author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. JERMAINE YOUNG
    (AC 21587)
    Foti, Schaller and Mihalakos, Js.
    Argued October 25, 2001
    officially released February 5, 2002

      Richard E. Condon, Jr., deputy assistant public defender, for the appellant (defendant).

      Ronald, G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Jermaine Young, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a and murder in violation of § 53a-54a. On appeal, the defendant claims that the trial court improperly (1) instructed the jury regarding intent and (2) marshaled the evidence presented to the jury in its charge. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 26, 1997, the victim, Dennis Carr, Jr., was standing in a driveway located at 711 Congress Avenue in New Haven with Stacey Footman, Kooley Home, Roosevelt Green, Marquise Beverly and Carl Harrison. At approximately 10 a.m., a blue Mazda operated by Alan Goodson stopped in front of the driveway. The defendant, who was a passenger in the Mazda, put on a ski mask and began firing a gun out the passenger window of the Mazda into the crowd of people standing in the driveway. The victim was shot in the back of the head and later died as a result of the gunshot wound.

Shortly after the shooting, Goodson and the defendant took the blue Mazda to an auto body shop to have it painted gold. Thereafter, the defendant was arrested in Massachusetts and, at the time of his arrest, provided the police with a false name. In a substitute long form information, the defendant was charged with conspiracy to commit murder and murder.

The trial commenced on October 19, 1999, and the defendant’s sole defense was that of mistaken identity. He did not, however, present any witnesses after the state rested its case. After the court instructed the jury, the defendant took an exception to the court’s charge, claiming that the court improperly marshaled the evidence regarding motive and consciousness of guilt. The jury returned a verdict of guilty on both counts, and the defendant received a total effective sentence of fifty years. This appeal followed. Additional facts and procedural history will be provided as necessary.

I

The defendant first claims that the court improperly instructed the jury on the essential element of intent regarding both the murder and conspiracy to commit murder charges by reading the entire statutory definition of intent provided for in General Statutes § 53a-3 (ll). Specifically, the defendant argues that the court violated his due process rights when it read the entire statutory definition of intent, including the portion that states “to engage in such conduct.” He claims that the court’s instructions improperly permitted the jury to return a verdict of guilty of the charged crime of murder based on a finding that the defendant engaged in proscribed conduct that resulted in the victim’s death. In addition, the defendant argues that it is reasonably possible that the jury was misled as a result of the court’s instruction on the element of intent. He claims that the court’s charge misled the jury because it allowed the jury to find him guilty of both murder and conspiracy to commit murder without ever finding that he specifically intended to cause the death of another person. We disagree.

The defendant concedes that he did not properly preserve his claim for appeal by taking an exception to the charge as given. He seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the defendant’s claim pursuant to Golding because the record is adequate, and an improper instruction on an element of an offense is of constitutional magnitude. See State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998).

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 63 Conn. App. 529, 534, 777 A.2d 704, cert. denied, 256 Conn. 936, 776 A.2d 1151 (2001).

On several occasions, the court properly instructed the juiy that the state was required to prove that the defendant intended to cause the death of another person, whether that person was the victim or another. “Although [w]e agree with the defendant that that portion of § 53a-3 (11) dealing with intent to engage in proscribed conduct is irrelevant to a murder prosecution pursuant to § 53a-54a ... we conclude that the charge read as a whole did not mislead the jury.” (Citation omitted; internal quotation marks omitted.) State v. Maia, 48 Conn. App. 677, 686-87, 712 A.2d 956, cert. denied, 245 Conn. 918, 717 A.2d 236 (1998). Viewing the instruction in its entirety, it was not misleading because the court repeatedly instructed the jury that to find the defendant guilty of murder, it first had to find that the defendant intended to cause the death of another person. Therefore, the defendant cannot prevail under the third prong of Golding because he has failed to establish that a constitutional violation clearly exists and that it clearly deprived him of a fair trial. See id., 688.

II

The defendant also claims that the court improperly marshaled the evidence in favor of the state in its jury instruction, thereby violating his right to a fair trial. Specifically, he argues that the court emphasized the evidence in favor of the state regarding motive and consciousness of guilt while unfairly minimizing the defendant’s mistaken identity defense. We disagree.

“A trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence. . . . The purpose of marshaling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality.” (Internal quotation marks omitted.) State v. Dixon, 62 Conn. App. 643, 647-48, 772 A.2d 166 (2001). “Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case. . . . The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter.” (Internal quotation marks omitted.) State v. Caballero, 49 Conn. App. 486, 493, 714 A.2d 1254, cert. denied, 247 Conn. 924, 719 A.2d 1170 (1998).

As previously stated, we review the entire charge to determine whether it is reasonably possible that it misled the jury. See State v. Rodriguez, supra, 63 Conn. App. 534. “In determining whether it was . . . reasonably possible that the juiy was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) Id., 534-35.

The defendant argues that the court made favorable comments in its charge that mirrored the state’s theory, but “failed completely to set forth the defendant’s position.” A review of the charge in its entirety reveals that although the court provided a more detailed account of the state’s evidence, it fairly summarized the defendant’s theory of defense, which was one of mistaken identity. After instructing the jury regarding the elements of the crimes charged, the court provided a detailed account of the defendant’s theory of defense.

In addition, the defendant did not testify, nor did he present any witnesses or evidence in addition to cross-examination during the state’s case-in-chief. “One reason more time was spent in [marshaling] the state’s evidence is that there was more of it. . . . While the court’s comments must be fair so as to not mislead the jury, [t]he nature and extent of a court’s comments depend largely on the facts of a case and the manner in which it was tried.” (Citation omitted; internal quotation marks omitted.) State v. Caballero, supra, 49 Conn. App. 494. After reviewing the charge in its entirety, we conclude that the court did not marshal the evidence so as to unduly prejudice the defendant or deprive him of his right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with the intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

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

       The state took the position that Footman was the intended victim.

       General Statutes § 53a-3 (11) provides: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . .

       The court instructed the jury in relevant part: “In the [second] count of the information, the state charges [the defendant] with the crime of murder; specifically, that on September 26, 1997, at approximately 9:59 a.m. in the area of 711 Congress Avenue in New Haven, with the intent to cause the death of another person, he did cause the death of Mr. Dennis Carr, Jr., by means of a firearm, to wit, a handgun. . . . For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: first, that the defendant intended to cause the death of another person; and second, that in accordance with that intent, the defendant caused tire death of that person or of a third person. In order to convict the defendant of murder, you must find that the defendant caused the death of Dennis Carr, Jr. You must find proven beyond a reasonable doubt [t]hat Dennis Carr, Jr., died as the result of the actions of the defendant. The state must prove beyond a reasonable doubt that the defendant caused the death of the victim with the intent to cause the death or with the intent to cause the death of another person.

      “Intent relates to the condition of mind of the person who commits the act; his purpose in doing it. A person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such a result or engage in such conduct. . . . The type and number of wounds inflicted as well as the instrument used may be considered as evidence of the perpetrator’s intent and from such evidence, an inference may be drawn in some cases that there was an intent to cause death. . . . [Y]ou are not required to infer intent from the accused’s conduct, but it is an inference that you must draw if you find it is reasonable and logical and in accordance with the instructions on circumstantial evidence. . . .
      “Now, as I have stated to you in connection with the [second] count, a person is guilty of murder when, with the intent to cause the death of [another] person, he causes the death of such person or a third person. And again, that person acts intentionally with respect to a, result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or engage in such conduct. A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct and any one of them commits an overt act in pursuance of such conspiracy.
      * * *
      “Therefore, with respect to the first count of the information, the state must prove beyond a reasonable doubt the following: first, that there was an agreement between the defendant and Alan Goodson to engage in conduct constituting the crime of murder; second, that there was an overt act in furtherance of the subject of the agreement by either the defendant or Alan Goodson. The state claims in this case that an overt act was the shooting of Dennis Carr by the defendant. And, finally, the state must prove that there was the intent on the part of the defendant, Jermaine Young, that conduct constituting the crime of murder be performed; specifically, conduct which had, as its intent, the death of Dennis Carr or another person." (Emphasis added.)

       Under State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) “In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 240.

       The defendant claims that our holding in State v. DeBarros, 58 Conn. App. 673, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000), is controlling. We distinguish DeBarros because the trial court in that case either read or referred back to the entire statutory definition of intent seven to ten times. Id., 678-79. Our review of the charge in the present case reveals that the court read the entire statutory definition only twice. This improper instruction was, however, immediately preceded on both occasions by the proper instruction that “a person is guilty of murder when, with the intent to cause the death of [another] person, he causes the death of such person or a third person.” In addition, there were at least four other references to the intent to cause the death of another.

       The court instructed the jury regarding motive in relevant part: “In this case, the state is not claiming that it has shown a motive for the defendant to shoot Dennis Carr, Jr., specifically. Rather, it claims that there was evidence presented which, if believed, demonstrated that the defendant had a motive to cause the death of another person, that [person] being Stacey Footman; that he intended to cause the death of Stacey Footman and that as a consequence of acting on that intent, he caused the death of Dennis Carr, Jr. All of this testimony was introduced by the state to establish and corroborate what the state claims was the defendant’s motive to commit the crimes charged here. . . . Whether a motive can be found in this case is a determination that you should make and thereafter . . . decide upon the weight such a motive, or absence thereof, should have.”

       The court instructed the jury regarding consciousness of guilt in relevant part: “The law of our state recognizes a concept known as consciousness of guilt. When a person is on trial for a criminal offense, it is proper for you to consider evidence of the defendant’s conduct subsequent to the alleged offense to show that the defendant has a guilty knowledge. . . . You have heard testimony which the state asserts showed that the defendant, knowing that he was wanted for the murder of Dennis Carr, Jr., fled the state and took up residence in Massachusetts, and when arrested, gave a false name. Flight, when unexplained, is a type of conduct which tends to prove consciousness of guilt. The flight of a person accused of a crime and the use of a fictitious identity are circumstances which, when considered together with all of the facts in the case, may justify a finding of guilt. However, neither flight nor the use of [a] fictitious name, if shown, are conclusive. They are to be given the weight [to] which you, the jury, think [it] is . . . entitled under all of the circumstances. In the same way, if a person attempts to alter or conceal evidence of a crime, such conduct may also be considered by you as evidence of consciousness of guilt. In this regard, you have heard testimony that the defendant and an individual known as Alan Goodson took a blue Mazda to be repainted shortly after Dennis Carr, Jr., was shot and killed. The state claims that this evidence was used by the defendant in connection with Mr. Carr’s murder and that repainting the blue Mazda was an effort to alter an[d] conceal incriminating evidence. Like the evidence [of] flight . . . and the use of a fictitious name, which I just explained to you, alteration and concealment of evidence can be used by you as evidence tending to show that the defendant was conscious of his own guilt. This evidence of flight, the use of a fictitious name and the concealment of evidence is admissible to show guilty consciousness and may be evidence that a person is, indeed, guilty. It is for you, however, to decide whether the defendant’s actions reflected a guilty mind. Moreover, should you determine that the defendant’s actions do provide evidence of a guilty mind, then it is still for you to determine what weight, if any, you wish to [attribute] to this evidence.”

       The court instructed the jury regarding mistaken identity in relevant part: “The defendant in this case denies that he is the person who was involved in the commission of the alleged offenses. He is thus . . . raising the issue of mistaken identity. Identification is a question of fact for you to decide, taking into consideration all of the evidence that you have seen and heard in the course of the trial. The state has the burden of proving beyond a reasonable doubt that the defendant was the perpetrator of the crime or crimes charged. The identification of the defendant by a single witness as the one involved in the commission of a crime is, in and of itself, sufficient to justify a conviction of such person provided, of course, that you are satisfied beyond a reasonable doubt of the identity of the defendant as the one who committed the crime.
      “In arriving at a determination as to the matter of identification, you should consider all of the facts and circumstances that existed at the time of the observation of the perpetrator by each witness. In this regard, the reliability of each witness is [of] paramount importance, since identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity and ability of the witness to observe the offender at the time of the event and to make an accurate identification later. It is for you to decide how much weight to place on such testimony. In appraising the identification of any witness you should take into account whether the witness had adequate opportunity, an . . . ability to observe the perpetrator on the date in question. This will be affected by such considerations as the length of time available to make the observation, the distance between the witness and the perpetrator, the lighting conditions at the time of the offense, whether the witness had known or seen the person in the past, and whether anything distracted the attention of the witness during the incident. You should also consider the witness’ physical and emotional condition at the time of the incident and the witness’ power of observation in general. In short, you must consider the totality of the circumstances affecting the identification. Remember, you must be satisfied beyond a reasonable doubt of the identity of the defendant as the one who committed the crime or you must find him not guilty.”


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. STEVIE CLARK
    (AC 18775)
    Schaller, Dranginis and Daly, Js.

      Argued September 26, 2001
    officially released February 5, 2002

      Karen T. Staib, special public defender, with whom was Sheila A. Huddleston, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey and Robin Cutuli, assistant state’s attorneys, for the appellee (state).
   Opinion

DALY, J.

The defendant, Stevie Clark, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a On appeal, the defendant claims that the trial court improperly (1) excluded evidence regarding the defendant’s knowledge about his father’s death and (2) instructed the jury on the elements of self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 25, 1996, New Britain police officers were dispatched to 66 Richard Street to investigate a shooting. Upon arriving at the scene, the officers found the victim, John Bazemore, on the ground, bleeding from his head and chest. A canvass of the area led the police to suspect that the defendant was the perpetrator. On the basis of the information that they obtained, the police went to the defendant’s residence to question him, but he was not present. A police canine traced the defendant’s scent to a nearby tree, where the police found the defendant. While descending from the tree, the defendant reportedly stated, “I did it. I shot John.” Subsequently, the police arrested the defendant and informed him of his Miranda rights. The defendant waived his Miranda rights and cooperated with the police for approximately forty-five minutes until his counsel informed the officers that the conversation was to cease until he arrived.

At trial, the defendant and eyewitnesses gave the following account of the events that led to the shooting. Shortly after 10 p.m., on June 25, 1996, the defendant left his apartment to go to the area of 66 Richard Street, where his girlfriend lived. En route, the victim, who appeared intoxicated, stopped the defendant. The victim asked the defendant if he had any crack cocaine in his possession because he knew of an individual who wanted to purchase it. The defendant handed three packages of crack cocaine to the victim, each with a value of $20. After a short period of time, the victim returned without the crack cocaine and gave the defendant $25, claiming that he sold the drugs at a reduced rate because the buyer “was a good guy.” Believing that the victim was still in possession of the drugs, the defendant became angry. Because of the defendant’s prior experiences with the victim, however, the defendant did not pursue the issue at that time.

Shortly after the defendant arrived at 66 Richard Street, the victim appeared. He angrily accused the defendant of causing him trouble because of the earlier drug transaction. An altercation between the defendant and the victim ensued in which the victim pushed the defendant several times. The defendant then left the scene for a period of five to ten minutes. When he returned, the victim became angry again, yelled at the defendant and pushed him. The defendant then “swore on his father’s grave” that if the victim laid his hands on him again, he would shoot him. The defendant pulled a .380 caliber semiautomatic pistol from his waistband when the pushing and yelling continued. Upon seeing the weapon, the victim stated to the defendant that “he better be prepared to use it or else he would take it away from him, along with everything else he had.” The defendant returned the pistol to his waistband, but the yelling persisted. After being pushed again, the defendant removed the gun from his waistband and fired three bullets at the victim, hitting him in the chest and chin. Additional facts will be discussed as necessary to the issues raised.

I

The defendant claims that the court (1) abused its discretion in excluding relevant and probative evidence, (2) violated Ms constitutional rigM to present a defense by excluding evidence of Ms knowledge of the manner of his father’s death and (3) committed harmful error when it prevented the defendant from mtroducing the excluded evidence during the trial. Specifically, the defendant argues that evidence relating to his father’s death should have been admitted at trial to show (1) his subjective perception that the victim’s physical aggression was likely to cause the defendant grievous bodily harm and (2) his state of mind at the time of the shooting. We are not persuaded.

At trial, the defendant sought to introduce the following evidence. The defendant’s father died in 1980 when the defendant was less than two years old. There is some dispute regardmg the circumstances that led to the death of the defendant’s father and how those events were relayed to the defendant. The defendant’s mother, in recounting the events to the defendant, apparently had combined two different events that occurred during a four week period. The first incident occurred at a pool hall where the defendant’s father was struck in the head with an instrument. About one month later, two individuals got into a fight with the defendant’s father. During that altercation, the defendant’s father was struck in the head by his attackers with their fists and fell to the ground, striking his head on concrete. After the fight, the defendant’s father was taken to a hospital and later released. He died the following day, however, from a blood clot. As a result of his father’s death, the defendant’s mother repeatedly warned the defendant to stay away from fights or other activities that could result in head injuries. The court excluded that evidence, stating that it was legally irrelevant because its prejudicial effect outweighed its probative value.

A

The defendant claims that the court abused its discretion in excluding the evidence. We disagree.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Hall, 66 Conn. App. 740, 755, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002).

“Evidence is admissible only if it is relevant. . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. ... It is well settled that questions of relevance are committed to the sound discretion of the trial court. ” (Citations omitted; internal quotation marks omitted.) State v. Talton, 63 Conn. App. 851, 856, 779 A.2d 166, cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 67c, pp. 504-505. “Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 177, 777 A.2d 604 (2001).

“Logically relevant evidence must also be legally relevant . . . that is, not subject to exclusion for any one of the following prejudicial effects: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Internal quotation marks omitted.) State v. Hunter, 62 Conn. App. 767, 774, 772 A.2d 709, cert. denied, 256 Conn. 925, 776 A.2d 1144 (2001). “Where the prejudicial effect of logically relevant evidence outweighs its probative value, the trial court has wide latitude to exclude the evidence as legally irrelevant . . . .” State v. Joly, 219 Conn. 234, 261, 593 A.2d 96 (1991).

We conclude that the court did not abuse its discretion when it excluded the evidence concerning the death of the defendant’s father because it was more prejudicial than probative. The probative value of the proffered testimony is minimal in light of the other evidence that the court admitted during the course of the trial. The defendant’s purpose in offering the evidence was to inform the jury as to why he feared an attack by the victim. The jury, however, heard testimony that the defendant suffered a series of concussions during his lifetime and that he had an asthmatic condition, each of which it was argued caused the defendant to be frightened of head injuries.

Although the probative value of the evidence was slight, the prejudicial effect of admitting such evidence would have been great. As the court noted, “the prejudicial effect is very strong in terms of arousing sympathy and emotion with reference to a young man whose father . . . died . . . .” Because the probative value of the evidence was outweighed by its prejudicial impact, the court did not abuse its discretion in ruling that it was inadmissible.

B

The defendant further claims that the exclusion of the testimony had the effect of denying him his fundamental constitutional right to present a defense. We reject the defendant’s claim.

“The sixth amendment right to compulsory process includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. ... A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Citation omitted; internal quotation marks omitted.) State v. King, 249 Conn. 645, 668, 735 A.2d 267 (1999).

As we discussed in part I A, the evidence relating to the death of the defendant’s father was not legally relevant to this case. Because the court properly excluded the evidence, the defendant’s right to confrontation was not violated by the court’s decision.

C

The defendant also argues that the court’s decision to exclude the evidence relating to his father’s death constituted harmful error because it harmed his ability to present his defense. That claim is without merit. To establish harmful error, the defendant must establish either that (1) it was more probable than not that the erroneous action of the court affected the result or (2) the prejudice resulting from the court’s decision was so substantial as to undermine confidence in the fairness of the verdict. State v. Marshall, 246 Conn. 799, 812, 717 A.2d 1224 (1998). In this case, the defendant has failed to establish either element and, as such, his claim that the court’s decision to exclude the evidence was harmful error must fail.

II

The defendant’s second claim is that the court misled the jury when it instructed the jury on the elements of self-defense. We are not persuaded.

The following additional facts are relevant to our resolution of the defendant’s claim. During the initial charge to the jury, the court stated: “If you find proven beyond a reasonable doubt that the victim, John Bazemore, was not using or about to use deadly physical force as I have defined that term for you or not inflicting or about to inflict bodily harm upon the defendant, Stevie Clark, and if you further find proven beyond a reasonable doubt that the defendant had no reasonable belief that the victim, John Bazemore, was using or about to use deadly physical force or inflicting or about to inflict great bodily harm upon the defendant, then the defendant would not be justified in using deadly physical force upon the victim.”

In response to the defendant’s objection to the jury charge, the court reinstructed the jury on the issue of self-defense. After reviewing the contested language with the jury, the court stated: “I wish to further clarify that by pointing out to you and instructing you that the issue, the question in such regard is not whether the victim, John Bazemore, intended to use deadly physical force or intended to inflict great bodily harm, but rather, the issue is whether the defendant, Mr. Clark, under the circumstances, reasonably believed that Mr. Bazemore intended to use deadly force or inflict great bodily harm.”

While deliberating, the jury asked the court to reread its instructions on the issue of self-defense. In restating its instructions, the court read both the charge that was initially contested and the curative charge. Additionally, the court stated: “The self-defense statute, ladies and gentlemen, focuses on the person claiming self-defense; that is, the defendant. It focuses on what he reasonably believed under the circumstances and presents a question of fact for the jury. In other words, what is important is what the defendant reasonably believed under the circumstances. The test for the degree of force in self-defense is a subjective-objective test. It has some subjective aspects and some objective aspects.” It is the defendant’s contention that the jury was misled when the court repeated the objectionable portion of the charge.

“Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) State v. Solek, 66 Conn. App. 72, 88, 783 A.2d 1123, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). “The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . While the instructions need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) State v. Rodriguez, 47 Conn. App. 91, 95, 702 A.2d 906 (1997), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998).

The crux of the defendant’s claim is that the court misled the jury when it charged the jury on the subjective-objective test as stated in General Statutes § 53a-19 (a). “The subjective-objective inquiry into the defendant’s belief regarding the necessary degree of force requires that the jury make two separate affirmative determinations in order for the defendant’s claim of self-defense to succeed. First, the jury must determine whether, on the basis of all of the evidence presented, the defendant in fact had believed that he had needed to use deadly physical force, as opposed to some lesser degree of force, in order to repel the victim’s alleged attack. . . . The jury’s initial determination, therefore, requires the jury to assess the veracity of witnesses, often including the defendant, and to determine whether the defendant’s account of his belief in the necessity to use deadly force at the time of the confrontation is in fact credible. This probe into the defendant’s actual state of mind clearly demonstrates the function of the jury in [its] evaluation of the self-defense claim.” (Internal quotation marks omitted.) State v. Scarpiello, 40 Conn. App. 189, 206, 670 A.2d 856, cert, denied, 236 Conn. 921, 674 A.2d 1327 (1996).

“If the jury determines that the defendant had not believed that he had needed to employ deadly physical force to repel the victim’s attack, the jury’s inquiry ends, and the defendant’s self-defense claim must fail. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable person in the defendant’s circumstances.” Id., 206-207.

After carefully examining the court’s charge, we conclude that it is not reasonably possible that the jurors were misled when the court instructed them on the subjective-objective test of self-defense. When the court charged the jury on the issue of self-defense, it read § 53a-19 (a) twice. In addition, the court described to the jury the subjective-objective test that is at issue in this appeal. Throughout its explanation of self-defense, the court repeatedly emphasized that there were two aspects of the self-defense statute that the jury must decide, one subjective and one objective. Because we conclude that the jury was not misled by the court’s charge, the defendant’s claim fails under the third prong of Golding because he has failed to clearly establish that a constitutional violation exists.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55a provides in relevant part: “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. . .

       The victim subsequently died after being transported to New Britain General Hospital.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant testified that he had a history of physical and verbal encounters with the victim, including an occasion when the victim lifted the defendant above his head and threatened to slam him to the ground.

       The defendant also claimed that the victim put his hands around his neck, but an eyewitness disputed that account at trial.

       The defendant told police that he discarded the weapon at the base of a tree near his mother’s house. A subsequent search of the area failed to recover the gun.

       It was reported that the instrument that struck the defendant’s father was either a pool stick or a baseball bat.

       The defendant did not preserve his claim at trial and now seeks to have it reviewed under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. Because the defendant’s claim is of constitutional magnitude and the record is adequate for review, we will review the defendant’s claim under Golding.

       General Statutes § 53a-19 (a) provides in relevant part: “[A] person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”


author: O’CONNELL, J.

text:
    WILLIE MYERS v. COMMISSIONER OF CORRECTION
    (AC 20603)
    Foti, Mihalakos and O’Connell, Js.
    Argued October 30, 2001
    officially released January 25, 2002

      Darcy McGraw, special public defender, for the appellant (petitioner).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Robin Lipsky, assistant state’s attorney, for the appellee (respondent).

       January 25, 2002, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

O’CONNELL, J.

The petitioner appeals from the denial of his amended petition for a writ of habeas corpus. He claims that (1) his attorney’s performance was adversely affected by an actual conflict of interest and, alternatively, the trial court improperly failed to inquire into a potential conflict of interest, (2) the habeas court applied the wrong standard of review to his claim that the trial court failed to inquire into that potential conflict, (3) automatic reversal of the judgment of conviction is required and (4) the habeas court improperly excluded evidence. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of this appeal. The petitioner pleaded guilty under the Alford doctrine to one count of murder in violation of General Statutes § 53a-54a and was sentenced to thirty years in the custody of the commissioner of correction. The petitioner did not take a direct appeal, but later filed a petition for a writ of habeas corpus on the ground that his incarceration was constitutionally invalid because his conviction was obtained in violation of his right to conflict free counsel. Following a hearing, the habeas court denied the petition. The court found that the petitioner had failed to prove that a conflict of interest existed that affected his counsel’s performance. Thereafter, the court granted the petitioner’s petition for certification to appeal, and this appeal followed.

I

The petitioner’s first two claims implicate distinct aspects of confli cts of interest. The first claim entails an alleged actual conflict while the second claim involves a potential conflict of interest.

A

The facts necessary for disposition of the petitioner’s claim of actual conflict of interest on the part of his trial counsel are as follows. Following the petitioner’s arrest, his mother contacted attorney William St. John to represent her son. St. John informed the petitioner’s mother that he could not represent her son because another member of his law firm represented the victim in recovering a car that had been seized by the police in an unrelated matter. The same member of the film also later represented the estate of the victim. The mother then retained, St. John’s brother, Gregory St. John, to represent her son.

At the habeas trial, Gregory St. John testified that he did not recall a referral of this case from his brother and that he never discussed his brother’s firm’s representation of the victim and later of the victim’s family. William St. John testified that he probably was aware that his brother represented the petitioner, but never discussed the case with him. He also testified that he had no knowledge of the victim’s files at his firm because they were handled by another lawyer in the firm.

“Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where . . . the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice. . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. ... In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance. . . .

“On appellate review, the historical facts found by the habeas court may not be disturbed unless they were clearly erroneous .... When, as in this case, those facts are essential to a determination of whether the petitioner’s sixth amendment rights have been violated, we are presented with a mixed question of law and fact requiring plenary review.” (Citations omitted; internal quotation marks omitted.) Adorno v. Commissioner of Correction, 66 Conn. App. 179, 194, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001).

The habeas court found that “[t]he petitioner has shown no specific instances in the record that suggest impairment or compromise of his interests for the benefit of another party. Both brothers testified that they never discussed with each other the petitioner’s case

We conclude that the habeas court properly found that there was no actual conflict of interest and, therefore, no ineffective assistance of counsel.

B

The petitioner also claims that the trial court failed to make the necessary inquiries when it was informed of a potential conflict of interest. We do not agree.

At the outset, we acknowledge that the petitioner has raised a constitutional claim that he did not bring in a direct appeal. “Generally, [b]ecause habeas corpus proceedings are not an additional forum for asserting claims that should properly be raised at trial or in a direct appeal, a petitioner must meet the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72,97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), for determining the reviewability of habeas claims that were not properly pursued on direct appeal.” (Internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn. App. 726, 731, 779 A.2d 156 (2001). In Milner, however, we held that a petitioner is not required to prove cause and prejudice if the state fails to plead the defense of procedural default in its return pursuant to Practice Book § 23-30 (b). Milner v. Commissioner of Correction, supra, 734.

In this case, although the petitioner failed to raise this issue on a direct appeal, the state also failed to raise a claim of procedural default in its return. Thus, in accordance with Milner, we will address the merits of the petitioner’s claim.

The substance of the petitioner’s claim is that the trial court had a duty to inquire into the potential conflict that was brought to its attention by petitioner’s counsel. During voir dire, the following colloquy occurred:

“[Defense Counsel]: If Your Honor please, as I indicated to you in chambers, it came to my attention this morning the fact that there was a gentleman seated in the courtroom who I recognized and couldn’t remember from where.
“Ultimately, I come to find out that the gentleman is the stepfather of the victim. And, of course, he made a reference to this particular social event, and all of a sudden it dawned on me how I knew the man and how I knew his wife, who is the mother of the victim. It has been several years at least since I have socialized with them. We only did it, probably, four or five times anyhow, at most.
“I have reviewed that subject with my client, because I don’t want to portray even the appearance of impropriety or appearance of conflict of interest. I don’t really think there’s a conflict of interest. I don’t think there’s even an appearance of impropriety.
“But, I put this on the record because I have advised my chent of that information. He has indicated to me that he understands what I have advised him and even in light of that, he still wishes me to remain as his counsel.
“The Court: All right. And is that the case, Mr. Myers?
“The Defendant: Yes.”

The petitioner contends that the court, after being alerted by counsel to the possibility of a conflict, improperly relied on the representations of counsel that no conflict existed and instead, sua sponte, should have conducted a more thorough and searching inquiry. “There are two circumstances under which a trial court has a duty to inquire with respect to a conflict of interest: (1) when there has been a timely conflict objection at trial ... or (2) when the trial court knows or reasonably should know that a particular conflict exists .... A trial court’s failure to inquire in such circumstances constitutes the basis for reversal of a defendant’s conviction. ... In the absence of an affirmative duty by the trial court to inquire, however, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his [or her] lawyer’s performance in order to obtain reversal of his [or her] conviction. . . . Before the trial court is charged with a duty to inquire, the evidence of a specific conflict must be sufficient to alert a reasonable trial judge that the defendant’s sixth amendment right to effective assistance of counsel is in jeopardy.” (Citations omitted; internal quotation marks omitted.) State v. Gaines, 257 Conn. 695, 708, 778 A.2d 919 (2001).

During the course of its inquiry as to the existence of a conflict, “the trial court must be able, and be freely permitted, to rely upon counsel’s representation that the possibility of such a conflict does or does not exist.” (Internal quotation marks omitted.) State v. Martin, 201 Conn. 74, 82, 513 A.2d 116 (1986). “[T]rial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel. An attorney [facing a possible conflict] in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.” (Emphasis in original; internal quotation marks omitted.) State v. Gaines, supra, 257 Conn. 708-709.

Under the facts of the present case, we conclude that the trial court fulfilled its obligation to inquire into the potential conflict by relying on counsel’s assurances, as well as the petitioner’s response to the judge’s question.

II

The petitioner next claims that the habeas court applied an incorrect standard in reviewing the claim that the trial court failed to inquire adequately into the potential conflict of interest. The petitioner, relying on State v. Crespo, 246 Conn. 665, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999), argues that the proper standard requires that if a court knows or reasonably should know of the potential conflict of interest, the court must first obtain a knowing and intelligent waiver of the right to conflict free counsel before proceeding. Our review of Crespo does not reveal any such requirement. In fact, in State v. Cator, 256 Conn. 785, 781 A.2d 285 (2001), our Supreme Court stated: “The scope of a court’s inquiry, or the necessity for such inquiry, however, depends on the circumstances, and a court need not necessarily elicit a waiver. State v. Cruz, 41 Conn. App. 809, 814-15, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996).” (Internal quotation marks omitted.) State v. Cator, supra, 795. Thus, we conclude that the habeas court applied the correct standard in reviewing the petitioner’s claim.

Ill

Next, the petitioner claims that the trial court’s failure to inquire into the potential conflict of interest and to obtain a waiver of the petitioner’s right to conflict free counsel requires automatic reversal of the petitioner’s conviction. This claim has no merit.

Even if the trial court had failed to conduct an adequate inquiry, automatic reversal would not be appropriate in a posthabeas appeal. “Automatic reversal is appropriate only on direct appeal from the judgment of conviction. . . . While automatic reversal may be appropriate on direct appeal when the reviewing court concludes that the trial court had failed to inquire into a possible conflict of which it should have been aware, it is entirely inappropriate as a remedy in a posthabeas review. It would be incongruous to conclude that a conviction must be reversed because there may have been a possible conflict of which the court failed to inquire, notwithstanding that it had been conclusively determined that there was no conflict.” State v. Crespo, supra, 246 Conn. 694-95 n.27.

IV

Finally, the petitioner claims that the habeas court improperly refused to admit an exhibit into evidence. We are not persuaded.

At the habeas trial, the petitioner marked as an exhibit for identification purposes a file from William St. John’s law firm concerning the representation of the victim’s estate. When the petitioner moved to admit the exhibit as a full exhibit, the state objected on the basis of relevancy because the file had not been opened at the time Gregory St. John began representing the petitioner and William St. John was unaware of its existence. The court sustained the objection.

Before we reach the merits of this claim, we note that the petitioner failed to comply with Practice Book § 67-4 (d) (3) in raising this claim. The petitioner did not provide the habeas court with a verbatim account of the offer, objection and ruling. In fact, the petitioner fails to set out the basis of the court’s ruling altogether. Generally, this court will not review claims that are improperly briefed. Although we do not condone this failure to adhere to the rules of practice, in this case, the subject ruling was sufficiently delineated for us to review the petitioner’s claim. See Wilkes v. Wilkes, 55 Conn. App. 313, 323 n.9, 738 A.2d 758 (1999).

“It is well established that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Vasquez, 66 Conn. App. 118, 130, 783 A.2d 1183, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). On the basis of our review of the record, we conclude that the habeas court properly refused to allow the file into evidence on the ground of relevancy.

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). “A defendant who pleads guiliy under the Alford doctrine does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea.” (Internal quotation marks omitted.) State v. Webb, 62 Conn. App. 805, 807 n.1, 772 A.2d 690 (2001).

       Gregory St. John and William St. John are brothers, but do not work for the same firm.

       Practice Book § 23-30 (b) provides: “The return shall respond to the allegations of the petition and shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief.”

       Practice Book § 67-4 (d) (3) provides: “When error is claimed in any evidentiary ruling in a court or jury case, the brief or appendix shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.”


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. RODNEY HOBSON
    (AC 21207)
    Lavery, C. J., and Dranginis and Dupont, Js.
    Argued October 26, 2001
    officially released February 5, 2002

      Neal Cone, assistant public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Eugene Calistro, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, Rodney Hobson, appeals from the judgment of the trial court, following a hearing, revoking his probation and reimposing the remainder of his sentence. On appeal, the defendant claims that the court deprived him of his federal and state constitutional rights (1) to be heard when it precluded him from testifying on his behalf, and (2) to due process and assistance of counsel when it issued its decision without the benefit of closing argument by defense counsel. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. On May 27,1998, the defendant was sentenced to three years in prison, execution suspended after one year, and three years probation for possession of narcotics in violation of General Statutes § 21a-279 (a). As a condition of his release, the defendant was required to report to a probation officer. The department of correction sent a letter to the defendant at 84 Hazel Street in New Haven, directing him to report to a probation officer on May 10,1999. When the defendant, however, failed to appear on May 10, 1999, a second letter was sent to him at 84 Hazel Street, ordering him to report to probation on June 7, 1999. The defendant again failed to appear on the scheduled date.

On July 1,1999, New Haven police officers, pursuant to a warrant that was based on allegations of drug dealing, conducted a search of 84 Hazel Street. The police officers discovered the defendant in a bedroom on the second floor of the house. The police officers noticed, within their plain view, that there were several bags used for packaging crack cocaine near the bed and also a glass plate with a white powder on it that field tested positive for cocaine. The defendant subsequently was arrested.

A probation violation hearing ensued, and after finding that the defendant violated a condition of his probation, the court revoked his probation and reimposed his original sentence. This appeal followed. Additional facts will be set forth where pertinent to the issue raised.

I

The defendant first claims that the court deprived him of his federal and state constitutional rights to be heard when it rejected his request to testify on his behalf. We are not persuaded.

The following additional facts are relevant to our resolution of the defendant’s claim. Toward the end of the hearing, the defendant sought to present a witness, who was not under subpoena, to testify about whether the defendant actually resided at 84 Hazel Street. When the witness could not be located, the court asked defense counsel, “What else do you have?” Defense counsel responded, “That’s probably it.” After hearing the state’s position about the witness, which was that the testimony of the witness would not “change anything,” the court again asked whether the defendant had anything further. Defense counsel stated, “I have nothing further, Your Honor.” The defendant himself then asked, “May I say something, Your Honor?” The court replied, “I’m going to give you a chance because I’m going to make a finding at this stage that there has been a violation of probation and that based on what I’ve heard, continued probation would not be in your best interest or the interest of the state of Connecticut. I will hear you, though, now on the issue of time, at this time. All right.”

Defense counsel then requested a brief break. The court stated, “Sure. I should add that not only have I found the evidence fair and convincing, I found the evidence to the violation to be overwhelming in this particular case. I just wanted to say, just so you understand, that I didn’t give you the time to go look for your prospective witness, but it is not out of—if I thought there was some relevance or based on the offer of proof, if I thought there was something that would be of assistance to the court in this particular matter, I would have deferred to you and given you the opportunity to do so. So, at this time, I want you to know that I’m not pushing you on this. Okay.” Defense counsel answered, “That’s understood, Your Honor.” The court then asked, “Does your client wish to say anything prior to sentencing?” Defense counsel responded, “I don’t believe so, Your Honor.”

The defendant contends that his statement to the court, “May I say something, Your Honor,” was an invocation of his right to be heard and that the court denied him that constitutional right when it decided, without the benefit of his testimony, that the defendant had violated the terms of his probation. As this due process claim raises a question of law, it is thus subject to our de novo review. See State v. Holmes, 257 Conn. 248, 252, 777 A.2d 627 (2001).

“The right to testily on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that are essential to due process of law in a fair adversary process. . . . The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony .... The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call witnesses in his favor .... Logically included . . . is a right to testify himself. . . . The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony. ... A defendant’s right to testify is also protected by his rights to a fair trial, to due process, to present a defense, and to be free from compelled testimony under article XVII of the amendments to the Connecticut constitution and under article first, § 8, of the Connecticut constitution.” (Citations omitted; internal quotation marks omitted.) State v. Shinn, 47 Conn. App. 401, 410, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998). Although a defendant in a probation revocation hearing is not entitled to the full panoply of due process rights afforded to defendants in criminal prosecutions, due process, nonetheless, mandates that a defendant in a probation revocation hearing possesses the right to be heard in person and thus to testify on one’s behalf. See State v. Davis, 229 Conn. 285, 294-95, 641 A.2d 370 (1994).

Although a defendant has the right to testify on his or her behalf, that privilege is not triggered unless he or she takes “some affirmative action regarding his right to testify.” Ostolaza v. Warden, 26 Conn. App. 758, 763, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). A trial court is not required to canvass a defendant regarding whether he or she desires to testify. State v. Paradise, 213 Conn. 388, 404-405, 567 A.2d 1221 (1990). “The accused must act affirmatively. While the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.” (Internal quotation marks omitted.) Id. Accordingly, we must determine whether, under the circumstances of this case, the defendant’s actions constituted an affirmative invocation of his right to testify on his behalf. See State v. Jennings, 20 Conn. App. 721, 725, 570 A.2d 234, cert. denied, 215 Conn. 801, 574 A.2d 218 (1990).

Alter thoroughly reviewing the record and transcript, we conclude that the defendant did not engage in affirmative actions invoking his right to testify on his behalf. Under the circumstances that it was uttered, the defendant’s statement, “May I say something, Your Honor,” did not evince his intent to testify or serve to notify the court of his alleged intention. The defendant asked to “say something” to the court after his counsel was unable to locate a witness. The defendant could have sought to address the court for any number of reasons, none of which involved or implicated his intent to testify.

Moreover, after finding liability, but prior to sentencing, the court gave the defendant the opportunity to speak. The defendant, however, declined to do so. The responses by the court and by defense counsel after the defendant requested to “say something” additionally demonstrate that both were unaware that the defendant sought to testify. We further note that at the conclusion of the hearing, the defendant did not make a motion to open the case to present additional evidence, nor did he file a motion for a new hearing, nor does he now claim that his trial counsel failed to explain the available options or ignored his wish to testify. See id., 724-25.

Nothing in the record supports the defendant’s claim that his phrase, “May I say something, Your Honor,” was an invocation of his right to testify on his behalf. We conclude that the defendant was not deprived of his due process rights under either the federal or state constitution.

II

The defendant next claims that the court deprived him of his federal and state constitutional rights to due process and effective assistance of counsel when it found that he violated a condition of his probation without the benefit of closing argument by defense counsel. That claim arises out of the absence of closing argument at the conclusion of the proceedings. During the proceedings, neither the defendant nor the state sought to present closing argument. The defendant concedes that his claim is unpreserved because he failed to raise it before the trial court. Thus, he seeks review pursuant to either State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. We are not persuaded.

Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id. “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Silva, 65 Conn. App. 234, 240, 783 A.2d 7, cert. denied, 258 Conn. 929, 783 A.2d 1031 (2001). As the defendant fails to satisfy prong three of Golding, namely that a constitutional violation clearly exists and clearly deprived him of a fair trial, he cannot prevail on his claim.

“The opportunity for the defense to make a closing argument in a criminal trial has been held to be a basic element of the adversary process and, therefore, constitutionally protected under the sixth and fourteenth amendments. . . . Closing argument is an integral part of any criminal trial, for it is in this phase that the issues are sharpened and clarified for the jury and each party may present his theory of the case. . . . The right to present a closing argument is abridged not only when a defendant is completely denied an opportunity to argue before the court or the jury after all the evidence has been admitted, but also when a defendant is deprived of the opportunity to raise a significant issue that is reasonably inferable from the facts in evidence.” (Citations omitted; internal quotation marks omitted.) State v. Arline, 223 Conn. 52, 63-64, 612 A.2d 755 (1992).

“Both the Connecticut and the United States constitutions protect a defendant’s right to voice closing arguments before the trier of fact. The sixth amendment guarantee in the federal constitution of the right to assistance of counsel has been held to include the right to present closing arguments. ... If the trial court denies the defendant an opportunity to give closing arguments, the reviewing court should grant a new trial.” (Citations omitted; internal quotation marks omitted.) State v. Finley, 34 Conn. App. 823, 831-32, 644 A.2d 371, cert. denied, 231 Conn. 927, 648 A.2d 880 (1994).

A probation revocation hearing “does not require all of the procedural components associated with an adversarial criminal proceeding.” (Internal quotation marks omitted.) State v. Davis, supra, 229 Conn. 295. Minimum due process requirements, however, entitle a defendant in a probation revocation hearing to the right to present closing argument. See State v. Baxter, 19 Conn. App. 304, 311, 563 A.2d 721 (1989) (minimum due process requirements for probation revocation proceedings “include . . . the opportunity to be heard in person and to present witnesses and documentary evidence, [and] the right to confront and cross-examine adverse witnesses in most instances”).

In essence, the defendant contends that his due process rights to assistance of counsel were violated because it is incumbent upon a court, prior to rendering a decision in a probation revocation hearing, to specifically inquire of the parties whether they desire to make a closing argument regardless of whether the parties expressed any intention to do so. We conclude that in a probation revocation hearing, a court is not required to canvass the parties about whether they want to present closing arguments. Moreover, after thoroughly reviewing the record and transcript, we conclude that the defendant was not deprived of the opportunity to present closing argument, nor did the lack of closing argument deny him a fair trial.

To support his proposition, the defendant cites to several cases in which the trial court denied a request to present closing argument. The cases that the defendant relies on, however, do not pertain to this case. This was not a situation in which the court denied or deprived the defendant of the opportunity to present closing arguments. The defendant had the right to present closing argument, which he alone chose not to exercise.

As previously stated, neither party here sought to present closing argument. In fact, neither party raised that issue or objected to the absence of closing arguments during the hearing. The court afforded several opportunities for the defendant to request or to present closing argument. At the close of the evidence, the court asked the defendant whether he had anything further. The defendant’s counsel responded, “I have nothing further, Your Honor.” After finding that the defendant violated a condition of his probation but prior to sentencing, the court again asked both parties whether they had anything further to say. Defense counsel responded, “I just would remind [the court] that my client indicates that he believes that the computer record is an error. He doesn’t believe [he has] ever had an actual conviction for sale. He believes he has for possession. The exposure is two years, Your Honor; we certainly understand that. I guess all I would say is, we ask for whatever mercy the court could find to give the matter.” The defendant did not file a motion for a new hearing based on the grounds claimed in this appeal.

The court did not announce its finding that the defendant violated a condition of his probation until after all of the evidence was presented. There is nothing in the record or transcript to suggest that in rendering its decision the court deprived the defendant of a fair trial or assistance of counsel. Moreover, we decline to impose a rule, as the defendant seems to suggest, that the very absence of closing argument at a probation revocation hearing per se deprives a defendant of the constitutional rights to assistance of counsel and to a fair trial. See State v. Finley, supra, 34 Conn. App. 832-33 (declining to adopt per se rule that court’s announcement of finding after all evidence presented but prior to closing arguments constitutes constitutional violation); State v. Plaskonka, 22 Conn. App. 207, 211-12, 577 A.2d 729 (holding that defendant’s due process right to present closing argument not violated when trial court announced findings before hearing closing argument), cert. denied, 216 Conn. 812, 580 A.2d 65 (1990).

Given that a probation revocation hearing is a less formal proceeding than a criminal trial, and that the defendant failed to present closing argument on the basis of his prerogative and not due to any action or denial by the court, we conclude that a constitutional violation did not occur and that the defendant was not deprived of a fair trial. Accordingly, the defendant fails to satisfy prong three of Golding and cannot prevail on his claim. We also conclude that this situation does not invoke any exceptional circumstances warranting plain error review.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s claim is to be distinguished from a claim that the court did not affirmatively offer him an opportunity to address the court personally before it imposed a sentence in the dispositional phase of the probation revocation hearing. See State v. Hedman, 62 Conn. App. 403, 404, 772 A.2d 603, cert. granted, 256 Conn. 909, 772 A.2d 602 (2001).

       The defendant invokes his fourteenth amendment right to due process and his sixth amendment right to testify on his behalf.

       The defendant’s state constitutional claim is rooted in article first, § 8, of the constitution of Connecticut, which provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel .... No person shall be . . . deprived of . . . liberty . . . without due process of law . . . .”

         The state argues that we should decline to review the defendant’s claim because it is unpreserved and the record is inadequate for review. Regardless of whether the defendant properly invoked his right to testify, we find that his claim is before this court adequately.

       The defendant in Paradise claimed that the trial court improperly failed to “ascertain, on the record, whether he had made a knowing, voluntary and intelligent waiver of his right to testify on his own behalf’ in violation of his due process rights. State v. Paradise, supra, 213 Conn. 404. Although the present issue slightly differs from that before our Supreme Court in Paradise, the principles are applicable to and dispositive of our resolution of the defendant’s claim. Central to the ultimate holding in Paradise was our Supreme Court,’s initial conclusion that a defendant must take affirmative action to invoke the due process right to testily on his or her behalf. Similarly, in this case, for the defendant to prevail, the record must demonstrate that he in fact took affirmative efforts indicating his intent to testily on his behalf.

       Pursuant to Practice Book § 60-5, “[t]he court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The state additionally asserts that the defendant’s claim must fail because he implicitly waived his right to present closing argument. Because we conclude that the defendant’s argument fails to meet the Golding requirements and those of plain error review, we need not determine whether the claim also fails on the basis of waiver.

       The defendant relies on several federal cases and cases from our sister states. The defendant, however, fails to provide us with any cases that have a factual scenario resembling the present situation.


author: FLYNN, J.

text:
    PREMIER CAPITAL, INC. v. DAVID S. GROSSMAN ET AL.
    (AC 21469)
    Dranginis, Flynn and Healey, Js.
    Argued October 30, 2001
    officially released February 5, 2002

      David S. Grossman, the appellants (defendants).

      Neal L. Moskow, with whom, on the brief, were Frederic S. Ury and Deborah M. Garskof for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendants, David S. Grossman and Myma S. Grossman, appeal from the judgment of the trial court rendered in favor of the plaintiff, Premier Capital, Inc., on its complaint and on the defendants’ counterclaim following the court’s adoption of the findings and recommendations contained in the report of an attorney fact finder (fact finder). On appeal, the defendants, who are husband and wife, claim that the court improperly accepted the fact finder’s report because (1) the fact finder inappropriately allowed a computer generated record to be admitted as evidence of the defendants’ debt and (2) the findings of fact of the fact finder relating to whether the defendants were entitled to prevail on their counterclaim for recoupment were inconsistent. We reverse in part the judgment of the trial court on the basis of the last issue only.

The plaintiff commenced this action against the defendants for nonpayment of a debt. The plaintiffs amended complaint set out eight numbered paragraphs in which it alleged that, as assignee of a note executed by the defendants, it was entitled to the principal and interest due under the note along with attorney’s fees and costs incurred in bringing this action to enforce the note. In response to the plaintiffs complaint, the defendants filed an answer and two special defenses. They also filed counterclaims for setoff and recoupment. In their counterclaim for setoff, the defendants adopted, in their entirety, the eight paragraphs of the plaintiffs complaint and alleged those eight paragraphs as the first eight paragraphs of their own claim for setoff.

Pursuant to Practice Book § 23-53, the matter was referred to an fact finder, who conducted a hearing and submitted a written report containing factual findings and recommendations as to judgment in accordance with Practice Book § 23-56. The relevant facts contained in that report are as follows. On April 14, 1992, the defendants executed a $10,000 note made payable to Brookfield Bank (bank), which note was payable on demand. As collateral for the note, the defendants gave the bank a security interest in certain shares of General Electric stock, which shares were held solely in the name of Myma Grossman. Pursuant to the terms of the note, the defendants promised to pay interest on the $10,000 principal amount borrowed at an initial rate of 9 percent per annum until May 1, 1992, at which time interest was payable at a variable rate. They also promised to pay any attorney’s fees and costs that the bank might incur in enforcing the note in the event of a default.

On or about May 8, 1992, the bank failed and the Federal Deposit Insurance Corporation (FDIC) took possession of the assets of the bank, including the defendants’ note and the collateral that secured it. The defendants failed to make any principal or interest payments on the note. Consequently, on April 21, 1994, an account officer of the FDIC wrote a letter to the defendants, informing them that, as of that date, the total amount due and owing under the note was $11,673.42, of which $10,000 represented principal and $1673.42 represented interest. The letter also requested that Myma Grossman sign and that the defendants forward blank stock powers to the FDIC, thereby enabling the FDIC to sell the stock and apply the proceeds of that sale to the defendants’ outstanding debt. In response to that letter, David Grossman requested that the FDIC provide a detailed account of the certificate numbers and the number of shares represented by each certificate securing the note. On June 24, 1994, the FDIC provided the defendants with the applicable stock certificate numbers as well as the number of shares that each certificate represented, which totaled 123 shares, together with photocopies of the certificates. The FDIC again requested that Myma Grossman sign the corresponding stock powers and that the defendants forward those documents to the FDIC. The defendants did not do so.

On June 26, 1996, the FDIC assigned the note, together with the collateral, to the plaintiff. On August 1, 1996, the plaintiff sent a certified letter to the defendants, demanding payment of the outstanding balance due on the note, which as of that date amounted to $14,409.33 in principal and interest. The defendants have never made any payments on the debt.

The fact finder found that as of March 20, 2000, the total amount owing to the plaintiff on the note was $18,100.20 and that the plaintiff was entitled to $6375 in reasonable attorney’s fees, plus costs associated with the litigation. The fact finder further found that the defendants failed to meet the burden of proving their special defenses and failed to present evidence that was sufficient to prove their counterclaims for setoff and recoupment. Accordingly, the fact finder recommended that the court render judgment for the plaintiff in the amount of $18,100.20 plus attorney’s fees and costs. The fact finder also recommended that the court render judgment in favor of the plaintiff on the defendants’ claims for setoff and recoupment.

Pursuant to Practice Book § 23-57, the defendants filed an objection to the court’s acceptance of the fact finder’s report, claiming, inter alia, that (1) the computer generated record that the plaintiff produced at trial was inadmissible hearsay and it was, therefore, improperly admitted as evidence of the debt, and (2) the fact finder improperly failed to find that the defendants had proved their claim for recoupment.

After reviewing the fact finder’s findings of fact, the court concluded that the computer record adduced by the plaintiff as evidence of the defendants’ debt was properly admitted under General Statutes § 52-180 as an exception to the rule against admitting hearsay evidence. Further, with regard to the defendants’ recoupment claim, the court concluded that the defendants provided no authority that supported their claim that they were entitled to a credit for the value of the stock that secured the note. The court also noted that it was the defendants’ failure to sign and return the stock powers that hampered the FDIC’s efforts to sell the stock and to apply the proceeds to the outstanding debt. Accordingly, it concluded that nothing in the record required findings or conclusions contrary to those made by the fact finder. The court, therefore, accepted the fact finder’s findings and recommendations, and rendered judgment in favor of the plaintiff in the amount of $18,100.20, plus attorney’s fees of $6375, plus costs. It also rendered judgment in favor of the plaintiff on the defendants’ claim for recoupment. This appeal followed.

The defendants first claim that the court failed to find that the fact finder improperly allowed the plaintiff to introduce a computer printout record that had been created by the FDIC, rather than by the plaintiff itself, as evidence of the debt. We find it unnecessary to address that claim because the defendants made a binding judicial admission in their pleadings, namely, in their claim for setoff: “The principal sum of $10,000, plus accrued interest as of November 19, 1999 in the amount of $7,728.56, which interest continues to accrue, plus costs and attorneys’ fees remains due and owing to Premier by the Grossmans.” “Factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case. . . . An admission in pleading dispenses with proof, and is equivalent to proof.” (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 345, 766 A.2d 400 (2001).

Furthermore, during the proceeding before the fact finder, David Grossman admitted that he and his wife had executed the note and that neither of them had ever made any payments on the note. Although those evidential admissions were not binding judicial admissions as to Myma Grossman, she did not offer any testimony or other evidence to contradict David Gross-man’s evidential admissions. Accordingly, the fact finder was entitled to rely on the binding admission that the defendants made in their pleadings, along with the admissions of David Grossman, as proof of the debt, and it is, therefore, unnecessary for us to determine whether any other evidence of the debt that was proffered by the plaintiff at the proceeding before the fact finder was admitted properly.

The defendants next claim that the court improperly accepted the fact finder’s recommendation that the defendants were not entitled to recoup the value of the stock that they had given to the bank as security for the note. Specifically, they claim that the fact finder’s findings of fact with respect to their recoupment claim were inconsistent.

We begin our resolution of the defendants’ claim by setting forth the applicable standard of review. Attorney fact finders are empowered to hear and decide issues of fact on contract actions pending in the Superior Court, subject to some exceptions, none of which are implicated here. See Practice Book § 23-53. On appeal, “[o]ur function ... is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Twachtman v. Hastings, 52 Conn. App. 661, 668, 727 A.2d 791, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999).

Initially, we note the paucity of Connecticut case law relevant to the issue before us. We believe that is a function of the fact that the note at issue here is not, whereas most notes are, a negotiable instrument under the provisions of the Uniform Commercial Code and, therefore, it is subject to defenses and claims in recoupment. Accordingly, to reach our decision, we turn to the common-law concepts of pledge law.

We now turn to the defendants’ claim. “Recoupment . . . refers to the defendant’s right, in the same action, to cut down the plaintiffs demand, either because the plaintiff has not complied with some cross obligation of the contract on which he or she sues or because the plaintiff has violated some legal duty in the making or performance of that contract. . . . The practice serves to avoid needless delay and unnecessary litigation.” 20 Am. Jur. 2d 231, Counterclaim, Recoupment and Setoff § 5 (1995); see also Genovese v. J. N. Clapp Co., 4 Conn. App. 443, 445-46, 495 A.2d 1079 (1985).

Where property has been pledged to secure a note, “[t]here is an implied agreement on the part of the pledgee for the safe-keeping of the pledge. He is under a duty to exercise ordinary or reasonable care in the preservation of the property pledged and in protecting the pledgor’s rights therein. . . . [H]e cannot so deal with the pledged property as to destroy or even impair its value.” 72 C.J.S. 32, Pledges § 30 (1987). “A pledgee’s . . . wrongful or unauthorized disposition of the pledged property so as to put it out of his power to redeliver it on payment of the debt it secures, constitutes a conversion although there is no wrongful intent or motive on the part of the pledgee.” Id., pp. 35-36, § 33.

“As a general rule, the pledgor defendant is entitled to set off against the amount of the debt . . . any damage or loss resulting from the negligence, wrongful sale, or other wrongful conversion or act of the pledgee with respect to the collateral. Tender or payment of the amount due on the principal debt is not a condition precedent to the pledgor’s right to set off the value of collateral converted by the pledgee or lost through his negligence.” Id., p. 51, § 52.

In the present case, the defendants claim that the court improperly accepted the fact finder’s report because the finding that they had failed to prove their counterclaim for recoupment was inconsistent with his other findings, namely that the note “was secured by a security interest in shares of General Electric stock” and “was assigned to plaintiff by the FDIC, together with the collateral securing the note.” We agree.

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence . . . .We cannot retry the facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Noble v. White, 66 Conn. App. 54, 60, 783 A.2d 1145 (2001).

On the basis of our examination of all of the evidence, we are left with the definite and firm conviction that a mistake has been committed with regard to the court’s acceptance of the fact finder’s finding that the defendants failed to prove their claim for recoupment and, consequently, were not entitled to a credit for the value of the stock that was pledged to secure the note that the plaintiff was enforcing.

The property that served as the pledge in the present case was the stock certificates representing 123 shares of General Electric stock. The record reveals that the plaintiff cannot redeliver those stock certificates to the defendants upon their tender or payment of the $18,100.20 judgment on the debt because the plaintiffs only witness, Nick Maimonis, general manager and vice president of the plaintiff organization, testified before the fact finder that the stock certificates had been lost or misplaced. We conclude that because the plaintiff, the assignee of the note, and the FDIC, the assignor, were charged with the duty to preserve the value of the collateral, which duty either the plaintiff or the FDIC breached by losing or misplacing the certificates, it was clearly erroneous for the court to adopt the finding that the defendants had failed to prove their claim for recoupment that they were entitled to a credit for the value of the stock.

The judgment is reversed insofar as it fails to allow the defendants a credit for the value of the stock and the case is remanded for further proceedings to determine the appropriate amount of the credit to be offset against the $18,100.20judgment on the debt. In all other respects the judgment is affirmed.

In this opinion the other judges concurred.

       In their brief, the defendants also claimed that the fact finder improperly determined that the legal fees claimed by counsel for the plaintiff were reasonable without first affording the defendants the opportunity to be heard on the reasonableness of the fees. The defendants abandoned that claim at oral argument before this court.

       The parties agree that the note is not a negotiable instrument pursuant to General Statutes § 42a-3-104 (a) and, therefore, the provisions of the Uniform Commercial Code, General Statutes §§ 42a-3-301 through 42a-3-307, do not apply in the present case.

       General Statutes § 52-180 provides in relevant part “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the milking of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. . . .”

       See article three of the Uniform Commercial Code, General Statutes § 42a-3-301 et seq. Specifically, we note that under General Statutes § 42a-3-305 (b), only a holder in due course is not subject to claims in recoupment arising out of the transaction with the original payee of the note.