in the context of nearby and nearly contemporaneous happenings.” The defendant argues that we should not review this claim because the state failed to raise it at trial. Because our consideration of the testimony’s admissibility under the coconspirator exception to the hearsay rule is dispositive, we do not address this claim.

       The information charged that the defendant did “intentionally aid or importune another person in compelling another to engage in sexual intercourse by the use of force or by the threat of use of force against the said other person . . . .”


source: Caselaw Access Project

license: Public Domain

text:
    Merle C. Brown et al. v. Gary Rosen et al.
    (13895)
    Dupont, C. J., and O’Connell, Poti, Lavery and Heiman, Js.
    Considered October 5
    decision released November 22, 1994

      Christopher G. Winans, in support of the plaintiffs’ motion to dismiss.

      Edward Kanowitz, in opposition to the motion.
   Foti, J.

The defendants appeal from the discharge of a purchaser’s lien. The plaintiffs, Merle C. Brown and Jo Anne Brown, have filed a motion to dismiss the appeal as untimely and for lack of a final judgment. We deny the motion.

The facts are not in dispute. The defendants, Gary Rosen and Susan Rosen, held a purchaser’s lien on the plaintiffs’ property located at 54 Cross Highway, Red-ding, pursuant to General Statutes § 49-92a. The plaintiffs commenced an action to discharge that lien on the basis that it was invalid under the provisions of § 49-92a. The defendants moved to dismiss the plaintiffs’ action for insufficient service of process. The trial court denied the defendants’ motion to dismiss and discharged the purchaser’s lien as invalid on August 1, 1994. The defendants appealed from the court’s decision on August 12, 1994.

The plaintiffs first claim that the defendants’ appeal is untimely pursuant to General Statutes § 52-325c (b), which provides a seven day appeal period. A review of the statutory scheme governing purchaser’s liens, however, reveals that § 52-325c (b) does not apply to this appeal.

A purchaser seeking to place a purchaser’s lien on certain property must record the contract for the conveyance of that land in the town records according to the provisions of § 49-92a. A party having an interest in that property may bring an action to discharge the lien pursuant to General Statutes § 49-92e.

General Statutes §§ 49-92a through 49-92f, which govern purchaser’s liens, are silent regarding the time for taking an appeal from the judgment on a complaint to discharge such a lien. The twenty day time limit set forth in Practice Book § 4009 thus applies to such appeals. Because the defendants appealed within twenty days of the issuance of notice of the final judgment rendered in this case, their appeal is timely.

We briefly turn to the plaintiffs’ assertion that a seven day appeal period applies to this case. The plaintiffs argue that the appeal is governed by General Statutes §§ 49-51, 52-326 and 52-325c (b). The plaintiffs’ argument is confusing. Section 49-51 is a general provision regarding the discharge of invalid liens. Section 52-326 provides that “[t]he provisions of sections 52-322 and 52-32U shall apply, mutatis mutandis, to any lis pendens recorded according to the provisions of section 52-325 or any invalid lien sought to be discharged under section 49-51.” (Emphasis added.) Section 52-325c (b) provides a seven day appeal period for decisions on applications for the discharge of a notice of lis pendens. The plaintiffs’ argument appears to be that because they sought the discharge of the lien under § 49-51, the provisions of § 52-325c (b) apply to the appeal under § 52-326.

The plaintiffs’ argument lacks merit. First, the plaintiffs did not bring their action to discharge the lien under § 49-51. Their complaint refers to § 49-92a. Even if the plaintiffs sought to discharge the lien under § 49-51, § 52-326 provides that §§ 52-322 and 52-32U apply to that case, but it is silent as to the applicability of § 52-325c (b), which sets forth the seven day appeal period. We conclude that the claim of the plaintiffs is unpersuasive.

The plaintiffs next assert that because the defendants have appealed from the denial of their motion to dismiss, the appeal was not taken from a final judgment and must be dismissed. We disagree.

The plaintiffs accurately represent that the denial of a motion to dismiss generally is not an appealable final judgment. Sasso v. Aleshin, 197 Conn. 87, 90, 495 A.2d 1066 (1985); State v. Malkowski, 189 Conn. 101, 104, 454 A.2d 275 (1983); Kioukis v. Kioukis, 185 Conn. 249, 251 n.1, 440 A.2d 894 (1981); Guerin v. Norton, 167 Conn. 282, 283, 355 A.2d 255 (1974); State v. Boucher, 119 Conn. 436, 437, 177 A. 383 (1935); State v. Harris, 4 Conn. Cir. Ct. 534, 536, 236 A.2d 479 (1967). That rule, however, is not dispositive of this appeal.

The jurisdictional statement on the defendants’ appeal form fails to indicate properly that the appeal was taken from the final judgment, which in this case was the discharge of the purchaser’s lien. It is clear from the preliminary statement of issues, however, that the defendants awaited the entry of a final judgment on the discharge of the lien and then appealed, challenging also the earlier denial of their motion to dismiss for insufficient service of process. The deficiency on the defendants’ appeal form, therefore, is a mere technical defect for which this court generally does not dismiss an appeal. We have often stated that we will not exalt form over substance. State v. Rosedom, 34 Conn. App. 141, 143, 640 A.2d 634 (1994); Wilton v. McGovern, 33 Conn. App. 517, 521, 636 A.2d 870, cert. denied, 228 Conn. 928, 640 A.2d 116 (1994); Connecticut National Bank v. Browder, 30 Conn. App. 776, 779, 622 A.2d 588 (1993); Tolland Bank v. Larson, 28 Conn. App. 332, 337, 610 A.2d 720 (1992).

The motion to dismiss is denied.

In this opinion the other judges concurred.

       General Statutes § 49-92a provides: “purchaser’s lien, precedence, foreclosure. A purchaser’s lien is created for the amount of the deposit paid pursuant to and stated in a contract for the conveyance of land by the recording of that contract in the records of the town in which the land is situated, provided the contract is executed by the owner and by the vendee of the land, witnessed and acknowledged in the same manner as required for a deed for the conveyance of land, and describes the particular land to which it refers. That purchaser’s lien shall be prior to any other liens and encumbrances originating after the contract is recorded. A purchaser’s lien may be foreclosed in the same manner as a mortgage. Transfer of title of the land to the vendee constitutes a release and discharge of the lien.”

       See footnote 1.

       General Statutes § 49-92e provides: “action to claim discharge. Any person, having an interest in any real estate described in any recorded contract of sale creating a purchaser’s lien which is invalid but not discharged of record, may give written notice to the lienor to discharge the lien in the office where recorded. If the request is not complied with in ten days, that person may bring his complaint to the court which would have jurisdiction of the foreclosure of the lien, if valid, claiming such discharge of the lien, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. A certified copy of the judgment of invalidity, recorded on the land records of the town where such certificate of lien was filed, fully discharges the lien.”

       Practice Book § 4009 provides in relevant part: “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal . . . .”

       General Statutes § 49-51 provides: “discharge of invalid lien, (a) Any person having an interest in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien. Upon receipt of such notice, the lienor shall discharge the lien by sending a release sufficient under section 52-380d, by first class mail, postage prepaid, to the person requesting the discharge. If the lien is not discharged within thirty days of the notice, that person may apply to the superior court for such a discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. If the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge, at the rate of one hundred dollars for each week after the expiration of such thirty days, but not exceeding in the whole the sum of five thousand dollars or an amount equal to the loss sustained by such aggrieved person as a result of such failure to discharge the lien, which loss shall include, but not be limited to, a reasonable attorney’s fee, whichever is greater.
      “(b) When a lien on real property is adjudged invalid or is otherwise discharged by the court, a certified copy of the judgment of invalidity or discharge recorded on the land records of the town where the certificate of lien was filed fully discharges the lien. If such a discharged or invalid lien is a lien filed on personal property pursuant to section 52-355a, a release of lien in the form prescribed by subsection (c) of section 52-380d, certified to by a clerk of the superior court, with reference to and the date of the court order of discharge or invalidity, fully discharges the lien on filing with the secretary of the state.”

       General Statutes § 52-325c provides in relevant part: “(a) Any order entered as provided in subsection (b) of section 52-325b shall be deemed a final judgment for the purpose of appeal.
      “(b) No appeal shall be taken from such order except within seven days thereof. ...”

       The jurisdictional statement on the appeal form indicates that the appeal was taken from the “denial of motion to dismiss granting of plaintiffs’ application for discharge.”


author: Hennessy, J.

text:
    Ruth Tedesco v. Department of Transportation
    (12656)
    Lavery, Landau and Hennessy, Js.
    Argued September 23
    decision released November 22, 1994

      Patrick J. Wall, with whom, on the brief, was Nancy Smith, for the appellant (plaintiff).

      Paul M. Pieszak, for the appellee (defendant).
   Hennessy, J.

The plaintiff, Ruth Tedesco, appeals from the judgment of the trial court granting the defendant department of transportation’s motion to dismiss a personal injury suit brought pursuant to General Statutes § 13a-144. The plaintiff claims that the trial court improperly found as a matter of law that the plaintiff did not provide the defendant with sufficient notice as required by General Statutes § 13a-144.

The following facts are relevant to this appeal. On April 13,1990, the plaintiff allegedly suffered injuries as a result of a fall due to a hole in the sidewalk on a bridge in downtown Torrington. On May 7, 1990, she provided notice of this incident to the defendant as required by General Statutes § 13a-144. In her letter of notice, the plaintiff stated that she had fallen because of a hole in the “sidewalk on Route 202, on April 13, 1990, at approximately 11:30 a.m. in the Town of Torrington at the bridge known as ‘the Center Bridge’ while walking north on the eastern side of said bridge, in the area adjacent to the Downtown Torrington Shopping Center.” Attached to the notice, and made part thereof, was a copy of a police report relating to the incident. The police report included a statement by the plaintiff which indicated that she “left Dunkin’ Donuts and started to walk north on the Center Bridge when [she] tripped on a hole in the sidewalk located on the bridge.” The notice also reported that both the plaintiff’s attorney and the Torrington police had taken photographs of the accident scene and that these photographs would be available to the defendant upon request.

The plaintiff subsequently brought a civil action against the defendant in connection with this incident. The defendant moved to dismiss the suit on the ground that the notice was defective and the trial court granted the motion. In granting the defendant’s motion to dismiss, the court found that the description provided by the notice letter of May 7,1990, patently failed to provide the general description of the injury, its cause, and the place and time as required by § 13a-144. This appeal followed.

The plaintiff urges this court to reverse the trial court’s dismissal of the complaint. She correctly notes that the sufficiency of notice “is to be tested with reference to the purpose for which it is required”; Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947); and argues that the notice given in this case satisfies the purpose of providing “such warning as would prompt [the defendant] to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection.” Greene v. Ives, 25 Conn. Sup. 356, 358-59, 204 A.2d 412 (1964), quoting Cassidy v. South-bury, 86 Conn. 45, 49, 84 A. 291 (1912); see also Warkentin v. Burns, 223 Conn. 14, 20, 610 A.2d 1287 (1992); Morico v. Cox, supra, 223. We agree with the plaintiff’s analysis.

In Lussier v. Dept. of Transportation, 228 Conn. 343, 636 A.2d 808 (1994), our Supreme Court reiterated the legal standard against which notice of a claim pursuant to § 13a-144 is to be measured. “The notice need not be expressed with the fullness and exactness of a pleading. . . . [T]he notice must provide sufficient information as to the injury and the cause thereof and the time and place of its occurrence to permit the commissioner to gather information about the case intelligently.” (Citation omitted; internal quotation marks omitted.) Id., 356-57. “[Reasonable definiteness is all that can be expected or should be required.” (Internal quotation marks omitted.) Id., 356. “The plaintiff is not required to be a cartographer in order to be able to describe adequately to the commissioner the location of the defect.” Id., 358.

As long as notice provides “reasonable definiteness,” it is not patently insufficient and the adequacy of the notice becomes an issue for the jury. Id., 354. In this case, the notice provided by the plaintiff both informed the defendant of the plaintiff’s intent to file a claim and furnished the defendant with a guide as to how to conduct further inquiries to protect its interests. Accordingly, the complaint should not have been dismissed.

Urging us to sustain the dismissal of the complaint, the defendant first notes that § 13a-144 “created a cause of action ‘wholly unauthorized by the common law.’ . . . Thus, the statutorily required notice is a ‘condition precedent to the cause of action.’ ” (Citation omitted.) Warkentin v. Burns, supra, 223 Conn. 17-18. The defendant further notes that, as a statute in derogation of sovereign immunity, § 13a-144 should be strictly construed. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). The defendant argues that Connecticut courts have strictly construed the notice requirement of § 13a-144, and cites Schaap v. Meriden, 139 Conn. 254, 93 A.2d 152 (1952), Ozmun v. Burns, 18 Conn. App. 677, 559 A.2d 1143 (1989), and Collins v. Meriden, 41 Conn. Sup. 425, 580 A.2d 549 (1990). Our review of these cases finds them inapposite to the present case.

In Schaap v. Meriden, supra, 139 Conn. 254, our Supreme Court found that the notice was defective because it specified only that the injury took place near the edge of a manhole cover, without identifying a particular manhole. In Ozmun v. Burns, supra, 18 Conn. App. 677, this court held that the notice was defective because the detailed description in the notice was incorrect, stating south instead of north. Thus, while the notice was specific, it directed the commissioner to an erroneous location. In Collins v. Meriden, supra, 41 Conn. Sup. 425, the Superior Court found that the descriptions of the cause and place of the injury were vague in that the notice provided merely that the injury occurred due to a “defective and improper condition of the sidewalk . . . ‘adjacent to the front of the premises known as 243 West Main Street, Meriden, Connecticut.’ ” Id., 427.

It is quite clear why the notices in Schaap, Ozmun, and Collins were defective. Lack of specificity, misdirection, and vagueness as to the location and cause of the injury undermine the purpose of the statute. In each case, insufficient notice denied the defendant the opportunity to gather information to protect itself in the event of a lawsuit. In the present case, there are no such defects; the notice sent by the plaintiff provided sufficient information about the alleged injury, its cause, and the time and place where it occurred to allow the defendant to gather information about the case and thereby to protect its interests.

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

In this opinion the other judges concurred.

       General Statutes § 13a-144 provides in relevant part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. . . .”

       At oral argument, the plaintiff withdrew all other claims.

       The notice provision of General Statutes § 13a-144 provides: “No such action shall be brought except within two years from the date of such injury, nor unless notice of such injury and a general description of the same and of the cause thereof and of the time and place of its occurrence has been given in writing within ninety days thereafter to the commissioner. . . .”


author: Lavery, J.

text:
    Robert Jeffrey v. Commissioner of Correction
    (12576)
    Dupont, C. J., and Foti and La very, Js.
    Argued September 14
    decision released November 29, 1994

      Mark Rademacher, for the appellant (petitioner).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, David Gold, supervisory assistant state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Lavery, J.

The petitioner appeals from the dismissal of his petition for a writ of habeas corpus. He claims on appeal that the habeas court should have found, taking into account several acts of alleged incompetency, that trial counsel denied the petitioner effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. We affirm the judgment of the trial court.

The evidence supporting the petitioner’s conviction was summarized by the Connecticut Supreme Court on direct appeal in State v. Jeffrey, 220 Conn. 698, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992).

Following a jury trial, the petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). He was given a total effective sentence of twelve years, suspended after eight years, with four years probation. His conviction was upheld on direct appeal to the Supreme Court. State v. Jeffrey, supra, 220 Conn. 698.

The petitioner asserts that the habeas court incorrectly determined that four alleged omissions in the assistance rendered by the trial counsel did not constitute ineffective assistance of counsel. The alleged omissions are (1) counsel’s failure to object to the admission into evidence of a sex crimes report, (2) his failure to request a limiting instruction with respect to prior consistent statements of a state’s witness, (3) his failure to investigate potential surrebuttal witnesses and documentary evidence, and (4) his failure to object to certain questions asked by the state on cross-examination of á defense witness.

The petitioner’s right to effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution and article first, § 8, of the Connecticut constitution. “The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chace v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (1989).” Williams v. Bronson, 21 Conn. App. 260, 263, 573 A.2d 330 (1990). “In order to prevail in a habeas corpus challenge, ‘the petitioner “must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417, reh. denied, 369 U.S. 808, 82 S. Ct. 640, 7 L. Ed. 2d 556 (1962).” D’Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984).’ Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989).” Sherbo v. Manson, 21 Conn. App. 172, 180-81, 572 A.2d 378 (1990). “In an appeal from the denial of a habeas writ, the burden imposed upon the petitioner is higher than that imposed on him in a direct appeal.” Magnotti v. Meachum, 22 Conn. App. 669, 674, 579 A.2d 553 (1990); see Biggs v. Warden, 26 Conn. App. 52, 55, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).

“ ‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. . . . Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.’ Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 200 (1989).” Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 108 L. Ed. 2d 514 (1989).

“With regard to the performance component of this inquiry, ‘the defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ ” Aillon v. Meachum, supra, 211 Conn. 357. “The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised. Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982). The defendant is also not guaranteed assistance of an attorney who will make no mistakes. United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir. 1980). ‘ “What constitutes effective assistance [of counsel] is not and cannot be fixed with yardstick precision, but varies according to the unique circumstances of each representation.” People v. Baldi, 54 N.Y.2d 137, 146, 429 N.E.2d 400, 444 N.Y.S.2d 893 (1981).’ Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985).” Giannotti v. Warden, 26 Conn. App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992); see also Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991).

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90; see also Quintana v. Warden, 220 Conn. 1, 593 A.2d 964 (1991); Williams v. Warden, 217 Conn. 419, 586 A.2d 582 (1991).

Even if trial counsel’s assistance is shown to be ineffective, the petitioner cannot succeed in his claim unless he proves prejudice. Fair v. Warden, supra, 211 Conn. 407. “This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington, supra, 466 U.S. 687. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id., 691. “It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings.” Id., 693. Rather, “[t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 694. “ ‘When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’ ” Fair v. Warden, supra, 408.

Subjected to the foregoing principles of review, the petitioner’s ineffective assistance claim cannot succeed.

I

The petitioner first submits that trial counsel’s failure to object on hearsay grounds to the admission into evidence of a sex crimes report constituted ineffective assistance. The petitioner did not, however, meet his burden of showing prejudice.

Over defense counsel’s objection on grounds of relevance, the trial court admitted into evidence a sex crimes report prepared by the lead investigating officer in the case, Detective Patricia Miranda, based on statements given to Miranda by the victim. The Supreme Court explained and summarized the facts surrounding the compilation and admission of the sex crimes report as follows: “A sex crimes report is a four page form used by the police to compile data concerning sex crimes as required by General Statutes § 29-7a. It contains spaces for the officer to fill in general information about the victim and the offender, such as their names, addresses and ages. It also contains a checklist of 572 standardized phrases referring to different aspects of sex crimes from which the officer selects those applicable to a particular case. The sex crimes report in this case was admitted into evidence during the direct testimony of Miranda after her statement that, following her interview of the [victim], she prepared the report in the regular course of business in accordance with her statutory duty to do so. The trial court overruled the defendant’s objection that the report was irrelevant and noted the defendant’s exception to the ruling.” State v. Jeffrey, supra, 220 Conn. 707-708.

On direct appeal, the petitioner challenged the trial court’s admission of the report on the ground of relevance, and raised for the first time a hearsay objection as well. The Supreme Court affirmed the trial court’s determination that the report was relevant and it declined to review the unpreserved hearsay claim on plain error grounds. The court observed that the admission into evidence of the sex crimes report was not likely to change the outcome of the trial as it was largely cumulative testimony.

The habeas court did not rule on the issue of whether trial counsel’s failure to object to the report on hearsay grounds fell below the standard of competence, holding instead that the petitioner was not prejudiced. Our review of the record confirms the habeas court’s conclusion that the petitioner was not prejudiced. The majority of the report would have been admissible even over a hearsay objection. The victim’s statements to Miranda would have been admissible under the constancy of accusation doctrine. State v. Dabkowski, 199 Conn. 193, 197, 506 A.2d 118 (1986); State v. Palozie, 165 Conn. 288, 294-95, 334 A.2d 468 (1973); State v. Bailey, 32 Conn. App. 773, 779, 631 A.2d 333 (1993). Even had the trial counsel pressed a hearsay objection, the state would have been able to establish that portions of the form were Miranda’s own observations or opinions, which she would have been allowed to express in oral testimony. These would have then been admissible under the business records exception to the hearsay rule, as Miranda was under a duty to report the information. General Statutes § 52-180; River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 799, 595 A.2d 839 (1991); State v. Palozie, supra, 294-95.

Moreover, even if we assume that a hearsay objection would have prevented admission of the report or certain portions thereof, the petitioner was not prejudiced by its admission. Not only were the victim’s statements properly admissible as constancy of accusation evidence, but also, as the habeas court observed, the victim’s version of the incident was recounted at trial by Miranda herself. See also State v. Jeffrey, supra, 220 Conn. 711. By the assessment of the petitioner’s own expert witness, Miranda was a proficient and effective witness with an impressive grasp of the facts to which she testified, including the victim’s statements to her concerning the sexual assault. The content of the report was therefore cumulative, as substantially the same evidence had been placed before the jury by two testifying witnesses. Thus, its admission was not critical to the outcome of the trial nor did it undermine the fairness and reliability of the outcome.

For the foregoing reasons, the habeas court correctly determined that the petitioner did not meet his burden of proving prejudice, under the Strickland standard, resulting from counsel’s failure to object on hearsay grounds to the admission of the sex crimes report.

II

The petitioner next claims that trial counsel’s failure to request an instruction limiting the jury’s consideration of a witness’ prior consistent statements to their impact on her credibility constituted ineffective assistance. Katherine Doyle, the petitioner’s friend and the bookkeeper at the Old Saybrook nightclub he managed, testified as a state’s rebuttal witness at the trial. Id. Her testimony contradicted the petitioner’s version of events in significant ways. Id. When cross-examining Doyle, the petitioner tried to portray her as a jilted lover whom he rejected sometime in April, 1989. Id., 712. This would support an inference that Doyle had a motive to falsify testimony against the petitioner. The state was allowed to rehabilitate Doyle by establishing that, in early 1989, she had described the petitioner’s strange behavior not only to his parents but also to the petitioner’s trial counsel. Id., 712-13. No instruction limiting the jury’s consideration of Doyle’s prior statements to their effect on her credibility was requested or delivered. Id., 715.

In his amended petition for a writ of habeas corpus, the petitioner claimed that counsel’s failure to request a limiting instruction amounted to less than reasonably competent performance and that the “unprofessional error” probably affected the outcome of the trial. At the hearing, trial counsel testified that he knew that Doyle’s trial testimony on the petitioner’s whereabouts and conduct on the days in question was damaging to the defense. He also was concerned that Doyle’s testimony had pitted the petitioner’s credibility against that of a second woman, in addition to that of the complainant.

The habeas court, again without addressing the claim of deficient performance, determined that the lack of a limiting instruction did not result in prejudice. The petitioner did not deny that the sexual encounter had occurred, but testified that it had been consensual, and he pitted his own credibility against that of the victim. The limiting instruction that he now claims his counsel should have requested would have told the jury that the rebuttal witness’ statements to the petitioner’s lawyer and to his parents that the petitioner had acted abnormally after the encounter should be considered not for its substance but only to establish the witness’ credibility. The habeas court found that such an instruction would have highlighted the overall issue of credibility, and would have called the jury’s attention to a second contest of credibility, that is, the petitioner’s attempt to depict another woman as a liar despite her consistency in making the damaging observation both at a time when she was ostensibly well disposed toward the petitioner and thereafter. The failure to call further attention to this testimony was not prejudicial under the Strickland-Lockhart standard.

Thus, in the context of this ineffective assistance claim, the absence of a limiting instruction did not prejudice the petitioner. Doyle’s prior statements were properly admitted. The more credible the jury adjudged Doyle to be, as a result of her prior consistent statement, the more likely it was to accept her rebuttal testimony concerning the same facts. The habeas court’s conclusion that the absence of a limiting instruction was not prejudicial and did not lead to an unfair or unreliable outcome was therefore correct and should be affirmed.

Ill

The petitioner claims that the habeas court should have found prejudice resulting from counsel’s failure to investigate potential surrebuttal witnesses and documentary evidence that would have impugned Doyle’s testimony concerning the petitioner’s behavior on the days following the incident. This claim too must fail, as the petitioner did not show that such witnesses or evidence could have been located within an appropriate period.

At the habeas hearing, the petitioner’s trial counsel recalled that, after Doyle’s testimony, the petitioner had mentioned some business records that could prove he was at work on the days after the incident. Counsel knew that the nightclub had closed and that its principals and employees had dispersed; according to counsel’s best recollection, the petitioner had given him the impression that the records were not available and “that there was no realistic hope of getting anything.” Had he known the records were available, he would have advised the petitioner to get them and would have asked the trial court for a continuance.

Trial counsel had no recollection of the petitioner’s having told him that certain individuals could rebut Doyle’s testimony concerning the petitioner’s whereabouts on the days following the incident. He thought that Doyle’s testimony was very damaging and did not think he would have told his client that rebuttal testimony was not necessary. If the petitioner had mentioned a rebuttal witness, counsel would have had the petitioner tell the witness to come to the courthouse, and would have requested a continuance. Counsel did not remember being shown any written statement concerning the petitioner’s presence at the nightclub on the days in question. He testified that, if he had seen any such document prior to the sentencing, he would have brought it to the attention of the prosecuting attorney and the trial court.

The habeas court determined that counsel’s failure to request a continuance did not prejudice the petitioner and, thus, did not amount to ineffective assistance. The court again limited its ruling to the second prong of Strickland, holding that the petitioner was not prejudiced by counsel’s failure to request a continuance to locate and investigate potential witnesses. The court found that, even if trial counsel had requested a continuance, there was “no reasonable likelihood that he would have been able to locate and produce helpful witnesses on the issue of the petitioner’s demeanor and presence at work in the period at issue” within the limited time available.

The petitioner was required to prove that the alleged witnesses were available. Ostolaza v. Warden, 26 Conn. App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992) (availability of purported witnesses must be shown). The habeas court made findings on that point that are amply supported by the evidence, namely, that the petitioner had no reasonable prospect of locating the purportedly available surrebuttal witnesses within the time period that the trial court would have allowed for a continuance. If the witnesses could not have been located within the time allowed by the trial court, a continuance would have been of no benefit and the petitioner was, therefore, not prejudiced by counsel’s failure to request one.

For the foregoing reasons, the habeas court correctly concluded that counsel’s failure to request a continuance to locate witnesses did not render his assistance ineffective under the Strickland standard, and its judgment should be affirmed.

IV

The petitioner’s final claim is that counsel was ineffective in failing to object to certain questions asked by the state when cross-examining a witness. At the habeas hearing, the petitioner offered no testimony or evidence on this issue. The petitioner’s habeas counsel informed the court in closing argument, however, that he was still pressing the claim, although he offered no argument on the point. The habeas court, citing the absence of any evidence tending to prove that counsel’s performance relative to that claim fell below the level of professional competence, considered the claim to be abandoned. The habeas court, in citing its reasons for deeming the issue abandoned, implicitly determined that the petitioner had failed to carry his burden of proof. Our review of the record and transcripts show that the habeas court’s determination was correct.

The judgment is affirmed.

In this opinion the other judges concurred.

       The habeas court’s rejection of the claim after considering only the prejudice prong was proper: “ ‘[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.’ ” Aillon v. Meachum, supra, 211 Conn. 362, quoting Strickland v. Washington, supra, 446 U.S. 697. To the extent that this appeal cannot be resolved on the second prong of Strickland alone, the respondent respectfully requests that this court remand the case to the habeas court for further articulation of findings, as necessary, on the first prong of Strickland.

       The habeas court did not articulate findings bearing on the competence prong of Strickland, e.g., whether counsel tactically chose not to request a limiting instruction in order to downplay Doyle’s testimony.