text:
    Khosoro Malek Lashgari v. Simin Dokht Lashgari
    (12293)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.

      Argued May 1
    decision released August 13, 1985

      Charles L. Flynn, with whom, on the brief, was Howard A. Lawrence, for the appellant (plaintiff).

      James R. Greenfield, for the appellee (defendant).
   Arthur H. Healey, J.

This case essentially involves the question of whether the trial court, Hon. Joseph W. Bogdanski, state trial referee, erred when it determined that the plaintiff husband had not satisfied a judgment debt incurred from a valid and final judgment rendered by a court in this state, and, therefore, was not entitled to postjudgment relief. It is necessary to the disposition of the plaintiffs appeal to develop the underlying facts as found by the trial court.

In 1971, the plaintiff husband and the defendant wife, both Iranian nationals, married in Iran. A marriage contract was involved, and under it the plaintiff husband agreed to pay to the defendant wife a “mahr,” an obligation assumed pursuant to an Iranian marriage contract, in the amount of one million, two hundred thousand (1,200,000) rials, valued then at about $18,000 in American money. The plaintiff did not remit this amount to the defendant spouse at that time. Shortly thereafter, they came to the United States. The defendant returned alone to Iran in 1976, and, upon attempting to depart in order to rejoin the plaintiff in this country, she discovered that the plaintiff, under the laws of Iran, had denied her permission to leave that country. The defendant then authorized her father in Iran to enforce the collection of the “mahr.” Thereafter, she obtained a student visa and returned to the United States. In the interim, the established government in Iran was toppled and a change in administration occurred; subsequent events there are a matter of historical record.

The plaintiff, in 1979, instituted an action in Connecticut for dissolution of the parties’ marriage. The defendant counterclaimed seeking damages for the breach of the parties’ marriage contract. Meanwhile, as a result of the enforcement proceedings undertaken by the defendant in Iran and in accordance with Iranian procedure, real property owned by the plaintiff in Iran that was allegedly available to satisfy his debt under the “mahr” was made subject to “auction” there. At the trial before D. Dorsey, J., the plaintiff “called the court’s attention to the fact that the lien against his property in Iran was subject to forfeiture.” The trial court, D. Dorsey, J., rendered judgment on October 16, 1980, dissolving the marriage of the parties, and, notwithstanding the plaintiff’s claims that his property in Iran would satisfy his debt under the “mahr,” the trial court also rendered judgment awarding the defendant damages in the amount of $15,789.47 on her counterclaim for breach of the marriage contract. From this judgment the plaintiff took no appeal.

Subsequent to a reargument by these parties, the trial court, D. Dorsey, J., on December 22, 1980, modified its earlier judgment involving the defendant’s counterclaim as follows: “Judgment modified to the extent that the parties shall cooperate in arranging [for] sale of real estate owned by the plaintiff which is subject to defendant’s lien in Iran and the net proceeds of such sale, when paid by the plaintiff to the defendant, shall be credited against the balance of any remaining judgment debt of the second count [of the defendant’s counterclaim].” (Emphasis added.) The plaintiff also did not appeal from this modification of the earlier judgment.

Contrary to the terms of the modified judgment, the plaintiff did not arrange for a sale of his Iranian property. Instead, as the trial court found, he “arranged for the removal of the lien by paying a sum of money into the Bank of Iran, in effect substituting a bond for the attached property.” On October 6,1981, agovernmental certificate was issued in Iran stating that the debt had been “totally discharged” by members of the plaintiffs family and that it was now the defendant’s obligation to claim payment. No money was paid in this country by the plaintiff to the defendant on account of the “mahr” debt. The defendant did not seek payment of her claim in Iran. Rather, on January 25,1982, she moved the trial court in Connecticut for an order to collect on the unsatisfied Connecticut judgment involving the debt on the “mahr.” The plaintiff, on March 30,1982, filed an “application for a rule to show cause” requesting the following alternative relief: “(1) that the defendant be barred from executing on the judgment; (2) that the court find that the indebtedness under the marriage contract had been fully paid; (3) that satisfaction in Iran constitutes satisfaction of the United States cause [of action]; (4) that a declaratory judgment enter to the effect that payment of the marriage debt in Iran is payment of the same debt upon which [the Connecticut] judgment was rendered; (5) that a permanent injunction issue restraining the defendant from executing upon her judgment, and (6) such other relief as in equity may appertain.” In response to the plaintiff’s thirty-three paragraph application for a rule to show cause, the defendant filed an “Answer” to each of these paragraphs. The defendant contended, inter alia, that the plaintiff’s attempt to enjoin enforcement of the judgment debt was “nothing more than a collateral attack on the judgment on . . . matters which should have been raised on appeal or which could have been raised at the time of trial.”

The trial court, Hon. Joseph W. Bogdanski, state trial referee, denied the relief sought by the plaintiff’s application for a rule to show cause. In its memorandum of decision, the court reasoned that it was the plaintiff who had first applied to the Connecticut court for a dissolution of the parties’ marriage and, having invoked Connecticut’s jurisdiction over the parties and the marriage, he “was presumed to know that the wife had the right to file an answer to his complaint, and, by way of [counterclaim], seek relief for herself.” Moreover, as the trial court further noted, the plaintiff “had every opportunity” to defend against the defendant’s counterclaim in the dissolution action and the plaintiff did not appeal the judgment rendered in that action. The trial court also found that “the plaintiff, instead of taking advantage of the modification [of December 22, 1980,] which called for a cooperative sale of the land in Iran to permit payment to the defendant, frustrated that sale. The plaintiff now knows that the defendant cannot return to Iran, and that she cannot take the money out of Iran and bring it to the United States. She has, however, formally offered to release all her claims to the money which could then be returned to the plaintiff’s family who put up the funds.” Finally, the trial court expressly rejected the plaintiff’s claim that the trial court “should accept the actions of the notarial office in Iran as satisfaction of the judgment of the Connecticut court.” Treating the plaintiff’s argument as one involving comity, the trial court took judicial notice “of the relations now existing between the two countries” and ruled that the “granting of comity to an Iranian rule at this time would not be in the best interests of the United States.”

In his appeal from the trial court’s decision denying his application for relief from enforcement of the Connecticut judgment against him, the plaintiff raises a cluster of claims that all primarily involve the question of whether the plaintiff, through the purported actions taken on his behalf in Iran to make “available” there funds for the defendant, has satisfied that Connecticut judgment. On appeal, the defendant counters that “most of the issues raised by the plaintiff-appellant in his briefs are questions which were or might have been presented and determined by the court in the original trial” and the plaintiff is therefore barred from raising them in this subsequent action. The defendant further argues that, even if the plaintiff were not barred by the final judgment from raising the issues he pursues, the claims are without merit. We find no error.

As a preliminary matter, we address first the scope of our review of this appeal. It is true that we generally review a case on the theory upon which it was tried and decided in the trial court. See, e.g., Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985); Maltbie, Conn. App. Proc. § 42. It is equally true that we need not address other issues raised on appeal if the trial court has correctly decided an issue that is sufficient to sustain the judgment. See Guglielmo v. Klausner Supply Co., 158 Conn. 308, 314, 259 A.2d 608 (1969); Gryskiewicz v. Morgan, 147 Conn. 260, 159 A.2d 163 (1960); Silverman v. Swift & Co., 141 Conn. 450, 107 A.2d 277 (1954); Maltbie, supra, § 340 and cases cited therein; see also Commissioner of Finance & Controls. Whitfield, 35 Conn. Sup. 622, 624, 403 A.2d 709 (1978). In the present case, the trial court’s determination that the plaintiff did not satisfy the terms of the modified judgment rendered by D. Dorsey, J., was not in error and this holding is determinative of the plaintiff’s appeal.

The construction of a judgment is a question of law for the court. See 49 C. J.S., Judgments § 436; see also Grasso v. Frattolillo, 111 Conn. 209, 212, 149 A. 838 (1930); see generally Jordan, Marsh & Co. v. Patterson, 67 Conn. 473, 479, 35 A. 521 (1896). As a general rule, judgments are to be construed in the same fashion as other written instruments. Scoville v. Scoville, 179 Conn. 277, 282, 426 A.2d 271 (1979) (Healey, J., dissenting); Grasso v. Frattolillo, supra, 212; 46 Am. Jur. 2d, Judgments § 73; 49 C.J.S., Judgments, supra; 3 Stephenson, Conn. Civ. Proc. (Tait & Adomeit 1978) § 351e. “ ‘The determinative factor is the intention of the court as gathered from all parts of the judgment.’ ” Scoville v. Scoville, supra; 3 Stephenson, supra. “The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. Christiano v. Christiano, 131 Conn 589, 592, 41 A.2d 779 [1945].” Garguilo v. Moore, 156 Conn. 359, 365, 242 A.3d 716 (1968); Nauss v. Pinkes, 2 Conn. App. 400, 411, 480 A.2d 568 (1984); see also Viglione v. Viglione, 171 Conn. 213, 217, 368 A.2d 202 (1976); 46 Am. Jur. 2d, Judgments, supra; 49 C.J.S., Judgments, supra. “Effect must be given to that which is clearly implied as well as to that which is expressed.” Cooper v. Cooper, 158 N.W.2d 712, 713 (Iowa 1968), quoting Whittier v. Whittier, 237 Iowa 655, 663, 23 N.W.2d 435 (1946). “The judgment should admit of a consistent construction as a whole.” Riley v. Liquor Control Commission, 153 Conn. 242, 245, 215 A.2d 402 (1965).

In this action, the trial referee had reason to construe the prior judgment of the court, D. Dorsey, J., that had rendered judgment on the counterclaim in favor of the defendant, who was the “plaintiff” on the counterclaim. See Home Oil Co. v. Todd, 195 Conn. 333, 341, 487 A.2d 1095 (1985). Rendered following trial, the original judgment on the marriage contract was for $15,789.47. Judge Dorsey later modified that judgment, as stated above, to the effect that the “parties shall cooperate in arranging” a sale of the plaintiffs land in Iran and that “the net proceeds of such sale, when paid by the plaintiff to the defendant, shall be credited against the balance of any remaining judgment debt. . . . ” (Emphasis added.)

In the action tried before Judge Dorsey, the defendant’s counterclaim asserted a claim in contract for damages against the plaintiff. At that trial before Judge Bogdanski, the plaintiff testified that he knew of the “proceedings” undertaken in Iran at the time of the trial before Judge Dorsey and that he had so testified at that time. It was after the original dissolution judgment and after the “when paid” modification of that judgment on December 22, 1980, that the plaintiff claimed, as he argued in his brief and alleged in his pleadings, that “payment was made to or for the defendant, in the Spring of 1981” in Iran. His pleadings in the case before us allege that thereafter, in March, 1981, his Iranian attorney paid into the relevant Iranian governmental agency the debt owing to the defendant and that her Iranian attorney was so notified. His pleadings also allege that later in 1981 the defendant, acting by her Iranian attorney, “sought delay” concerning collecting the alleged payment in Iran pending the outcome of the United States action against her. The defendant maintains that since the original Connecticut judgment before Judge Dorsey, in October, 1980, she has not sought collection of any of the funds in Iran. She testified before Judge Bogdanski that, when the matter of the Iranian land came up, “I told [Judge Dorsey] that I would release the land and I will cooperate in selling the land.” She also stated that she was still prepared to release the funds that are being held there and would sign any document necessary to return those funds to the plaintiff. The memorandum of decision in this case expressly recognizes that the plaintiff’s claims were rejected by Judge Dorsey’s judgment. The events that occurred after Judge Dorsey’s modification that the plaintiff now claims constituted payment were argued to Judge Bogdanski.

In rendering the modified judgment as described above, Judge Dorsey expected the parties to “cooperate” in arranging to sell the plaintiff’s land in Iran and ordered that the “net proceeds of such sale” would be credited to the judgment debt “when paid by the plaintiff to the defendant.” (Emphasis added.) Under the circumstances, and as found implicitly by the trial court in the present action, Judge Dorsey, having heard the parties at both the trial and modification hearing, clearly contemplated that the funds from the disposition of the plantiff s property in Iran had to be paid here to the defendant who had taken up residence in this country. Judge Bogdanski found that such payment had not been accomplished and that the plaintiff had merely taken steps in Iran to make available money that the defendant supposedly could claim from the governmental depository in Iran. As we stated above, the trial court concluded that the plaintiff was aware that the defendant could not realistically return to Iran and that, even if she could have returned, the money could not be removed from Iran. Because the plaintiff had not taken steps to ensure payment in this country of the judgment debt, the trial court concluded, inter alia, that the Connecticut judgment had not been satisfied and denied the plaintiffs request for equitable relief. “The satisfaction of a judgment refers to compliance with or fulfillment of the mandate thereof.” 47 Am. Jur. 2d, Judgments § 979. There is realistically no substantial difference between the words “paid” and “satisfied” in the judgment context. See Ex parte Krouse, 148 Cal. 232, 233, 82 P. 1043 (1905). We hold that this conclusion, supported by the record and the facts found in the trial court’s memorandum of decision, is not clearly erroneous. Practice Book § 3060D; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

If the plaintiff, prior to initiating this action, had any doubt regarding the terms of the modified judgment, he could have requested articulation by the trial court. See Fuessenich v. DiNardo, 195 Conn. 144, 157, 487 A.2d 514 (1985). This the plaintiff did not do. If the plaintiff was dissatisfied with either the original or the modified judgment, he could have then directly appealed in each instance, which he also did not do. The general rule is that a party may not attack collaterally in a postjudgment action a judgment from which he or she has not taken an appeal. Glemboski v. Glemboski, 184 Conn. 602, 606, 440 A.2d 242 (1981); Nikitiuk v. Pishtey, 153 Conn. 545, 219 A.2d 225 (1966); Milestan v. Tisi, 140 Conn. 464, 472-73, 101 A.2d 504 (1953); see Jenkins v. Bishop Apartments, Inc., 144 Conn. 389, 132 A.2d 573 (1957); see also Pearce v. Olney, 20 Conn. 543 (1850). The plaintiffs postjudgment claim of payment necessarily had to fail unless the plaintiff complied with the terms of the modified judgment, a judgment from which he elected not to appeal.

Because our disposition is determinative of this entire appeal, we need not address the various other claims raised by the plaintiff.

There is no error.

In this opinion the other judges concurred.

       The plaintiff’s brief refers to a number of “facts” in this case which the trial court did not find as facts. We have said that although our rules of practice have changed and we no longer have findings of fact as we did prior to the change, “ ‘[a] reference made merely in the “statement of facts” in the brief, without support in the finding [in the trial court’s memorandum of decision], does not constitute a fact in the case.’ . . Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983), quoting Windham Community Municipal Hospital v. Willimantic, 166 Conn. 113, 123 n.6, 348 A.2d 651 (1974).

       See generally Dames & Moore v. Regan, 453 U.S. 654, 662-66, 101 S. Ct. 2972, 69 L. Ed. 2d 918 (1981); New England Merchants National Bank v. Iran Power Generation & Transmission Co., 502 F. Sup. 120, 122 (S.D.N.Y. 1980), rem’d for further proceedings, 646 F.2d 779 (2d Cir. 1981), on remand, 518 F. Sup. 69 (S.D.N.Y.), rev’d, 657 F.2d 3 (2d Cir. 1981).

       Although the parties and the trial court refer to the defendant’s claim as a “cross complaint,” it is under our practice rules a counterclaim. See
        Home Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985); see also Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 531 n.2, 494 A.2d 555 (1985).

       The trial court, Hon. Joseph W. Bogdanski, state trial referee, specifically found that the defendant was “not seeking payment of the claim in Iran and is prepared to sign a release [to that effect] to the plaintiff. She seeks payment only of the judgment of this court.” The trial court further found that the “plaintiff now knows that the defendant cannot return to Iran, and that she cannot take the money out of Iran and bring it to the United States.” We find support for these conclusions in the record.

       These various claims of the plaintiff include that the trial court, Hon. Joseph W. Bogdanski, state trial referee, erred in failing: to find the plaintiffs debt was discharged; to apply the law of “election of remedies”; to treat records as certified copies of official records of the Iranian Ministry of Justice; to find that enforcement of the modified judgment would be inequitable to the plaintiff; to find that the defendant was bound by the transactions that occurred in Iran where she initiated collection of the “mahr”; and to grant comity to Iranian law and procedure. The plaintiff also claims error in the trial court’s finding of fact regarding the “removal of a lien” on the plaintiffs Iranian property and in its conclusion of law that the “language of the modification of the judgment . . . ‘required’ that the plaintiff sell the land in Iran.” The plaintiff also asserts that the trial court did not “enter its decision upon the evidence” but rather did so “upon what appears to have been a predisposition relative to the matter in question.” Because our disposition of this appeal rests on the grounds that the record adequately supports the trial court’s conclusion that the modified judgment rendered by Judge Dorsey had not been satisfied by the plaintiff, we address directly in our decision only those issues that specifically relate to our holding. Regarding the plaintiff’s claim in his brief of “predisposition” on the part of the trial court, we note that our review of the record indicates that this assertion is unsubstantiated and lacking in any support. See Cameron v. Cameron, 187 Conn. 163, 444 A.2d 915 (1982). The trial of this matter occurred over the course of two days, during which time plaintiff’s trial counsel, who also is his appellate counsel, gave no indication that he believed that Judge Bogdanski should not decide this matter. Accordingly, we conclude this assertion is without support in fact or in law. We should also note that both counsel for the parties on this appeal also represented the parties in the dissolution action before Judge Dorsey, as well as in the action before Judge Bogdanski, from which this appeal before us was taken.

       The defendant testifed at trial that her father, who had “some official capacity in Iran under the regime of the Shah,” was no longer alive. Neither the plaintiff nor the defendant have returned to Iran since the change of government there in 1979.
      After taking judicial notice “of the relations now existing” between the United States and Iran, the trial court ruled that comity would not be given to an “Iranian rule” in this matter. Relying on Fletcher v. Peck, 10 U.S. (6 Cranch.) 87, 3 L. Ed. 162 (1810), for the proposition that state courts are bound by federal law, including treaties, the plaintiff argues that the granting of comity is not discretionary in the face of an existing federal treaty between the two concerned nations. The defendant, however, asserts the vitality of Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895), in arguing for the proposition that the principle of comity is a matter of discretion and is based “fundamentally on the concept of reciprocity.” While we are aware that the purported demise of the federal common law in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), and the refusal of some state courts to follow the reciprocity rule of Hilton; see, e.g., Johnston v. Compagnie Generale Transatlantique, 242 N.Y. 381, 152 N.E. 121 (1926); may have curtailed the vitality of Hilton v. Guyot, supra; see 2 Beale, Conflict of Laws (1935) § 434.2; Restatement, Foreign Relations Law of the United States (Revised) § 491, comment a and Reporters’ Notes 1 (tent, draft no. 4 1983); Peterson, “Foreign Country Judgments and the Second Restatement of Conflict of Laws,” 72 Colum. L. Rev. 220, 223-24, 233-38 (1972); von Mehren & Trautman, “Recognition of Foreign Adjudications: A Survey and A Suggested Approach,” 81 Harv. L. Rev. 1601, 1607 (1968); we need not address this issue because of the basis of our disposition of this appeal. We have previously recognized the flexibility of the comity doctrine with its underlying concern for fairness to the parties; Hao Thi Popp v. Lucas, 182 Conn. 545, 550, 438 A.2d 755 (1980); and we at least have acknowledged the reciprocity principle. Presutti v. Presutti, 181 Conn. 622, 629, 436 A.2d 299 (1980).

         We need not rest our resolution of this matter on the defendant’s contentions that the present action is an impermissible collateral attack on a valid final judgment; see, e.g., Meinket v. Levinson, 193 Conn. 110, 474 A.2d 454 (1984); Glemboski v. Glemboski, 184 Conn. 602, 440 A.2d 242 (1981); and is barred by the doctrines of former adjudication; see, e.g., In re Juvenile Appeal (83-DE), 190 Conn. 310, 460 A.2d 1277 (1983); Lehrman v. Prague, 115 Conn. 484, 162 A. 15 (1932); although the trial court implied that such contentions had merit. See Hubbard v. Manning, Kirby 256 (1787) (matters that could have been pleaded in the original action cannot be pleaded to a scire facias).
      The plaintiff suggests that “[i]t is possible to construe the complaint . . . [in this action] as a common law writ of audita querela” and that the suit was therefore properly brought. The plaintiffs “complaint,” however, seeks relief in the form of a declaratory judgment, a permanent injunction, and “such other relief as in equity may appertain.” The ancient writ of audita is, as the plaintiff states, one of legal rather than equitable origin. See RusseU

        Lumber Co. v. Smith & Co., 82 Conn. 517, 74 A. 949 (1909); 7 Am. Jur. 2d, Audita Querela § 1. Because the plaintiff did not distinctly raise this claim in the trial court below, we need not address here the vitality of that writ in this case. Practice Book § 3063; see State v. Wojculewicz, 143 Conn. 118, 120, 119 A.2d 913 (1956); 7 Am. Jur. 2d, supra, § 2. See generally Burchett v. Roncari, 181 Conn. 125, 127, 434 A.2d 941 (1980); 2 Stephenson, Conn. Civ. Proc. (2d Ed. 1971) § 209.


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Joseph Girolamo
    (12342)
    (11622)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued May 3
    decision released August 13, 1985

      Jon L. Schoenhorn, with whom, on the brief, was Joseph Rubin, for the appellant (defendant).

      Susann E. Gill, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Kevin Kane, Timothy McNamara and Carl Schuman, assistant state’s attorneys, for the appellee (state).
   Arthur H. Healey, J.

The defendant has appealed from convictions after two separate criminal trials. The defendant was convicted by a jury, in May, 1982, of two counts of theft of a firearm in violation of General Statutes § 53a-212 and of fourth degree larceny by receiving stolen property in violation of General Statutes §§ 53a-119 and 53a-123. In a separate jury trial in June, 1982, the defendant was convicted of two counts of conspiracy to commit first degree larceny in violation of General Statutes §§ 53a-48 and 53a-122 and of first degree larceny in violation of General Statutes §§ 53a-119 and 53a-122.

Although the claim of error raised by the defendant in his appeal from each trial rests on its own merits, the appeals were consolidated as certain pretrial motions and the sentencing proceedings were conducted jointly.

I

Docket No. 12342: May, 1982 Conviction

The defendant’s first claim of error with respect to the May, 1982 trial is the admission by the trial court into evidence of two automatic handguns which were not relevant to any issue before the jury. The state concedes that the trial court erred in admitting the guns because the guns were not relevant to the issues in the case. The state argues, nevertheless, that the error does not require reversal because the defendant has not sustained his burden of proving harmfulness.

This first trial centered on charges arising out of the seizure of two “showpiece” magnum handguns and a television set, items that had been reported to the police as stolen during burglaries in 1979. These items were found in the defendant’s home when searched under a warrant in February, 1980.

It was during the same police search that revealed these stolen items that the two automatic handguns, rightfully in the defendant’s possession, were also discovered. All of the handguns that were found were seized for the protection of the officers according to the testimony of police officers at trial.

The introduction into evidence of the automatic handguns, a .25 caliber Colt and .380 caliber Lama, occurred despite two motions by the defendant to suppress. The first motion to suppress the guns, as well as other items seized during the search, alleged that the warrant for the search of the defendant’s house was issued without probable cause. The motion was denied without prejudice on March 23, 1982. The defendant renewed his motion to suppress just prior to his trial in May, 1982, and a full evidentiary hearing was held. At this hearing, the police officers who conducted the search were questioned as to the scope of the search. In addition, the departmental police policy of seizing any guns found during a search for the safety of the officers involved was explored extensively by both sides. The trial court denied the second motion to suppress on May 12, 1982.

At trial, the state did not attempt to introduce the two automatic weapons in question until after the defendant’s counsel cross-examined one of the investigating officers. During cross-examination the officer stated that there were guns, other than the two showpiece guns, on the defendant’s premises.

On redirect examination, the state continued and expanded the questioning of the police officer concerning the automatic weapons. The state then attempted to offer into evidence the .25 caliber Colt pistol the police officer identified as one of the two guns found in the defendant’s bedroom. The defendant objected and the jury was excused. The grounds of the defendant’s objection were that the automatic pistols were not related to the charges against the defendant and that these guns were immaterial, irrelevant and prejudicial. The objection was overruled on the ground that the “probative value [of the guns] outweighs the prejudicial effect.” The state then made an offer of proof that included the .380 caliber Lama automatic as well as the .25 caliber Colt automatic. Both automatic pistols were ruled admissible. After a discussion between the trial court and counsel, which was extraneous to this prior ruling, the trial court, sua sponte, reversed itself on the admissibility of the automatic pistols. In doing so, the court stated that the guns “have no direct relevance to the issues in the casé” and that to have them as “physical” exhibits in the case “gilds the lily” and “creates more of a prejudice than a probative value.” The jury then returned. The defendant’s counsel, on the recross-examination of the police officer, questioned him about his reasons for seizing unloaded guns. The officer again responded, as he had during the suppression hearing, that the departmental policy was to seize all guns for the “safety of the officers involved.”

Upon the second redirect examination of this officer by the state, he explained the instructions that the officers had been given concerning the seizure of handguns during searches. During this questioning, the discovery of the two loaded automatic pistols in the defendant’s bedroom was again developed. The state attempted for a second time to offer the two automatic handguns; the defendant objected for the same reasons of relevancy and prejudice. The trial court then ruled that the guns were now admissible because “at this point the probative value outweighs the prejudicial effect and because of the recross and redirect . . . . ” The defendant’s claim of prejudicial error arises out of this admission into evidence of the two automatic handguns as full exhibits.

The trial court, after the admission of the two automatic handguns as full exhibits, gave a limiting instruction to the jury about the purpose of the admission of the guns. The jury was told that the guns were only introduced to corroborate testimony that the guns were seized during the search for the safety of the police.

In conceding that the trial court erred in admitting into evidence the two automatic handguns, the state acknowledges that the error in the admission stems from the lack of relevancy of the automatic guns to the guilt or innocence of the defendant as to the pending criminal charges. According to the state, the automatic guns were probative only on the issue of the police officers’ motivations for the seizure of the guns during a search. The legality of the search is not, however, an issue in this appeal.

The dispositive issue, therefore, arising out of the defendant’s May, 1982 trial is whether the error of the trial court in admitting into evidence the two automatic handguns seized in connection with the stolen guns was harmful error. We hold that it was.

“This court has consistently indicated that ‘ “ ‘[a]ny improper evidence that may have a tendency to excite the passions, awaken the sympathy, or influence the judgment, of the jury, cannot be considered as harmless.’ ” State v. Loughlin, 149 Conn. 21, 26, 175 A.2d 367 [1961]; see State v. Acklin, [171 Conn. 105, 115-16, 368 A.2d 212 (1976)]; State v. Ferraro, [160 Conn. 42, 45, 273 A.2d 694 (1970)].’ State v. Onofrio, 179 Conn. 23, 32-33, 425 A.2d 560 (1979).” State v. Williams, 190 Conn. 104, 109, 459 A.2d 510 (1983); see also St. Martin v. New York, N.H. & H. R. Co., 89 Conn. 405, 411, 94 A. 279 (1915).

The jury had before it, during the trial as well as during deliberations in the jury room, the two automatic weapons, each with clips with a number of live rounds of ammunition. Additionally, the police officer who testified to the seizure of the weapons had demonstrated to the jury, using the .25 caliber Colt handgun, the ease with which a user of the gun could put a shell into its chamber. Another police officer testified, prior to the offer of the automatic guns into evidence and without objection by the defendant, to the discovery of the two loaded automatic weapons during the search of defendant’s house. Although this testimony was admitted without objection, it was not, as the state claims, “merely cumulative.” Rather, with the introduction of the irrelevant guns as demonstrative evidence, at the very least the jury could have believed that the defendant was a violent individual. State v. Ferraro, supra, 46; cf. State v. Villafane, 171 Conn. 644, 675-76, 372 A.2d 82, cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977).

The trial court’s attempt to cure the error of its admission by a limiting instruction was not sufficient to overcome the prejudicial effect of the weapons as a full exhibit. The limiting instruction informed the jury that the automatic weapons were not claimed by the state to have been stolen and that there was nothing illegal about the defendant’s possession of these guns in his house. The jury was told not to draw any inference of guilt from the defendant’s possession of these weapons but merely to consider them as corroborative of the officer’s testimony that the guns were seized for the “safekeeping” of the officers. We have stated, however, that “a curative instruction is not inevitably sufficient to overcome the prejudicial impact” of inadmissible evidence. State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980); see State v. Binet, 192 Conn. 618, 633, 473 A.2d 1200 (1984).

The jury was still left with the tangible exhibits, i.e., the automatic handguns, in the jury room while deliberating the charges brought against the defendant. “Real proof often has enormous apparent probative force because the lay trier may lose sight of the fact that its connection to a party may depend upon the credibility of an authenticating witness”; 5 Weinstein, Evidence (1982) § 901 (a) [01]; or, as in this case, is not relevant to the innocence or guilt of the defendant. In addition, “the sight of deadly weapons . . . tends to overwhelm reason and to associate the accused with the [crime] without sufficient evidence.” 4 Wigmore, Evidence (Chadbourn Rev. 1972) § 1157, p. 340. For these reasons, especially in view of the irrelevance of the two automatic guns to the charges against the defendant, we cannot say that the error was harmless. Although the trial court is ordinarily allowed wide discretion in admitting evidence, that discretion is not without limits. See State v. Onofrio, 179 Conn. 23, 425 A.2d 560 (1979), and State v. Acklin, 171 Conn. 105, 368 A.2d 212 (1976). Both Onofrio and Acklin involved the erroneous introduction into evidence of physical exhibits, masks and ropes in Acklin, and photographs of guns in a room in the defendant’s house in Onofrio, which were irrelevant to the main issues in those cases. See also State v. Williams, 182 Conn. 262, 269-70, 438 A.2d 80 (1980) (error to admit into evidence a gun when there was no evidence to show that a deadly weapon had even been used in the commission of the robbery); State v. Groos, 110 Conn. 403, 148 A. 350 (1930) (a roll of false money bearing resemblance to paper money as well as “obsolete” Polish money introduced as exhibits at trial constituted reversible error when no justification was found for the admission of the exhibits).

The court erred in admitting the automatic guns into evidence, and under the circumstances the error cannot be considered harmless.

II

Docket No. 11622: June, 1982 Conviction

The defendant’s second claim, arising from his June, 1982 trial, is that the trial court erred in admitting a police officer’s rebuttal opinion testimony because it was not based on an adequate foundation. The claim is without merit.

The jury could reasonably have found the following facts. The state’s witness, Marc Manns, and his two companions, Steven Almeida and Joseph Dillard, met with the defendant to discuss a plan to rob a jewelry store. The defendant told the three companions that they should take “one, two, three carat jewels” and suggested that they choose jewelry stores in smaller suburban towns. Almeida and Dillard asked for $150 so that they could buy drugs before they attempted the robbery. After first stopping to purchase heroin and cocaine and to steal a car, the trio robbed a jewelry store in Plainville. After the robbery, the trio returned with the jewelry to Manns’ mother’s house in New Britain and then proceeded to the defendant’s residence to sell him the jewelry stolen in Plainville. After some discussion, the defendant agreed to give each of the trio $1000 for the jewelry but was unable to pay them the full amount that evening. Manns went alone to the defendant’s place of business the next day to sell some jewelry he had withheld on the day before and to collect the amount remaining on his $1000 payment.

Manns, Dillard and Almeida again met with the defendant, a few days after the Plainville robbery, to get a gun to use in a jewelry store robbery the three men planned to commit in New London. Dillard and Almeida needed money because they no longer had the money that they had received from the defendant for the Plainville robbery. The defendant gave Dillard a Luger pellet gun in response to their request for a gun to use in the robbery. The defendant told them to be careful and to take “one, two, three carat jewels” because the other merchandise, regardless of the price tag on it, “doesn’t have much value on it.” The second robbery was committed on July 24, 1981, in New London, and $144,000 worth of jewelry was taken. The trio then went to the defendant’s house to sell approximately one-half of the jewelry taken in the robbery, as they believed that he had not dealt fairly with them when they sold him the merchandise stolen in the Plain-ville robbery. The defendant discussed with them a payment of $3500 for each of the trio, but the full amount was never paid.

The primary issue in this appeal arises out of the testimony of Manns, the state’s key witness. Manns’ testimony provided most of the specific information in the trial about the involvement of the defendant with Manns, Dillard and Almeida. On direct examination, Manns stated that the motives for the robberies and the sale of the jewelry to the defendant were to “raise capital” for himself and to get money to support Dillard’s and Almeida’s drug habits. Manns specifically denied that he ever sold drugs or that he used any drugs other than marijuana.

On cross-examination, the defendant attacked Manns’ credibility and attempted to rebut Manns’ claims that he did not use or sell drugs. The defendant introduced evidence through two witnesses, Roger Pina and Eric Baldwin, that Manns was involved with drugs. Pina, who had a prior felony conviction, said that he had known Manns for “about maybe fifteen years,” and that he was “a liar.” Pina also testified that Manns was “one of the biggest” drug dealers in New Britain that he had “seen in twenty years” and that consequently he often had large sums of money. Pina stated that Manns made “way over” $5000 a day in drug trafficking and that he made “close to three-quarters of a million [dollars] within a period of maybe seven months, eight months.” Pina also testified that Manns sold drugs to Almeida and Dillard, his companions in the jewelry store robberies. In addition, Pina testified that Manns frequently used cocaine.

The defendant also introduced the testimony of Eric Baldwin, who stated that Manns used to sell and use drugs. He said that during 1981 Manns was “the biggest [dope dealer] in New Britain” and that Manns was considered a “liar.” Baldwin also testified that Manns supplied drugs to both Almeida and Dillard.

The state, in an attempt to rebut the testimony of the defendant’s witnesses concerning Manns’ drug dealings, called Trooper Angelo Tosi of the Connecticut state police. Tosi testified that he had been a state trooper for over seventeen years and that his present assignment was as “the Intelligence Officer of the [Statewide Narcotics] Task Force.” He had been the intelligence officer for five years at the time of trial. He had spent approximately sixteen years of his seventeen years actively involved in narcotics investigation.

The state elicited from Tosi a detailed description of his employment duties and functions. Tosi testified that he received both documented and undocumented intelligence information. Tosi described the nature and type of sources for the two types of information that he received. He specifically stated that he had sources or informants, documented and undocumented, who gave him information from the city of New Britain.

In response to the state’s inquiry, Tosi stated that he would classify a heroin dealer who does $5000 worth of business a day as a “major heroin trafficker and by this I mean an individual who is in the top echelon of narcotic trafficking in Connecticut.” Expanding upon this line of questioning, the state then asked: “Based on your training and experience, do you have an opinion as to whether or not a heroin dealer who operates at that level can operate at that level for a period of two or three months without your receiving some intelligence information about him?” The defendant objected to this question, claiming that there was no foundation for it and that it was a “question which could be answered many, many ways and calls for a conclusion on his part.” The state argued that it was the defense who had brought into the case that Manns was a heroin dealer doing in excess of $5000 a day. The objection was overruled, an exception was taken and Tosi answered, “Highly unlikely.”

The state further asked Tosi if his intelligence files contained any information on Manns in New Britain. The question was not objected to by the defendant. Tosi answered, “Negative. I have no information whatsoever on that particular individual.” The defendant claims error in the admission of the opinion testimony of Tosi and of his negative knowledge testimony, arguing that it was “extremely damaging” to his claim, presented through Baldwin and Pina, that Manns was “a major heroin dealer.”

The defendant first claims that there were “glaring and severe” deficiencies in the foundation that was laid by the state for Tosi’s expert testimony. “Whether a witness is qualified to testify as an expert is a matter largely within the trial court’s discretion.” State v. Wallace, 181 Conn. 237, 241, 435 A.2d 20 (1980); Oborski v. New Haven Gas Co., 151 Conn. 274, 280, 197 A.2d 73 (1964). “ ‘[U]nless that discretion has been abused or the error is clear and involves a misconception of the law,’ ” its ruling will not be disturbed. (Citation omitted.) Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976).

“The true test for the admissibility of expert testimony is ‘whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.’ ” Schomer v. Shilepsky, 169 Conn. 186, 191, 363 A.2d 128 (1975), quoting Taylor v. Monroe, 43 Conn. 36, 44 (1875); see State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); 7 Wigmore, Evidence (Chadbourn Rev. 1978) § 1923. “The test for admissibility is not limited to matters of scientific knowledge.” State v. Palmer, supra, 191. “In any event, if reasonable qualifications are established, objections go only to the weight to be given to the witness’ opinion rather than to its admissibility.” State v. Wallace, supra, 241; Oborski v. New Haven Gas Co., supra, 280.

The record reveals that Tosi had in-depth knowledge of narcotics trafficking in Connecticut. He had “peculiar . . . experience, not common to the world”; Taylor v. Monroe, supra; that could aid the jury in determining a disputed theory in the trial — whether Manns used and sold drugs on the scale claimed. Tosi had acquired personal knowledge of the subject of his testimony from his sixteen years’ experience as a narcotics investigator. In addition, he was in a superior position, as the intelligence officer of the statewide narcotics task force, to gain expertise and experience in his field of specialty. That background, experience and training was sufficient to support Tosi’s qualifications as an expert.

The defendant argues that the trial court erred in the admission of Tosi’s “negative knowledge” opinion. There was an adequate foundation for Tosi’s opinion. “It is well settled that negative testimony is admissible where the attending circumstances are such as to show that it has some probative force, provided the competency of the witness and his knowledge of the matter of which he speaks are established.” 29 Am. Jur. 2d, Evidence § 258. Wigmore states that the only requirement for the use of negative knowledge testimony is that “the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred.” (Emphasis in original.) 2 Wigmore, Evidence (3d Ed. 1940) § 664. The competency of. Tosi and his extensive knowledge of drug operations in Connecticut were sufficient to infuse his “negative knowledge” testimony with probative force. Tosi’s job placed him in a situation to receive and analyze extensive information that would include possible data on Marc Manns as a drug trafficker. The fact that Tosi’s search of his files did not reveal Manns to be a drug trafficker was not admitted as evidence of the defendant’s guilt but rather to prove the nonexistence of any drug activity of Manns. Tosi’s “highly unlikely” statement was admissible as some evidence on the disputed subject of Manns as a drug trafficker in New Britain.

Moreover, the defendant’s extensive cross-examination of Tosi served to explore thoroughly the scope and nature of the informational data available to Tosi. The defendant fully exercised his right to cross-examine Tosi and therefore to expose to the fact-finder any weaknesses in his testimony on direct examination. The defendant’s claim of prejudice from the admission of Tosi’s testimony lacks merit, and he has not sustained his burden of demonstrating prejudice on this nonconstitutional claim. Mann’s testimony, which the jury appears to have credited, while key, was not the only significant evidence against the defendant. For example, the testimony of Esther Johnson, Manns’ alleged girlfriend, corroborated his testimony in several important respects during her extensive examination, which constituted almost one day at the trial. The testimony of Tosi, which was properly admitted, had nothing to do with the actual guilt or innocence of the defendant but instead concerned the credibility of Manns as attacked by the defense, particularly through the witnesses Pina and Baldwin. Tosi’s testimony thus went to credibility in a trial in which a crucial issue was the credibility not only of these witnesses but also of other witnesses produced by both the state as well as the defense. Moreover, the state adduced evidence that, if believed, constituted a strong case against the defendant. The trial judge, at the time of sentencing, said that the evidence appeared to have been “overwhelming.” In admitting Tosi’s expert testimony, the court’s ruling neither abused its wide discretion nor involved a misconception of the law. State v. Palmer, supra, 166; see State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).

Finally, the defendant claims that he did not receive effective assistance of counsel. Although conceding that “claims of ineffective assistance of counsel can seldom if ever be properly considered on direct appeal,” he asserts this claim on direct appeal “in order to avoid a later claim of ‘deliberate bypass.’ ”

An ineffective assistance of counsel claim requires the defendant to make a two-component showing: “that trial counsel’s performance was not reasonably competent or within the range of ordinary training and skill in the criminal law, and that trial counsel’s lack of competence contributed to the defendant’s conviction.” (Citations omitted.) State v. Rivera, 196 Conn. 567, 570, 494 A.2d 570 (1985); see also Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985); Williams v. Manson, 195 Conn. 561, 564, 489 A.2d 377 (1985). The record on direct appeal, of course, “rarely reveals the strategic reasons” underlying the trial tactics taken by defense counsel. State v. Rivera, supra; see also State v. Tirado, 194 Conn. 89, 92, 478 A.2d 606 (1984). That applies here. As we have recently stated: “When the claim of inadequate counsel is joined with other substantive and procedural claims of error, it is often difficult to make a judgment about the extent to which inadequate counsel has implicated the outcome of the criminal conviction. For that reason, it will ordinarily be necessary to await exhaustion of the direct appeal before the claim of ineffective assistance can be pursued on a petition for habeas corpus.” State v. Rivera, supra, 571 n.1.

In this case (Docket No. 11622), the defendant cites eleven instances of trial conduct, most of which have no relation to his claim on direct appeal, that support his ineffective assistance of counsel claim. Thus, although the defendant properly joined all his claims of error together in this appeal, we decline to address this claim on direct appeal; it is for the defendant to decide if he wishes to pursue his ineffective assistance of counsel claim in an appropriate collateral action.

There is error on the defendant’s appeal in the first case (Docket No. 12342), the judgment is set aside and a new trial is ordered.

There is no error on the defendant’s appeal in the second case (Docket No. 11622).

In this opinion the other judges concurred.

       Although these cases were tried separately, one in May, 1982, and the other in June, 1982, the defendant was sentenced on all these convictions at the same time in September, 1982, by the court, Borden, J. The defendant received a sentence of one year imprisonment for each of the two counts, the terms to run concurrently, in the May, 1982 convictions (Docket No. 12342). (The transcript indicates that the defendant also received a $1000 fine, although the record states that the fine was $1000 for each count. In view of our disposition of the appeal, this discrepancy is not critical.) In the May, 1982 convictions, the defendant also received a three month sentence to run concurrently with all sentences imposed and a $500 fine for the conviction of receiving stolen property. For the June, 1982 convictions (Docket No. 11622), the defendant received a three year prison sentence and a $7500 fine for each of the first two counts, the sentences to be consecutive; the defendant received an additional three year sentence to run concurrently with the other sentences. The court also assessed costs against the defendant.
      The total effective sentence received by the defendant in these cases was six years incarceration, a $16,500 fine, and costs. In light of our disposition of these appeals, the defendant’s effective sentence remains the same, but the fines are to be diminished accordingly.

       These automatic handguns were not the subject of any criminal charges brought against this defendant, and the state has never claimed that either of these handguns was held illegally by him.

       The state in Acklin did claim that the physical items were relevant to a claim of conspiracy. We labeled such a claim “at best, tenuous.” State
        v. Acklin, 171 Conn. 105, 115, 368 A.2d 212 (1976). In Onofrio, the state did not claim that “the weapons depicted in the photographs had anything whatsoever to do with the offense for which the defendant was being tried.” State v. Onofrio, 179 Conn. 23, 31, 425 A.2d 560 (1979). In both Onofrio and Acklin, we found error.

       The owner of the Plainville jewelry store that was robbed testified that the market value of the items taken in the robbery was $72,000 and that he settled with his insurance company for $34,000 less his $5000 deductible.

       The owner of the New London jewelry store that was robbed testified that the retail value of his merchandise that was stolen was $144,000 and that his cost was $75,000. These figures, he testified, did not include the value of customers’ merchandise that was also stolen.

       Neither Joseph Dillard nor Steven Almeida was a witness at the trial.

       Manns also testified that he needed money “for my benefit also.” There was evidence that law enforcement authorities in Connecticut were looking for Manns and that he had sold most of his home furniture.

       On direct examination of Pina by defense counsel, and with reference to about the first seven months of 1981, the following took place:
      “Q. Did [Manns] have a ready supply of heroin and cocaine?
      “A. He was one of the biggest ones I seen and I have been doing dope for twenty years, and he was one of the biggest in New Britain in twenty years. I have seen no bigger.
      “Q. Did his transactions involve thousands and thousands of dollars?
      “A. I would say Marc [Manns] made close to three-quarters of a million within a period of maybe seven months, eight months.
      “Q. Was he known to be the biggest drug dealer in New Britain?
      “A. One of the biggest, I would say, in twenty years. I seen guys go to New York, buy a little, make a little money and then they would quit. Like I said, Marc — I went to New York with Marc. I been in Harlem with Marc and I have been there. I seen. I’ve seen tables as big as the table at that State Attorney’s table full of dope with five or six people packaging dope.”
      On cross-examination of Pina, the following took place:
      “Q. You said Manns was the biggest drug dealer in New Britain?
      “A. Like I said, the biggest I seen in twenty years.
      “Q. He made five thousand dollars a day dealing drugs?
      “A. I would say he made more.
      “Q. How much would you say?
      “A. He had to make real good — I mean, way over five thousand, sir.
      “Q. Way over five? Way over how much?
      “A. Way over five thousand. I mean, I know drug addicts that was spending money like I was spending — if they were spending two hundred dollars a day and there is over thirty drug addicts in New Britain that I know of and they were doing just as much dealings and catching eases just like I was.”

       Tosi testified that documented information is “information that we can back up and substantiate through active investigations about either a particular individual, a particular organization, a ring of people that are involved in the trafficking of narcotics.” He testified that undocumented information is “information from the field that a particular individual is involved in narcotic trafficking or a particular individual is involved in the use of narcotics.”

       The record reveals that the defendant objected to the first question that was asked of Tosi by the state — whether in his opinion a high level drug trafficker could operate without his knowledge. The objection was overruled and an exception was taken. However, the next question the state asked Tosi, whether he had any information on Marc Manns of New Britain, was not objected to by the defendant. The state argued that an inquiry into the admissibility of this testimony was not an issue properly preserved on this appeal because the first objection was not a continuing objection. Nevertheless, the defendant’s objection to “the whole line of questioning,” a “continuing objection” which the trial court seemed to permit, is sufficient in this narrow context to preserve it for review on this appeal. State v. Jackson, 3 Conn. App. 132, 485 A.2d 934 (1985), is not apposite on the facts before us.

       For example, in the criminal context we have allowed a police officer to testify as an expert concerning the significance and meaning of markings on gambling policy slips; State v. DelVecchio, 145 Conn. 549, 553, 145 A.2d 199 (1958); see also State v. Johnson, 140 Conn. 560, 563, 102 A.2d 359 (1954); a police sketch artist to give his opinion with respect to the similarities and dissimilarities of the spatial features of the person depicted in the composite sketch he made to a photograph of the defendant, as well as a similar opinion with respect to the composite sketch and the defendant in the courtroom; State v. Palmer, 196 Conn. 157, 165-67, 491 A.2d 1075 (1985); the manner in which heroin was transported; State v. Grayton, 163 Conn. 104, 111, 302 A.2d 246, cert. denied, 409 U.S. 1045, 93 S. Ct. 542, 34 L. Ed. 2d 495 (1972); and on the habits of narcotics users. State v. Williams, 169 Conn. 322, 334, 363 A.2d 72 (1975).