author: Glass, J. Covello, J., with whom Callahan, J.,

text:
    Travelers Indemnity Company v. John Rubin et al.
    (13207)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued October 12
    decision released December 27, 1988

      Robert C. Danaher, for the appellant (plaintiff).

      Alexandra Davis, with whom, on the brief, was Richard S. Cramer, for the appellees (defendants).
   Glass, J.

The plaintiff, Travelers Indemnity Company, instituted this action to set aside a conveyance of real property owned by the defendant John Rubin to the defendant Linda Paul. The trial court rendered judgment in favor of the defendants. We find no error in that portion of the judgment in favor of Paul; there is error in that portion of the judgment in favor of Rubin, and as to him the judgment is set aside and remanded to the trial court for further proceedings.

The facts may be summarized as follows. In 1975, the plaintiff provided Rubin with insurance coverage on the Hofbrau Restaurant, which Rubin owned. To collect under the policy, Rubin vandalized the restaurant on April 28, 1975, and submitted a claim, which the plaintiff paid. The plaintiff, however, discovered the fraud and brought suit against Rubin on July 30,1980. On May 14,1984, the plaintiff was awarded a judgment in the amount of $236,968.78 against Rubin. This action is based on the plaintiffs effort to satisfy this judgment.

The property that is the subject of this action is located on Birch Mountain Road in Manchester. In 1974, Rubin and his wife at the time, Joan, purchased the property and executed a first mortgage to the Savings Bank of Manchester. Thereafter, Rubin engaged in an elaborate series of transactions involving the property. On July 13,1975, the Rubins gave a second mortgage to Northeast Financial Services, Inc., in exchange for a $10,000 loan. In that transaction, both parties were represented by Rubin’s attorney, Jacob Sobotka. Rubin also gave a third mortgage in the amount of $10,000 on the property to his mother, Rachel Green. The third mortgage was designed to act as a buffer between the second mortgage and encumbrances Rubin expected to be placed on the property. Rubin’s creditors subsequently placed encumbrances on the property.

Upon their divorce in 1976, Rubin’s wife Joan quit-claimed all her interest in the property to Rubin. Rubin met the defendant Paul in 1972. In 1975, they became romantically involved, and began living together the following year. The couple ultimately married in 1980. In 1977, a fire destroyed the house on the Birch Mountain Road property, and Rubin used the insurance proceeds to pay off the first mortgage. The second mortgage, held by Northeast Financial Services, Inc., was transferred to Mark and Bernice Sobotka, the parents of Rubin’s attorney. The Sobotkas then instituted a foreclosure action. Their son engaged an appraiser and hired the law firm of Brody & Jump to handle the foreclosure. When the property was strictly foreclosed, attorney Sobotka directed transfer of title to Paul. On December 27,1978, Paul executed a mortgage and note to Sobotka as trustee for the foreclosure debt. The house was later rebuilt and on December 19,1979, Paul obtained a mortgage from Society for Savings in the amount of $35,000, from which attorney Sobotka was paid.

The plaintiff brought this action against Rubin and Paul on January 29,1985, seeking to set aside the 1978 conveyance of the Birch Mountain Road property, and also seeking compensatory and punitive damages. The plaintiff alleged that Rubin had transferred the property to Paul through the 1978 foreclosure action with the intent of hindering collection of Rubin’s anticipated liability arising out of the plaintiff’s action, brought in 1980, to recover money paid on Rubin’s fraudulent claim under the policy covering his restaurant. The plaintiff also alleged that Paul knowingly participated in and conspired with Rubin in the foreclosure to avoid Rubin’s debt.

At trial, Rubin was defaulted for failing to appear. Paul appeared, denying the allegations of the plaintiff’s amended complaint, and asserted as a special defense General Statutes § 52-577, which establishes a three year limitation period for tort actions. The trial court found that the plaintiff’s action was barred by § 52-577, and rendered judgment for both defendants. From this judgment, the plaintiff has appealed, claiming that the trial court erred in: (1) holding that the suit brought by the plaintiff was barred by the three year statute of limitations for tort actions; and (2) rendering judgment for the defendant Rubin who was in default for failing to appear. We find error in part.

I

The plaintiff claims that the trial court erred in holding that this action was barred by the three year statute of limitations for tort actions. Ordinarily, the fraudulent conveyance statute, General Statutes § 52-552, would be the basis for an action to set aside a fraudulent conveyance of real property. A claimant, however, is not a creditor within the contemplation of § 52-552 until an unliquidated claim for damages in tort has been liquidated by a judgment. Murphy v. Dantowitz, 142 Conn. 320, 324, 114 A.2d 194 (1955). Moreover, the plaintiff concedes that its action is a common law action and therefore does not implicate § 52-552.

In addressing the scope of § 52-577, we have stated that “[t]he three-year limitation of § 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in § 52-584 or another section. Tuohey v. Martinjak, 119 Conn. 500, 506, 177 A. 721 [1935].” Collens v. New Canaan Water Co., 155 Conn. 477, 491, 234 A.2d 825 (1967). Thus, the three year limitation period of § 52-577 applies to all actions based on a tort unless there has been a specific statutory exclusion. The common law tort action to set aside a fraudulent conveyance of real property has not been statutorily excluded from § 52-577, and we are unpersuaded that we should exclude such actions by judicial fiat.

The plaintiff claims, however, that even if the three year period of limitation in § 52-577 applies to a common law tort action to set aside a fraudulent conveyance, the period did not begin to run until the plaintiff received a judgment on its underlying tort claim. The gist of the plaintiffs argument is that although the Hofbrau Restaurant was vandalized on April 28,1975, and the plaintiff commenced its action to recover for the fraud on July 30,1980, the plaintiff did not receive judgment against Rubin until May 14, 1984. Because the present action was instituted on January 29,1985, the plaintiff avers that it is well within three years of the judgment against Rubin, and, therefore, is not barred by § 52-577. In support of this claim, the plaintiff relies on two Superior Court cases. We find neither case persuasive.

In Murphy v. Dantowitz, supra, we recognized that an underlying tort action for damages could be joined in a single complaint with a claim that a fraudulent conveyance made to defeat a debt be set aside. We stated: “Upon common-law principles . . . one who at the time a transfer of property is made has a right to recover damages in tort may avoid the transfer as fraudulent if the transfer is made for the purpose of defeating his right. White v. Amenta, 110 Conn. 314, 318, 148 A. 345 [1930]. The plaintiff, under circumstances such as those alleged in the complaint in this case, could incorporate in a single complaint a claim for damages in tort and a petition that a fraudulent conveyance made to defeat her claim be set aside. . . . See Burakowski v. Grustas, [134 Conn. 205, 208, 56 A.2d 461 (1947)]; Norwalk Shores Realty Co. v. Clark, 126 Conn. 688, 691, 14 A.2d 34 [1940]; Boiselle v. Rogoff, 126 Conn. 635, 13 A.2d 753 [1940]; Fine v. Moomjian, 114 Conn. 226, 228, 158 A. 241 [1932].” Murphy v. Dantowitz, supra, 324-25.

The plaintiff argues that the joinder of the two actions is permissive and not mandatory. We are not persuaded, however, that a potential judgment creditor who is aware of a fraudulent conveyance should be allowed to toll the statute of limitations by ignoring the conveyance and to wait until the underlying claim is reduced to judgment to pursue the fraud feasor. Cf. Rosenberg v. Rosenberg, 123 Ariz. 589, 592, 601 P.2d 589 (1979) (in action to set aside fraudulent conveyance of realty after wife obtained divorce settlement judgment, statute of limitations began to run when wife discovered fraud); Greco v. Pullara, 166 Colo. 465, 467, 444 P.2d 383 (1968) (when no actual notice prior to date plaintiff became judgment creditor, statute of limitations on judgment creditor’s action began to run when creditor chargeable with knowledge of fraudulent conveyance); Cowart v. Whitley, 39 N.C. App. 662, 664, 251 S.E.2d 627 (1979) (where plaintiff obtained judgment in 1973 and sued to set aside prior conveyance in 1976, issue was whether plaintiff knew of conveyance prior to 1973 action). Where the claimant is aware of the fraudulent conveyance, he may not treat the joinder of the two actions as optional if failure to join the actions would result in expiration of the limitations period applicable to the conveyance.

In the present case, the trial court found that the plaintiff knew that the property had been foreclosed in 1978 when it instituted the action to recover damages from Rubin for the insurance policy fraud on July 30,1980. The plaintiff had known of Rubin’s residence on Birch Mountain Road since 1975. When the plaintiff discovered in September, 1979, that Rubin’s claim under the restaurant policy was fraudulent, it also became aware that the Birch Mountain Road property owned by Rubin had been foreclosed in 1978. It also became aware that Rubin was living on the same premises in 1980.

We can discern no rational reason why a party knowing of a debtor’s fraudulent conveyance should not be required to join an action to set aside the fraudulent conveyance with the underlying action against the debtor for damages. Knowledge of the fraud should facilitate the prompt resolution of claims against real property. A claim of fraudulent conveyance should not be like the sword of Damocles hanging over a title to real property to be dropped at the pleasure of the claimant. The trial court properly considered the plaintiff’s knowledge of the fraudulent conveyance in determining that the statute of limitations barred its action.

II

The plaintiff also claims that the trial court erred in rendering judgment in favor of Rubin after he had been defaulted. The plaintiff brought the action against Rubin and Paul by serving on each a summons and complaint dated January 29, 1985, and a subsequent amended complaint dated March 7, 1985. Rubin neither appeared nor answered the complaint. Upon the plaintiff’s motion, the trial court entered a default in favor of it against Rubin on May 6, 1985. A notice of default was filed on May 17,1985. At the trial, Rubin did appear as a witness. After the trial, the court rendered judgment for Paul and Rubin on May 1, 1987. The plaintiff argues that the judgment rendered in favor of the defaulted Rubin was in error. We agree.

Since Rubin never appeared as a party at trial, there was no basis for the trial court to render judgment in his favor. “A default in an action for legal and equitable relief admits the material facts constituting a cause of action. Cardona v. Valentin, 160 Conn. 18, 26, 273 A.2d 697 (1970); New York, N.H. & H. R. Co. v. Hungerford, 75 Conn. 76, 78, 52 A. 487 (1902); Starr Cash & Package Car Co. v. Starr, 69 Conn. 440, 446, 37 A. 1057 (1897).” Kloter v. Carabetta Enterprises, Inc., 186 Conn. 460, 464, 442 A.2d 63 (1982).

“Where the trial court wishes to raise a statute of limitations issue which has not been raised by the parties, the question becomes whether the limitation is considered procedural or jurisdictional. See L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d 144 (1975); Hillier v. East Hartford, 167 Conn. 100, 355 A.2d 1 (1974); Diamond National Corporation v. Dwelle, 164 Conn. 540, 325 A.2d 259 (1973). The general rule is that where the right of action exists independently of the statute in which the limitation is found, such a statutory bar is considered personal and procedural, and it is deemed waived unless it is specially pleaded. See Practice Book §§ 164, 109A; L. G. DeFelice & Son, Inc. v. Wethersfield, supra, 511. . . . [T]he limitation acts as a bar to a remedy otherwise available. Id. In these instances, a trial court may not raise the limitation on its own motion. Where, however, a specific limitation is contained in the statute which establishes the remedy, the remedy exists only during the prescribed period and not thereafter. In this situation, the court may properly raise the statue of limitations issue on its own motion because it is considered substantive or jurisdictional, and not subject to waiver. See Practice Book § 145; L. G. DeFelice & Son, Inc. v. Wethersfield, supra.” Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985).

In the present case, the plaintiff’s fraudulent conveyance action existed independently of the limitation period of § 52-577. As a consequence, the trial court should not have raised the limitation on its own motion. Because Rubin did not challenge the pleadings or the evidence presented by the plaintiff, the trial court erred in rendering judgment for him.

There is no error in the plaintiff’s appeal from the portion of the judgment rendered in favor of Paul, there is error in the plaintiff’s appeal from the judgment rendered in favor of Rubin, that portion of the judgment is set aside and the case is remanded to the trial court for further proceedings.

In this opinion, Peters, C. J., and Hull, J., concurred.

Covello, J., with whom Callahan, J.,

joins, dissenting. The majority has overlooked the fact that an application to set aside a fraudulent conveyance is an equitable cause of action and has, therefore, erroneously applied the three year limitation on actions founded upon a tort. This was not an action founded upon a tort.

The cause of action set forth in the plaintiffs complaint is identical to the creditors’ bill in equity which existed in those jurisdictions where law and equity were administered by separate tribunals. Vail v. Hammond, 60 Conn. 374, 383, 22 A. 954 (1891). The plaintiff’s amended complaint alleged that it had obtained a judgment against Rubin and that Rubin had fraudulently transferred the property in question to avoid the debt due the plaintiff. The plaintiff sought by way of relief that the conveyance be set aside.

“ ‘[I]n this State, where the same court administers both law and equity, and where legal and equitable remedies can be granted in the same action, a creditor can in the same complaint have judgment for his debt and also the necessary equitable aid to obtain payment out of any property of the debtor which the law court■ could not reach. ’ Huntington v. Jones, 72 Conn. 45, 49, 43 Atl. 564 [1899]. . . .” (Emphasis added.) Finance Corporation of New England, Inc. v. Scard, 100 Conn. 712, 716-17, 124 A. 715 (1924).

“A judgment creditor who complains that his debtor has transferred all his property, when insolvent, tó his wife, by a voluntary and fraudulent conveyance, and that she participated in the fraud, has, among other remedies, one at law for compensation damages against both the wrong-doers; and one in equity to have the fraudulent conveyance set aside. ” (Emphasis added.) Nowsky v. Siedlecki, 83 Conn. 109, 112, 75 A. 135 (1910).

In adopting the three year tort statute of limitations, the majority refers to our holdings in Murphy v. Dantowitz, 142 Conn. 320, 114 A.2d 194 (1955), and White v. Amenta, 110 Conn. 314, 148 A. 345 (1930). Both Murphy and Amenta dealt with the question of whether tort causes of action not yet reduced to judgment could be combined with equitable actions which sought to set aside fraudulent conveyances. In each instance we held that it was possible to combine both the tort and equitable causes of action even though the tort claims were just that (i.e., claims) and had not yet been reduced to judgment. This, however, is not the situation in the present case. The plaintiff here had already reduced its cause of action to judgment and was calling solely on the court’s equitable powers to set aside the alleged fraudulent conveyance. Since this was purely an application to the court to use its equitable powers, no statute of limitations is applicable.

If the defendants claimed that the passage of time, for whatever the reason, should bar the plaintiffs claim for equitable relief, the appropriate analysis should have considered whether the plaintiff’s claim was barred by the doctrine of laches, i.e., “an inexcusable delay in asserting a right . . . [so as] to prejudice him against whom the claim is made”; Kiley v. Doran, 105 Conn. 218, 228, 134 A. 792 (1926); or through application of the doctrine of equitable estoppel. “The office of an equitable estoppel is ‘to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties.’ Canfield v. Gregory, 66 Conn. 9, 17, 33 Atl. 536 [1895].” Newfield Building Co. v. Mohican Co., 105 Conn. 488, 500, 136 A. 78 (1927).

The trial court concluded that Rubin wanted “to protect his equity in the property and to exclude his creditors who might be subsequent encumbrancers by having a strict foreclosure that would necessarily include present and future creditors.” The trial court further concluded that Paul “would have had to place her head in the sand to be unaware of the events coming to pass in 1977 and 1978 . . . . ”

Despite Paul’s participation in a gross fraud, the trial court allowed her and thereby her husband, Rubin, to keep their ill gotten gains based upon the fact that the plaintiff: (1) knew the location of Rubin’s residence since 1975; (2) knew of the foreclosure of the Birch Mountain Road premises in 1978; and (3) knew that Rubin was living on these premises in 1980.

The trial court, however, made no findings as to the plaintiff’s knowledge of the $10,000 mortgage without consideration to Rubin’s mother, the assignment of the second mortgage to the parents of Rubin’s attorney, the redemption by Paul at the foreclosure sale in consideration of nothing more than a promissory note, and most critically, the fact that there was a personal relationship between Rubin and Paul. These facts were the heart of the fraud. Had the totality of these circumstances been exposed, as they should have been, to a laches or equitable estoppel analysis, the plaintiff's claim would not be barred and the obviously inequitable result that has been reached here surely could have been avoided.

       The record indicates that John Rubin died on December 23,1987. Pursuant to General Statutes § 52-599 and Practice Book § 4033, the motion of the plaintiff to substitute attorney John W. Cooney, administrator of the estate of John Rubin, was granted on October 5,1988. For clarity we will refer to the defendant John Rubin as Rubin.

       “[General Statutes] Sec. 52-577. action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       “[General Statutes] Sec. 52-552. fraudulent conveyances, judgments, contracts, when VOID. All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.”

       The Superior Court cases mainly relied upon by the plaintiff are Carey v. Forlivio, 32 Conn. Sup. 7, 336 A.2d 587 (1974), and Einbinder & Young, P.C. v. Soiltesting, Inc., 36 Conn. Sup. 277, 418 A.2d 95 (1980). Since these cases were not appealed, we make only the following observations. Eiribinder & Young, P.C. v. Soiltesting, Inc., supra, 279, involved an action based on General Statutes § 52-552 and therefore is inapposite. In Carey, although a common law tort case, it appears that the statutorily based creditor rule was applied to support the conclusion that the tort statute of limitations was not applicable to the case. The trial court stated: “Can a Statute of Limitations run against a tort claimant’s action to recover property fraudulently conveyed when the existence of a judgment which is sought to be protected by this action has not yet been established? This court thinks not. For this reason, it holds that where a plaintiff’s right to recover property allegedly fraudulently conveyed rests initially on his recovery of a judgment, notwithstanding the fact that he may join both the main action and the action in fraudulent conveyance in the same complaint, no Statute of Limitations can begin to run against him until, at least, judgment is recovered.” Carey v. Forlivio, supra, 10. We decline to comment on the disposition of this unappealed Superior Court case.

       This case does not involve a plaintiff who was unaware of the fraudulent conveyance at the time the tort action was instituted. We therefore do not address the statute of limitations issue with respect to that circumstance.

       The plaintiff also argues that the equities of this case do not favor barring this action. The plaintiff cites Price v. Hawley, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 318033 (April 27,1987), which involved the enforcement of a foreign judgment in Connecticut. In that case, the only issue was whether the three year statute of limitations began to run from the date of the rendition of the foreign judgment, or from the date that the judgment was recorded in Connecticut. The court concluded that the statute began to run from the date the judgment was recorded in Connecticut. Again, we decline to comment on the disposition of an unappealed Superior Court ease.

       “Upon default, the plaintiff ordinarily becomes entitled to recover nominal damages. Cardona v. Valentin, [160 Conn. 18, 26, 273 A.2d 697 (1970)]; Batchelder v. Bartholomew, 44 Conn. 494, 501-502 (1877). The right to further substantial damages remains to be established by the plaintiff at a hearing in damages. New York, N.H. & H. R. Co. v. Hungerford, [75 Conn. 76, 78, 52 A. 487 (1902)].
      “After a default, a defendant may still contest liability at a hearing in damages, provided that he has given notice to the plaintiff of his intention to do so. Practice Book § 367; DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 401, 441 A.2d 838 (1982); Morris v. Winchester Repeating Arms Co., 73 Conn. 680, 684, 49 A. 180 (1901); Ockershausen v. New York, N.H. & H. R. Co., 71 Conn. 617, 621, 42 A. 650 (1899).” Kloter v. Carabetta Enterprises, Inc., 186 Conn. 460, 464, 442 A.2d 63 (1982). “At such a proceeding the burden of proof is on the defendant to disprove those allegations of the complaint which he contests. Hourigan v. Norwich, 77 Conn. 358, 367-68, 59 A. 487 (1904). If the defendant simply claims that he is not liable, he assumes the burden of proving that fact. Bernhard v. Curtis, 75 Conn. 476, 481, 54 A. 213 (1903). If the defendant sustains his burden, the plaintiff is entitled to nominal damages only. Cardona v. Valentin, supra, 26.” DeBlasio v. Aetna Life & Casualty Co., supra, 401-402.

       The amended complaint read as follows: “(1) At all times hereinafter mentioned, the defendant, John Rubin hereinafter referred to as the defendant owner, was indebted to the plaintiff in the sum of $236,968.78, now formalized in a judgment entered in the Superior Court for the Judicial District of Hartford on May 14, 1984.
      (2) On or about June 7, 1978, the defendant owner, John Rubin allowed to be transferred to Linda Paul, the defendant transferee, his wife, through a foreclosure action, certain property located at 329 Birch Mountain Road, Manchester, Connecticut with the intent of avoiding the plaintiffs debt or of hindering its collection. Said foreclosure action was arranged for and manipulated by the defendant owner or his agents for the purpose of removing encumbrances from the property and avoiding the debt to this plaintiff.
      (3) The defendant transferee knew that the defendant owner was indebted to the plaintiff, and in accepting the conveyance knowingly aided, abetted and conspired with the defendant owner for the purpose and intent aforesaid.
      (4) The conveyance deprived the defendant owner of sufficient means to satisfy his indebtedness to plaintiff.
      wherefore, the plaintiff claims:
      (a) damages;
      (b) that the conveyance be set aside and be declared null and void as to the plaintiff; and
      (c) punitive damages and the cost of this action.”
      The claims for damages are surplusage as that matter had already been determined in the earlier Superior Court action.

        In Murphy v. Dantowitz, 142 Conn. 320, 114 A.2d 194 (1955), the plaintiff sought to recover for personal injuries sustained as the result of the defendants’ alleged negligence in maintaining a defective condition in a tenement house. In White v. Amenta, 110 Conn. 314, 148 A.2d 345 (1930), both the plaintiff and the defendant claimed their entitlement to damages as the result of the other’s negligence in connection with an automobile collision.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Michael Fazio et al. v. Carrie Brown et al.
    (13434)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued November 2
    decision released December 27, 1988

      Gregory P. Lynch, with whom, on the brief, was Theodore R. Tyma, for the appellants (defendants).

      Salvatore C. DePiano, with whom was Edward F. Czepiga II, for the appellees (plaintiffs).
   Callahan, J.

This case is here as a result of our grant of certification from the Appellate Court. Fazio v. Brown, 14 Conn. App. 289, 540 A.2d 1065, cert. granted, 208 Conn. 808, 545 A.2d 1103 (1988). In its decision, the Appellate Court held that the trial court did not abuse its discretion by granting the named plaintiff’s motion to set aside the jury verdict in this case as inadequate and that its action in doing so was not unconstitutional. The Appellate Court also determined that the trial court did not err by ordering a new trial limited solely to the issue of damages after the named plaintiff had refused to accept an additur.

As set forth in the Appellate Court opinion, this action arose as the result of a collision between a trail motorcycle operated by the named plaintiff, Michael Fazio, and an automobile driven by the named defendant, Carrie Brown. The accident occurred in the early evening hours as Fazio, wearing dark clothing, and riding his motorcycle without lights, was crossing the defendants’ driveway. Because of the accident, Michael Fazio suffered a severe injury to his left leg. The nature of the injury and the circumstances of the accident are fully, described in the Appellate Court opinion. Fazio v. Brown, supra.

The plaintiffs thereafter brought suit against the defendants in two counts. Only the first count of the plaintiffs’ complaint, in which Michael Fazio sought to recover damages in negligence for personal injuries caused by the accident, need be discussed in connection with this appeal. The defendants denied being negligent and, by way of special defense, alleged that the named plaintiff was contributorily negligent. The plaintiffs denied the defendants’ special defense.

The matter was tried to a jury which returned a verdict in favor of Michael Fazio in the amount of $15,570. Because the jury found Fazio to be 30 percent contributorily negligent, the net award for his injuries was reduced to $10,899. The plaintiffs requested the court to return the jury for further deliberations to reconsider the question of the adequacy of the verdict. The court refused, however, and it accepted the verdict and ordered it recorded.

The named plaintiff subsequently filed motions for an additur and to set aside the jury verdict. Ruling from the bench, the trial court stated that it found the jury award for Michael Fazio to be so inconsistent with the severe injuries that he had suffered that it constituted a “manifest injustice,” and shocked the conscience of the court. The trial court, therefore, granted the named plaintiff’s motion for an additur and increased his award on the first count of the complaint to $136,000, resulting, because of his 30 percent contributory negligence, in a net verdict of $95,200. The trial court further ordered that, if both parties did not accept the additur, it would set aside the verdict on the first count of the complaint as to damages only and order a new trial limited solely to that issue. The named plaintiff refused to accept the additur whereupon the trial court granted his motion to set aside the verdict as to the first count of the complaint, pursuant to General Statutes § 52-228b. The trial court then ordered a new trial limited to the issue of damages.

The defendants appealed to the Appellate Court from the judgment rendered on the named plaintiff’s motion to set aside the verdict. In their appeal, the defendants first claimed that the trial court abused its discretion in granting the named plaintiff’s motion to set aside the jury verdict as inadequate. The Appellate Court held that based on “the undisputed evidence as to the duration, extent and permanency of Michael Fazio’s injuries, the trial court did not abuse its discretion in finding that the jury’s verdict shocked the court’s sense of justice and was entirely disproportionate to the injury.” Fazio v. Brown, supra, 294. The Appellate Court also rejected the defendants’ argument that the action of the trial court in setting aside the jury verdict violated their constitutional right to have issues of fact decided by a jury. It stated that although the constitutional right to trial by jury places limitations on the legal discretion of the trial court when it seeks to set aside a verdict, this limitation is not absolute and “ ‘ “it is the court’s duty to set aside the verdict when it finds that ‘it does manifest injustice, and is . . . palpably against the evidence. . . .’ State v. Chin Lung, 106 Conn. 701, 704, 139 A.2d 91 (1927).” ’ Zarrelli v. Barnum Festival Society, Inc., [6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986)], quoting Barbieri v. Taylor, [37 Conn. Sup. 1, 3, 426 A.2d 314 (1980)].” Fazio v. Brown, supra, 295; see also Malmberg v. Lopez, 208 Conn. 675, 679-80, 546 A.2d 264 (1988).

We agree with the reasoning of, and the result reached by, the Appellate Court in holding that the trial court’s action was not unconstitutional and that the trial court did not abuse its discretion when it set aside the verdict for the named plaintiff as inadequate. We disagree, however, with the Appellate Court’s disposition of the defendants’ remaining claim of error.

The defendants’ remaining claim on appeal is that the trial court erred when it ordered a new trial limited solely to the issue of damages. Citing Murray v. Krenz, 94 Conn. 503, 508, 109 A. 859 (1920), the Appellate Court held that the trial court had the authority to limit a retrial to damages and that it did not err in doing so. Given the facts in this case, we conclude that the Appellate Court was incorrect when it affirmed the trial court’s action in ordering a retrial to resolve only the issue of the named plaintiff’s damages.

Although we stated in Murray v. Krenz, supra, 507, that a trial court may limit a retrial to a specific issue or issues, we clearly confined that grant of authority to situations “[w]here the error as to one issue or issues is separable from the general issues . . . [and] such . . . limitation does not work injustice to the other issues or the case as a whole.” See also Schuerholz v. Roach, 58 F.2d 32, 33-34 (4th Cir. 1932); Caterpillar Tractor Co. v. Beck, 624 P.2d 790, 795 (Ala. 1981); Gagliano v. Ditzler, 437 Pa. 230, 232-33, 263 A.2d 319 (1970); Ecksel v. Orleans Const. Co., 360 Pa. Super. 119, 126, 519 A.2d 1021 (1987); annot., 29 A.L.R.2d 1199; annot., 98 A.L.R. 941. We went on to state that “where the retrial of the single issue may affect other issues to the prejudice of either party, the court [can] not exercise its discretion in limiting the new trial but [rather should] grant it de novo. ’’ Murray v. Krenz, supra, 508; Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 796, 462 A.2d 1043 (1983); see also Mickel v. New England Coal & Coke Co., 132 Conn. 671, 681, 47 A.2d 187 (1946); Hawley v. Rivolta, 131 Conn. 540, 543, 41 A.2d 104 (1945). The decision to retain the jury verdict on the issue of liability and order a rehearing to determine only the issue of damages “should never be made unless the court can clearly see that this is the way of doing justice in [a] case.” (Emphasis added.) Murray v. Krenz, supra; Hawley v. Rivolta, supra; Niles v. Evitts, 16 Conn. App. 696, 699, 548 A.2d 1352 (1988); Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 55, 492 A.2d 223 (1985). “As a rule the issues are interwoven, and may not be separated without injustice to one of the parties.” Murray v. Krenz, supra; Sparico v. Munzenmaier, 134 Conn. 194, 197, 56 A.2d 165 (1947); Niles v. Evitts, supra. Therefore, “[a]n order restricting the issues [of a new trial] is the exception, not the rule.” Niles v. Evitts, supra.

The facts in the instant matter do not present a case for an exception to the rule. Here the issues of damages and liability are so interwoven that, in fairness, a new trial is mandated as to both issues. In Malmberg v. Lopez, supra, we reversed a decision of the Appellate Court directing the trial court to set aside a jury verdict and grant a new trial limited solely to the issue of damages. Malmberg involved a wrongful death action in which the plaintiff obtained a jury verdict but was awarded zero damages. The trial court in that case had denied the plaintiffs motion to set aside the verdict because of its finding that the jury’s verdict was, in reality, an improperly expressed defendant’s verdict motivated by sympathy for the plaintiff. Based on the possibility that the jury’s verdict reflected a misunderstanding as to liability, we ordered the Appellate Court to direct the trial court to retry both liability and damages stating that “ ‘[w]here . . . liability is contested and an appellate court is unable to infer whether upon a new trial a jury would find in favor of the defendant or in favor of the plaintiff an appellate court must remand the case for a trial on all issues.’ (Emphasis added.) [Freshwater v. Booth, 233 S.E.2d 312, 316 (W. Va. 1977)].” Id., 682.

Relying on Malmberg v. Lopez, supra, the Appellate Court recently held that, whenever there is ambiguity in the jury’s verdict as to liability, justice requires that both liability and damages be retried. Niles v. Evitts, supra. In Niles, a case it decided after this case, the Appellate Court deemed it necessary to order a new trial on both liability and damages where the jury found the defendants to be negligent but found the plaintiff to be 30 percent contributorily negligent. The Appellate Court stated that “a liability verdict that by its very nature acts to reduce the amount of damages one side must pay means that the issues of liability and damages are ‘inextricably interwoven.’ Murray v. Krenz, supra, 508.” Id., 700. The defendants’ liability in the present case, as was the liability of the defendants in both Malmberg and Niles, is not clear-cut. Because the named plaintiff was found to be substantially contributorily negligent, the issues of damages and liability are “inextricably interwoven” and both issues must be retried in order to avoid an injustice to the defendants.

Our holding squares with the well founded belief that in cases such as the one at hand, the jury may have rendered a compromise verdict, that is, a verdict “where some of the jurors . . . conceded liability against their judgment, and some . . . reduced their estimate of the damages in order to secure an agreement of liability with their fellow jurors. . . .’’Murray v. Krenz, supra, 508. When a compromise verdict exists, “a new trial confined to the single issues of damage will be a serious injustice to the defendant [as] [h]e has never had the issue of liability determined by the conscientious conviction of all of the jury; and that he is entitled to have.” Id., 509; McNamee v. Woodbury Congregation of Jehovah’s Witnesses, 194 Conn. 645, 647-48, 484 A.2d 940 (1984); see also Belanger by Belanger v. Teague, 126 N.H. 110, 111, 490 A.2d 772 (1985); Kopec v. Kakowski, 34 N.J. 243, 247-48, 168 A.2d 23 (1961); Mina v. Boise Cascade Corporation, 104 Wash. 2d 696, 707-708, 710 P.2d 184 (1985); annot., 29 A.L.R.2d 1199, 1214-17; annot., 98 A.L.R. 941, 944-47.

Accordingly, although we agree with the Appellate Court that the trial court did not abuse its discretion in granting the named plaintiffs motion to set aside the jury’s verdict as inadequate, we conclude that it erred in determining that the trial court properly ordered a new trial limited solely to the issue of damages.

The judgment of the Appellate Court is reversed and the case is remanded to that court to be remanded to the trial court with direction to afford the parties a new trial on all issues.

In this opinion the other justices concurred.

       Kenneth L. Brown, the husband of the named defendant, is the owner of the automobile and was also named as a defendant.

       The coplaintiff Vincent Fazio, father of the then minor named plaintiff, incurred numerous medical bills on behalf of his son. His claim for past and future medical expenses comprised count two of the complaint.

       “[General Statutes] Sec. 52-228b. setting aside of verdict in action claiming money damages. No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportuity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable.”

       The defendants claim that based on the language of General Statutes § 52-228b the trial court does not have the power to restrict a retrial to a specific issue or issues. We need not address that argument as the facts in this case require the retrial of all the issues.

       The principle that a trial court should not limit a new trial solely to the issue of damages when liability is contested has been recognized by numerous other courts. See, e.g., Saide v. Stanton, 35 Ariz. 76, 659 P.2d 35 (1983); Belanger by Belanger v. Teague, 126 N.H. 110, 490 A.2d 772 (1985); Burdzy v. Cooney, 215 N.J. Super. 98, 521 A.2d 364 (1987); Gagliano v. Ditzler, 437 Pa. 230, 263 A.2d 319 (1970).
      Compare Peck v. Jacquemin, 196 Conn. 53, 491 A.2d 1043 (1985) (new trial limited to damages where jury rendered an inadequate verdict for the plaintiff because it was improperly instructed to consider the plaintiff s settlement agreement with a former codefendant); Smith v. Whittlesey, 79 Conn. 189, 193-94, 63 A. 1085 (1906) (new trial limited solely to the issue of damages did not create an injustice to the defendant where jury was improperly instructed as to damages and the defendant was found to be 100 percent negligent).


author: Arthur H. Healey, J.

text:
    State of Connecticut v. Daniel L. Greene
    (13373)
    Healey, Shea, Glass, Covello and Hull, Js.

      Argued October 14
    decision released December 27, 1988

      John F. Kavanewsky, Jr., for the appellant (defendant).

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Susan Marks, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

In this appeal, the defendant makes four claims of error in his trial on robbery charges. The defendant was charged with robbery in the first degree and accessorial liability for robbery in violation of General Statutes § 53a-134 (a) (2) and General Statutes § 53a-8, respectively, in two separate informations. The defendant pleaded not guilty and the informations were consolidated for trial by jury. After a three day trial, the defendant was found guilty as charged in each information and the court sentenced him to the Custody of the commissioner of correction for two ten year terms, to be served concurrently, suspended after eight years, followed by five years probation.

The jury could reasonably have found the following facts. On January 25, 1987, at approximately 7 p.m., a white male clad in a trench coat, ski mask and gloves entered Peretta’s Quick Stop Deli in Milford. Inside the store, were a clerk, Laura Gellatly, and Clayton Belmont, a frequent customer. Upon his entrance, the masked man said something to gain the attention of the clerk, who was hanging up the phone. When she turned to face him, he brandished a long-barreled weapon. Gellatly gave approximately $250 to the robber, who then ripped the phone out of the wall and left. Gellatly was able to see most of the perpetrator but not his feet. At trial, she described the ski mask and coat in fair detail.

On the morning of January 27,1987, David Blakesly, who frequently stopped at Perretta’s Deli, noticed a strange looking object on the side of the road approximately one mile from Perretta’s Deli. On his way home that evening, he stopped and picked up the object and discovered it to be a pair of sneakers balled up in a ski mask. Knowing that Perretta’s recently had been robbed and having an idea of what the robber had worn, Blakesly turned over the sneakers and the mask to the owner of Perretta’s on the morning of January 28, 1987. These items later were identified by Gellatly and Belmont as similar to the mask and sneakers worn by the robber at Perretta’s.

Three days after the first robbery, on January 28, 1987, at approximately 8 p.m., a mustached man wearing a blue ski mask with yellow stitching, a long trench coat and gloves entered the Melba Pharmacy in Milford. The man asked the store clerk, Lisa Ruceo, to open the cash register and give him the money. At some point during this incident the robber displayed a gun that Ruceo described in her statement to the police as a “rifle.” Ruceo gave the robber about $400 and one check made out to the pharmacy. The robber then left the store. At the time the robber was leaving the Melba Pharmacy, David Ponelli was driving westbound on Melba Street. He saw a man wearing a trenchcoat and a dark ski mask with light highlighting around the eyes and nose run from the pharmacy. At trial, he identified a mask and coat that looked similar to those worn by the fleeing man. The man appeared to be carrying a weapon. Ponelli believed that it was a shotgun with a pistol grip. Ponelli followed the masked man in his car, losing sight of him once, to a condominium complex under construction where Ponelli noticed a man crouching as if to observe something. Ponelli then recognized the crouching man to be the person who had run from the pharmacy. A “beat up” late model Cadillac pulled up behind Ponelli and the crouching man ran out and got into it. Ponelli returned to the pharmacy and told the police what he had observed.

A short time later, Officer Patrick Pooling of the Milford police department pulled over a late model Cadillac matching a description given over the police radio and presumably based on information from Ponelli. The defendant and David Girard were in the stopped car. Dooling found three shotgun shells on Girard during his pat down for weapons. Later that night, Dooling with the help of Ponelli located near the condominium project some of the money and the check stolen from the Melba Pharmacy.

The defendant’s first claim of error is that the trial court erred in consolidating the two informations for trial. The defendant argues that the joinder of these offenses prejudiced him in that the jurors were unable to keep the evidence of these offenses separate in their minds because the charges arose from factually similar but legally unrelated incidents. Thus, he claims that they may have convicted him of one crime by using evidence from the other.

The purpose of joinder, as authorized by General Statutes § 54-57 and Practice Book § 829, is to foster economy and expedition of judicial administration. State v. Schroff, 198 Conn. 405, 409, 503 A.2d 167 (1986); see State v. King, 187 Conn. 292, 296-98, 301, 445 A.2d 901 (1982). Joinder of offenses is, however, not permissible if it will result in “ ‘substantial injustice’ ” to the defendant. State v. Boscarino, 204 Conn. 714, 721, 529 A.2d 1260 (1987), quoting State v. King, supra, 302; see State v. Schroff, supra; State v. Rodgers, 198 Conn. 53, 65, 502 A.2d 360 (1985); A. Spinella, Connecticut Criminal Procedure (1985) p. 415, citing State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952).

The trial court has broad discretion in ordering the joinder of offenses and such an order will not be disturbed unless the court’s discretion has been “manifestly abused.” State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987); State v. Boscarino, supra, 720-21; State v. Rodgers, supra, 63; State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982); State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975); see Project, District of Columbia Court of Appeals Project on Criminal Procedure, Joinder and Severance, 26 Howard L. J. 1104, 1105 (1983) (“joinder is the norm”). In establishing a manifest abuse of discretion, the defendant has a difficult burden of proof in showing substantial prejudice. State v. Boscarino, supra, 721; State v. Rodgers, supra; State v. Bell, supra, 410-11; State v. King, supra; see Project, Criminal Procedure, Joinder and Severance, 76 Geo. L.J. 784, 785-86 (1988) (“To prevail on appeal under [federal] rule 14, a defendant must demonstrate that the trial court’s refusal to sever was an abuse of discretion resulting in specific and compelling prejudice. A defendant’s allegation that he would have had a better chance of acquittal is insufficient to find error in denying severance.”). The defendant must also show that any prejudice is “beyond the curative power of the court’s instructions.” State v. King, supra.

There are a number of ways by which defendants traditionally have challenged the joinder of offenses. In State v. Boscarino, supra, this court stated that the nature of the charges against the defendant may be important in determining prejudice by joinder. If there is “brutal or shocking” evidence in one of the cases, it could affect the jury’s decision in the other. Id., 723 (evidence of rapes). In this case, however, the evidence offered for both offenses was similar, and although the charges are serious, the evidence offered was not shocking and would not incite the passions of the jurors so as to prejudice the defendant as he claims. Additionally, because the trial only lasted three days, the duration of the factfinding process was not sufficient to create complexity that might have confused the jury. See State v. King, supra.

The defendant also contends that the charges against him arose from factually similar but legally unrelated incidents, and, thus, under the reasoning of this court in Boscarino, there was an enhanced risk of prejudice and the trial court erred in joining the informations. The defendant readily concedes that the robberies at issue here are factually similar. Both stores that were robbed were small, retail establishments; both victims were female; both robberies occurred in Milford, in the early evening, in the same vicinity; and each robber wielded a shotgun and wore a knit ski mask, a trench coat and gloves. We disagree, however, with the defendant’s contention that the two robberies were coincidentally factually similar events.

The trial court properly joined the two cases for trial because, in the event of separate trials, evidence relating to each of the cases would have been admissible in the other. Although evidence of other crimes or uncharged conduct is not admissible to show bad character or a disposition to commit a crime, such evidence is admissible to show such issues as a common scheme, intent, malice, identity, motive or opportunity. State v. Boscarino, supra, 722; State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); State v. Shindell, 195 Conn. 128, 133, 486 A.2d 637 (1985); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); A Spinella, supra, pp. 417-18; C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 8.3.2. Of course, this evidence must be relevant and material to an element of the crime and its probative value must outweigh its prejudicial effect. State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 214 (1982); C. Tait & J. LaPlante, supra, § 8.3.2 (c). It is “[bjecause of the difficulties inherent in this balancing process” that the trial court will be reversed only when there is a manifest abuse of discretion. State v. Howard, supra.

In this case, the many factual similarities of each case reasonably could have tipped the balancing process in favor of admissibility to show a common scheme. The robberies were committed by nearly identically dressed men, using identical weapons, robbing similar establishments at similar times of day within three days of each other and in the same vicinity. The similarity of the evidence of these crimes is equal to or greater than evidence properly admitted in other cases to show a common scheme.

For example, in State v. Mandrell, 199 Conn. 146, 506 A.2d 549 (1986), we upheld a trial court’s admission of evidence of a prior armed robbery in a robbery trial. The two robberies were similar in the following respects: Both took place in liquor stores on Asylum Avenue in Hartford; both perpetrators were black men; in each robbery, the perpetrator used profanity and aggressive behavior; and in both cases, the clerks were instructed to lie down in back rooms and were struck twice with liquor bottles. The incidents were dissimilar in that a gun was openly displayed in the first robbery and not in the second; the robberies occurred five years apart and at different times of day; and the bottles with which the clerks were struck were of different sizes. In the present case, the modus operandi of the two robberies was at the very least as similar as that in Mandrell, and in this case, the robberies occurred only three days apart.

Further, in State v. Braman, 191 Conn. 670, 469 A.2d 760 (1983), this court also found no error in the admission of evidence of a prior robbery. The following evidence was similar in the two robberies: “Both establishments were bars; the bars were located in adjoining towns; two persons participated in each robbery; the weapons used in each were a shotgun with cut-down configuration and a small automatic pistol; in both instances, the robber with the shotgun assumed the leadership role; the employees and patrons in each instance were ordered into back rooms of each bar; and the incidents were close in point of time.” Id., 678. The defendant in Braman pointed out the following dissimilarities: In the second robbery, the perpetrators were masked and of opposite sexes; the robberies occurred at different times of day; the perpetrator with the pistol performed different tasks in each robbery; and the second robbery was planned while the first was spontaneous. Id. Again, the similarities in the present case compare favorably to those in Braman and, therefore, it was not a manifest abuse of discretion to join the cases and admit evidence of both crimes. Much of the evidence from either crime would have been admissible to show a common scheme at the trial of the other even if they had been tried separately. See also State v. Howard, supra, 686-87; State v. Nardini, 187 Conn. 513, 518-19, 447 A.2d 396 (1982); State v. Falby, supra, 23; State v. Gilnite, 4 Conn. App. 676, 680-81, 496 A.2d 525 (1985), aff'd, 202 Conn. 369, 521 A.2d 547 (1987).

The defendant next contends that the state commingled evidence of the two offenses in its case-in-chief, thereby enhancing the risk of prejudice by confusing the jury. The defendant claims that the state did not present its witnesses in chronological order and that this created confusion that caused the jury to use evidence of one offense to convict the defendant of the other. While the state concedes that the witnesses at trial were not presented in strict chronological order, we conclude that testimony need not be presented in chronological order to withstand an attack on its potential to confuse the jury.

The order of the state’s witnesses and the nature of their testimony was as follows: Gellatly (Perretta robbery); Belmont (Perretta robbery); Ponelli (Melba robbery); Dooling (arrest after Melba robbery); Ruceo (Melba robbery); Blakesly (Perretta robbery); Calderwood (execution of search warrant); and Graham (operability of weapon). Contrary to the assertion in the defendant’s brief, Dooling did not testify about the Perretta robbery. As the state concedes, only Blakesly’s testimony was out of chronological order. Furthermore, a review of the transcript reveals that the testimony of each of the state’s witnesses was not complex. Therefore, the state’s case-in-chief was not presented in a manner that would confuse the jury in a trial of the joined offenses.

Finally, the defendant maintains that the prejudice from joining the offenses was beyond the curative power of the court’s jury instructions. The defendant claims that the trial court made only one isolated remark in its final jury instructions to keep the evidence of each offense separate and contends that this was inadequate. We disagree.

The assertion that the trial court made only one isolated remark about the separateness of the offenses is inaccurate. In fact, there is slightly more than one full page of instructions on this subject in the transcript. These instructions stressed the requirement that the jury treat each case as a separate and distinct trial and that evidence of guilt of one robbery should not be considered as evidence of guilt of the other. Unlike our finding in Boscarino, the curative instruction in this case, in light of any minimal prejudice that may have resulted from joinder, was sufficient to protect the rights of the defendant. Therefore, we find no error in the trial court’s discretionary decision to join the two offenses in this case.

The defendant next contends that the trial court erred by instructing the jury that it could draw an adverse inference from the defendant’s failure to produce certain alleged alibi witnesses. The state claimed that there was evidence from which the jury might draw an inference adverse to the defendant because the defendant did not call one or another of his sisters to testify that the defendant had been at his parents’ house about the time of the Perretta robbery. He claims that his sisters were not witnesses whom he would naturally have produced and that the testimony of either of them would have been cumulative and, thus, that the court erred in instructing the jury that it could draw an adverse inference. We disagree.

The consequences of not calling available and presumably favorable witnesses in Connecticut is governed by the well known Seeondino instruction. In Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), we stated: “ ‘The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). It is logical to conclude that if a party does not call an available witness who presumably would have favorable testimony, the missing witness in fact has unfavorable information.

Two conditions must be met to trigger the negative inference under the Secondino rule. “ ‘The witness must be available, and he must be a witness whom the party would naturally produce.’ ” State v. Shashaty, 205 Conn. 39, 43, 529 A.2d 1308 (1987); Secondino v. New Haven Gas Co., supra. “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra.

At his trial, the defendant called his father as an alibi witness and his father testified that he believed that two of his daughters had been at his house along with the defendant on the night of the Perretta robbery. The defendant’s mother also testified that one of the daughters might have been at the house that night. The defendant did not call any of his sisters to corroborate his alibi defense.

The first prong of the Secondino test is not at issue in this case. The defendant concedes that his sisters were living in the area at the time of the trial and thus were available. The defendant contends that the second prong was not satisfied and claims that he would not naturally have called his sisters as witnesses and that neither could have offered “superior” testimony.

The defendant also insists that he would not naturally have called his sisters because their testimony would have been cumulative. In doing so, the defendant aptly states that he must distinguish recent holdings of this court in State v. Ruiz, 202 Conn. 316, 521 A.2d 1025 (1987), and State v. Reid, 193 Conn. 646, 480 A.2d 463 (1984). He has not done so.

In State v. Ruiz, supra, the defendant was tried on a murder charge and as part of an alibi defense he called “A.” “A” testified that he had visited the defendant at the defendant’s home about ten minutes after the estimated time of the murder. Id., 323. The scene of the murder was about thirteen minutes by automobile from the defendant’s home. Id., 319-20. “A” testified that upon his arrival at the defendant’s home, “E,” the defendant’s mother, had greeted him. “A” further testified that he woke up the defendant. The defendant did not call “E” to corroborate this version of events.

Over the defendant’s objection, the trial court gave a Secondino instruction. One of the defendant’s bases for claiming error in the Secondino instructions was that “E’s” testimony would have been cumulative and thus the instruction was inappropriate. This court affirmed the trial court’s giving the Secondino instruction and stated: “The testimony of an additional witness upon a significant disputed issue can hardly be categorized as cumulative.” Id., 325. The alibi defense in Ruiz was the central element to the defendant’s case.

In State v. Reid, supra, 649, the defendant was tried on murder and manslaughter charges. The defendant admitted shooting the two victims but claimed that it was in self-defense. At trial, the defendant testified that after the shooting he went to his sister’s apartment and encountered his sister and Jeffrey Laforte. Laforte testified that when the defendant arrived at the apartment, he “was in a state of hysteria,” and that the defendant told him that he had been attacked. Id., 661. Laforte also testified that he noticed a welt on the defendant’s cheek and that the defendant’s sister was present in the apartment when the defendant arrived. Id. The defendant did not call his sister as a witness.

The state requested and received, over the defendant’s objection, a, Secondino instruction on the defendant’s failure to call his sister as a witness. The defendant contended, inter alia, that he would not naturally have called his sister because her testimony would have been cumulative. This court disagreed with the defendant for two reasons. First, Laforte was the only witness to testify about the defendant’s emotional condition and the welt on his cheek that corroborated his claim of self-defense. We noted that additional testimony on this significant element of the defendant’s case would have been helpful. Id., 662. Second, Laforte had been vigorously cross-examined and his credibility was questioned. Testimony by the sister could have bolstered Laforte’s account after his credibility had been attacked. Id. Thus, we concluded that her testimony would not have been cumulative and, therefore, that the trial court did not err in giving a Secondino instruction.

The present case has striking similarities to both Ruiz and Reid. The defendant’s attempt to distinguish these similarities is unpersuasive. In fact, in his brief, the defendant hardly distinguishes Ruiz at all. The defendant’s brief reviews the facts of Ruiz and agrees with the result in that case stating that because of the proximity of the murder scene to the defendant’s home, “Ruiz well could have entered his home and feigned sleep, without contradicting the alibi witness’ testimony. It remained only for Ruiz’s mother to vouch for her son’s presence in the home, minutes before the alibi witness arrived and at the very time of the crime.” The defendant then summarily states: “The case at bar does not present an analogous situation.” To distinguish Reid, the defendant argues that the present case is different because in this case, two alibi witnesses, the defendant’s mother and father, “firmly corroborated” the defendant’s defense, and because their testimony was not “greatly weakened” by cross-examination, additional testimony would have been cumulative.

In the present case, the defendant’s mother and father were not subject to scathing cross-examination; however, their credibility cannot be accepted without question. The credibility of both witnesses is questionable because they are the parents of the defendant and, even subconsciously, their parental instincts may have led them to protect their son and offer favorable testimony on his behalf. See State v. Asherman, 193 Conn. 695, 719, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). “Implied bias may be shown by the relationship of a witness to a party . . . 3A Wigmore, Evidence (Chadboum Rev.) § 949.” Id. Also, the defendant’s mother testified that of her three daughters, only one might have been present on the evening of January 25,1987. She testified that she knew two of the three were not present and she was not sure whether the other was present because the daughters were “in and out all day.” Additional testimony, therefore, would have helped to vouch for the defendant’s presence in his parents’ home, just as the defendant’s mother’s testimony in Ruiz would have been helpful. This is so particularly because the alibi defense was the heart of the defendant’s case on the Perretta incident, just as it was in Ruiz. In sum, we find Ruiz and Reid to be controlling on this issue, and the defendant has not distinguished them adequately. The trial court did not err in finding that the defendant’s sisters were available and naturally would be called in support of the defendant’s alibi defense. Given the importance of the alibi defense to the defendant’s case, the court did not err in issuing a Secondino instruction.

The defendant next claims that the trial court erred in granting the state’s motion to reopen its case-in-chief to introduce evidence of an essential element of the crime charged: the operability of the weapon. In a related claim, the defendant contends that the trial court erred in admitting evidence that was not for purposes of proving an essential element of the offense during the state’s reopened case. We disagree with both of the defendant’s contentions.

The state moved to reopen its case-in-chief after it rested following the testimony of Calderwood about the condition of the gun when it was found. This motion was made before the defendant had presented a motion for acquittal and before the defendant introduced any evidence of his case. The trial court stated that it did not believe that any prejudice would result from the reopening and granted the motion. The state then called Graham who testified about the test-firing and operability of the shotgun and also produced a “mug shot” from the police records.

The trial court has broad discretion in deciding whether to permit the state to reopen its case once it has rested. State v. Brigandi, 186 Conn. 521, 545, 442 A.2d 927 (1982); State v. Levy, 103 Conn. 138, 145, 130 A. 96 (1925); State v. Ricker, 90 Conn. 147, 152, 96 A. 941 (1916); A. Spinella, supra, pp. 700-701. A criminal case may be reopened to present omitted evidence or to add further testimony. State v. Allen, 205 Conn. 370, 380, 533 A.2d 559 (1987); State v. Brigandi, supra; State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111 (1977). As with joinder, the trial court acts within its discretion in reopening unless “ ‘substantial prejudice will occur.’ ” State v. Brigandi, supra, 546; United States v. Hinderman, 625 F.2d 994, 996 (10th Cir. 1980); United States ex rel. Carraway v. McMann, 297 F. Sup. 390, 394-95 (S.D.N.Y. 1969).

In this case, the testimony of Graham regarding the operability of the shotgun did not amount to substantial prejudice. Prior to Graham’s testimony, Calderwood testified that he found the shotgun that later was made a full exhibit. Calderwood indicated that he found the gun with three rounds of ammunition in it. He also stated that “all you had to do was pop the safety off and you could shoot that weapon.” Calderwood, however, did not have firsthand knowledge that the weapon was operable. Graham, on the other hand, had test-fired the gun and did have firsthand knowledge that it was operable. Therefore, his testimony was not cumulative. Furthermore, this evidence was admitted before the defendant presented any evidence and even before a motion for acquittal was made by the defendant. Defense counsel had full opportunity to, and did, cross-examine the witness and thus the defendant was not prejudiced.

The defendant also claims that the court erred in permitting Graham to produce a “mug shot” of a mustached man, presumably of the alleged accomplice David Girard, from the police records, to corroborate testimony of the clerk from the Melba Pharmacy. In his brief, the defendant argues that this testimony went beyond the bounds of what the state had represented in its motion to reopen and thus was inadmissible. We are not persuaded.

As we stated earlier, the trial court has broad discretion in reopening a party’s case. State v. Brigandi, supra, 545. The trial court will not be reversed in the absence of a clear abuse of that discretion. Id. During the trial, the defendant did not object to the testimony of Graham in introducing the “mug shot” on the ground that it exceeded the scope of the motion to reopen. Because of this, the trial court did not abuse its broad discretion in permitting the testimony beyond the scope offered in the state’s motion. Therefore, we refuse to find error in the court’s permitting full examination and cross-examination of the witness, including the admission of a “mug shot” through that witness.

The defendant did object to the. admission of the “mug shot” on relevancy grounds. The defendant argued that there was no evidence that there was another perpetrator in the robbery and thus that the photo was irrelevant. We agree with the trial court that there was evidence of an accomplice—the clerk described the robber in the Melba Pharmacy as a mustached white male; Ponelli testified that he saw the defendant pick up Girard after the robbery; Dooling arrested both men together and found a shotgun shell on Girard; and Calderwood noted that Girard had a mustache when he was arrested. Thus, the trial court did not err in admitting the “mug shot” produced by Graham.

The defendant’s final claim is that the trial court erred in admitting into evidence the ski mask and sneakers found by Blakesly. The defendant bases this claim on three grounds: (1) that the evidence was not relevant; (2) that even if relevant, the prejudicial effect that the evidence had on the jury outweighed its probative value; (8) that there was an insufficient chain of custody.

The defendant’s brief sets out the following test for relevancy, both elements of which he maintains must be met: (1) “The items [had to have been] used in the crime, and (2) the items [had to be] in some manner linked to the Defendant.” While this projection of the relevancy test may, in part, be true, it is not the well settled relevancy test that we often have cited, and we see no reason to depart from our precedent in this case. The accepted relevancy test is that “ ‘ “ ‘[e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. . . ” State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986); State v. Gold, 180 Conn. 619, 645-46, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). The trial court “possesses broad discretion to resolve questions of relevancy.” State v. McClendon, supra, 8; see State v. Pollitt, 205 Conn. 61, 92, 530 A.2d 155 (1987). The ski mask and the sneakers satisfy this test of relevancy.

Evidence does not have to be conclusive to be admissible and certainly this evidence is not conclusive. However, both Gellatly and Belmont testified that the ski mask found by Blakesly looked like the one worn by the robber in the Perretta robbery. Also, Belmont testified that the robber wore sneakers and that the ones in evidence “look[ed] similar” but that he really could not tell because the robber’s pants were “too low” and he only saw “the fronts” of the sneakers. Thus, the ski mask and sneakers are relevant in that they are demonstrative evidence supporting the descriptions of the robber’s apparel. Such evidence may tend to make the testimony of Gellatly and Belmont more credible.

The defendant also argues that even if the evidence is relevant, the prejudice caused by its admission outweighs its probative value. He claims that admission of the ski mask and sneakers created a “side issue” that distracted the jury from the central question-identification of the robber.

In State v. DeMatteo, 186 Conn. 696, 443 A.2d 915 (1982), we outlined four situations where prejudice to the defendant could outweigh the probative value of evidence. “These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” Id., 702-703; C. McCormick, Evidence (2d Ed.) § 185, pp. 439-40. The evidence in this case could arguably have been excluded only under the second classification of these four, and, in light of our prior analysis, we do not believe that it falls within its scope. The evidence of the ski mask and the sneakers did not create a side issue but may have corroborated the descriptions of the robber’s clothing given by Gellatly and Belmont. Certainly, the trial court did not abuse its broad discretion in admitting this evidence under this rationale.

Finally, the defendant argues that the state failed to establish a sufficient chain of custody for the evidence and thus the judge erred in admitting it. This claim also is unpersuasive.

Given the trial court’s broad discretion in this evidentiary issue; State v. Johnson, 162 Conn. 215, 233, 292 A.2d 903 (1972); again we conclude that the court acted within its authority. “The state’s burden with respect to chain of custody is met by a showing that there is a ‘reasonable probability’ that the substance has not been changed in important respects. State v. Jones, 167 Conn. 228, 239-40, 355 A.2d 95 (1974); State v. Johnson, [supra, 232], ‘The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it . . . . ’ State v. Piskorski, 177 Conn. 677, 697, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).” State v. Nieves, 186 Conn. 26, 31 n.4, 438 A.2d 1183 (1982); B. Holden & J. Daly, Connecticut Evidence (1988) § 91c. No evidence was presented indicating that the evidence in this case was tampered with. The nature of the mask and sneakers does not lend itself to the likelihood of tampering. The evidence was offered in this case to show that it was found in the area of the crime and that it was like the mask and sneakers observed by Belmont and Gellatly (mask only). Blakesly testified that the evidence as he observed it in court appeared the same as it did when he found it on the side of the road. From this, we conclude that the judge did not err in admitting this evidence. The trial court reasonably could have concluded that the evidence was not tampered with. Therefore, the trial court did not err in admitting the ski mask and sneakers introduced at trial and identified by Gellatly (mask only), Belmont and Blakesly.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-134 (a) (2) provides: “robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon.”

       General Statutes § 53a-8 provides: "criminal liability for acts of another. 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.”

       During the trial, the store clerk also described the defendant’s complexion and eyes as she saw them through the opening in the mask. She also described the gun used in the robbery and identified a similar looking gun in court.

       David Girard pleaded guilty to charges stemming from both of the robberies in question.

       Later that evening, Detective Kevin Calderwood executed a search warrant at the defendant’s home and recovered a loaded pistol grip shotgun wrapped in a trench coat liner underneath the back porch. He also found two pairs of gloves outside the house, and inside the house he found a shotgun shell and a ski mask that later was identified by Ponelli as being similar to the one worn by the Melba Pharmacy robber.

       General Statutes § 54-57 provides: “joinder of offenses of the same character. Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       “[Practice Book] Sec. 829. —trial together of indictments or INFORMATIONS
      “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”

       The state also suggested that joinder benefits the defendant because he can have his slate wiped clean by one judicial proceeding. We can assume by the defendant’s objection to the joinder that he does not see joinder as beneficial, at least in this case.

       The state concedes that only the testimony of Blakesly, regarding the evidence that he found from the first robbery, was presented out of chronological order.

       The lack of confusion in the state’s presentation of its case-in-chief is bolstered by the defendant’s failure to object at trial. Presumably, if the state’s case was confusing, it would have been apparent at that time and defense counsel would have objected.

       The court’s instruction to the jury was as follows: “In this case, the accused is charged in two informations with separate and distinct offenses of Robbery in the First Degree. The State charges that the accused did commit a robbery or aided in such, on January 25,1987, at Peretta’s Quick Stop Deli, and on January 28,1987, at the Melba Pharmacy, both businesses being located in the town of Milford. Our law permits the joint trial of two separate offenses. However, I must caution you, the evidence of guilt of one robbery may not be considered by you as evidence of guilt of the other. That is, you are to consider each information as a separate and distinct case, wherein the State must prove each element of each case, beyond a reasonable doubt, by separate and distinct evidence. You may not infer that because you may find the State proved the accused committed one robbery beyond a reasonable doubt, that he must have committed the other, or that he is a person of bad character and more likely to have committed the other alleged crime. Again, I charge you, that you must consider each case separately and the evidence or lack of evidence in each case, may not be considered in determining that the State proved its case beyond a reasonable doubt in the other case. You are to treat each case as a separate and distinct trial, unrelated to the other, as far as the State’s burden of proof is concerned. However, where there is physical evidence, which you find by separate evidence, is related to both alleged crimes, then you may consider such evidence as it relates to both crimes. And, as I recall, the State claims that the shotgun in evidence was used in commission of both crimes. If you find beyond a reasonable doubt, that there is seaprate and distinct evidence in each case, that the one weapon was used in each crime, then you may consider such single piece of evidence as to whether it was used in each robbery.”
      In addition, in instructing the jury on the possible verdicts that it might return, the court told the jury that there were four possible verdicts, and that it could find the defendant guilty or not guilty on each of the two offenses.

       We maintain that “[t]he jury is presumed, in the absence of an indication to the contrary, to have followed the instructions of the trial court.” State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986).

       We disagree with the defendant’s statement that affirmance of the Secondino instruction in this case will require defense counsel to call “every single witness who may have a possible thread of information to offer.” Where an alibi defense is central to the defendant’s case, as in this case, and the defendant calls two immediate family members, one testifying that there were two other witnesses to the defendant’s alibi and the other testifying that there might have been one other alibi witness, it would not be cumulative and would be helpful to produce the other possible alibi witnesses. This by no means requires a defendant to call “every single witness who may have a possible thread of information to offer.” Calling one or both of the sisters by the defendant is not merely calling a witness “who may have a possible thread of information” but also affords the opportunity of testimony upon a significant fact in dispute.

       The motion was made as follows:
      “Mr. Dearington: If it please the Court, the State did previously rest. Mr. Castignoli has not proceeded, made no motions or offered no evidence since then. I would move to reopen, for the reason that there is one additional element that I have to establish and as yet I have not. That is the offer-ability [sic] of the weapon, based on the robbery statute involved. And, I would respectively request an opportunity to reopen and for you Honor to release the weapon for it to be test-fired.”

       It appears that the “mug shot” was of David Girard, the defendant’s alleged accomplice. The state points out, however, that the picture was not identified to the jury as a picture of Girard.

       On this issue, the defendant’s only claim of prejudice was that the testimony was cumulative.

         The defendant concedes that he was not able to find authority for his position but cites State v. Ubaldi, 190 Conn. 559, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983), as being “equivalent” to the present case. Ubaldi, however, should be distinguished in two important respects. First, Ubaldi involved prosecutorial misconduct in the presentation of evidence deliberately to undermine prior evidentiary rulings of the court. Id., 575. There is no evidence of such misconduct here. Second, in the present case, the court did not issue a limiting evidentiary ruling; see id., 564; on,the scope of the reopening.

       The defendant’s brief does not offer any authority for his relevancy test.