author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. TAURUS KENNEY
    (AC 17352)
    Foti, Landau and Sullivan, Js.

      Argued January 20
    officially released May 18, 1999

      Norman A. Pattis, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, John F. Cronan, acting state’s attorney, Michael Kennedy, assistant state’s attorney, and Christopher L. Morano, deputy chief state’s attorney, for the appel-lee (state).
   Opinion

LANDAU, J.

The defendant, Taurus Kenney, appeals from his conviction, following a jury trial, of four counts of the sale of illegal drugs in violation of General Statutes § 21a-278 (b), four counts of the sale of a controlled substance within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b), four counts of possession of narcotics in violation of General Statutes § 2 la-279 (a), one count of conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 and 2 la-278 (b) and one count of threatening in violation of General Statutes § 53a-62. On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction for conspiracy to sell narcotics, (2) the prosecutor engaged in a pervasive pattern of misconduct that violated the defendant’s right to a fair trial and (3) the trial court improperly prevented him from effectively preparing for trial and deprived him of his right to prepare and present a defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. From August, 1995, to May, 1996, the New Britain police department and the statewide narcotics task force conducted an investigation of drug trafficking by gang members in various New Britain public housing projects. The defendant was one of a large number of people who were the target of this investigation, as he was known to be a founding member of a gang. On four separate occasions during the course of the investigation, the police, with the assistance of an informant, purchased cocaine from the defendant at his home at 132 Summit Road in the Pinnacle Heights public housing project. The police informant, Edward Clemonts, made the four purchases and was accompanied on three occasions by an undercover state police officer, Matthew Barnwell. A number of police officers and task force personnel provided surveillance and backup support during the purchases.

Three of the four purchases were conducted in a similar’ manner. Prior to each purchase, Clemonts met a police officer who took him to the rear parking lot of a hotel in Plainville, which was the assembly point for the purchases. There, Clemonts was searched to ensure that he did not possess any illegal substances. Thereafter, Clemonts was instructed as to the quantity of cocaine he was to purchase from the defendant. Barnwell, who had been given recorded cash, then drove Clemonts to the defendant’s residence where he gave Clemonts cash to make the purchase. Clemonts approached the defendant and bought the drugs. Following the purchase, Barnwell and Clemonts returned to the hotel parking lot and gave the cocaine to the police, who field-tested it. The results were positive. Clemonts was then taken to a location of his choice and paid cash ranging in amount from $30 to $120, in consideration of his participation.

The fourth purchase differed in that Clemonts was not accompanied by an undercover officer and there was no prepurchase assembly at the Plainville parking lot. On that occasion, New Britain police Detective Jack Wenz met Clemonts, searched him, gave him purchase money and drove him to the vicinity of the defendant’s home. Wenz concealed himself and watched Clemonts walk to the defendant’s residence. When Clemonts returned with the cocaine, Wenz obtained a positive field test of the substance and drove Clemonts to a location of his choice. Clemonts never received advance notice of the amount of cocaine he was to purchase and in each instance purchased either an eighth or a quarter ounce of cocaine from the defendant.

Clemonts had known the defendant for fifteen years and lived across the street from him at Pinnacle Heights; the two socialized in the defendant’s home. Clemonts bought drugs from the defendant every other day. The defendant occasionally supplied Clemonts with drugs on credit, a practice known as fronting. Clemonts observed the defendant in his home preparing crack cocaine and engaging in larger drug transactions with other dealers. The defendant enlisted Clemonts’ help in selling drags and paid him in either cash or drugs.

Ian Tardiff was also an original member of the defendant’s gang. He verified that from February, 1995, through May, 1996, the gang engaged in drug trafficking throughout New Britain, using violence and intimidation to control the drug traffic in that area, particularly in the public housing projects. Gang members kept one another informed about police activity. Tardiff sold large quantities of drugs to the defendant when the defendant’s regular supplier was not available. The defendant also fronted drugs to Tardiff. Edwin “Pooba” Gomez, Melvin Castro and Anthony Walser were the gang’s major drug suppliers.

Walser began selling small quantities of cocaine to the defendant during the summer of 1995. These transactions became more frequent over several months. Walser observed the defendant store drags in a mock beer can with a removable lid. At the end of 1995, Walser sold the defendant 500 grams of cocaine. The defendant also had dealings with Pooba, who was known as a large-scale drug dealer. Walser’s relationship with the defendant ended in February, 1996, when Walser was arrested on federal drag charges.

The defendant was arrested at his home on May 3, 1996. Pursuant to a search warrant, police seized the following items from the defendant’s home at that time: a quantity of small plastic bags; a pager; a list of police radio frequencies; notes and records of drug transactions in the defendant’s handwriting, including references to Pooba; a reminder to engage in “no more frontin’ and the fake beer can. No drugs were recovered.

The defendant was transported with others who had been arrested to the holding area of the New Britain police department. The defendant said to Officer Carol Zesut, who was on duty in the holding area: “Blondie, I know where you live. I know what you drive. You drive a blue Trooper. And if it takes me three days eating crackers under your porch, I’m going to get you.” Zesut was alarmed by this threat because she did drive a blue Isuzu Trooper and her home had an elevated deck surrounded by lattice work. Because of his reputation, Zesut knew that the defendant was capable of carrying out his threat.

I

The defendant’s first claim is that there was insufficient evidence to convict him of conspiracy to distribute narcotics pursuant to §§ 53a-48 and 21a-278 (b). We do not agree.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Sanchez, 50 Conn. App. 145, 149-50, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. . . . Moreover, it is well settled that conspiracy is a specific intent crime, with the intent divided into two parts: (1) the intent to agree to conspire; and (2) the intent to commit the offense that is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also they intended to commit the elements of the offense. . . .

“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . , In a conspiracy prosecution, when determining both a defendant’s specific intent to agree and his specific intent that the criminal acts be performed, the jury may rely on reasonable inferences from facts in the evidence and may develop a chain of inferences, each link of which may depend for its validity on the validity of the prior link in the chain.” (Citations omitted; internal quotation marks omitted.) State v. Torres, 41 Conn. App. 495, 498-99, 676 A.2d 871 (1996), rev’d on other grounds, 242 Conn. 485, 698 A.2d 898 (1997).

On the basis of our review of the record, we conclude that there was sufficient circumstantial evidence to support the jury’s verdict that the defendant intended to and did conspire with others to sell narcotics. The defendant and Tardiff were founding members of a gang the explicit puipose of which was to control the sale of drugs in New Britain. The gang members depended on violence and intimidation. Members of the gang would alert one another when police raids were imminent. Clemonts bought drugs from the defendant for his personal use and also sold them for the defendant. Walser once sold the defendant as much as 500 grams of cocaine in a single transaction. The defendant kept records of his drug transactions and maintained information about police radio frequencies. Clemonts and Tardiff were present in the defendant’s home when he sold drugs. Clearly, there was sufficient circumstantial evidence for the jury to conclude that the defendant agreed with others to sell cocaine and took overt action in furtherance of the agreement.

II

The defendant’s second claim is that the prosecutor engaged in a pervasive pattern of misconduct that violated the defendant’s right to a fair trial. Specifically, the defendant takes exception to the prosecutor’s final argument, claiming that he inappropriately (1) commented on the defendant’s failure to testify, (2) commented on facts not in evidence, (3) vouched for the credibility of one of the prosecution’s three main witnesses, (4) appealed to the sympathy of the jury and (5) introduced statements against interest evidence after the trial court ruled such evidence inadmissible. The defendant also claims that the pattern of prosecu-torial misconduct was pervasive. We are not persuaded.

In his appellate brief, the defendant, who represented himself at trial, concedes that he failed to preserve these claims at trial. On appeal, he argues that the prosecutor’s alleged misconduct is reviewable by this court under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 71-73, 327 A.2d 576 (1973). In analyzing the defendant’s claims of prosecutorial misconduct, “we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Citations omitted; internal quotation marks omitted.) State v. Sherman, 38 Conn. App. 371, 376-77, 662 A.2d 767, cert. denied, 235 Conn. 905, 665 A.2d 905 (1995).

“In determining whether prosecutorial misconduct was so serious as to amount to denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) Id, 377.

“To prevail on an unpreserved claim of prosecutorial misconduct, the record must reveal a ‘pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.’ ” State v. Clark, 48 Conn. App. 812, 828-29, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998).

“In determining whether a prosecutor’s conduct was so egregious as to deny a defendant a fair trial, we note that some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [cjounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial.” (Internal quotation marks omitted.) Id, 829-30.

A

The defendant first claims that the prosecutor deprived him of a fair trial by commenting on the defendant’s failure to testify. The following facts are necessary for our review of this claim.

The prosecutor’s alleged impropriety occurred during his rebuttal argument:

“[Prosecutor]: Mr. Kenney has shown himself to be a very quick and clever questioner of witnesses and very articulate when he speaks. He has approached this case with zeal that rivals many attorneys, and I commend him for that. He has entered into a world, the legal world, and taken it on with both hands, and that is admirable. But that does not erase the incriminating evidence against him. Now, he has mentioned a few things, but the first thing you must keep in mind—I hate to interrupt in front while someone is doing a final argument. But a person can only argue facts that are in evidence, and Mr. Kenney went on and on into areas that were not brought before you. In essence he testified here today, and I didn’t have an ability to cross-examine him. The court will instruct you and has instructed you to ignore things that aren’t in evidence, and I’d ask you to follow that instruction.

* =1= -1=

“But there’s the glue, the physical evidence. Specifically, specifically exhibit Q: ‘No more frontin’.’ Haven’t heard anything, anything from Mr. Kenney about that. Haven’t heard anything about what this drug record actually could have been other than a drug record. . . . Now, he doesn’t have to say anything. Let me make that clear. He doesn’t have to testify, and I am not saying that he should have because it is his absolute right not to testify.”

At the conclusion of the prosecutor’s rebuttal argument, the trial court immediately instructed the jury: “Ladies and gentlemen, in one moment I am going to let you go out for a fifteen minute recess. I want to make one comment. Early in the prosecutor’s rebuttal, my recollection is he stated that he did not have an opportunity to cross-examine Mr. Kenney. I want you to ignore that comment by the prosecutor. As you know, and I will tell you in my instruction, Mr. Kenney had an absolute right not to testify—I will go into that further—and the fact he did not have an opportunity to cross-examine him should not be considered by you at all. That should be ignored.”

As part of its charge, the trial court also told the juiy. “As you know, the defendant, Mr. Taurus Kenney, did not testify in this case. In a criminal trial, the individual charged with the crime or crimes is under no duty to testify on his own behalf. You may draw no unfavorable inferences from the accused’s failure to testify. The law does not compel a defendant to take the witness stand and testify and no presumption of guilt may be raised from the fact that the defendant decides not to testify.”

The record is adequate for our review and the claim is of constitutional magnitude, as it is improper for a prosecutor to comment on a defendant’s failure to testify. See State v. DeMartino, 7 Conn. App. 292, 294, 508 A.2d 809 (1986), citing Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). In this instance, however, the prosecutor’s commenting on his not having had an opportunity to cross-examine the defendant did not clearly deprive the defendant of a fair trial because the court addressed the comment immediately by way of a curative instruction and again later in its jury charge.

In State v. Lasky, 43 Conn. App. 619, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997), this court stated that “[t]he defendant did not object to the trial court’s instructions to the jury that it disregard the improper remarks made during the course of rebuttal argument, nor did the defendant request that the trial court elaborate on the instruction or give additional instructions to the jury concerning that occurrence.”

“We first note that our review of the trial court’s instruction to the juiy regarding the impropriety of the state’s argument and the jury’s duty to disregard that argument convinces us that the court sufficiently and forcefully directed the jury’s attention to its obligation not to consider that argument. . . . Moreover, we presume, absent a fair indication to the contrary, that the jury followed the instruction of the court as to the law. . . . There is nothing to indicate that the jury failed to follow the instructions of the court and thus the defendant’s claim of prejudice is unsupported by the record.” (Citations omitted.) Id., 628-29. For those same reasons, we conclude, in the case now before us, that the defendant was not denied a fair trial.

B

The defendant’s second claim is that the prosecutor improperly commented on facts not in evidence. We disagree.

During the first portion of his closing argument, the prosecutor made the following statement. “And, my favorite piece of evidence, exhibit Q. Witnesses testified. There’s names: Leafy, Cooch, E-Dog. Now, I get drug records all the time in cases. I will say this: A drug record, it’s a bunch of numbers. Here, we have names and we know who these people are. They testified who Leafy was. They testified who Cooch was, who Edfar was, who E-Dog was. E-Dog was Ian Tardiff. Ian Tardiff owed 100 bucks. What is here? One hundred bucks.” The defendant argues that the highlighted language amounts to expert testimony about the contents of an exhibit. The defendant failed to object to this portion of the prosecutor’s argument.

Again, the record is adequate for our review and the claim is of constitutional magnitude, but there is no clear violation of the defendant’s constitutional rights. See State v. Golding, supra, 213 Conn. 239-40. “A prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts which have not been proven amount to unsworn testimony that is not the subject of proper closing argument.” (Citations omitted.) State v. Williams, 204 Conn. 523, 544, 529 A.2d 653 (1987). “While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from, facts not in evidence, or to present matters which the jury have no right to consider. . . . When a verdict is challenged on the basis of the prosecutor’s allegedly prejudicial remarks, the defendant bears the burden of proving the remarks prejudicial in light of the whole trial.” (Citation omitted; internal quotation marks omitted.) State v. Clark, supra, 48 Conn. App. 830. “A prosecutor is entitled, however, to comment on reasonable inferences to be drawn from the evidence.” Id.

We agree with the state that the challenged comment reasonably may be construed as fair comment on the evidence. The state offered the exhibit as evidence of the defendant’s drug dealing. The defendant objected to admitting the document in evidence, claiming that it contained innocent and innocuous material. After the exhibit had been admitted, the jury heard evidence from Officer William Durkin who described the exhibit as a drug transaction record. The defendant did not object to Durkin’s testimony. The prosecutor properly commented on the inferences to be drawn from Durkin’s testimony concerning exhibit Q.

C

The defendant’s third claim of impropriety is that the prosecutor vouched for the credibility of one of the prosecution’s three main witnesses. We do not agree.

The following facts are required for our review of this claim. The state produced evidence from Clemonts, Tardiff and Walser, all of whom had been arrested for drug possession and sales. Their testimony corroborated the physical evidence seized at the defendant’s home. On cross-examination, the defendant vigorously attacked their credibility. Two days after Clemonts testified, his mother posted bond for him and he was released. The defendant, upon learning of Clemonts’ release, called him as a witness to encourage the jury to believe that Clemonts had been released as a reward for his testimony against the defendant.

During his closing argument, the prosecutor stated: “So the question has come down to why believe these witnesses. Why believe them? I believe they are all facing jail time. They have got horrendous records. You know they have cases pending.

“As Mr. Kenney said about Mr. Walser, you are a desperate man. You will do anything. Well, why do we believe them? They all testified without promises. They all want something. They all worded it different ways. Let’s see. Mr. Clemonts: T hope something good will happen to me.’ Well, he is hoping something good will happen to him. He did get out. He did not get out by any aid of the state. His mother came up with his bond, bond he had before he testified. He still faces those charges, and I believe he testified he got out because he feels he is going to do some jail time and he wanted some time out on the street before he did his time. . . . That doesn’t undermine his credibility, the fact that he made bond and got out. Believe me, if I was going to help him, would I do it two days after he testified while this trial was still on? Absolutely not.” The defendant on appeal objects to the highlighted language. Although it meets the first two prongs of Golding, it does not pass the third.

“The prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses.” State v. Williams, supra, 204 Conn. 541. “Such expressions of personal opinion are a form of unsworn and unchecked testimony.” Id. “The prosecutor may, however, argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses.” (Internal quotation marks omitted.) State v. Clark, supra, 48 Conn. App. 833.

Here, the prosecutor was not vouching for the credibility of Clemonts. He was addressing the evidence adduced at trial and the inferences the jury reasonably could draw from it.

D

The defendant’s next claim of prosecutorial misconduct is that the prosecutor inappropriately appealed to the sympathy of the jurors by asking them to put themselves in the position of Officer Zesut. We are not convinced.

The state called Zesut to testify about what the defendant said to her when he was in the holding area at the New Britain police station and the effect it had on her. The defendant cross-examined Zesut, asking her whether she had any fearful encounters with him before or after the arrest that is the subject of this prosecution. The defendant also attempted to demonstrate that Zes-ut’s fears were groundless due to his current incarceration and bond status.

During his closing argument, the prosecutor said to the jury, “Threatening. Officer Zesut sat here and she testified. She testified regarding the statements she heard when she was in lockup. I saw her testimony. I know you saw her testimony. And we all heard her say that statement, and we heard it in the calm confines of this courtroom. And if you think about it in the calm confines of this courtroom or when you go back in the jury room, you are going to be thinking to yourself, ‘Hey, what is the big deal.’ It happened a long time ago. It was one statement. She has got a gun. What is the big deal here? Do you think of it that way? Yeah. But I submit to you, you have to look at it a little bit different. You have to look at it the way she was having to look at it on May 3, 1996. And how was that? She is in the lockup. The people down there, the prisoners, are very angry. There is a lot of yelling going on. They were part of a gang sweep. She has a feeling about the reputation of that gang.

* * *

“And what happens? The defendant looks angry. He is upset. He looks right at her. They have eye contact. And he states—I will read the quote one more time— ‘I know where you live. I know you drive a blue Trooper. When I get out of here, I’m going to sit under your stairs for three days eating crackers if I have to get you.’ Well, you know, it might sound humorous now, but it wasn’t then. Think how you would feel. Think how you would feel if a purported gang member said that to you when he was angry because he was locked up and you are a police officer. Think how you would feel if you listened to this threat and, gosh, you do have a spot in your home where someone could sit underneath, if they wanted, and you do live in New Britain.

“Think about that. How would that make your heart feel at that time because that’s what you have to decide in deciding this count. Think about how you would feel. How would it feel, especially when his fellow prisoners start taking up that chant as well. You know you can’t always have your guard up. You know you can’t always be there to protect your home. You know you can’t always be there to protect your daughter. Did he intend to follow through on that threat? That is not required. Did he intend to terrorize her and upset her? I submit to you he did. And we have charged this two ways: Either that he intended to terrorize her, or even if he didn’t intend to terrorize her, his reckless conduct terrorized her. He intended to be just so reckless and say this sort of thing that caused her the feelings that are required under the statute. Again, think about it. Put yourself in her place. Imagine how your heart would pound if that would be said to you, and those facts fit your car, your home, and you lived in that city. I submit to you if you think about it that way, it is not just a little trivial statement that you might perceive it to be when you hear it in the calm confines of this courtroom.”

The defendant did not object, but claims on appeal that the argument is an inappropriate appeal to the emotions of the jury. “As a rule, a prosecutor may not resort to such appeals. See [State v. Sherman, supra, 38 Conn. App. 400], This does not mean that a prosecutor may not present arguments with logical force and vigor. See Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 [1935].” (Internal quotation marks omitted.) State v. Clark, supra, 48 Conn. App. 833-34.

On the basis of our review of the record, we conclude that the prosecutor’s comments were fair comment on the evidence. “A threat imports the expectation of bodily harm, thereby inducing fear and apprehension in the person threatened. A threat, unlike an assault, is not limited by time or distance. It is equally vicious whether made vis-a-vis or over a wall or across a stream, or whether it is uttered by the unaided voice or over a megaphone or is amplified through a loudspeaker. A threat is always an indication of probable evil to come, whether at once or at some certain or uncertain time in the future . . . .” (Internal quotation marks omitted.) State v. Snead, 41 Conn. App. 584, 593-94, 677 A.2d 446 (1996). The prosecutor’s argument, therefore, placed the evidence in the appropriate context for the jury.

E

The defendant’s next claim of prosecutorial misconduct is that the prosecutor introduced evidence of statements against interest after the trial court ruled that such evidence was not admissible. Actually, the defendant’s claim is that the prosecutor asked questions of witnesses to bolster their credibility before it was attacked on cross-examination. The defendant, however, did not object to the line of questioning to which his appellate claim is directed, but argues that this claim is reviewable pursuant to State v. Golding, supra, 213 Conn. 239-40. He is mistaken. The issue that the defendant raises is obviously evidentiary, and he cannot prevail under Golding because the claim is not of constitutional magnitude. See State v. Robinson, 227 Conn. 711, 741 n.22, 631 A.2d 288 (1993).

F

The defendant’s final claim as to prosecutorial misconduct is that there was apattem of pervasive prosecu-torial misconduct that denied him the right to a fair trial. As we noted at the outset, for a defendant to prevail on a claim of prosecutorial misconduct, the prosecutor’s misconduct must so infect the trial with unfairness that the defendant is denied constitutional due process. Such is not the case before us, where we have found no violation of the defendant’s constitutional rights. Furthermore, with one evidentiary exception, the defendant’s claims are limited to the prosecutor’s closing argument. As to the final argument, “[b]oth this court and our Supreme Court have held that where a criminal defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, either at the time they were made or at the close of argument, he waives his right to press the claimed error on appeal.” (Internal quotation marks omitted.) State v. Clark, supra, 48 Conn. App. 829.

Ill

The defendant’s final claims are that the trial court improperly prevented him from effectively preparing for trial and deprived him of his right to prepare and present a defense. We disagree.

The following facts are necessary for our resolution of these claims. At the time of his arrest on May 3, 1996, the defendant’s arrest warrant was sealed. On July 8, 1996, the trial court, Scheinblum, J., unsealed the arrest warrant as to the defendant’s trial counsel only. On September 30, 1996, the trial court, Iannotti, J., conducted a hearing on the defendant’s motion to unseal the arrest and search and seizure warrants as to him, individually. The defendant’s counsel argued that the defendant needed to know the names and addresses of the state’s lay witnesses and confidential informants in order to assist in his defense. The state objected on the ground that the disclosure would put the witnesses and informants in jeopardy of physical harm and moved for a protective order. The trial court held an in camera hearing on the motion for protective order and ruled that the identities of the lay witnesses and confidential informants be disclosed to defense counsel thirty days before trial and to the defendant at the time of trial.

On January 10, 1997, the defendant filed a request for a speedy trial, which the trial court granted and informed the defendant that prior to the commencement of trial, the court would permit the defendant to withdraw the speedy trial request so he could have the entire thirty days, pursuant to the protective order, in which to prepare for trial. On February 4, 1997, the defendant moved to discharge his trial counsel and proceed pro se. The trial court denied the motion and defense counsel moved for a competency hearing, where the trial court determined the defendant was competent. After the defendant again moved to proceed pro se, the trial court granted the motion and warned the defendant that he would be held to the same standards as an attorney. The trial court also appointed standby counsel for the defendant. The defendant acknowledged that the state had made full disclosure of the information he had requested and he obtained his former counsel's complete file.

On February 7,1997, the trial court denied the defendant’s motion to dismiss in which he alleged that he was denied due process when he proceeded as his own counsel because he was not given thirty days to review the warrants as his trial counsel had been given. The trial court explained to the defendant that his proceeding with his speedy trial motion was the cause of his not having the thirty day opportunity to review the warrants.

At his sentencing hearing, the defendant complained that he was deprived of effective assistance of counsel when he was permitted to proceed pro se and that the trial court abused its discretion by failing to require the state to disclose the names of the lay witnesses and confidential informant. These claims are the cornerstone of the defendant’s appeal. They are, however, without merit. The deficiencies are of the defendant’s own making. He rejected the assistance of counsel and undertook his own defense while pressing for a speedy trial. The defendant is the master of his fate and cannot now complain that he was denied the effective assistance of counsel and that he was denied a fair trial. See State v. Varszegi, 36 Conn. App. 680, 682-85, 653 A.2d 201 (1995), aff'd, 236 Conn. 266, 673 A.2d 90 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       The manner in which Clemonts approached the defendant varied from purchase to purchase.

       General Statutes § 53a-48 (a) provides: “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.”

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 817, 709 A.2d 522 (1998), quoting State v. Dash, 242 Conn. 143, 151, 698 A.2d 297 (1997).

       “Because Golding encompasses the exceptional circumstances of Evans, it is not necessary for us to review the defendant’s claims under Evans.” State v. Clark, 48 Conn. App. 812, 827 n.13, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998).

       Regardless of our conclusion that the defendant was not denied a fair trial, we do not in any way condone or accept as proper the prosecutor’s comment. As does any person accused of a crime, the defendant had a constitutional right not to testify, and the prosecutor was legally and ethically bound to uphold the sanctity of that constitutional right under any and all circumstances.

       The following facts are relevant to our analysis of the defendant’s claim. During his questioning of Tardiff on direct examination, the prosecutor asked him if he knew any people in the courtroom and whether they were his friends. The defendant’s objection to the line of questioning on the ground of relevance was sustained. The prosecutor then asked Tardiff whether the gang to which he belonged had a rule against helping the police, including testifying at trial. The witness responded in the affirmative and testified that a violation of the rule could result in death. The defendant did not object to the line of questions. When Walser was on the witness stand, the prosecutor asked him during direct examination whether he knew what could happen to him if he helped the police. Walser testified that he could be killed and that the reason he was putting himself in danger was his hope of getting out and seeing his family “on a sooner date.” Again the defendant did not object.


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    DENNIS KENNEY ET AL. v. HEALEY FORD-LINCOLN-MERCURY, INC., ET AL.
    (AC 17800)
    Landau, Spear and Daly, Js.

      Argued January 28
    officially released May 18, 1999

      Joanne S. Faulkner, for the appellants (plaintiffs).

      Anita Flannigan Steenson, with whom were R. Edward Phillips, legal intern, and, on the brief, Joseph S. Dey III, for the appellee (named defendant).
   Opinion

DALY, J.

The plaintiffs, Dennis Kenney, Muriel Jordan and Jay Jacobs, appeal from the trial court’s judgment following a trial to the court. The plaintiffs claim that the trial court improperly failed to find that the defendants (1) violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., (2) breached the implied warranty of merchantability included with every contract for the sale of goods and (3) were hable to them for fraudulent nondisclosure. We affirm the judgment of the trial court.

The following facts are necessary to our resolution of this appeal. On October 17, 1988, the plaintiff Jay Jacobs and Dawn Jacobs purchased a used 1987 Ford Tempo from the named defendant. Prior to that transaction, Healey Car and Truck Leasing, Inc. (leasing company), owned the vehicle. While the vehicle was owned by the leasing company, it was in a collision and was subsequently repaired.

In January, 1989, Jay Jacobs was in a collision while driving the vehicle. The repairs cost Jacobs about $2700. The defendant Ford Motor Credit Company (finance company) then repossessed the vehicle from the Jacobses because they failed to make the required payments. The Jacobses owned the vehicle for about seven months and drove it about 10,000 miles.

The defendant, on November 9,1989, resold the vehicle to the plaintiff Muriel Jordan. On December 17, 1990, the finance company repossessed the vehicle from Jordan. Jordan owned the vehicle for over one year and drove it about 12,000 miles.

On May 5, 1991, the plaintiff Dennis Kenney purchased the vehicle from the defendant. In October, 1991, the finance company repossessed the vehicle from Ken-ney because Kenney failed to make his required payments. Kenney owned the vehicle for five months and drove it about 20,000 miles.

I

The plaintiffs first claim that the defendant violated CUTPA by not providing them with the vehicle’s collision or rental history prior to their purchases. Specifically, the plaintiffs claim that the trial court should have concluded that the defendant violated CUTPA by not disclosing the rental and collision history of the vehicle. We disagree.

Connecticut courts, when determining whether a practice violates CUTPA, will consider “(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).” (Internal quotation marks omitted.) Prishwalko v. Bob Thomas Ford, Inc., 33 Conn. App. 575, 584, 636 A.2d 1383 (1994). “Thus, a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy.” (Citation omitted.) Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 355, 525 A.2d 57, following remand, 205 Conn. 479, 533 A.2d 1211 (1987). “A failure to disclose can be deceptive only if, in light of all the circumstances, there is a duty to disclose.” Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 523, 646 A.2d 1289 (1994).

“[Wjhere 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.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

We conclude that the defendant’s conduct was not deceptive. The plaintiffs have not pointed to any authority that would support their claim that the defendant had a duty to disclose the vehicle’s history. Instead, § 42-11 Ob-28 (b) (2) of the Regulations of Connecticut State Agencies provides that “[i]t shall be an unfair or deceptive act or practice for a new car dealer or used car dealer to advertise any motor vehicle for sale or lease which is not new unless the advertisement clearly and conspicuously discloses . . . (C) a designation of the vehicle as a . . . rental vehicle ... if the dealer knows or, in the exercise of reasonable care, should know that the vehicle was previously so used.” (Emphasis added.)

Our review of the record reveals that the defendant did not advertise the car within the meaning of the regulations and, therefore, did not have a duty to disclose that the vehicle was previously part of a rental fleet. The trial court further found that all of the plaintiffs would have purchased the vehicle on exactly the same terms had they known its history. Indeed, none of the plaintiffs inquired about the vehicle’s histoiy. We cannot, therefore, conclude that the trial court’s findings were clearly erroneous. Accordingly, we conclude that the trial court properly found that the defendant did not violate CUTPA.

II

The plaintiffs next claim that the defendant, by failing to disclose the collision or rental history of the vehicle, breached an implied warranty of merchantability included with every contract for the sale of goods. We disagree.

General Statutes § 42a-2-314 (1) provides that “[u]nless excluded or modified as provided by section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. . . .” For goods to be merchantable, they must be “at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purpose for which such goods are used . . . .” General Statutes § 42a-2-314 (2).

The trial court neither found the plaintiffs credible nor believed their testimony that they stopped making payments on the vehicle because it was not reliable or safe. The trial court further found that the plaintiffs did not ask about the vehicle’s history prior to purchasing it, even though all of the plaintiffs knew that the vehicle was used and had been repossessed. Indeed, we find particularly telling the fact that each one of the plaintiffs drove the vehicle at least 10,000 miles before failing to make the required payments. Accordingly, we cannot conclude that the defendant breached an implied warranty of merchantability.

Ill

The plaintiffs’ final claim is that the defendant’s failure to disclose the vehicle’s history was fraudulent. We disagree.

In a case involving a defendant’s alleged fraudulent silence, “the general rule [is] that the silence of a vendor with reference to facts affecting the value or desirability of property sold cannot give rise to an action by the vendee to set aside the transaction as fraudulent. Certainly this is true as to all facts which are open to discovery upon reasonable inquiry by the vendee.” Bridge-Mile Shoe Corp. v. Liggett Drug Co., 142 Conn. 313, 319, 113 A.2d 863 (1955). For a nondisclosure to amount to fraud, “there must be a failure to disclose known facts and, in addition thereto, a request or an occasion or a circumstance which imposes a duty to speak. . . . Such a duty is imposed on a party insofar as he voluntarily makes disclosure. A party who assumes to speak must make a full and fair disclosure as to the matters about which he assumes to speak.” (Citations omitted; internal quotation marks omitted.) Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977).

As noted above, the defendant did not have a duty to disclose the rental or collision history of the vehicle. Moreover, the defendant did not voluntarily disclose the rental or collision history of the vehicle. Finally, the trial court found that the plaintiffs failed to inquire about the vehicle’s rental or collision history, which they easily could have done. Accordingly, we conclude that the defendant’s silence was not fraudulent.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to trial, the plaintiffs withdrew their action as against the defendant finance company. We will refer hereinafter to the named defendant as the defendant.

       After repossessing the vehicle from the Jacobses, the finance company returned it to the defendant because the defendant had guaranteed the finance company’s loan to the Jacobses.

       After repossessing the vehicle from Jordan, the finance company returned it to the defendant because the defendant had guaranteed the finance company’s loan to Jordan.

       Section 42-110b-28 (a) (3) of the Regulations of Connecticut State Agencies provides in relevant part: “Advertisement . . . means any oral, written or graphic statement made by a new car dealer or used car dealer in any manner in connection with the solicitation of business and includes, but is not limited to statements and representations made in a newspaper or other publication or on radio or television or contained in any notice, handbill, sign, billboard, poster, bill, circular, brochure, pamphlet, catalogue or letter .. . .”


text:
    ROBERT M. ELLIOTT, P.C. v. MARK STUART
    (AC 17937)
    Landau, Spear and Iiennessy, Js.

      Argued January 26
    officially released May 18, 1999

      David M. Fisher, with whom, on the brief, was Robert H. Weinstein, for the appellant (defendant).

      Robert M. Levin, for the appellee (plaintiff).
   Opinion

LANDAU, J.

In this collection action, the defendant, Mark Stuart, a dentist, appeals from the judgment of the trial court rendered in favor of the plaintiff law firm, Robert M. Elliott, P.C. On appeal, the defendant claims that the trial court improperly (1) sustained the plaintiffs objections to certain questions posed by the defendant during cross-examination, (2) permitted evidence of the defendant’s income to be admitted into evidence, (3) awarded excessive attorney’s fees for the prosecution of the collection action and (4) accepted the affidavit of the plaintiffs counsel as to attorney’s fees, which did not include contemporaneous time records. We affirm the judgment of the trial court.

Following a trial to the court, the court found the following facts. On November 13,1995, the Connecticut state dental commission (commission) summarily suspended the defendant’s license to practice dentistry because a young female patient complained that the defendant had stalked and harassed her. The patient alleged that the defendant, under the guise of needing to talk with her about her dental care, obtained the address of the patient’s employer in Washington, D.C., from the patient’s mother. The patient also alleged that the defendant went to her place of employment in an attempt to meet her socially. At the time the patient made her complaint, the defendant’s license was in a probationary status. Four or five other patients had also complained to the commission about the defendant and his license had been suspended once previously.

On November 17, 1995, the defendant met with Robert M. Elliott, an attorney and principal of the firm, to obtain legal representation. The defendant represented to Elliott that he was losing $30,000 a month due to the suspension and that he wanted Elliott to take all steps necessary to restore his license. In the years immediately prior to the 1995 suspension, the defendant earned approximately $200,000 to $400,000 per year from his dental practice.

During their first meeting, the defendant signed a retainer agreement, which provided, in part, that the plaintiff’s fee would be based on the amount of time spent and listed the hourly rates of the plaintiffs employees. The agreement also provided: “Balances on your account are due and payable upon receipt of your statement. Interest will accrue on any outstanding balances after thirty days at ten percent per annum. Should you fail to pay your balances, you will be responsible for all costs of collection, including sheriffs fees and a reasonable attorney’s fee.”

The defendant knew and agreed that Elliott, the other attorneys and the paralegals in the firm would work on his case. Because the loss of his license prevented the defendant from earning a living, Elliott gave the defendant’s case priority over other legal matters and assigned various aspects of the case to employees of the firm. The plaintiff was successful in having the defendant’s dental license reinstated, but the defendant failed to pay the plaintiff in accordance with the retainer agreement. The plaintiff, therefore, commenced this collection action.

The trial court concluded that the work done by the firm was reasonable and necessary and that the result obtained was “almost miraculous” because the defendant’s license to practice dentistry was reinstated on January 5, 1996, approximately six weeks after it was suspended. The trial court awarded the firm $13,637.33 for services rendered before the commission, $2275.73 in interest and $15,000 in attorney’s fees for the collection action, plus costs. The defendant appealed.

Three of the defendant’s claims on appeal are of an evidentiary nature. “It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [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. . . . State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moveover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Emphasis in original; internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998).

I

The defendant’s first claim is that the trial court improperly sustained the plaintiffs objections to the defendant’s cross-examining members of the firm with respect to the reasonableness of the services rendered and the fees charged. We disagree.

The portions of the defendant’s cross-examination relevant to our analysis follow.

“[Defendant’s Counsel]: Okay. Is it your understanding that Dr. Selig’s involvement in the Stuart matter before the health department was in any way beneficial?
“[Plaintiffs Counsel]: I’m going to object, Your Honor. I’m not sure what the relevance of any of this is at this point.
“[Defendant’s Counsel]: Well, Your Honor, it is my client’s position that Dr. Selig was, obviously, crucial to the reinstatement of his license, and since Mr. Elliott is the senior partner and main mover on the file—by his own admission, I think—I’m trying to determine what he knew about Dr. Selig and Dr. Selig’s involvement in the proceedings.
“The Court: Do I understand correctly that, as of January fifth, the license was reinstated?
“[Defendant’s Counsel]: That’s correct.
“[Plaintiffs Counsel]: Yes, Your Honor, on that date it was reinstated, following the reconsideration hearing.
“The Court: So, why does it matter? If this was a case attacking Attorney Elliott’s competency and the manner in which he handled these hearings, perhaps this would be relevant. As I take it, it’s not. I don’t think it’s relevant. I’ll sustain the objection.
* * *
“[Defendant’s Counsel]: Wasn’t Judge Maloney’s direction to you that an injunction was an inappropriate remedy and that you should have, that the administrative appeal was the sole proceeding that was available to you?
“[Plaintiffs Counsel]: Your Honor, I’m going to object again, I—
“The Court: Sustained.
“[Plaintiffs Counsel]:—think he’s belaboring something.
“The Court: I’ve heard enough of this line.
* * *
“[Defendant’s Counsel]: Okay. And did you determine at that time that an administrative appeal might be appropriate?
“[Plaintiffs Counsel]: I’m going to object, Your Honor. I believe on direct ....
“The Court: Sustained.
* * *
“[Defendant’s Counsel]: Was a motion for stay ever filed?
“[Plaintiffs Counsel]: I’m going to object. Again, relevance.
“The Court: Sustained.
“[Defendant’s Counsel]: Now, with the exception of my handwritten notes at the top ... is that the sum and substance of Judge Maloney’s decision?
“[Plaintiffs Counsel]: I’m going to object, Your Honor. I don’t know what the relevance of Judge Malo-ney’s decision might be at this point in time.
“[Defendant’s Counsel]: Well, it is our position, Your Honor, that Judge Maloney’s decision, as short and succinct as it was, clearly indicates that the bringing of the injunction was not an appropriate proceeding, and I’m going to offer that, this decision as an exhibit.
“The Court: I’ll sustain the objection. I thought I made it clear, whether or not, ultimately, certain legal pathways are successful, when one’s client is in the situation Dr. Stuart was in, and the fact that certain things are brought and are unsuccessful is not necessarily not deserving of compensation, and my feeling is I probably would have done the same thing they did, so if that doesn’t convince you not to pursue this avenue I hope it does.
* * *
“[Defendant’s Counsel]: And that’s a memo from you to Mr. Elliott regarding that phone call with Mr. Oaken?
“[Witness]: Correct.
“[Defendant’s Counsel]: I offer it.
“[Plaintiffs Counsel]: I’d inquire for what purpose.
“[Defendant’s Counsel]: To substantiate through documentary evidence the testimony that just came in.
“The Court: But what’s the relevance of that testimony? Mr. Oaken’s not on trial here. I don’t understand Mr. Oaken—what the relevance of his referral fee to this case is.
“[Defendant’s Counsel]: Well, Your Honor, it has been my client’s position that he has been overbilled, overcharged. Okay? That’s what we’ve been trying to prove here, and a claim by another attorney for a referral fee which shows some motive or basis for my Ghent’s position that he was overcharged.
“The Court: I’ll sustain the objection.”
“[B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result. . . . Any testimony in a case that tends of itself or in connection with other testimony to influence the result on a fact in issue is material. If the testimony would tend to affect the verdict of the jury, it meets the test of materiality.” (Citations omitted; internal quotation marks omitted.) Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990). The testimony that the defendant attempted to put into evidence as cited above is not material because, as the trial court correctly noted, it is not relevant to the plaintiffs claim for legal fees.
“In the context of a civil case, our Supreme Court, in accepting a common law right to cross-examination, stated ‘ [t]he right of cross-examination is not a privilege but [is] an absolute right and if one is deprived of a complete cross-examination he has a right to have the direct testimony stricken.’ . . . This . . . does not, however, permit the defendant to present evidence that is irrelevant or otherwise inadmissible. . . .
“[In] . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Close, Jensen & Miller v. Lomangino, 51 Conn. App. 576, 580-82, 722 A. 2d 1224, cert. denied, 248 Conn. 905, 731 A. 2d 306 (1999).

We dealt with this question of relevancy in our very recent decision in Close, Jensen & Miller, saying that “[t]o analyze the defendants’ claim, we look to the allegations of the complaint. Very simply, it is a collection action. The plaintiff was required to allege and prove that it was engaged to provide services for the defendants, that the services were provided, the amount of time it took to provide the services, and the amount and reasonableness of its fees and other expenses it incurred on behalf of the defendants.” Id., 583-84. Therefore, the tack taken by the defendant to question, on cross-examination, the firm’s strategy is simply not relevant to the fact that services were provided and the desired result obtained. As the trial court noted, the firm’s competency and the manner in which it handled the matter was not at issue.

First, the question concerning Selig, the defendant’s psychiatrist, and whether he was crucial to the reinstatement of the defendant’s license is not relevant to whether the firm provided legal services and should be paid its fee. Furthermore, there was evidence that Selig did not appear at the hearing or, any time before the defendant’s license was reinstated.

The second question concerning the refusal by the trial court, Maloney, J., to grant an injunction to restore the defendant’s license because the defendant had not exhausted his administrative remedy, again, is not relevant to the question of services rendered and fees owed. As the trial court in this case noted, although not all efforts taken by an attorney on behalf of a client may produce the ultimate result, that is not a reason to deny the attorney his fee for reasonable efforts made. The trial court also noted that, given the defendant’s objective, it, too, may have employed a variety of strategies to obtain the result desired.

The third question concerned whether the plaintiff ever filed a motion for stay. The question second-guesses the strategies employed by the plaintiff to achieve the defendant’s goal of getting back his dental license. The question is not relevant because the issue before the trial court was not whether the plaintiff handled the matter in a competent way, but payment of the attorney’s fees for services rendered.

The last question regarding Oaken and a referral fee is also irrelevant because the plaintiff did not bill the defendant for any communication it had with Oaken and did not pay Oaken a referral fee.

We conclude, therefore, that the trial court did not abuse its discretion by sustaining the plaintiffs objections to the defendant’s cross-examination.

II

The defendant’s second claim is that the trial court improperly permitted the plaintiff to put into evidence the defendant’s income for the years prior and subsequent to the time that it rendered legal services. We are not persuaded.

A portion of the plaintiffs cross-examination of the defendant is relevant to our resolution of this claim.

“[Plaintiffs Counsel]: How much do you earn a year from the practice of dentistry?
“[Defendant’s Counsel]: Objection; relevance.
“[Plaintiffs Counsel]: Your Honor, I think it’s directly relevant to the value of the services on an applied-contract basis.
“[Defendant’s Counsel]: No, it’s quantum meruit. It’s for services rendered, not what his benefit is.
“[Plaintiffs Counsel]: I believe that the rules specifically state that the result is one aspect of how you determine a reasonable fee, Your Honor, and I could direct the court to [Khan v. Arrindell, Superior Court, judicial district of New Haven, Docket No. CV-95-0378302 (August 13, 1997) (3 Conn. Ops. 964)] where they have a fairly good discussion of the rules of professional conduct as being appropriate in this consideration. It’s at 3 Connecticut Opinions 964. I can leave this with the court.
* * *
“[Plaintiffs Counsel]: It specifically deals with fees customarily charged for similar service and the results obtained, as well as the court’s ability to take and exercise its own discretion in determining fees allowable because courts have a general knowledge of what is reasonable for services stated and described.
“[Defendant’s Counsel]: The result is that they got his license back, not—it is not relevant how much money he makes once they accomplish that.
“[Plaintiffs Counsel]: I think it’s directly relevant. Without his license he could not earn any money from dentistry. I’m not asking him how much he makes from another part of his livelihood, if he has related businesses or anything else, but what does he earn through that license. I think it’s directly to this case.
“The Court: I’ll allow it.
“[Plaintiffs Counsel]: I would offer this . . . . I don’t have a copy. If I could have a copy made. Dr. Stuart, how much do you make a year practicing dentistry?
“[Defendant’s Counsel]: Well, time period, please.
“[Plaintiffs Counsel]: The two years prior to your suspension in November of 1995 and the last twelve months.
“[Defendant’s Counsel]: Relevance as to the last twelve months, Your Honor. Objection.
“The Court: I’ll allow it. They’re both relevant.”

The defendant’s income, both prior and subsequent to the suspension of his license, was relevant to the value of the services rendered, especially here where the defendant challenged, in part, the amount of time the attorneys in the firm spent working on the file. When the defendant approached Elliott, he represented to him that without his license he was losing $30,000 a month in income. The defendant’s livelihood depended on the license. The amount of income the defendant received under the auspices of his license goes to his motivation in wanting his license restored expeditiously and explains why Elliott made the case a priority and directed all members of the firm to work on it. The trial court did not, therefore, abuse its discretion in admitting the evidence.

Ill

The defendant’s third and fourth claims are interrelated. The defendant claims that the trial court improperly awarded $15,000 in attorney’s fees for the prosecution of the collection action, which, he claims, is clearly excessive and, further, that the trial court accepted an affidavit from trial counsel that did not include contemporaneous time records. We disagree that the fees were excessive and that the trial court improperly accepted trial counsel’s affidavit.

During the trial, the court heard testimony that Elliott was familiar with the rules of professional conduct concerning the reasonableness of legal fees; see rule 1.5 (a) (4) of the Rules of Professional Conduct; and that the hourly fee for his services was $50 to $60 less than the rate charged by attorneys in the area for trial work. The amount of attorney’s fees charged in the collection action was $18,040.54 for the plaintiff and $10,175 for trial counsel, who billed at the rate of $250 per hour. The total bill was $28,215.54. The trial court awarded the plaintiff $15,000, more than half of the fees requested. The defendant objects to the trial court’s award of legal fees because the affidavit of the plaintiffs trial counsel claimed fees based on 40.7 hours, but itemized fees for only 24.75 hours.

“Time spent is but one factor in determining the reasonableness of an attorney’s fee. Although the better practice is for an attorney ... to maintain time records, the failure to do so does not prelude the court from determining and awarding an attorney’s fee. Indeed, as we . . . stated: Courts have a general knowledge of what would be a reasonable attorney’s fee for services which are fairly stated and described. Appliances, Inc. v. Yost, 186 Conn. 673, 680, 443 A.2d 486 (1982). [C]ourts may rely on their general knowledge of what has occurred at the proceedings before them to supply evidence in support of an award of attorney’s fees. . . . The court [is] in a position to evaluate the complexity of the issues presented and the skill with which counsel had dealt with these issues. Miller v. Kirshner, 225 Conn. 185, 201, 621 A.2d 1326 (1993).” (Internal quotation marks omitted.) Andrews v. Gorby, 237 Conn. 12, 24, 675 A.2d 449 (1996).

Although the defendant asks us to consider holdings from courts in other jurisdictions, Lewis v. Coughlin, 801 F.2d 570 (2d Cir. 1986), Davis v. Little, 118 F.R.D. 304 (D. Conn. 1988), and Orshan v. Macchiarola, 629 F. Sup. 1014 (E.D.N.Y. 1986), we decline that invitation in light of the rule of the Andrews court. The affidavits submitted to the trial court show work done by the plaintiffs trial counsel over a period of seven months that required reviewing numerous documents, attending depositions, making telephone calls and preparing for and conducting trial. The trial court is deemed knowledgeable as to the fees charged by attorneys in the area for the nature of the work provided. Our review of the evidence before the trial court discloses that the trial court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Rule 1.5 (a) of the Rules of Professional Conduct provides: “A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
      “(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
      “(2) The likelihood, if made known to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
      "(3) The fee customarily charged in the locality for similar legal services;
      “(4) The amount involved and the results obtained;
      “(5) The time limitations imposed by the client or by the circumstances;
      “(6) The nature and length of the professional relationship with the client;
      “(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
      “(8) Whether the fee is fixed or contingent.”

       The plaintiff was represented by its attorney employees until the time of trial.

       At oral argument before us, the defendant argued that attorney’s fees are limited to 15 percent of the recovery. This claim was never raised before the trial court or in the defendant’s brief on appeal. Parties may not raise issues for the first time during oral argument. Therefore, we will not consider the claim. See Chapman v. Ellington, 33 Conn. App. 270, 278-79 n.12, 635 A.2d 830 (1993).


author: SCHALLER, J.

text:
    MILDRED GOMBOS v. RICHARD H. ARANOFF ET AL.
    (AC 17355)
    Schaller, Spear and Dupont, Js.
    Argued March 1
    released May 18, 1999

      Paul J. Pacifico, with whom, on the brief, was Victor Cavallo, for the appellant (plaintiff).

      Robert J. Cooney, for the appellee (named defendant).
   Opinion

SCHALLER, J.

The plaintiff appeals from the judgment rendered following the trial court’s denial of her motion to set aside the jury verdict in favor of the named defendant in a medical malpractice action. The plaintiff claims that the trial court improperly (1) instructed the jury and commented on the evidence, (2) excluded material evidence, (3) precluded the discussion of an issue on the mistaken belief that it was not pleaded and (4) limited the testimony regarding the standard of care. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant, a podiatrist, first saw the plaintiff for the treatment of an ingrown toenail on November 28, 1989. The plaintiff complained of pain and discomfort in both big toes. The plaintiff provided the defendant with her medical history, noting specifically that she suffered from arthritis, high blood pressure and borderline diabetes. The plaintiff was given a consent form to permit the defendant to remove the ingrown toenail. She signed and returned the form to the defendant, after which the defendant removed the ingrown toenail successfully.

The plaintiff returned to the defendant for the removal of a black toenail on her right big toe in December, 1989. Again, she was given a consent form, which she signed and returned to the defendant. At this visit, the plaintiff also discussed a bunion on her right big toe -with the defendant. Approximately one month later, in January, 1990, the plaintiff informed the defendant that she wanted to have surgery to correct the bunion on her toe.

The defendant, prior to removing the plaintiffs bunion, sent her to see James Leterra, a vascular surgeon, for consultation regarding the circulation in her feet and legs. Additionally, the defendant ordered a fasting blood test to measure the plaintiffs blood sugar level. Leterra’s report indicated that the plaintiff stated she was a borderline diabetic, but that her circulation in both legs was sufficient to proceed with the surgery. The laboratory results indicated that her blood sugar level was 259, which is considered high.

The defendant asked a physician specializing in internal medicine his opinion of a blood sugar level of 259. The defendant was advised to have the plaintiff see her own physician. The defendant, however, did not tell the plaintiff that she should see her own physician. The defendant, instead, informed the plaintiff of her laboratory results and Leterra’s report. The defendant told the plaintiff that Leterra’s report was satisfactory and that they could proceed with the surgery. The plaintiff underwent the surgery on January 20, 1990. The operation took approximately one hour. After the procedure was complete the defendant wrapped the plaintiffs wound with surgical gauze and applied a pressure dressing to the rest of her leg. He left the ends of the plaintiffs toes exposed. The plaintiff was concerned about the fact that the ends of her toes were exposed because it was snowing outside. The defendant assured her that her foot would be fine and instructed the plaintiff to keep the foot elevated on the way home.

Five days after the surgery, the defendant visited the plaintiff at her home. During this visit, the defendant took a culture of the surgical wound because it looked infected. He subsequently prescribed antibiotics for the plaintiff. The next day, the defendant advised the plaintiff to see her family physician about her blood sugar level. Additionally, the defendant informed the plaintiff that he would be on military reserve duty for approximately one week and that Deborah DeRose, a podiatrist, would follow up for the defendant. After seeing her physician, the plaintiff was subsequently placed on diabetic medication.

The defendant took X rays of the plaintiffs foot on February 3, 1990, and noted that there was no sign of osteomyelitis, a bone infection. The plaintiff followed up with DeRose during the defendant’s military duty. DeRose opened up the wound and let it drain. The plaintiff discontinued treatment with the defendant after his military duty had ended because she felt more comfortable with DeRose. DeRose ordered a tomogram to measure the extent of the surgical infection. DeRose prescribed Ancef, an intravenous antibiotic, for the plaintiff because she thought that the tomogram results could be problematic. DeRose did not perform a bone biopsy to ascertain the presence of osteomyelitis because she felt that if the infection was limited to the soft tissue around the surgical site, a bone biopsy could cause the infection to be introduced into the bone marrow. Approximately one year later, DeRose ordered a gallium scan of the plaintiff which showed no sign of osteomyelitis. Additional facts will be set forth where necessary.

“It is well established that [w] e undertake only limited appellate review of a trial court’s denial of a ... motion to set aside the verdict. . . . [W]e accord great deference to the trial court’s superior opportunity to view the trial in its entirety. In reviewing the decision of the trial court, we consider the evidence in the light most favorable to the sustaining of the verdict. . . . Our function is to determine whether the trial court abused its discretion in denying [the] motion .... The trial court’s [denial of the motion] is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. . . . Blanchette v. Barrett, 229 Conn. 256, 264, 640 A.2d 74 (1994).” (Internal quotation marks omitted.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 178, 646 A.2d 195 (1994).

I

The plaintiff first claims that the trial court improperly instructed the juiy and commented on the evidence. Specifically, she claims that the trial court (1) did not leave the jury free to arrive at its own decision, (2) misstated the facts, (3) charged the issue of osteomyeli-tis out of the case and (4) unfairly marshaled the evidence favorable to the defendant. We disagree.

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.” (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999). “[A] trial court: often has not only the right, but also the duty to comment on the evidence. . . . 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).

A

Although the trial court mentioned the plaintiffs position fewer times than it referred to the defendant’s position and evidence while discussing the complaint, it did specifically state: “Now you recall the testimony, and let me stress if I mention testimony, if I recall what witnesses have said, you don’t have to take what I said as gospel. You are the ones who determine what the witnesses said. You determine what the testimony is. And if what I say is not in accord with your recollection, just disregard what I say.” At numerous times throughout its charge, the trial court cautioned the jury that it was the fact finder, rather than the judge, and that the jury’s recollection of the testimony, not the trial court’s, was what mattered. The jury was free to reach its own decision based on the evidence it had before it.

B

The plaintiff next claims that the trial court misstated the facts to the jury. We are not persuaded.

The plaintiff claims that the trial court misstated the facts by charging the jury that the defendant “had some concern with the elevated blood sugar level and he did refer the patient to [Leterra] who is a vascular surgeon or expert—at least in the vascular field.” The plaintiff claims that there is no testimony supporting the assertion that the defendant referred her to Leterra because of her blood sugar level. In making this claim, however, the plaintiffs argument incorrectly separates portions of the charge and reads them separately instead of as a whole. We note that the defendant’s testimony indicates that he did take notice of the plaintiffs high blood sugar. The fact that he sent her to Leterra for an examination of her circulation is also supported by the testimony. The trial court stated: “The important factor to consider in warding off infections or guarding against postoperative infections is not so much the blood sugar level, but the blood circulation. It was [Leterra’s] opinion that the blood circulation in the plaintiff was sufficient to go ahead with the surgery. And this is what [Aranoff] depended on because the blood sugar level isn’t the important factor, it’s the circulation of the blood.” While the defendant may not have used the exact language used by the trial court, he did state that, “[i]f your circulation is poor, there is no chance that it will heal. So the thing that is paramount on your mind is does this individual have the circulation adequate enough that they can go ahead and heal.” This portion of the trial court’s charge properly reflects what was drawn out through testimony and exhibits. It does not misstate the evidence.

The plaintiff next claims that trial court improperly stated that “because [the defendant] had some concern about the increased blood sugar level, [Leterra] did examine the plaintiff, take some tests and, on the basis of [that] evaluation, [Leterra] sent a letter.” We have already noted that the evidence indicated that the defendant sent the plaintiff to Leterra to evaluate her circulation, not her blood sugar levels. In this instance, the plaintiff is attempting to isolate portions of the charge. The substance of the instruction, when the charge is read in its entirety, clearly shows that the trial court was stating that the defendant sent the plaintiff to see Leterra, and at the defendant’s request, Leterra examined the plaintiffs circulatory system.

The plaintiff next claims that the trial court improperly compared the testimony of the plaintiffs expert witness with that of the defendant’s expert. We disagree. The trial court’s charge clearly indicates that it was pointing out to the jury that the plaintiffs expert and the defendant’s expert disagreed as to whether the defendant breached the standard of care. The plaintiffs expert focused attention on the plaintiffs blood sugar level, while the defendant’s expert indicated that the plaintiffs circulation was the crucial factor. The disagreement among the expert witnesses is evident from a review of their testimony. The trial court properly reminded the jury of this disagreement.

The plaintiff also claims that the trial court improperly informed the jury that the defendant relied on what Leterra told the defendant. The plaintiff claims that Leterra never told the defendant anything, but informed the defendant in a letter. While the plaintiffs argument is literally correct, the plaintiffs interpretation of “told” is unduly strict. Although the telling was by letter, the defendant was aware of Leterra’s findings as a result of his report.

The plaintiff claims finally that, with regard to the issue of informed consent, the trial court improperly stated that the defendant discussed with her the possible complications and the matter of her elevated blood sugar. The plaintiffs argument is that the defendant testified that he did not have a specific recollection of discussing the plaintiffs elevated blood sugar and that he testified only that it was his custom to discuss possible complications with his patients. While the defendant did testify in that manner on direct examination, he testified on cross-examination that he did discuss elevated blood sugar with the plaintiff and the possibility of infection because of her elevated blood sugar level. The trial court’s recitation of the facts was supported by the testimony and was proper.

c

The plaintiff next claims that the trial court improperly charged the issue of whether the plaintiff suffered from osteomyelitis out of the case.

The trial court instructed the jury: “There is no allegation that osteomyelitis resulted and, as a matter of fact, there was testimony from the expert, some of the experts on the stand, that there was no osteomyelitis. So that you can’t find; it is not alleged and really hasn’t been proved by a fair preponderance of the evidence, even if alleged.” The plaintiff claims that the issue of whether she suffered from osteomyelitis is a question of fact for the jury to resolve. We agree that this is a question of fact, but disagree that the trial court improperly charged it out of the case.

When instructing the jury, “[t]he trial court should not submit an issue to the jury that is unsupported by the facts in evidence.” State v. Adams, 225 Conn. 270, 283, 623 A.2d 42 (1993). “Jury instructions should be confined to matters in issue by virtue of the pleadings and evidence in the case. ... It is error to submit a specification ... to the jury in respect to which no evidence has been offered.” (Citation omitted.) Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977).

The plaintiff claims that her complaint does allege osteomyelitis. While the complaint does allege that she suffered from a “chronic infection and inflammation of the bone marrow of the right foot,” it does not allege that the plaintiff suffered from “osteomyelitis.” The testimony does reflect, however, that osteomyelitis is an infection of the bone. We conclude, therefore, that osteomyelitis was, albeit unartfully, pleaded. We do not, however, agree with the plaintiff that there was sufficient evidence to allow the claim to go to the jury.

DeRose testified that there was no indication that the plaintiff actually suffered from osteomyelitis. The defendant testified that he had no indication that the plaintiff suffered from osteomyelitis. In fact, the defendant stated that the February 3, 1990 X ray indicated no presence of osteomyelitis. The defendant’s expert, a podiatrist, when asked if the plaintiff suffered from osteomyelitis, stated: “[The plaintiff], I want you to understand veiy simply, never ever had a bone infection.” Furthermore, the plaintiffs expert witness never testified that the plaintiff suffered from osteomyelitis. There was no evidence from which a reasonable juror could have found that the plaintiff suffered from osteo-myelitis. The trial court properly charged the jury not to consider a claim of osteomyelitis.

D

The plaintiff next claims that the trial court’s marshaling of the evidence was not reasonable and fair. We disagree.

The plaintiff claims that the trial court mentions the plaintiffs position and witnesses far fewer times than it mentions the defendant’s witnesses and position. We note that the trial court does mention the plaintiffs witnesses and position fewer times than it mentions the defendant’s position. That, alone, however, does not equate to an improper marshaling of the evidence. See State v. Caballero, supra, 49 Conn. App. 494. The trial court cautioned the jury that “no fact is to be determined by the number of witnesses testifying for or against it. It is the quality, not the quantity, of the testimony that controls.”

The plaintiff makes other claims based on the trial court’s discussion of the conflicting testimony of the experts, the allegation that the defendant failed to postpone the surgery and the issue of causation. Those claims lack merit. After a thorough review of the testimony and the trial court’s charge, we conclude that the trial court’s charge was reasonable and fair.

II

The plaintiff next claims that the trial court improperly excluded material evidence. We disagree.

“It is well settled that [t]he 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. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . Paige v. St. Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998).” (Citation omitted; emphasis in original; internal quotation marks omitted.) Webster Bank v. Flanagan, 51 Conn. App. 733, 736-37, 725 A.2d 975 (1999).

The plaintiff has alleged only that certain evidentiary rulings in the defendant’s favor were improper. At no time does the plaintiff argue that the trial court’s eviden-tiary rulings were detrimental to her case. Mere claims of incorrect evidentiary rulings without claims of harm are not enough to warrant reversal. See Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 37; see also State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998); State v. Beliveau, 237 Conn. 576, 590, 678 A.2d 924 (1996); State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).

Ill

The plaintiffs last claim is that the trial court improperly precluded testimony by the defendant about osteo-myelitis. We are not persuaded.

The plaintiffs claim is based on the fact that the trial court did not allow the defendant to testify about osteomyelitis. The defendant’s testimony suggests otherwise. It was only after the plaintiffs counsel asked the defendant: “Well from your learning and your experience is there—what are the risks and circumstances which influence the risk of osteomyelitis returning in a bone,” that the defendant objected. The defendant’s objection was based on the fact that the defendant was not testifying as an expert witness, but as a fact witness, and, therefore, he was not qualified to give opinion testimony as to osteomyelitis.

The transcript discloses that the defendant did testify concerning osteomyelitis, although he did not offer any opinions about it. We fail to see how the trial court precluded testimony about osteomyelitis by properly disallowing opinion testimony by the defendant on the subject. Furthermore, the plaintiff, after a colloquy between both counsel and the trial court, withdrew the question. We, therefore, conclude that the trial court did not improperly limit the consideration of osteomy-elitis by the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer in this opinion to the named defendant, Richard H. Aranoff, as the defendant.

       The plaintiffs complaint alleged two causes of action: (1) medical malpractice and (2) failure to obtain informed consent.

       The plaintiff withdrew her fourth claim at oral argument.

       The plaintiff claims that the trial court improperly sustained the defendant’s objections to two medical reports by physicians on the ground that the physicians were not treating physicians, but merely consultants. The plaintiff also claims that the trial court improperly sustained the defendant’s objection to DeRose’s giving opinion testimony because she was a fact witness and not an expert witness.

       The following exchange took place between the defendant and the plaintiffs counsel:
      “[Plaintiffs Counsel]: Was there any inquiry on your part as to whether, at this point in time, to anyone whatsoever whether or not this patient had osteomyelitis?
      “[The Defendant]: No.
      “Q. Was there anybody who made you suspicious of it, not you yourself on your own, but anybody called it to your attention?
      “A As of that date?
      “Q. 12 February.
      “A. No.
      “Q. Any time prior to that when you were suspicious of it?
      “A. No.
      “Q. Anybody have a discussion with you concerning it?
      “A. No.
      “Q. Did Dr. DeRose tell you she was sending this patient for—she was planning to send this patient for tomograms and X rays because of that issue?
      “A. No.
      “Q. What is osteomyelitis?
      “A. Bone infection.
      “Q. And when you say it is a bone infection, please, can you be a little more descriptive to the jury. Is it—is there a grade of it or when you say bone infection, what do you mean?
      “A. Well, as it progresses, there is bone destruction. Becomes necrotic meaning it dies.
      “Q. The bone becomes necrotic, meaning that the bone dies?
      “A. Right.
      “Q. Now osteomyelitis is curable?
      “A. Yes.
      “Q. And treatable?
      “A. Yes.
      “Q. By the very nature of the infection is there a risk for its returning in the future after it’s been treated?
      “A. Possible.
      “Q. But is there a risk?
      “A. I guess, yeah.”