author: CALLAHAN, C. J.

text:
    STATE OF CONNECTICUT v. MELVIN DELGADO
    (SC 15632)
    Callahan, C. J., and Berdon, Katz, McDonald and Peters, Js.

      Argued November 4, 1998
    officially released February 9, 1999

      Theresa M. Dalton, assistant public defender, for the appellant (defendant).

      Ellen Jawitz, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey, assistant state’s attorney, for the appellee (state).
   Opinion

CALLAHAN, C. J.

The defendant, Melvin Delgado, appeals from judgments of conviction, rendered after a jury trial, as an accessory to murder in violation of General Statutes §§ 53a-8 and 53a-54a; and of possession of a firearm during the commission of a class A, B or C felony in violation of General Statutes § 53-202k. On appeal, the defendant claims that the trial court improperly: (1) determined that the evidence presented at trial was sufficient to support a conviction as an accessory to murder; (2) instructed the jury on the dual intent element of accessorial liability; (3) marshaled the state’s claims and evidence in its instructions; (4) deprived the defendant of his right to counsel under the sixth amendment to the United States constitution; and (5) rendered judgment convicting the defendant of a separate crime under § 53-202k. We affirm the trial court’s judgment of conviction as an accessory to murder in violation of §§ 53a-8 and 53a-54a, and vacate the judgment of conviction of possession of a firearm during the commission of a class A, B or C felony in violation of § 53-202k.

The jury reasonably could have found the following facts. On the evening of December 20, 1994, the defendant, a member of the Los Solidos street gang, was socializing with friends at a party in an apartment in Hartford’s Dutch Point housing project (Dutch Point). A fellow Los Solidos gang member, identified only by the nickname “Cheesecake,” also was present at the party. Late in the evening, the defendant, who was carrying a nine millimeter pistol, left the party and went to meet Cheesecake at a nearby store located at 63 Norwich Street. Cheesecake was armed with a .38 caliber revolver.

Shortly after midnight, while he was walking from Dutch Point to the store, the defendant encountered the victim, Anthony Battle, near the intersection of Stonington and Norwich Streets. The defendant recognized the victim as a member of Twenty Love, a rival gang with which the Los Solidos gang was at war. The defendant approached the victim from the Stonington Street side of the intersection, and the two men engaged in a heated argument. The defendant, who at this time was approximately fifteen to twenty feet from the victim, drew his pistol and began firing at the victim. While the defendant was shooting at the victim, Cheesecake, who was standing at the Norwich Street side of the intersection, also opened fire on the victim. The defendant and Cheesecake continued to shoot at the victim as he attempted to flee. After firing thirteen rounds, the defendant watched as the wounded victim climbed a fence and escaped into a nearby park. Thereafter, the defendant and Cheesecake left the scene separately.

Within minutes, two Hartford police officers arrived at the scene of the shooting and found the victim lying on the ground in intense pain. He had been shot twice, once in the back of the right leg and once in the back of the right arm. The victim told the officers that he had been shot by members of Los Solidos and that at least one of the shooters was Hispanic. The victim was transported to Hartford Hospital, where he subsequently died from loss of blood caused by his gunshot wounds.

I

With respect to the murder charge, the defendant’s first claim is that the evidence presented at trial was not sufficient to support a determination that he possessed the dual intent required for accessorial liability under § 53a-8, namely, the intent to aid the principal and the intent to commit the underlying offense. We disagree.

In reviewing a sufficiency of the evidence claim, “we apply a two-part 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.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); see State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. State v. Sivri, supra, 132-33. The trier may “draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) Id. “As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. State v. Sivri, supra, 134. On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. Id.” (Internal quotation marks omitted.) State v. DeJesus, supra, 196.

Section 53a-8 (a), the statutory provision that governs accessorial liability, provides in relevant part that “[a] person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct . . . as if he were the principal offender.” We previously have stated that “a conviction under § 53a-8 requires proof of a dual intent, i.e., that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.” (Emphasis in original; internal quotation marks omitted.) State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 277 (1987). In other words, in order for the defendant to be convicted of murder under an accessory theory of liability, the state was required to prove beyond a reasonable doubt that the defendant (1) intended to aid Cheesecake in killing the victim and (2)intended to kill the victim. See State v. Diaz, 237 Conn. 518, 543, 679 A.2d 902 (1996); State v. Foster, supra, 525-26.

A

The defendant contends that the evidence was not sufficient to support a finding that he intended to aid Cheesecake in the commission of murder because, at the time that the defendant was shooting at the victim, he was unaware that someone else was shooting at the victim as well.

“Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there.” State v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967). “Since under our law both principals and accessories are treated as principals ... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [murder] charged or did some act which forms ... a part thereof . . . then the convictions must stand.” (Internal quotation marks omitted.) State v. Diaz, supra, 237 Conn. 543. “Therefore, as we have stated in the past, the terms accessory and principal refer to the alternate means by which one substantive crime may be committed.” (Internal quotation marks omitted.) State v. Roseboro, 221 Conn. 430, 437 n.6, 604 A.2d 1286 (1992).

In a statement given to the police on the night of his arrest, the defendant stated: “I heard another gun buckin at the same time like over by the store (CBL STORE 63 Norwich St.) and I heard like 5 or 6 shots. I remember when we was buckin (shooting) at the black boy he was like running across the street (Stonington St.) towards the park (Colt’s Park) and I think one of my shots hit him cause like when I was buckin (shooting) he fell over the fence but Miguel ‘Cheese Cake’ could have hit him too cause we was both buckin at the same time, but I think I got him!!” (Emphasis added.) From the defendant’s account of the shooting, the jury reasonably could have inferred that, at the time that the defendant was firing the thirteen rounds at the victim, he was aware that Cheesecake also was shooting at the victim. Although the evidence did not reveal whether it was the defendant or Cheesecake who had fired the shot that fatally injured the victim, the jury reasonably could have determined that there was sufficient concert of action between the defendant and Cheesecake to support the accessory allegation. State v. Diaz, supra, 237 Conn. 543. As such, there was sufficient evidence to support the jury’s conclusion that the defendant had intentionally contributed to the victim’s murder. See id.

B

The defendant also maintains that the evidence was insufficient to support a finding that he satisfied the second prong of the dual intent requirement, namely, that he intended to kill the victim. We consistently have concluded that “the specific intent to kill may be proven solely by circumstantial evidence, as long as that evidence establishes beyond a reasonable doubt that the defendant had the conscious objective to take the life of another. . . . The defendant’s intent to kill, therefore, may be inferred from evidence of the defendant’s use of a deadly weapon, the manner in which the weapon was used, and the nature and number of wounds inflicted. . . . Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Citations omitted; internal quotation marks omitted.) State v. Patterson, supra, 229 Conn. 333; see also State v. Medina, 228 Conn. 281, 303-304, 636 A.2d 351 (1994); State v. Rasmussen, 225 Conn. 55, 74, 621 A.2d 728 (1993). “Moreover, the [jury is] not bound to accept as true the defendant’s claim of lack of intent or his explanation of why he lacked intent.” State v. DeJesus, supra, 236 Conn. 197.

The state presented evidence from which the jury reasonably could have found that the defendant: (1) knew that the victim was a member of a rival gang; (2) became involved in an angry verbal confrontation with the victim immediately before the shooting; (3) fired thirteen rounds at the victim; (4) was approximately fifteen to twenty feet from the victim when he opened fire; (5) continued to shoot as the victim attempted to flee; (6) thought that one of his shots might have hit the victim; and (7) did not attempt to aid or summon medical assistance for the victim. We conclude, therefore, that the evidence presented at trial was sufficient to support the jury’s determination that the defendant intended to kill the victim. Consequently, the defendant’s claims of evidentiary insufficiency are without merit.

II

The defendant next claims that the trial court improperly instructed the jury in response to the jury’s question regarding the requirements of accessorial liability. Specifically, the defendant asserts that the trial court improperly (1) characterized the dual intent element of accessorial liability, and (2) directed the jury to consider the actions and intent of Cheesecake when it assessed the defendant’s liability. We disagree.

Although the defendant did not raise this claim in the trial court, he contends that the claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In Golding, we concluded that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. We agree that the record is adequate for review and that the defendant raises a constitutional claim. See State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998) (“ ‘[a]n improper instruction on an element of an offense ... is of constitutional dimension’ ”). We, therefore, turn to the third prong of Golding, which is dispositive on this issue.

“Our analysis begins with a well established standard of review. 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. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995). “[I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 170-71, 665 A.2d 63 (1995).

The defendant concedes that the trial court’s original charge properly instructed the jury on the elements of accessorial liability. Moreover, the defendant concedes that the trial court’s first supplemental instruction on accessorial liability also was proper. ***5 The defendant’s challenge is limited to the trial court’s second supplemental instruction on accessorial liability, which was given in response to the following question posed by the jury: “Is it sufficient that the defendant was an active participant in the events which caused the death of another? Or, do we need to find beyond a reasonable doubt that the defendant fired the fatal shot?” In response to the jury’s question, the trial court instructed: “Where it cannot be determined who fired the fatal shot, beyond a reasonable doubt, the element of murder as to who caused the death has not been proved beyond a reasonable doubt. However, persons acting with the mental state required for commission of murder, who intentionally aid one another to engage in . . . such conduct, and cause the death, are accessories to one another, and would be criminally liable for such conduct as accessories to murder.” The defendant claims that this instruction did not delineate clearly the dual intent requirement of accessorial liability and directed the juiy to consider the intent of the coaccused in determining the defendant’s culpability.

Upon examining the entire jury charge, we conclude that the trial court properly instructed the jury regarding accessorial liability. Both in its original charge, and in its first supplemental charge, the trial court properly articulated the requisite standard of dual intent. Moreover, the trial court did not contradict those instructions in the supplemental charge challenged by the defendant. In fact, nothing in the challenged charge reasonably could have been interpreted as relieving the state of its burden of proving that the defendant himself intended both to aid Cheesecake and to kill the victim. Consequently, an examination of the court’s instructions as a whole reveals that it is not reasonably possible that the jury was misled. Thus, we conclude that the defendant has not demonstrated either that an alleged constitutional violation clearly exists or that he was deprived of a fair trial. Therefore, he has failed to satisfy the third prong of Golding.

Ill

The defendant next claims that the trial court’s instructions unfairly marshaled the evidence by drawing the jury’s attention to the state’s case while obscuring the defendant’s case. The defendant maintains that the court’s instructions thereby violated his federal and state constitutional rights to due process. Although this claim was not properly preserved at trial, ****6 the defendant seeks to prevail on it understate v. Golding, supra, 213 Conn. 239-40. We conclude that his claim also fails under the third prong of Golding.

A trial court has broad discretion to comment on the evidence adduced in a criminal trial. State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989). We previously have stated that “[a] trial court often has not only the right, but also the duty to comment on the evidence.” State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991); see State v. Lemoine, 233 Conn. 502, 511-12, 659 A.2d 1194 (1995); State v. Marra, 222 Conn. 506, 538, 610 A.2d 1113 (1992); State v. James, supra, 571. “The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . and therefore, we have stated that a charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” (Citation omitted; internal quotation marks omitted.) State v. Hernandez, supra, 462; see State v. Canty, 223 Conn. 703, 716-17, 613 A.2d 1287 (1992); State v. Shannon, 212 Conn. 387, 408, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989); State v. Mullings, 166 Conn. 268, 274, 348 A.2d 645 (1974).

“The purpose of marshaling the evidence by the trial judge is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality.” United States v. Levy, 578 F.2d 896, 903 (2d Cir. 1978). To avoid the danger of improper influence on the jury, a recitation of the evidence “should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” (Internal quotation marks omitted.) State v. Hernandez, supra, 218 Conn. 462. In marshaling the evidence, the court must be careful not to imply any favor or criticism of either side. Id., 463. “Even where the defendant has presented no evidence, the [trial] court’s summary of the evidence should try to give fair recognition to relevant points raised by the defense in cross-examination as well as to the general theory of the defense.” (Internal quotation marks omitted.) Id., 462-63.

In support of his contention that the trial court marshaled the evidence unfairly, the defendant relies on State v. Hernandez, supra, 218 Conn. 458. In Hernandez, we reversed the defendant’s conviction because the trial court had “extensively detailed the state’s claims and its evidence in support thereof, and little or no reference was made to the defendant’s exculpatory evidence and his theory of defense . . . .” Id., 465. A careful and thorough review of the record in the present case reveals that the court properly included, in its recitation, the defendant’s exculpatory evidence and his theory of defense.

At trial, the defendant relied primarily on the testimony of friends and family members who were with him on the night of his arrest to support his contention that he was drunk and high that evening. He claimed that as a result of his intoxication, his statement to the police concerning the shooting was unreliable. With respect to the defendant’s theory of defense, the trial court stated in its charge: “The reference here is to the defendant’s statement to the police .... You must first determine whether [the statement was] made. And if you credit that [it was] made, you must — you may use [it]- — like any other witness — or, any other evidence produced during the course of the trial. Just as if the defendant was here testifying to it. In this connection, the — the defendant has produced James [Gunn], who testified that, on the night in question, he was with the defendant and two others. And over a course of about one hour, shared three blunts [marijuana cigarettes] and two forties [alcohol]. That they had started about 7 p.m. And when the defendant went into his house, he was high, staggering, with bloodshot eyes. Defendant’s mother testified that she observed this conduct. She testified that he had been watching TV before the police arrived. And she asked the defendant, in Spanish, what was going on when the police came in. Milton Gonzalez testified that, that night, he was with the defendant, defendant’s brother Alvin, and Noel Velez in the defendant’s backyard for one to one and a half hours, during which time they were drinking beer and smoking blunts. And that the defendant was high and stumbling. Both Alvin Delgado and Noel Velez testified concerning the same event. This evidence was offered to show what effect the condition would have on giving a statement, knowingly, voluntarily, and intelligently.”

Thus, in its charge the court explained in detail the defendant’s theory that he was under the influence of drugs and alcohol at the time he gave his statement to the police and, therefore, that the statement was not credible. While doing so, the court explicitly referred to the testimony of the defendant’s witnesses. Furthermore, the court also cautioned the jury not to place added weight on the testimony given by the police officers who had testified at trial solely because of their status as police officers. In addition, the court specifically referred to testimony elicited by the defense that one of the officers who took the defendant’s statement previously had forged prescriptions to obtain pain killers.

Moreover, an examination of the entire jury charge reveals three different instances in which the trial court instructed the jury that it should rely on its own recollection of the facts, rather than on the characterizations set forth by the court in the charge. The court also instructed the jury that it did not intend either to emphasize certain evidence above other evidence or to avoid mentioning certain evidence. We conclude, therefore, that it is not reasonably possible that the jury was misled by the trial court’s marshaling of the evidence and, thus, the charge did not deprive him of his state or federal rights to due process. The defendant’s claim, therefore, fails under the third prong of Golding.

IV

The defendant next claims that he was deprived of his right to counsel at critical stages of the proceedings in violation of the sixth amendment to the United States constitution. Specifically, the defendant maintains that the trial court unconstitutionally delivered a supplemental instruction to the jury and received the jury’s verdict in the absence of the defendant’s trial counsel. The defendant concedes that this claim was not properly raised at trial and seeks review under State v. Golding, supra, 213 Conn. 239-40. We conclude that this claim, too, fails under the third prong of the Golding test.

The record indicates that Kimberly Graham was the defendant’s attorney and was present at all stages of the trial, with the exception of the third day of jury deliberations. On that day, Norma I. Sanchez-Figueroa appeared as defense counsel in place of Graham, at Graham’s request. During the course of their deliberations that day, the jurors submitted a note to the court asking whether it was sufficient that they find that the defendant was an active participant in the events that caused the defendant’s death, or whether they needed to find beyond a reasonable doubt that the defendant himself had fired the fatal shot. 11 The court informed counsel of its proposed response to the jury’s question. Sanchez-Figueroa did not object to the proposed response.

Later that day, the court received a note indicating that the jury had arrived at a verdict. Thereafter, Sanchez-Figueroa requested that the court wait for Graham who, according to Sanchez-Figueroa, was on her way to the courthouse. The trial court responded that Graham’s absence already had caused the proceedings to be delayed for twenty minutes and that it did not want to inconvenience the jurors with a further delay. The court then allowed the jury to deliver its verdict. By the time that Graham arrived, the jury had been excused. There were no exceptions taken to the contents or delivery of the supplemental instruction or to the jury’s return of a verdict in Graham’s absence.

“It is central to the constitutional principle that the accused shall enjoy the right to have the assistance of counsel for his defense and that ‘he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.’ ” State v. Ralls, 167 Conn. 408, 419, 356 A.2d 147 (1974). In Ralls, we concluded that a defendant who was represented by substitute counsel during the issuance of a supplemental instruction and the delivery of the juiy’s verdict had not been deprived of his sixth amendment right to counsel. Id., 420. We reasoned that the absence of the defendant’s trial attorney had not implicated the sixth amendment because “[a]t no time during this period did any factual or adversary issues arrive; the only matters which faced the [substitute attorney] concerned questions of law. At all times during this stage of the proceeding, the defendant stood with counsel competent to represent and protect him.” Id.

We find no meaningful distinction between the facts of the present case and those of Ralls. We conclude, therefore, that the activities conducted in the absence of the defendant’s trial counsel did not violate his sixth amendment right to counsel. Consequently, the defendant’s claim fails to satisfy the third prong of Golding.

V

Finally, the defendant claims that his separate conviction under § 53-202k was improper because that statute is a sentence enhancement provision, not a separate offense. Although the defendant concedes that the five year consecutive sentence imposed on him by the trial court pursuant to § 53-202k was proper, he maintains that his separate conviction under that statute should be vacated. We agree.

We previously have concluded in State v. Dash, 242 Conn. 143, 150, 698 A.2d 297 (1997), that § 53-202k is a sentence enhancement provision, not a separate crime. We conclude, therefore, that the defendant is entitled to have his conviction under § 53-202k vacated. Consequently, although the defendant’s total effective sentence of sixty-five years was proper, the judgment must be modified to reflect the fact that § 53-202k does not constitute a separate offense.

The judgment is reversed in part and the case is remanded with direction to vacate the defendant’s conviction under § 53-202k and to resentence the defendant to a total effective term of imprisonment of sixty-five years; the judgment is affirmed in all other respects.

In this opinion the other justices concurred.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       With respect to the issue of accessorial liability, the trial court’s original charge stated: "You may consider whether or not [the defendant] was an accessory to murder. And the statute, as applied to this case and pertinent to this case, reads as follows: A person acting with a mental state required for the commission of an offense, who intentionally aids another person to engage in conduct which constitutes an offense, shall be criminally liable for such conduct. And I’ve already defined for you intent from the [murder] statute [§ 53a-54a]. And it is the same that applies to the intent of this statute. And again, intent can only be determined, if determined at all, from the circumstances surrounding the actor or doer’s conduct.
      “Now, it is not enough that the defendant committed acts which may in fact have aided the committing of the criminal act. One who is present when a crime is committed, but neither assists in its commission nor shares in its criminal intent, cannot be convicted as an accessory. Mere presence is not enough, nor passive acquiescence is not enough.
      “To be an accessory, the defendant must have criminal intent in community of unlawful purpose with the one who did the criminal act or caused death.
      “The question before you then is this: Did the defendant intend to aid the person who caused [the victim’s] death? And in so doing, did he intend to have the crime of murder committed? If you find that the state has proved that the defendant intended to aid the person who caused the death, and in so doing, did intend to have the crime of murder committed, then you must find the defendant guilty of being an accessory to murder. On the other hand, if the state has failed to so prove, you must find the defendant not guilty of accessory to murder.”

       During deliberations the jury posed the following question to the court: “We would like to clarify what accessory means as it relates to the charges and their elements].”
      The court responded: “A person acting with the mental state required for a commission of an offense, who intentionally aids another person to engage in conduct which constitutes an offense, shall be criminally liable for such conduct.
      “To be an accessory, the defendant must have criminal intent and community of unlawful purpose with the one who did the criminal act. So, the question you would ask would be, as to minder: Did the defendant intend to aid the person who caused [the victim’s] death? And in so doing, did he intend to have the crime of murder committed?”

       The defendant took exceptions to several portions of the trial court’s charge. These exceptions, however, did not preserve the defendant’s broad claim on appeal that the trial court unfairly marshaled the evidence in favor of the state. See State v. Hernandez, 218 Conn. 458, 461 n.2, 590 A.2d 112 (1991) (“defendant took an extensive exception to the court’s ‘marshalling the evidence’ ”).

       See part II of this opinion.

       Tlio sixth amendment to the United States constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

       See part II of this opinion.

       Although it is not clear whether Sanchez-Figueroa had any previous involvement in the case, the record reveals that during jury voir dire, Graham specifically informed potential jurors that Sanchez-Figueroa and other attorneys from Graham’s former law firm of Lyle, Hume & Ngobeni might appear at the counsel table with her during trial.

       See part II of this opinion.

       The state does not challenge this claim.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARLIK MOURNING
    (SC 15913)
    Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued January 20
    officially released January 25, 1999

      Nancy Burton, for the appellant (defendant).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom were Robert C. Brunetti, assistant state’s attorney, and, on the brief, Walter D. Flanagan, state’s attorney, for the appellee (state).

       January 25, 1999, the date that this decision was released as a slip opinion, is the operative date for all substantive purposes.

   Opinion

PER CURIAM.

This is a certified appeal; State v. Mourning, 244 Conn. 924, 714 A.2d 11 (1998); from the judgment of the Appellate Court; State v. Mourning, 47 Conn. App. 916, 703 A.2d 1194 (1997); affirming the trial court’s judgment, dated November 16,1996, finding the defendant in violation of probation and imposing the previously suspended three year sentence of incarceration. The defendant has, therefore, been incarcerated since that date. We have determined, for reasons that will appear in a full opinion to be released subsequently, that the dispositional phase of the probation revocation proceeding was flawed and that, therefore, that aspect of the judgment must be reversed and a new dispositional hearing held. See State v. Strickland, 243 Conn. 339, 703 A.2d 109 (1997). In order to give full effect to our determination, however, it is necessary that the defendant’s incarceration be terminated immediately, pending the new dispositional hearing.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction (1) to reverse the judgment of the trial court in part and (2) to remand the case to the trial court for a new dispositional hearing.

       See State v. Mourning, 249 Conn. 242, 733 A.2d 181 (1999).

       We assume, also, that, if the defendant still wishes to have a psychological evaluation for purposes of the new hearing, he will be given an opportunity to do so.


text:
    JACQUELINE MCCARTHY ET AL. v. CHRISTOPHER K. CALISE ET AL.
    (SC 15958)
    Borden, Berdon, Norcott, Katz and Palmer, Js.
    Argued January 19
    officially released February 9, 1999

      Philip T. Newbury, Jr., with whom were George L. Holmes, Jr., and, on the brief, R. Bradley Morris, for the appellants (defendants).

      Christopher C. Burdett, with whom was Rhonna W. Rogol, for the appellee (named plaintiff).
   Opinion

PER CURIAM.

This case involves an automobile accident at an intersection in Norwalk. The defendants, Christopher K. Calise and Carol Calise, appeal from the judgment of the trial court, after a jury trial, in favor of the named plaintiff, Jacqueline McCarthy. The named plaintiff was a passenger in an automobile operated by her husband, Michael P. McCarthy, which collided with a pickup truck owned by Carol Calise and operated by Christopher K. Calise. The plaintiff brought an action against the defendants for negligence, and the jury rendered a verdict for the plaintiff. The trial court denied the defendants’ motion to set the verdict aside, and rendered judgment for the plaintiff on the verdict. This appeal followed.

The defendants raise two evidentiary claims. They contend that the trial court improperly: (1) permitted the plaintiffs accident reconstruction expert witness to give an opinion on the cause of the collision because the opinion was unnecessary to assist the jury and it usurped the jury’s fact-finding function; and (2) permitted the plaintiffs expert witness to give an opinion that was based on facts that were contrary to the evidence. The defendants contend that either or both of these allegedly improper rulings constituted harmful error, thus requiring a new trial. We have considered fully the defendants’ claims in light of the entire record, and we conclude that they are without merit. It would serve no useful purpose to discuss them in further detail.

The judgment is affirmed.

       The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1, and General Statutes § 51-199 (c).

       Although Michael P. McCarthy originally was also a plaintiff in this case, he subsequently withdrew his claim. Hereafter, we refer to Jacqueline McCarthy as the plaintiff.


author: PETERS, J. MCDONALD, J.,

text:
    ALISSA NASH ET AL. v. JESUS F. YAP, JR., ET AL.
    (SC 15742)
    Borden, Berdon, Norcott, McDonald and Peters, Js.
    Argued September 25, 1998
    officially released February 16, 1999

      Ernest F. Teitell, with whom, on the brief, were Mario DiNalale and Jonathan M. Levine, for the appellantsappellees (plaintiffs).

      John R. Downey, for the appellee-appellant (named defendant).

      Donna R. Zito, for the appellee-appellant (defendant Karl E. Alcan).
   Opinion

PETERS, J.

In the late 1980s, the General Assembly enacted two tort reform statutes. Public Acts 1986, No. 86-338 (P.A. 86-338), known as Tort Reform I, effective October 1, 1986, made fundamental changes in the extent of damages that a tortfeasor must pay. Public Acts 1987, No. 87-227 (P.A. 87-227), known as Tort Reform II, effective October 1, 1987, amended Tort Reform I to respond to criticisms about some provisions of the earlier legislation. The principal issue in this case is whether the liability apportionment provisions of either of those acts applies to tortious conduct that occurred between October 1,1986, and October 1,1987, but was not discovered until after October 1, 1987. Identification of the applicable statutory or common-law principles is crucial to a determination of the parties’ arguments about the apportionment of tort liability and about the reduction of liability because of a third party settlement.

The plaintiff Steven A. Ayres, as guardian of the named plaintiff, Alissa Nash (child), initiated this medical malpractice action against two cardiologists, the defendants, Jesus Yap, Jr., M.D., and Karl Alcan, M.D., alleging that each of them negligently had caused the child to suffer irreversible pulmonary disease. St. Joseph’s Medical Center (hospital), also named as a defendant initially, settled with the plaintiff prior to the trial.

A jury returned a verdict in favor of the plaintiff, including an award of $2,315,000 in damages, and allocated responsibility among Yap, Alcan and the hospital. After accepting the jury’s verdict, the trial court apportioned liability for the plaintiffs damages in accordance with Tort Reform II. The trial court denied the defendants’ separate motions to set aside the verdict and the defendant Yap’s motion for remittitur.

The parties appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeals to this court pursuant to Practice Book § 65-1, formerly § 4023, and General Statutes § 51-199 (c). *4 We affirm the judgment of the trial court in part and reverse in part.

I

The jury reasonably could have found the following facts. The child, who has Down’s syndrome, was bom with an atrioventricular septal defect, which is a large hole between the ventricle and the atrium of the heart. With proper diagnosis in the first few years of life, that defect usually can be corrected surgically. Uncorrected, the condition leads to pulmonary vascular disease, which becomes progressively more severe and causes a painful death at an early age. Because the child’s heart defect was allowed to go untreated for three years, she now suffers from pulmonaiy vascular- disease. The child’s lungs will continue to degenerate, and she will be particularly vulnerable to other health disorders, including pneumonia, stroke and skin ulcers. Needing continuing assistance with basic functions, the child eventually will be confined to her bed.

The child’s primary care physicians at the hospital arranged, on two occasions, for an echocardiogram, a diagnostic test for heart disease, to assess her heart condition. In March, 1986, and April, 1987, they arranged for Yap to perform an echocardiogram, and for Alcan to review and interpret the echocardiogram record. Yap, who was head of the cardiology unit and performed the echocardiograms, did not ensure that the abnormalities that he had observed were fully communicated in the 1986 and 1987 test reports. He failed to communicate his findings orally either to his fellow cardiologist, Alcan, or, in 1987, to the primary care physicians. Alcan’s reports, in March, 1986, and in April, 1987, did not state all the anatomical abnormalities of the child’s heart, and did not fully reflect the seriousness of her condition. Alcan did not communicate orally with the child’s primary care physicians in either 1986 or 1987 to alert them to her heart condition.

The child’s primary care physician relied on Alcan’s written reports in concluding that the child did not require immediate surgery either in 1986 or in 1987. He relied on the absence of a critical warning in Alcan’s initial written report in 1986, and concluded that Alcan’s 1987 report indicated no significant change.

The child’s condition was not diagnosed properly until June, 1988, when she was examined by a pediatric cardiologist at Yale-New Haven Hospital. He determined that the child had a complete atrioventricular septal defect. Because she was then almost three years old, her heart defect had become inoperable and her pulmonary vascular disease had become irreversible.

As part of its verdict in favor of the plaintiff, the jury, in response to written interrogatories, determined that neither defendant had exercised the degree of care, skill and diligence toward the child that the standard of care required, and that their malpractice proximately had caused harm to her. The jury allocated 17.5 percent of the responsibility for the child’s injury to Yap, 17.5 percent to Alcan, and 65 percent to the hospital, which was not a defendant because of its earlier settlement.

In response to additional interrogatories, the jury found that the child’s injury had occurred between October 1, 1986, and October 1, 1987, but that her caretakers did not discover and reasonably were not required to have discovered the connection between her injuries and the defendants’ malpractice until after October 1,1987. The jury also found that the defendants did not violate the standard of care before October 1, 1986.

II

On appeal, the plaintiff maintains that, in apportioning liability for damages among the two defendant physicians and the nondefendant hospital, the trial court improperly applied the provision of Tort Reform II codified in General Statutes § 52-572h (c). The plaintiff claims that, under the circumstances of this case, the trial court should have followed the common-law principle of joint and several liability.In their cross appeals, both defendants claim that the trial court should have followed the provisions of Tort Reform I rather than those of Tort Reform II. Although both tort reform statutes provide for apportionment of tort damages, Tort Reform I, if applicable, would require the damages award to be reduced by the amount that the plaintiff received in settlement from the hospital.

In his cross appeal, the defendant Alcan further challenges the propriety of the trial court’s: (1) jury charge with respect to the caretaker standard; (2) failure to charge the jury to consider the liability of nonparties who provided medical care to the child; and (3) denial of his motion to set aside the verdict on the ground of insufficient evidence of proximate cause.

We are unpersuaded by the plaintiffs appeal. We agree with the defendants about the applicability of Tort Reform I. We disagree with Alcan’s claims on his separate cross appeal. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

Ill

We turn first to the plaintiffs claim that each defendant is fully liable to pay the entire damages award because the common-law rule of joint and several liability applies in this case. Both Tort Reform I and Tort Reform II replaced joint and several liability with apportionment of liability among tortfeasors. The plaintiff argues, however, that each of the defendants continues to be liable for $2,315,000 in damages. According to the plaintiff, Tort Reform I does not govern this case because it was repealed by Tort Reform II, and the apportionment provision of Tort Reform II does not apply to this case because the defendants’ malpractice occurred before its effective date. We agree, however, with the contrary position of the defendants, who argue persuasively that Tort Reform I is the governing law and that its provisions supersede common-law rules of joint and several liability.

A

Prior to 1986, Connecticut tort law adhered to the common-law rule of joint and several liability for the allocation of responsibility for damages resulting from an injury caused by more than one person. See Donner v. Kearse, 234 Conn. 660, 666, 662 A.2d 1269 (1995). Under this doctrine, an injured person was entitled to recover the entire amount of a damages award from any defendant whose conduct proximately caused the injury. Id., citing Rose v. Heisler, 118 Conn. 632, 633, 174 A. 66 (1934).

In 1986, by enacting Tort Reform I, P. A. 86-338, the General Assembly replaced the common-law rule of joint and several liability with a system of apportioned liability that holds each defendant liable for only his or her proportionate share of damages. The new statute applied to injuries “accruing on or after” the act’s effective date, October 1, 1986. (Emphasis added.)

One year later, in P.A. 87-227, Tort Reform II, the legislature amended Tort Reform I. The legislature made that revision applicable to injuries “occurring on or after October 1, 1987.” 11 (Emphasis added.)

The plaintiff argues that the trial court should have applied the common-law rule because neither version of the tort reform statutes applies in the present case. He focuses on the jury’s findings that the child’s injury occurred before October 1, 1987, but reasonably was not discovered to have been caused by the defendants’ malpractice until after October 1, 1987. Relying on the proposition that substantive rights are determined by the law effective at the time a cause of action accrues; Champagne v. Raybestos-Manhattan, Inc., 212 Com. 509, 520-21, 562 A.2d 1100 (1989); the plaintiff maintains that the cause of action did not accrue until discovery of the defendants’ malpractice after October 1,1987. For this reason, he maintains that Tort Reform I does not govern.

Although the logic of the plaintiffs position would seem to point to the applicability of the apportionment rules contained in Tort Reform II, which became effective on October 1, 1987, the plaintiff maintains that the apportionment rules of Tort Reform II cannot apply to damages arising from malpractice that occurred before its effective date. In response to interrogatories, the jury found that the child’s injury had “occurred” before October 1, 1987. The plaintiff concludes that, in the catch-22 situation that he envisions, the law reverted to the common-law doctrine of joint and several liability.

Because of the statutory presumption that legislation affecting substantive rights is intended to operate prospectively; see General Statutes §§ 1-1 (u) and 55-3; we agree with the plaintiff that the apportionment provision of Tort Reform II cannot apply to malpractice that occurred before its effective date. That conclusion, however, does not end the analysis. Unless Tort Reform II was intended to repeal rather than to amend Tort Reform I, the plaintiff is bound by the provisions of Tort Reform I.

Although the plaintiff argues for repealer, we already have decided that our legislative practices usually indicate that the legislature’s nomenclature of “repeal” manifests the legislature’s intent to modify and to amend prior legislation, and not to extinguish it ab initio. LeConche v. Elligers, 215 Conn. 701, 707, 579 A.2d 1 (1990); State v. Kozlowski, 199 Conn. 667, 675-76, 509 A.2d 20 (1986). As we observed in LeConche, legislative history shows that the General Assembly, in changing the provisions of Toil Reform I, can be presumed to have intended to correct newly discovered flaws without having intended thereby to repeal the earlier enactment. LeConche v. Elligers, supra, 707. Following LeConche, we conclude that the General Assembly, in enacting the apportionment provisions of Tort Reform II, intended to amend and not to repeal Tort Reform I in its entirety. The provisions in Tort Reform I that deal with the apportionment of liability, which were not amended by Tort Reform II, continue, therefore, to have operative force.

As a result, despite the reasonable delay in discovering the child’s injury, a delay that arguably meant that no action on her behalf accrued until after October 1, 1987, the dispositive fact is that the present action accrued after the effective date of Tort Reform I. Whether the action accrued before or after the statute’s amendment by Tort Reform II is irrelevant. Tort responsibility must now be apportioned.

Additional principles of statutoiy construction support the conclusion that, despite the enactment of Tort Reform II, this case is governed by the rule of apportioned liability contained in Tort Reform I. The legislature is presumed to have acted in light of existing relevant statutes and with the intent of creating a consistent body of law. McKinley v. Musshorn, 185 Conn. 616, 623, 441 A.2d 600 (1981). The plaintiffs proposed construction would be inconsistent with the legislature’s purpose in enacting tort reform to apply to all injuries “accruing” after October 1,1986 to the present. See LeConche v. Elligers, supra, 215 Conn. 707. Moreover, implied repeal of a statute is not favored and will not be presumed where, as here, the old and new statutes can coexist peaceably. Putala v. DePaolo, 225 Conn. 378, 388, 623 A.2d 989 (1993); see also Jones v. Mansfield Training School, 220 Conn. 721, 726, 601 A.2d 507 (1992) (if two constructions of statute are possible, courts will use reasonable construction over unreasonable one).

We conclude, therefore, that Tort Reform I replaced the common-law rule of joint and several liability with a statutory rule of apportioned liability that governs this case. Accordingly, with respect to the plaintiffs appeal, the judgment of the trial court is affirmed.

IV

We next consider the defendants’ cross appeal, in which they argue that the trial court, in calculating each defendant’s share of the damages, improperly applied Tort Reform II, instead of Tort Reform I. We agree with the defendants that Tort Reform I applies to this case.

Both Tort Reform I and Tort Reform II direct a trial court to reduce an injured party’s award for damages by the payments received from “collateral sources.” See Fleming v. Garnett, 231 Conn. 77, 82, 92-93, 646 A.2d 1308 (1994). In principle, such reductions reflect the understanding that the entitlement of an injured party to be made whole does not include an entitlement to a double recovery for the same loss. Representing differing points of view about what makes an injured party whole, the two acts contain different definitions of “collateral sources.” Under Tort Reform I, but not under Tort Reform II, settlements are treated as deductible collateral sources.

Applying Tort Reform II, the trial court held each defendant responsible for 17.5 percent of the full damages award. Thus, the court reduced the plaintiffs damages award of $2,315,000 to reflect the amount that the plaintiff received in settlement from the hospital. The court required the defendants, with 17.5 percent each of the liability, to pay damages of $810,250, apercentage of the face amount of the total damages award without a deduction for the settlement. If, as the defendants argue, Tort Reform I applies in this case, then the trial court, before calculating the dollar amount of each defendant’s 17.5 percent share, should have reduced the total damages award by the amount of the hospital settlement. See Fleming v. Garnett, supra, 231 Conn. 82, 92 (determining that Tort Reform I requires trial court to deduct amount of collateral sources from damages award before calculating each defendant’s proportionate share).

The defendants’ argument turns on use of the term “accrue” in Tort Reform I. In their view, the provision of Tort Reform I making it applicable to tort actions “accruing on or after” October 1, 1986, refers to the date on which an injury occurs. Because the child’s injury occurred after the effective date of Tort Reform I, but before that of Tort Reform II, Tort Reform I is the governing law. The defendants assert that the plaintiff incorrectly relies on Champagne v. Raybestos-Manhattan, Inc., supra, 212 Conn. 509, for the argument that a cause of action accrues when an injury is discovered, because Champagne's holding to that effect arose in the construction of a different statute. The defendants cite earlier case law and the legislative history of tort reform as indicative of a legislative intent, under Tort Reform I, to make the operative criterion of a cause of action’s accrual the date of the injury, rather than the date the injury is discovered.

The trial court rejected the defendants’ argument, relying on an Appellate Court decision that held the new definition of collateral sources applicable to cases in which injury occurred between October 1, 1986, and October 1, 1987. See Bower v. D’Onfro, 38 Conn. App. 685, 696-701, 663 A.2d 1061, cert. denied, 235 Conn. 911, 912, 665 A.2d 606 (1995), modified, 45 Conn. App. 543, 696 A.2d 1285 (1997). InBower, the Appellate Court construed the redefinition of collateral sources in Tort Reform II as a clarification of the definition in Tort Reform I. Id. As a clarification, Tort Reform II could be applied retroactively. Toise v. Rowe, 243 Conn. 623, 628, 707 A.2d 25 (1998); State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987). We disagree with the analysis in Bower.

To hold that the excision of specific statutory language by an amendatory statute constitutes a clarification would, in effect, give retroactive effect to every statutory amendment. Our cases do not go that far. They focus on clarification of ambiguous language. See Toise v. Rowe, supra, 243 Conn. 631 (need for clarification arose from statutory ambiguity manifested in ongoing controversy); State v. Magnano, supra, 204 Conn. 283. The plaintiff does not and cannot argue that the language of § 5 of Tort Reform I was ambiguous. That section provides that collateral sources include “any payments made to the claimant, or on his behalf . . . as compensation for personal injury or wrongful death attributable to the incident giving rise to the cause of action . . . .” Public Act 86-338, § 5. In Tort Reform II, by contrast, the legislature expressly excluded settlements from “collateral sources.”

Furthermore, a substantive change, even though described as technical in nature, is not automatically a clarification of a prior unambiguous statute. A legislative decision to correct prior statutory misstatements is not, alone, evidence of an intent to clarify. In the absence of a showing of ambiguity, it would require an extraordinarily explicit and clear legislative history to demonstrate a legislative intent to clarify language such as that contained in § 5 of Tort Reform I.

The legislative history of Tort Reform II is far from explicit about an intent to clarify rather than to correct § 5. Senator Thomas F. Upson explained the effect of Tort Reform II as follows: “With the passage of [Tort Reform II], we’ll now have, for a period of time, three standards, three different sets of . . . laws pertaining to wrongful death actions and personal injury actions .... One, that occurred before October 1st, 1986. One, that occurred after October 1st, 1986. And then October 1st, 1987.” 30 S. Proc., Pt. 6, 1987 Sess., p. 1969. Representatives Robert Farr and Richard D. Tulisano considered an example in which an injury that occurred before the effective date of the apportionment provisions of Tort Reform II resulted in a wrongful death after Tort Reform II became effective. The representatives concluded that the law in effect at the time that the injury occurred would control a legal action. Remarks of Representatives Farr and Tulisano, 30 H.R. Proc., Pt. 16, 1987 Sess., pp. 5680-81.

The dissent relies on statements made by Senator Anthony V. Avallone and Representative Robert G. Jaekle. It is undisputed that Tort Reform II was enacted to correct errors in Tort Reform I. What is at issue, however, is whether the correction in the apportionment provision of Tort Reform II was intended to be retroactive because it was a clarification rather than a better approach for future cases. We read Representative Jaekle’s statement as indicative of an intent to make tort reform more workable and not as a clarification of the specific language of Tort Reform I.

Understandably, therefore, the plaintiff does not place heavy weight on legislative clarification. He maintains, instead, that a cause of action for negligence does not accrue until the injured party knew or should have known of a causal relationship between a tortfeasor’s negligence and the harm caused thereby. See Champagne v. Raybestos-Manhattan, Inc., supra, 212 Conn. 520-21. We have applied this same principle in the context of cases construing the statute of limitations. Barnes v. Schlein, 192 Conn. 732, 738-39, 473 A.2d 1221 (1984); Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984). Because the plaintiffs cause of action in this case was not discovered until some time after the enactment of Tort Reform II, the plaintiff argues that the trial court correctly relied on the collateral source provisions contained in that statute rather than those contained in Tort Reform I.

In the present case, we need not decide whether, in the abstract, an action accrues under Tort Reform I when an injury occurs or when it is discovered. We look instead to the purpose and intent of the legislature in enacting the two tort reform statutes. Well established principles of statutory construction support the defendants’ position that this case is governed by Tort Reform I. “Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994).

In light of the legislature’s manifest purpose to reform the law of negligence, we read the effective dates of Tort Reform I and Tort Reform II as having been intended to create a workable scheme of transition between the two statutes. Earlier in this opinion, we followed LeConche v. Elligers, supra, 215 Conn. 707, concluding that the apportionment provisions of Tort Reform II, rather than repealing Tort Reform I, amended the earlier statute only with regard to injuries occurring after the effective date of Tort Reform II. Accordingly, this case must be governed by Tort Reform I.

We conclude, therefore, that the trial court improperly relied on the collateral sources provisions of Tort Reform II. Its judgment, therefore, must be reversed in part to allow recalculation of the liability of each defendant to take into account the amount of the hospital’s settlement with the plaintiff.

V

We address next the issues raised solely by the cross appeal of the defendant Alcan. Apart from the issues concerning statutory tort reform, Alcan challenges the propriety of the trial court’s charge to the jury and the trial court’s denial of the evidentiary claims raised in his motion to set aside the verdict. We are persuaded by none of Alcan’s claims.

A

With respect to the issue of jury instructions, Alcan claims that the trial court improperly: (1) instructed the jury on the caretaker standard; and (2) failed to instruct the jury concerning the alleged liability of non-party providers of medical care for the child. Neither argument warrants extensive discussion, because neither was properly raised in the trial court.

One issue before the jury was whether consent for surgery would have been given on the child’s behalf if such surgery had been undertaken before her heart defect became inoperable. The trial court instructed the jury that the relevant consent-giver was a reasonable caretaker, rather than the members of the child’s family. The merits of that instruction are not properly before us. At trial, Alcan voiced no exception to the jury charge, filed no contrary request to charge and raised no argument in his motion to set aside the verdict. We decline to entertain his argument at this late date. See Practice Book § 60-5.

In his alternate challenge to the trial court’s jury instructions, Alcan claims that the court was required to ask the jury to respond to an interrogatory concerning his allegation that other medical care providers, who were not parties to this litigation, might bear responsibility for the child’s injury. Specifically, Alcan suggests that the jury should have been permitted to consider the possible liability of certain emergency room physicians at Stamford Hospital and radiologists at Stamford Hospital and St. Joseph’s Hospital. The radiologists took chest X rays of the child and the physicians examined her in the Stamford Hospital emergency room.

The trial court denied Alcan’s request for an interrogatory charge because, inter alia, the plaintiff had not received fair notice of Alcan’s intent to raise such an issue. The plaintiff relied on Alcan’s failure, at trial, to provide any notice that he would seek to have the jury consider Stamford Hospital’s alleged negligence when the jury apportioned liability. Alcan has not responded, by citation or otherwise, to the plaintiffs factual assertion. In the absence of any such rebuttal, there is no foundation for Alcan’s claimed entitlement to an interrogatory charge on this subject.

B

Alcan also argues that the trial court should have granted his motion to set aside the verdict because: (1) the verdict was inconsistent; and (2) the evidence at trial failed to include sufficient evidence of proximate cause. These arguments, too, are unpersuasive.

Alcan maintains that the trial court should have set the jury verdict aside because, in his view, the jury verdict was inconsistent. The alleged inconsistency arises out of the jury’s finding that Alcan, although not negligent with respect to the child’s 1986 cardiogram, had departed from the applicable standard of care with respect to the 1987 cardiogram.

Alcan cannot prevail on this claim. Procedurally, the claim is flawed because it was not raised clearly at trial. See Practice Book § 60-5. Substantively, the claim cannot succeed because, among other things, the jury could have found decisive Alcan’s 1987 failure to describe the child’s condition as “abnormal,” when he had done so in the previous year. Furthermore, the passage of another year without improvement in the condition manifested in the cardiogram supported the jury’s finding of Alcan’s malpractice in 1987.

Alcan also maintains that the trial court should have set the jury verdict aside because there was no evidence that his malpractice with respect to the 1987 echocardiogram report had caused injury to the child. We disagree.

The plaintiff introduced evidence that Alcan’s malpractice delayed the diagnosis of the child’s heart defect until a time when the defect had become inoperable. The plaintiffs experts testified that the child’s pulmonary disease was not yet irreversible in April, 1987, because her heart defect could have been repaired surgically at that time. When her condition was diagnosed, belatedly, the window of opportunity for successful surgical intervention had closed.

Alcan argues, however, that, to prove causation, the plaintiff was required to show that the child’s primary care physicians reasonably relied on Alcan’s report concerning the 1987 cardiological examination. The plaintiff introduced two kinds of evidence to demonstrate causation. He produced expert testimony that a cardiologist has an affirmative duty to communicate orally with primary care physicians. He also produced the testimony of the child’s primary care physician that he had, in fact, relied on the contents of Alcan’s written reports. In the circumstances of this case, the alleged unreasonableness in that reliance was, at best, a question of fact for the jury, a fact that the jury found for the plaintiff.

Alcan maintains that this proof of causation was insufficient in the absence of expert testimony expressly stating that Alcan’s deviation from the applicable standard of care was a proximate cause of the child’s injuries. On the present record, that claim cannot be sustained. The plaintiffs experts testified about the consequences of Alcan’s failure to warn anyone about the child’s serious condition: she did not receive surgical care at a time when her condition could have been remedied. The jury reasonably could have found aproxímate as well as an actual linkage between Alcan’s negligence and the child’s present pulmonary disease with its foreseeable catastrophic consequences.

We conclude, therefore, that the trial court properly denied Alcan’s motion to set aside the jury verdict. That conclusion is buttressed by our customary deference to such a decision by the trial court. See Marchetti v. Ramirez, 240 Conn. 49, 56, 688 A.2d 1325 (1997) (“[t]he trial court’s refusal to set aside the verdict ... is entitled to great weight and every reasonable presumption should be given in favor of its correctness” [internal quotation marks omitted]); Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995).

VI

The present case provides yet another example of the ever changing relationship between our common law and our statutory law. Applying the principles of the common law, we affirm the judgment of the trial court accepting the jury’s verdict that the defendants were negligent and that their negligence proximately caused the child’s injury. Applying the principles of the statutory law contained in Tort Reform I, we conclude that each defendant, including the treating hospital, bears proportional responsibility for payment of damages to her. Applying that same statute, we further conclude that the damages awarded in the present case must reflect moneys that the plaintiff received in a pretrial settlement with the hospital at which the child’s primary care physicians worked. The judgment of the trial court must be affirmed, therefore, except for its refusal to subtract the hospital’s settlement amount from the damages to be apportioned among the defendants. The damages awarded in the judgment must, accordingly, be recalculated.

The judgment is reversed only with respect to the apportionment of liability for the damages award and the case is remanded to the trial court for recalculation of the amount of damages owed by each of the defendants.

In this opinion BORDEN and NORCOTT, Js., concurred.

MCDONALD, J.,

with whom BERDON, J., joins, concurring in part and dissenting in part. We agree with the majority opinion except as to part IV.

This case demonstrates that the collateral source credit provision of Tort Reform I can lead to unforeseen and unfair results. In apportioning liability in this case, the jury found that St. Joseph’s Hospital (hospital) was 65 percent responsible for the plaintiffs injuries, while each of the two doctors, Yap and Alcan, was 17.5 percent responsible. The jury also found that the plaintiff suffered $2,315,000 in damages. Under the majority’s holding, the hospital’s pretrial settlement with the plaintiff in the amount of $1,300,000 is deducted from the damage award, further decreasing the plaintiff’s recovery. The plaintiff will receive $355,250 from both Yap and Alcan (35 percent of $2,315,000 minus $1,300,000), instead of $810,250 (35 percent of $2,315,000), $455,000 less then the amount the jury intended to award. Here, the defendants’ apportioned share is reduced by the amount the jury found that the hospital ought to pay, and the majority decision further reduces the verdict amount by the settlement actually paid by the hospital. This provides the doctors with a double credit that constitutes a windfall. Yap and Alcan benefit doubly.

The majority refuses to apply the 1987 amendment to the collateral source provision of Tort Reform I in this case. That amendment explicitly provides that “ ‘ [collateral sources’ do not include amounts received by a claimant as a settlement.” Public Acts 1987, No. 87-227, § 5, now codified at General Statutes § 52-225b. I would uphold the decision of the trial court and apply in this case the 1987 amendment to the Tort Reform I definition of collateral sources.

While discussing the 1987 amendment, Senator Anthony V. Avallone stated that “[i]t was found that settlements, when a party agrees before trial, that it will take a certain amount of money and release the other party from all exposure, that is the settlement. And it was found in last year’s bill that that could be determined to be a collateral source, and thereby deductible from the judgment. All parties agreed that was a double shot at the victim. It wasn’t fair. It has been eliminated.” 30 S. Proc., Pt. 6, 1987 Sess., pp. 1939-40. Characterizing the act as it read as “technically flawed” and “absolutely unworkable”; id., p. 1932, remarks of Senator Avallone; the legislature also amended Tort Reform I by deleting from the definition of collateral sources “payments made ... by any person as compensation for personal injury or wrongful death attributable to the incident giving rise to the cause of action . . . .” Public Acts 1986, No. 86-338, § 5. The deletion and the explicit exclusion were meant to clarify the original intent of the legislature in defining collateral sources. This was evidenced by the remarks of Senator Thomas F. Upson, who, referring to the collateral source provision of the 1987 amendment, stated: “I believe this is a technical correction.” 30 S. Proc., supra, p. 1963. During a later debate in the House, Representative Robert G. Jaekle referred to “technical changes that made sense, that clarified intent, that made [Tort Reform I] more workable.” 30 H.R. Proc., Pt. 16, 1987 Sess., p. 5733.

When the legislature acted in 1987, it did not expressly state that the 1987 amendment should apply retroactively. However, well established principles of statutory construction “require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results.” Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). In determining whether the exclusion of settlements from the collateral source provision of Tort Reform I was intended to apply retroactively, we must “look to the history of [the] enactment [of the 1987 amendment], to the mischief it was designed to remedy, and to the underlying policy it was intended to serve, to determine what purposes the legislature sought to achieve.” Id., 713.

In this case, the legislative history clearly indicates that inteipretation of the original language of Tort Reform I led to unfair results. The aim of tort reform was not to benefit tortfeasors doubly, but to allocate the burden of fairly compensating injured parties among tortfeasors according to the degree of their relative responsibility. Nothing could be further from the intent of the legislature than the result reached by the majority in this case.

When the legislature is clarifying prior legislation, the correction has retroactive effect. “According to well established principles of statutory construction, an amendment that construes and clarifies a prior statute operates as the legislature’s declaration of the meaning of the original act.” Id., 717; accord Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 246, 377 A.2d 305 (1977). “Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect.” (Internal quotation marks omitted.) Toise v. Rowe, 243 Conn. 623, 628, 707 A.2d 25 (1998). In debating this amendment, the legislators used the very language — “clarified intent” — that we have recognized as giving retrospective effect to legislation. Thus, according to the legislative history, the legislature clearly and unequivocally expressed its intent to apply the legislation retrospectively. See, e.g., Connecticut National Bank v. Giacomi, 242 Conn. 17, 40, 43, 699 A.2d 101 (1997); Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, 238 Conn. 285, 289-91, 679 A.2d 925 (1996). We would follow that expressed intention and uphold the trial court’s application of the 1987 amendment’s definition of collateral sources to avoid a double credit for the defendants.

Accordingly, we concur in parts I, II, III and V and respectfully dissent from part IV of the majority opinion.

       Public Act 86-338 was codified as General Statutes §§ 13a-149, 30-102, 52-102,52-184c, 52-190a, 52-225a, 52-225b, 52-225e, 52-225d, 52-226a, 52-251c, 52-557m, 52-557n, 52-568, 52-572h.

       Public Act 87-227 was codified as General Statutes §§ 30-102, 52-102, 52-184c, 52-190a, 52-251c, 52-225a, 52-225b, 52-225e, 52-225d, 52-557m, and 52-572h.

       The original complaint was brought on the child’s behalf by her grandmother, Beverly A. Z. Nash. In October, 1992, the Probate Court named Ayres as guardian of the child’s estate. The trial court then substituted Ayres as the party plaintiff in lieu of Beverly A. Z. Nash. In March, 1996, the trial court granted Ayres’ motion to dismiss the claims of Beverly A. Z. Nash to recover medical costs for the child’s care. The only remaining plaintiff is, therefore, Ayres as guardian for the child. References to the plaintiff are to Ayres.

       General Statutes § 51-199 (c) provides in relevant part: “The Supreme Court may transfer to itself a cause in the Appellate Court. . .

       General Statutes § 52-572h(c) provides: “In anegligence action to recover damages resulting from personal ipjury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proxiniately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”

       See footnote 15 of this opinion.

       See footnote 15 of this opinion.

       Both tort reform acts modified § 52-572h (c) and require that negligent parties be held liable only for their proportionate shares of damages. See footnotes 5 and 9 of this opinion.

       Public Act 86-338, § 3 (c), amended General Statutes § 52-572h (c) and provided: “Unless otherwise provided by law, in a negligence action to recover damages for personal injury or wrongful death, accruing on or after the effective date of this act, if the damages are determined to be proximately caused by the negligence of more than one person, each person against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.” The effective date of the act was October 1, 1986. Public Act 86-338, § 17.
      An exception in subsection (g) of P.A. 86-338, § 3, directs the court to reallocate the amount of certain awarded damages that a claimant is unable to collect among the other parties according to their respective percentages of negligence.

       See footnote 9 of this opinion.

       As amended by Tort Reform II, General Statutes § 52-572h (c) now provides: “In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section.”

       This court stated in Champagne v. Raybestos-Manhattan, Inc., supra, 212 Conn. 520-21: “Substantive rights of the parties are fixed at the date upon which the cause of action accrued. ... In Connecticut, a cause of action accrues when a plaintiff suffers actionable harm. . . . Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant’s conduct caused such injury.” (Citations omitted; internal quotation marks omitted.)

       General Statutes § 1-1 (u) provides: “The passage or repeal of an act shall not affect any action then pending.”
      General Statutes § 55-3 provides: “Limitation of effect of certain acts. No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.”

       Tort Reform I provides in pertinent part “In any civil action, accruing on or after the effective date of this act, whether in tort or in contract, wherein the claimant seeks compensation for personal injury or wrongful death and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award by the total of all amounts paid to the claimant from all collateral sources which are available . . . .” Public Act 86-338, § 4.
      Tort Reform II provides in pertinent part: “(a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987 . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages ... by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section ....
      “(b) . . . the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
      “(c) . . . any amount which has been paid, contributed, or forfeited, as of the date the court enters judgment, by, or on behalf of, the claimant or members of his immediate family to secure his right to any collateral source benefit which he has received as a result of such injury or death.” General Statutes 52-225a.

      ’ Tort Reform I includes as collateral sources “any payments made to the claimant, or on his behalf ... by any person as compensation for personal injury or wrongful death attributable to the incident giving rise to the cause of action. . . .” Public Act 86-338, § 5. Tort Reform II redefined collateral sources by deleting the section quoted above and explicitly excluding settlement amounts as allowable deductions from damages awards. General Statutes § 52-225b provides: “ ‘Collateral sources’ defined. For purposes of sections 52-225a to 52-225c, inclusive: ‘Collateral sources’ means any payments made to the claimant, or on his behalf, by or pursuant to:

        (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services. ‘Collateral sources’ do not include amounts received by a claimant as a settlement.”

       Public Act 86-338, § 3 (modifying General Statutes § 52- 572h [c]). See footnote 9 of this opinion.

       See footnote 15 of this opinion.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .”

       Alcan asserts that he was entitled to the instruction on negligence of nonparties because he submitted a proposed interrogatory regarding the liability of other persons. Alcan’s assertion is inaccurate, however, because his interrogatory refers to the superseding negligence of other parties or persons, not to apportioning liability.

       In deciding the merits of a claim of evidentiary insufficiency, this court, since 1978, has looked to “the evidence and the pleadings in the whole record,” not merely to the evidence reproduced in the appendices to the briefs, as Alcan contends. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

       See footnote 20 of this opinion.

       The majority finds the deleted language unambiguous. See part IV of the majority opinion. If so, one might question why the legislature not only deleted the language, but also explicitly excluded settlements.

       Representative Jaekle spoke in opposition of the 1987 amendment, disagreeing with changes to the joint and several liability provisions of Tort Reform I, but spoke in favor of the 1987 amendment’s “good technical changes.” 30 H.R. Proc., supra, p. 5733.