text:
    Donna Durso v. Wayne Misiorek
    (12741)
    Peteks, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued May 1
    decision released July 29, 1986

      Douglas B. Sherman, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (state).

      Mary E. Holzworth, with whom, on the brief, was Sheila S. Horvitz, for the appellee (defendant).
   Santaniello, J.

The sole issue on this appeal after certification from the Appellate Court is whether, in a paternity action involving a public assistance recipient under General Statutes § 46b-160, the attorney general is a party to the proceedings and has standing to appeal even though he was not served with the petition and did not participate at trial. The plaintiff, Donna Durso, brought this action against the defendant, Wayne Misiorek, to establish the paternity of the plaintiff’s minor child. The case was tried to a jury which returned a verdict in favor of the defendant. After the court, Hendel, J., rendered judgment in accordance with the verdict, the attorney general filed a formal appearance and appealed to the Appellate Court. Without addressing the attorney general’s claims of error, the Appellate Court dismissed the appeal on jurisdictional grounds. We granted certification to review the Appellate Court’s finding that the attorney general was not a party to the action below and lacked standing to appeal. We reverse the judgment of the Appellate Court and remand for further proceedings.

The decision of the Appellate Court fully describes the relevant procedural history of the case. Durso v. Misiorek, 3 Conn. App. 212, 485 A.2d 1309 (1985). The plaintiff brought this action pursuant to General Statutes § 46b-160, which provides that “[proceedings to establish paternity of a child born or conceived out of lawful wedlock, including one born to, or conceived by, a married woman but begotten by a man other than her husband, shall be instituted by a verified petition of the mother or expectant mother, with summons and order . ” The plaintiff was at the time a recipient of state aid to families with dependent children and her attorney was selected pursuant to § 17-82e-6* of the Regulations of Connecticut State Agencies. Although required under General Statutes § 46b-160, the plaintiff did not serve the attorney general with her petition. The attorney general also did not appear or participate at trial. The court entered its judgment on September 22,1982, and the attorney general thereafter filed an appearance and appealed to the Appellate Court. The plaintiff did not join the appeal.

After receiving briefs and hearing oral argument, the Appellate Court, on January 22,1985, sua sponte dismissed the appeal for lack of jurisdiction.* * It rested its decision on the ground that the attorney general lacked standing to bring the appeal because: (1) he had not been a party to the action in the trial court; and (2) he had not participated at trial. Durso v. Misiorek, supra, 213-14. The attorney general claims that the Appellate Court erred in dismissing the appeal, arguing that under General Statutes § 46b-160 he is an automatic party to the paternity action and that participation at trial is not a requirement for standing. In reviewing this claim, our focus is on the judgment of the Appellate Court. We do not hear the appeal de novo and will consider only those issues squarely raised in the petition for certification. Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 634, 513 A.2d 52 (1986); Petrowski v. Norwich Free Academy, 199 Conn. 231, 234, 506 A.2d 139 (1986); State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).

We consider first whether the Appellate Court was correct in concluding that because the attorney general was not a party to the proceedings below, he lacked standing to appeal. It is well established that the right to appeal is purely statutory and is accorded only if the conditions fixed by statute are met. Milford v. Local 1566, 200 Conn. 91, 95, 510 A.2d 177 (1986); State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). General Statutes § 52-263 provides that in proceedings before the Superior Court, “if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial ... he may appeal to the court having jurisdiction from the final judgment. . . . ” See also Practice Book § 3000. The right to appeal is therefore limited to parties who are aggrieved by a final judgment of the trial court. State v. Curcio, supra; see Paranko v. State, 200 Conn. 51, 53-54, 509 A.2d 508 (1986). General Statutes § 46b-160 states in part that: “In cases involving public assistance recipients the petition shall also be served upon the attorney general who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action.” (Emphasis added.) The Appellate Court considered the effect of § 46b-160, but concluded that because the petition was not served on the attorney general, he never became a party to the action. In essence, the Appellate Court held that the attorney general’s interest and status as a party to the proceedings was contingent upon having been served with the plaintiff’s petition. We disagree with this interpretation of the statute and conclude that the attorney general was a party to the trial court proceedings.

When rendering judgment, the Appellate Court did not have the benefit of our decision in Lavertue v. Niman, 196 Conn. 403, 493 A.2d 213 (1985), where we held that indigent defendants in state-supported pater-

nity actions had a constitutional right to court-appointed counsel at state expense. In Lavertue we recognized the attorney general’s standing to defend the appeal even though the plaintiff was not joined as a party. In so doing, we stated: “The state’s interest in a paternity action concerning a child on public assistance is manifest and enduring. See Little v. Streater, [452 U.S. 1, 9, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981)]. The mother of such a child is required, on pain of contempt, to identify the child’s father and, in the event he does not acknowledge paternity, to bring an action against him. General Statutes §§ 17-82b, 46b-160, 46b-169; Regs., Conn. State Agencies §§ 17-82e-4 through 17-82e-6. The state assists the plaintiff in finding an attorney and pays the plaintiff’s legal fees and costs. Regs., Conn. State Agencies §§ 17-82e-4, 17-82e-6. The attorney general is automatically a party to such a paternity action, and no such action can be settled without the approval of a state official. General Statutes §§ 46b-160, 46b-170. If the paternity action is successful and results in an award of child support, the moneys so awarded are paid directly to the state because the mother of a child on public assistance must assign her rights of support to the state. General Statutes § 17-82b.” (Emphasis added.) Lavertue v. Niman, supra, 406.

The legislature has explicitly recognized that the state has a considerable interest in paternity proceedings involving a child on public assistance and, through § 46b-160, has made the attorney general an automatic party to such actions. The purpose of the requirement that the attorney general be served is to provide the state with notice of the action. Because the provision benefits the state, the service of the petition can be waived by the attorney general. See Brown v. Allen, 166 Conn. 174, 176-77, 348 A.2d 666 (1974). The attorney general in this case waived the service requirement by entering a postjudgment appearance, having automatically become a party to the proceedings by operation of General Statutes § 46b-160. See also Gelinas v. Nelson, 165 Conn. 33, 40-41, 327 A.2d 565 (1973); Castellani v. Criscuolo, 36 Conn. Sup. 501, 502, 409 A.2d 1040 (1979).

The Appellate Court mistakenly relied on our decision in Mendez v. Mendez, 160 Conn. 237, 278 A.2d 795 (1971), where an appeal was brought by the attorney general and the wife from a judgment granting the husband a divorce. The trial court had determined that two minor children were not the issue of the marriage. We dismissed the appeal because the wife had not taken an active part in the appeal and “[njeither the state nor the attorney general was named as a party in the complaint and no order of court joining either as a party appears to have been made.” Id., 239. At the time Mendez was decided, however, there was no statute, as here, making the attorney general an automatic party to the proceedings. The case is therefore inapposite. Interestingly enough, a few months following the Mendez decision, the legislature passed what is now General Statutes § 46b-55 (a) which provides: “The attorney general shall be and remain a party to any action for dissolution of marriage, legal separation or annulment, and to any proceedings after judgment in such action, if any party to the action, or any child of any party is receiving or has received aid or care from the state.”

We also cannot agree with the Appellate Court’s conclusion that the attorney general must participate at trial in order to have standing to appeal. Durso v. Misiorek, supra, 214. First, General Statutes § 46b-160 does not require the attorney general to participate at trial and the regulatory scheme is structured to allow the plaintiff to proceed with private counsel. See Regs., Conn. State Agencies § 17-82e-6. Indeed, it may not always be advisable for the attorney general to take an active role at trial. The state has two conflicting interests: on the one hand, as parens patriae, it has the obligation to insure that the child’s father is accurately determined, and on the other hand, it has a financial interest in seeking reimbursement from the child’s putative father. See Lavertue v. Niman, supra, 409. Thus, the state’s presence at trial may in some cases only serve to confuse the jury. Secondly, participation at trial is not a requisite element of standing. See Miner v. Marsh, 102 Conn. 600, 603, 129 A. 547 (1925). Finally, as the defendant pointed out at oral argument, the state would in all likelihood be estopped from contesting the unfavorable judgment of the trial court in a collateral action for support payments. It would be unfair to hold, as the defendant nevertheless suggests, that the attorney general, without participating at trial, is unable to appeal from and yet is bound by the judgment of the trial court.

The Appellate Court therefore erred in concluding that the attorney general had no standing on the grounds that he was not a party to the proceedings and did not participate at trial.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 46b-160 provides: “Proceedings to establish paternity of a child born or conceived out of lawful wedlock, including one born to, or conceived by, a married woman but begotten by a man other than her husband, shall be instituted by a verified petition of the mother or expectant mother, with summons and order, filed in the superior court for the geographical area in which either she or the putative father resides. For trial purposes, jurors shall be selected from the judicial disctrict in which such geographical area is located. In cases involving public assistance recipients the petition shall also be served upon the attorney general who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action. Upon the filing of such petition, said court or any judge assigned to said court shall cause a summons, signed by him or by the clerk or assistant clerk of said court, to be issued, requiring the putative father to appear in court at a time and place named therein to show cause, if any he has, why the prayer of such petition should not be granted. Such petition, summons and order shall be in a form approved by the judges of the superior court. In the case of a child or expectant mother being supported wholly or in part by the state, service of such petition may be made by any investigator employed by the department of human resources or the department of income maintenance. No such petition shall be brought after three years from the birth of such child, or after three years from cessation of contribution toward support of the child by the putative father, whichever is later; provided the provisions of section 52-590 shall be applicable to this section. If such putative father fails to appear in court at such time and place, the court may hear the petitioner and enter such judgment and order as the facts may warrant. Such court may order continuance of such hearing; and if such mother or expectant mother continues constant in her accusation, it shall be evidence that the respondent is the father of such child.”

       Regs., Conn. State Agencies § 17-82e-6 (3) provides: “Paternity proceedings are handled by private attorneys. The mother can select an attorney of her choice or, if she has none, the child support unit will give names of at least three attorneys from which to make a choice. She must make a choice within 15 days. If she has not chosen an attorney by the end of 15 days after being given the names, the child support division will choose an attorney. The child support division maintains a list of attorneys willing to take on paternity actions within department requirements.”

       The parties did not raise the issue of standing in their arguments before the Appellate Court. Durso v. Misiorek, 3 Conn. App. 212, 213, 485 A.2d 1309 (1985). The Appellate Court was of course obligated to consider its jurisdiction to hear the appeal despite the parties’ failure to raise it. Ardmore Construction Co. v. Freedman, 191 Conn. 497, 498 n.4, 467 A.2d 674 (1983).

       The United States Supreme Court in Little v. Streater, 452 U.S. 1, 9, 101 S. Ct. 2202, 68 L. Ed. 2d 627 (1981), recognized that Connecticut’s involvement in paternity proceedings “was considerable and manifest, giving rise to a constitutional duty. Because [the mother’s] child was a recipient of public assistance, Connecticut law compelled her, upon penalty of fine and imprisonment for contempt, ‘to disclose the name of the putative father under oath and to institute an action to establish the paternity of said child.’ Conn. Gen. Stat. § 46b-169 (1981). See Maher v. Doe, 432 U.S. 526 [97 S. Ct. 2474, 53 L. Ed. 2d 534] (1977); Roe v. Norton, 422 U.S. 391 [95 S. Ct. 2221, 45 L. Ed. 2d 268] (1975). The State’s Attorney General automatically became a party to the action, and any settlement agreement required his approval or that of the Commissioner of Human Resources or Commissioner of Income Maintenance. See Conn. Gen. Stat. §§ 46b-160 and 46b-170 (1981).” (Emphasis added.)

       The attorney general in his brief has also addressed the related issue of aggrievement. The Appellate Court never reached the issue, however, because it found that the attorney general was not a party to the proceedings below. As such, we do not consider and express no opinion on whether the attorney general was sufficiently aggrieved to have standing.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    State of Connecticut v. John Cavallo
    (12632)
    Peters, C. J., Healey, Shea, Callahan and Kinney, Js.
    Argued June 5
    decision released August 5, 1986

      William J. St. John, Jr., for the appellant (defendant).

      DavidS. Shepack, deputy assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue in this case is whether the Connecticut statute that prohibits tampering with witnesses is unconstitutionally vague. After a jury trial, the defendant, John Cavallo, was convicted of tampering with a witness in violation of General Statutes § 53a-151. He appeals from this judgment.

The jury could reasonably have found the following facts. On several occasions during the early months of 1984, the defendant, a Watertown police officer, allowed a seventeen year old woman to accompany him in his police cruiser. The couple often drank alcohol while together in the cruiser. On April 17, 1984, the chief of the Watertown police department, after learning of the defendant’s activities, discharged the defendant from the police force for violating department policies against carrying civilians and using intoxicating liquors in police vehicles. The defendant denied the police chief’s allegations and, through his union representative, notified the department that he intended to bring the matter to arbitration.

On April 18, the defendant met with the woman he had entertained in the cruiser and informed her of his dismissal. He told her that if investigators questioned her about their relationship, she should tell them that she had never been in the defendant’s police cruiser and should deny any knowledge of the defendant’s social use of the vehicle. On April 24, the defendant called the woman in Florida, where she was vacationing, and reiterated these instructions. On May 1, after the woman had returned to Connecticut, the defendant again implored her to tell investigators nothing. During the conversation, he informed her that he was going to sue the town and promised her that he would “reimburse” from the proceeds of the suit anyone who “stuck by him.”

When police investigators questioned the woman on May 2, she claimed that she had never been in the defendant’s police cruiser and that the defendant was guilty of no misconduct. After the session had ended, the defendant called the woman to determine whether she had divulged any incriminating information and to request that she continue to remain silent about their use of the police cruiser.

The defendant initiated arbitration proceedings on May 14,1984. On July 10,1984, the woman gave police investigators a full account of her visits with the defendant in his cruiser and informed them of the defendant’s attempts to persuade her to deny that these activities had ever occurred.

On appeal, the defendant raises three claims of error. He argues that: (1) General Statutes § 53a-151 is void for vagueness; (2) the state produced insufficient evidence at trial to support his conviction; and (3) the sentence imposed by the trial court is excessive. We find no error.

I

In his first claim of error, the defendant mounts a twofold attack on the validity of General Statutes § 53a-151 under the United States constitution. He initially contends that the statute is impermissibly vague in its application to the facts of this case. He then argues that, even if the statute is valid as applied in this case, it is unconstitutionally vague on its face and should not be enforced. We are persuaded by neither of these contentions.

A

The defendant claims that, because General Statutes § 53a-151 does not clearly define as illegal his conduct in this case, the statute is void for vagueness as applied to him. We disagree.

The standard that we use to determine whether a statute is void for vagueness under the fourteenth amendment to the United States constitution is well established. “ ‘A statute . . . [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. Baggett v. Bullitt, 377 U.S. 360, 367, 84 S. Ct. 1316, 12 L. Ed. 2d 377 [1964]; Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 [1926]. Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.’ Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 [1975]; State v. Hurliman, 143 Conn. 502, 509, 123 A.2d 767 [1956].” State v. Chetcuti, 173 Conn. 165, 167, 377 A.2d 263 (1977); see Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); State v. Perruccio, 192 Conn. 154, 158, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984); State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980).

As applied to the defendant in this case, the language of General Statutes § 53a-151 satisfies this test. According to the statute, “[a] person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.” The defendant does not challenge the precision of the terms “witness” and “official proceeding,” which are defined in General Statutes § 53a-146. Instead, he claims that the statute’s flaw lies in its failure to define the term “induces or attempts to induce.” Ambiguity in this phrase, he argues, made it impossible for him to have known in advance whether the statute proscribed his conduct in this case. We reject this contention.

The language of § 53a-151 plainly warns potential perpetrators that the statute applies to any conduct that is intended to prompt a witness to testify falsely or to refrain from testifying in an official proceeding that the perpetrator believes to be pending or imminent. The legislature’s unqualified use of the word “induce” clearly informs persons of ordinary intelligence that any conduct, whether it be physical or verbal, can potentially give rise to criminal liability. Although the statute does not expressly mandate that the perpetrator intend to cause the witness to alter or withhold his testimony, this implicit requirement is apparent when the statute is read as a whole. See Norwich v. Silverberg, 200 Conn. 367, 371, 511 A.2d 336 (1986); Grodis v. Burns, 190 Conn. 39, 44, 459 A.2d 994 (1983); P. X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159-60, 454 A.2d 1258 (1983). By limiting the statute’s application to situations where the perpetrator believes that an official proceeding is pending or about to be instituted, the legislature indicated that it did not envisage outlawing conduct that inadvertently convinces a witness to testify falsely or to refuse to testify. The legislature’s choice of the verb “induce” connotes a volitional component of the crime of tampering that would have been absent had it employed a more neutral verb such as “cause.” Furthermore, the statute’s application to unsuccessful, as well as successful, attempts to induce a witness to render false testimony supports our conclusion that the statute focuses on the mental state of the perpetrator to distinguish culpable conduct from innocent conduct. See II A.L.I., Model Penal Code and Commentaries (1980) § 241.6, comment, pp. 166-71.

The defendant in this case repeatedly instructed a potential witness to fabricate her account of their relationship. He also apparently promised her a possible pecuniary reward for protecting him. In light of the statute’s plain language, we cannot say that § 53a-151 did not give the defendant fair warning that this course of conduct was illegal.

B

The defendant next claims that, even if his conduct clearly falls within the proscriptions of General Statutes § 53a-151, the statute is unconstitutionally vague on its face and should not be enforced. We disagree.

Before reaching the merits on this issue, we must, as a preliminary matter, determine whether the defendant has standing to raise this claim. Ordinarily, when a litigant challenges a statute as void for vagueness under the United States constitution, we confine our inquiry to the statute’s applicability to the facts of the case. State v. Perruccio, supra, 158; State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984). Where, however, a challenged statute, if vague, could intrude on fundamental constitutional guarantees such as first amendment rights, we will refuse to enforce the statute if we find that it is unconstitutionally vague on its face. State v. Pickering, supra, 57, 57 n.3; see Smith v. Goguen, 415 U.S. 566, 573, 573 n.10, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); Smith v. California, 361 U.S. 147, 151, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959). In this case, General Statutes § 53a-151 applies to inducement, which is a communicative form of conduct. Because such a statute could, if drafted ambiguously, impinge upon rights of expression protected by the first amendment, we will review the defendant’s claim that the statute is facially invalid.

Our inquiry into the facial validity of a statute focuses on whether indefiniteness in the meaning of the statute could reasonably create uncertainty over whether the statute prohibits expression that is protected by the first amendment. Such ambiguity is unconstitutional for two reasons: (1) it may deter individuals from exercising their first amendment freedoms for fear of incurring criminal liability; and (2) it vests enforcement officials with undue discretion to interfere with the right to freedom of speech. See Smith v. Goguen, supra, 573-76; Grayned v. Rockford, supra, 109; Baggett v. Bullitt, supra, 372; State v. Pickering, supra, 57-58 n.3. Consequently, we carefully scrutinize a statute that is under attack to determine whether its language, as we have construed it, reasonably warrants such uncertainty among members of the public. We will not enforce a statute that could exert such a chilling effect on first amendment liberties. See Smith v. Goguen, supra; Grayned v. Rockford, supra; Baggett v. Bullitt, supra.

The defendant in this case claims that General Statutes § 53a-151 is facially void for vagueness because it furnishes the public no guidance in determining the scope of its application to protected speech. He reasons that, since the expression of one person’s ideas may readily influence the conduct of others, a person could be exposed to criminal liability under General Statutes § 53a-151 any time something he says inadvertently causes a witness to testify falsely or refuse to testify. This threat, he claims, can reasonably be expected to inhibit members of the public in exercising their first amendment rights.

The defendant’s argument, however, assumes that tampering with a witness is a strict liability offense. We have held today that a defendant is guilty of tampering with a witness only if he intends that his conduct directly cause a particular witness to testify falsely or to refrain from testifying at all. So interpreted, § 53a-151 warns the public that it applies only to conduct intentionally undertaken to undermine the veracity of the testimony given by a witness. Members of the public therefore have no basis for concern that they might be subject to prosecution when their statements unwittingly cause a witness to testify falsely. As long as intent is a necessary element of the crime under § 53a-151, which penalizes only verbal acts relating to a specific pending prosecution, the statute casts no chilling effect on general exhortations concerning cooperation with judicial proceedings. See Bond v. Floyd, 385 U.S. 116, 134, 87 S. Ct. 339, 17 L. Ed. 2d 235 (1966). Accordingly, it is not unconstitutionally vague on its face. See State v. Carlsen, 638 P.2d 512, 515 (Utah), cert. denied, 455 U.S. 958, 102 S. Ct. 1469, 71 L. Ed. 2d 676 (1981); State v. Stroh, 91 Wash. 2d 580, 583-86, 588 P.2d 1182 (1979); see also Kilgus v. Cunningham, 602 F. Sup. 735, 738-39, aff'd without opinion, 782 F.2d 1025 (1st Cir. 1985); State v. Woods, 716 P.2d 624, 627-28 (Mont. 1986); People v. Esteves, 85 Misc. 2d 217, 219-20, 378 N.Y.S.2d 920 (1976).

II

The defendant next contends that the trial court erred in denying his motion for acquittal because the evidence adduced at trial was insufficient to permit the jury to reach a verdict of guilty. Apparently conceding that the state presented evidence that was probative of each element of the crime of tampering with a witness, he claims that the jury could not reasonably have found him guilty because the evidence against him lacked the credibility and weight necessary to establish his guilt beyond a reasonable doubt. We disagree.

The defendant’s argument reflects a misunderstanding of the scope of our review of the sufficiency of the evidence underlying a conviction. On appeal, we do not attempt to weigh the credibility of evidence offered at trial, nor do we purport to substitute our judgment for that of the jury. Instead, our review consists of a two-step process in which we construe the evidence presented at trial in a light most favorable to sustaining the verdict; State v. Vinal, 198 Conn. 644, 657-58, 504 A.2d 1364 (1986); State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); and then determine whether the jury could reasonably have found, “ ‘upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985), quoting State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).

A review of the record in this case reveals that the state presented substantial evidence to satisfy its burden of proving each element of the offense charged. The state introduced testimony that the defendant had repeatedly instructed a woman to give a false account of her activities with the defendant in his police cruiser. It also introduced ample evidence to convince a reasonable finder of fact that, at the time of his attempts to so induce the woman, the defendant had known that an arbitration proceeding would soon be pending and that, during the hearing, the woman would probably be called to testify about her meetings with the defendant in the cruiser. From this evidence, the jury could reasonably have inferred that the defendant intended to induce the woman to testify falsely. Because the jury could have found the defendant guilty beyond a reasonable doubt if it found the state’s evidence credible, the trial court correctly denied the defendant’s motion for acquittal.

Ill

The defendant’s final claim is that the sentence imposed by the trial court is excessive. The trial court sentenced the defendant to a term of five years imprisonment with execution to be suspended after eighteen months served and five years probation. The defendant concedes that this sentence falls within the sentencing parameters set by General Statutes § 53a-151 (b). He argues only that, in light of his record as a police officer, the nature of his offense, and the recommendation of leniency given by the author of his presentence investigation report, the trial court abused its discretion by ordering the defendant to serve a sentence of this length. We do not review this claim because the defendant has not followed the proper procedure for seeking reduction of his sentence.

General Statutes § 53a-39 and Practice Book § 934 require that convicted offenders who receive definite sentences of three years imprisonment or less, and who seek to have their sentences reduced, must direct their requests for relief to the sentencing court.* The record in this case contains no indication that the defendant filed such a motion with the trial court and the defendant has made no such claim. Consequently, because the defendant has failed to comply with a prerequisite to appellate review of the length of his sentence, we do not decide whether the trial court abused its discretion in this case.

There is no error.

In this opinion the other justices concurred.

       The defendant also informed the woman that he had just been arrested for tampering with another young woman who was also a potential witness.

       “[General Statutes] Sec. 53a-151. tampering with a witness: class d felony, (a) A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.
      “(b) Tampering with a witness is a class D felony.”

       At oral argument, the defendant claimed that General Statutes § 53a-151 is also invalid under the Connecticut constitution. Because he has not briefed this issue, we do not consider it here. Bieluch v. Bieluch, 199 Conn. 550, 555 n.5, 509 A.2d 8 (1986); State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985).

       “[General Statutes] Sec. 53a-146. definitions. For purposes of [General Statutes §§ 53a-146 through 53a-167c] (1) An ‘official proceeding’ is any proceeding held or which may be held before any legislative, judicial, administrative or other agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner or notary or other person taking evidence in connection with any proceeding. . . .
      “(6) ‘Witness’ is any person summoned, or who may be summoned, to give testimony in an official proceeding.”

       The trial court in this case instructed the jury in accordance with our construction of § 53a-151: “The statute does not spell out what the words ‘induce’ or ‘attempts to induce’ mean. The dictionary definition is this: to induce is to prevail upon, to cause one to do or not to do something. Any means may be used so long as such means is used with the intent to prevail upon another to a course of action. Offering or giving a bribe, threatening or coercing the witness or his family are two means that suggest themselves as examples. But any means may suffice so long as it is used with the intent to influence the conduct of the witness or prospective witness.
      “It is also sufficient if the defendant knowingly makes any false statements or practices any fraud or deceit with the intent to affect the testimony or conduct of a person who is a witness or may be a witness at any official proceeding. Thus, a statement such as this: Don’t testify on behalf of John Doe because he’s a crook, is sufficient if the person making such a statement knows it could be false and makes it to a person who he knows is a witness or who he knows may be a witness at any official proceeding as I have defined the phrase ‘official proceeding’ to you.
      “The inducement must be for purposes of having the witness testify falsely or withhold testimony, elude legal process summoning him to testify or having the witness absent himself from the proceeding.”

       At oral argument, the defendant purported to bring this claim under the Connecticut constitution, as well as under the United States constitution. Because he did not brief the state constitutional issue, we decline to review it. See footnote 3, supra.

       The state contends that this claim is unreviewable because the defendant failed to raise it at trial. Our review of the record indicates that the defendant filed posttrial motions with the trial court, claiming that § 53a-151 is void for vagueness. In arguing before the trial court in support of these motions, the defendant alluded to the statute’s vagueness on its face as well as to its ambiguity in its application to him. We deem his action sufficient to preserve both issues for appeal.

       General Statutes § 53a-151 (b) defines tampering with a witness as a class D felony. General Statutes § 53a-35a authorizes the trial court to sentence a defendant convicted of a class D felony to a term of imprisonment of “not less than one year nor more than five years

       “[General Statutes] Sec. 53a-39. reduction of definite sentence OF THREE YEARS OR LESS. DISCHARGE OF DEFENDANT. At any time during the period of a definite sentence of three years or less, the sentencing court or judge may, after hearing and for good cause shown, reduce the sentence, order the defendant discharged, or order the defendant discharged on probation or conditional discharge for a period not to exceed that to which he could have been originally sentenced. At any time during the period of a definite sentence of at least two years but not more than five years, the sentencing court or judge may, after hearing and for good cause shown, order the defendant discharged on intensive probation in accordance with subsection (b) of section 54-105 for a period of at least one year.”

       “[Practice Book] Sec. 934. definite sentence
      “At any time during the period of a definite sentence of three years or less, the judicial authority may, after a hearing and for good cause shown, reduce the sentence or order the defendant discharged or released on probation or on a conditional discharge for a period not to exceed that to which he could have been sentenced originally.”

       Offenders who receive definite sentences of three years or more may apply for review of their sentences under General Statutes § 51-195, which provides that “[a]ny person sentenced on one or more counts of an information to a term of imprisonment for which the total sentence of all such counts amounts to confinement for three years or more, may, within thirty days from the date such sentence was imposed or if the offender received a suspended sentence with a maximum confinement of three years or more, within thirty days of revocation of such suspended sentence, except in any case in which a different sentence could not have been imposed or in any case in which the sentence or commitment imposed resulted from the court’s acceptance of a plea agreement or in any case in which the sentence imposed was for a lesser term than was proposed in a plea agreement, file with the clerk of the court for the judicial district in which the judgment was rendered an application for review of the sentence by the review division. Upon imposition of sentence or at the time of revocation of such suspended sentence, the clerk shall give written notice to the person sentenced of his right to make such a request. Such notice shall include a statement that review of the sentence may result in decrease or increase of the term within the limits fixed by law. A form for making such application shall accompany the notice. The clerk shall forthwith transmit such application to the review division and shall notify the judge who imposed the sentence. Such judge may transmit to the review division a statement of his reasons for imposing the sentence, and shall transmit such a statement within seven days if requested to do so by the review division. The filing of an application for review shall not stay the execution of the sentence.”


author: Shea, J.

text:
    Edward V. Morris v. The Hartford Courant Company
    (12756)
    Peters, C. J., Healey, Shea, Callahan and Kinney, Js.
    Argued June 5
    decision released August 5, 1986

      Eugene C. Cushman, for the appellant (plaintiff).

      Ralph G. Elliot, for the appellee (defendant).
   Shea, J.

The plaintiff, Edward V. Morris, brought suit against his former employer, The Hartford Courant Company, alleging in the first count of his revised substitute complaint that he had been wrongfully discharged based upon a false accusation that he had misappropriated company funds and, in the second count, that his discharge had resulted in the infliction of severe emotional distress. The defendant moved to strike each count of the complaint for failure to state a claim upon which relief could be granted. After the trial court granted the motion to strike, the plaintiff declined to plead further pursuant to Practice Book § 157, and judgment was subsequently entered for the defendant. The plaintiff has appealed, claiming that the trial court erred in granting the defendant’s motion to strike because both counts allege cognizable causes of action. We find no error.

The plaintiff’s revised substitute complaint alleges that for an eleven and one-half year period he was employed by the defendant in the circulation department. The complaint does not allege that there was an employment contract for a specified term. We, therefore, infer from the complaint that the plaintiff-employee and the defendant-employer had an employment at will relationship, that is, the plaintiff was hired for an indefinite period and his employment was terminable at the will of the defendant. See Somers v. Cooley Chevrolet Co., 146 Conn. 627, 629, 153 A.2d 426 (1959). On December 14, 1981, the defendant terminated the plaintiffs employment by presenting him with a termination notice asserting that he had misappropriated company funds. Subsequently, the plaintiff instituted this action specifically alleging in the complaint that his dismissal was wrongful because the defendant had failed to investigate its assertions and that, therefore, it “violated public policy by falsely charging [him] with criminal conduct . . . .” The complaint also alleged that the defendant “knew or should have known, or was substantially certain that the discharge . . . would cause [the plaintiff] severe emotional distress.”

Because this appeal is before us pursuant to a motion to strike, we note preliminarily that all well pleaded facts in the complaint as amended must be construed in a manner most favorable to the plaintiff. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986); Mead v. Burns, 199 Conn. 651, 655, 509 A.2d 11 (1986); Verdon v. Transamerica Ins. Co., 187 Conn. 363, 365, 446 A.2d 3 (1982); Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 (1980); Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 (1973). Accordingly, we must assume, in this case, that the plaintiff was falsely accused of criminal conduct. The question before us becomes, therefore, whether a false accusation of criminal activity is sufficient to support an action for wrongful discharge or for infliction of emotional distress.

I

The principal issue before us is whether the plaintiffs cause of action for wrongful discharge fits within the narrow public policy exception to the general proposition that contracts for an indefinite term of employment are terminable at will. In Sheets v. Teddy’s Frosted Foods, Inc., supra, 475, we recognized, as have the vast majority of other courts, a common law cause of action in tort for discharges “if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.” (Emphasis in original.) See Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984); Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 443 A.2d 922 (1982); see generally note, “Guidelines for a Public Policy Exception to the Employment at Will Rule: The Wrongful Discharge Tort,” 13 Conn. L. Rev. 617 (1981); note, “Protecting Employees at Will Against Wrongful Discharge: The Public Policy Exception,” 96 Harv. L. Rev. 1931 (1983). This public policy exception to the employment at will rule carved out in Sheets attempts to balance the competing interests of employer and employee. Under the exception, the employee has the burden of pleading and proving that his dismissal occurred for a reason violating public policy. The employer is allowed, in ordinary circumstances, to make personnel decisions without fear of incurring civil liability. Employee job security, however, is protected against employer actions that contravene public policy.

In his revised substitute complaint the plaintiff attempted to bring his case within the narrow ambit of Sheets by alleging that the defendant “falsely charg[ed] the [plaintiff] with criminal conduct” and that “as a result wrongfully discharged the plaintiff from his employment.” There is no allegation that the defendant knew that the plaintiff did not misappropriate company funds and nevertheless deliberately accused him of it. Nor did the plaintiff allege that the accusation was made with reckless disregard of the truth or falsity of the information. As the plaintiff conceded at oral argument, and as is apparent in the revised substitute complaint, it is alleged only that the defendant negligently investigated the matter. The trial court concluded that such an allegation does not implicate an important violation of public policy. On appeal the plaintiff persists in portraying his dismissal as contravening public policy. We disagree with the plaintiff’s characterization.

The plaintiff has failed to identify any particular public policy affronted by his termination. Given the inherent vagueness of the concept of public policy, it is often difficult to define precisely the contours of the exception. Nevertheless, the plaintiff has not alleged that his discharge violated any explicit statutory or constitutional provision. Nor has he alleged that his dismissal contravened any judicially conceived notion of public policy. Under the allegations of the present complaint it is unnecessary for us to articulate the limits of the public policy exception any more definitely than we have done previously. We also need not consider, therefore, whether an allegation that the false accusation was knowingly or recklessly made would have established a viable cause of action under these limits. The plaintiff here claims merely that it violates public policy to accuse an employee of a crime falsely. He alleges only that the defendant failed to investigate the charge “reasonably and adequately.” A false but negligently made accusation of criminal conduct as a basis for dismissal is not a “demonstrably improper reason for dismissal” (emphasis in original) and is not “derived from some important violation of public policy.” Sheets v. Teddy’s Frosted Foods, Inc., supra, 475.

Therefore, although we continue to recognize that a wrongful discharge is actionable when based upon some important violation of public policy, the motion to strike the first count of the complaint was properly granted because its allegations did not fall within the necessary parameters.

II

The plaintiff also claims that the trial court erred in striking the second count of his revised substitute complaint alleging the unintentional infliction of emotional distress. The trial court granted the defendant’s motion to strike because it concluded that the emotional distress count was merely derivative of the first count. Having found no actionable discharge in the first count, the court concluded there was no breach of duty as alleged in the second count. Although we disagree with the basis for the trial court’s conclusion, the motion to strike was properly granted.

The trial court’s conclusion that the plaintiff failed to state a cognizable claim for wrongful discharge does not, as the trial court concluded, ineluctably lead to the conclusion that a cause of action for infliction of emotional distress cannot be based upon the conduct of the defendant employer. As we have said, in order for a wrongful discharge action to lie properly in an employment at will situation, the termination must be based upon “some important violation of public policy.” Id. There is nothing in that doctrine, however, to preclude an action for unintentional infliction of emotional distress based upon unreasonable conduct of the defendant in the termination process. Therefore, the trial court erroneously concluded that the plaintiffs second count failed to state a claim upon which relief could be granted merely because it related to the same events as those alleged in the stricken first count.

Although grounds other than those specified should not be considered by the trial court in passing upon a motion to strike; Cyr v. Brookfield, 153 Conn. 261, 263, 216 A.2d 198 (1965); where the trial court sustains a motion to strike on erroneous grounds, if another ground is appropriate, the granting of the motion will be upheld by this court. Fraser v. Henninger, 173 Conn. 52, 59, 376 A.2d 406 (1977); Oppenheimer v. Connecticut Light & Power Co., 149 Conn. 99, 105, 176 A.2d 63 (1961). Of course, the alternative ground must have been alleged in the motion to strike in some form. Oppenheimer v. Connecticut Light & Power Co., supra. As we have concluded, the trial court granted the motion to strike on erroneous grounds. It is necessary, therefore, to determine whether the motion to strike could properly have been based on grounds other than those relied on by the trial court.

In the memorandum of law filed in support of its motion to strike, the defendant maintained that the complaint was insufficient to state a claim for unintentional infliction of emotional distress because of the failure of the plaintiff to allege that the emotional distress might result in illness or bodily harm. In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), we first recognized a cause of action for “unintentionally-caused emotional distress” and held that recovery did not “depend on proof of either an ensuing physical injury or a risk of harm from physical impact.” We concluded, however, that the plaintiff does have the burden of pleading and establishing that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” (Emphasis added.) Id.; see Urban v. Hartford Gas Co., 139 Conn. 301, 93 A.2d 292 (1952); annot., 1 A.L.R.4th 209 (1980); 2 Restatement (Second), Torts § 313 (1965).

Despite the fact that the defendant failed to assert a distinct basis for the legal insufficiency of the complaint in its motion to strike, we see no injustice to the plaintiff here, because its inclusion in the supporting memorandum of law provided adequate and sufficient notice to the plaintiff of a potential inadequacy in his complaint that could have been cured by pleading over. See Supples v. Cannon, 44 Conn. 424, 431 (1877). Therefore, although the trial court based its ruling on improper grounds, a reversal of the trial court is not mandated, because the plaintiffs allegations are insufficient to establish the conduct necessary to maintain an action for unintentional infliction of emotional distress. The plaintiff did not allege that the emotional distress caused by the defendant’s conduct exposed him to the risk of illness or bodily harm. Therefore, the trial court was correct in striking the second count of the complaint for failure to state a claim upon which relief could have been granted.

Ill

The plaintiff’s final claim is that the trial court deprived him of his right to maintain an action under article first, § 10, of our state constitution and the fourteenth amendment to the United States constitution. Article first, § 10, of our state constitution provides that “[a]ll courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Although this constitutional provision safeguards a person’s “right to redress” in the courts, it does not protect this right unless “one suffers a recognized injury.” Gentile v. Altermatt, 169 Conn. 267, 284, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976). Thus, a necessary prerequisite to the constitutional “open court” requirement is that a person must suffer a cognizable “injury.” Such an injury has been defined as “ ‘a legal injury, that is, one violative of established law of which a court can properly take cognizance.’ ” Id., 285, quoting Taylor v. Keefe, 134 Conn. 156, 163, 56 A.2d 768 (1947). Because each count in the plaintiff’s revised substitute complaint fails to state a claim upon which relief can be granted, as we have concluded, the plaintiff clearly has no cognizable injury that constitutionally requires an avenue of redress pursuant to article first, § 10, of our state constitution. We similarly conclude that the plaintiff’s federal constitutional due process claim is without merit.

There is no error.

In this opinion the other justices concurred.

       The plaintiff initially brought this action in four counts. The initial complaint was twice amended and the action was cast in its present two count form. The defendant moved to strike the amended complaint for failure to state a claim upon which relief could be granted. The motion to strike was granted by the trial court, O’Connell, J., and the plaintiff pleaded over pursuant to Practice Book § 157 by filing a substitute complaint. The plaintiff then filed the revised substitute complaint which is the subject of this appeal.

       In Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984), we expressly refused to enlarge the circumstances under which an employee at will may successfully challenge his dismissal beyond the situation where the reason for his discharge involves impropriety derived from some important violation of a public policy. We, therefore, held that such an employee cannot sustain a cause of action in contract for breach of an implied covenant of good faith and fair dealing based solely upon a discharge without just cause. Id.

       The allegations of the complaint do not state precisely whether the plaintiff was asserting a claim for intentional or unintentional infliction of emotional distress. There was no allegation in the complaint that the defendant’s actions accusing the plaintiff of committing a criminal act were outrageous or made with the intention of causing emotional distress. See Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986); 1 Restatement (Second), Torts § 46 (1965). Therefore, as the plaintiff conceded at argument, we conclude that he was asserting only a claim of unintentional infliction of emotional distress.

       Although we have decided that the employment at will rule does not prohibit an action for the infliction of emotional distress, such an action might, in certain circumstances, be precluded. In Petyan v. Ellis, 200 Conn. 243, 254, 510 A.2d 1337 (1986), we held that an employer, when supplying information on forms required by the unemployment compensation commission, could not be held liable for the infliction of emotional distress because of the absolute privilege attending the furnishing of such information. Magnan v. Anaconda Industries, Inc., 37 Conn. Sup. 38, 43, 429 A.2d 492 (1980), rev’d on other grounds, 193 Conn. 558, 479 A.2d 781 (1984). We are unable to determine from the present complaint, however, whether the termination notice which contained the false accusation was a document required by our administrative regulations. See Regs., Conn. State Agencies § 31-222-9. We also note that since this case was disposed of on a motion to strike the defendant had no opportunity to plead any privilege as a special defense. See Practice Book § 164. Therefore, we will resolve this issue in the manner in which it was presented to the trial court.

       The defendant’s motion to strike failed to comply with Practice Book § 154, which requires that a motion to strike based on legal insufficiency distinctly specify the reason or reasons for each such claimed insufficiency. The motion filed sought to strike the revised substitute complaint “because each count fails to state a claim upon which relief can be granted.” We have said that a motion to strike that does not specify the grounds of insufficiency is “fatally defective”; Lubas v. McCusker, 153 Conn. 250, 253, 216 A.2d 289 (1965); and that “Practice Book § 155, which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of § 154 that the reasons for the claimed pleading deficiency be specified in the motion itself.” King v. Board of Education, 195 Conn. 90, 94 n.4, 486 A.2d 1111 (1985). Nevertheless, the plaintiff made no objection to the form of the defendant’s motion to strike, and because we do not consider Practice Book § 154 to be jurisdictional in nature, we will consider the motion to strike in the form presented to the trial court.

       We note that the ground upon which we rely was raised in the defendant’s memorandum of law in support of a motion to strike the earlier amended complaint. Although this ground was not asserted in the memorandum of law in support of the motion to strike the revised substitute complaint, the earlier memorandum was filed as an addendum and was expressly incorporated by reference. The trial court was, therefore, apprised of the alternative argument and the plaintiff, by virtue of the attached prior pleading, should have been well aware of the claim.


author: Callahan, J.

text:
    State of Connecticut v. Andres Rodriquez
    (12334)
    Shea, Dannehy, Santaniello, Callahan and Ment, Js.

      Argued April 10
    decision released August 5, 1986

      Maxwell Heiman, with whom, on the brief, was William J. Tracy, Jr., for the appellant (defendant).

      Bernadette Conway, special deputy assistant state’s attorney, with whom, on the brief, were Arnold Maride, state’s attorney, James G. Clark, deputy assistant state’s attorney, and Mary Galvin, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in an amended information with arson in the first degree in violation of §§ 53a-l.ll and 53a-8 of the General Statutes. He was found guilty by a jury and sentenced to imprisonment for a term of thirteen years. He has appealed from the judgment rendered on the jury verdiet. On appeal, he claims that the trial court erred: (1) in denying his motion for a judgment of acquittal because of insufficient evidence; (2) in instructing the jury with respect to General Statutes § 53a-8; and (3) in failing to inquire into his trial counsel’s conflicting representation of the defendant and a witness. The defendant also claims that the conduct of defense counsel denied him the effective assistance of counsel guaranteed by the sixth and fourteenth amendments to the United States constitution. We find no error.

I

The defendant first claims that the evidence adduced at the trial was insufficient to sustain a conviction and that the trial court erred by denying his motion for acquittal. “When a claim on appeal challenges the sufficiency of the evidence, we undertake a two-part task. ‘We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).’ State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); see State v. McCarthy, 197 Conn. 166, 178, 496 A.2d 190 (1985).” State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986).

Although the jury may “draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture.” State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). Each essential element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The relevant question in our review “ ‘ “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U. S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)].” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).’ State v. Morrill, 197 Conn. 507, 512, 498 A.2d 76 (1985).” State v. Brown, 199 Conn. 14, 23, 505 A.2d 690 (1986). “In reviewing the sufficiency of the evidence supporting a jury verdict, this court must construe that evidence in the most favorable manner reasonably possible to support the jury verdict. Josephson v. Meyers, 180 Conn. 302, 313, 429 A.2d 877 (1980); State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978).” State v. Martin, 189 Conn. 1, 8, 454 A.2d 256 (1983).

The jury could reasonably have found the following facts. On March 21,1982, at approximately 1:44 a.m., the Agron Superette, which was owned by the defendant but in his wife’s name and located at 113 Putnam Street in New Haven, was firebombed. From her bedroom window across the street, a neighbor saw an his-panic male, with a large “afro” hairstyle, approach the store, look around, and then throw an object against a store window. Immediately after the object was thrown she heard glass break and saw fire. The neighbor knew the defendant and testified that it was definitely not the defendant who hurled the object. The breaking of the window set off an audible outside alarm and also alerted the security company, which monitored the store, to a possible burglary. The security company immediately notified the New Haven police department.

Officer Leo Bombalicki was dispatched to the scene to investigate. When he arrived at approximately 1:52 a.m., he saw, on the ground, flame and smoke emanating from a glass quart Coca Cola bottle with a rag stuffed in it. He referred to the device as a “Molotov cocktail.” The bottle was located beneath a broken window between a six foot wire fence and the building housing the Agron Superette. The fence was approximately two feet eight inches from the building. The side of the building in the area of the window was scorched.

Firemen and equipment from a nearby fire station arrived at the scene at 1:56 a.m. and immediately extinguished the fire with a dry chemical. Fire and police personnel were then admitted to the store by the defendant who had come from his home at 139 Putnam Street, a short distance away. The defendant’s wife testified that he had been awakened and had gone to the store in response to a telephone call that the store’s alarm system had been activated. On gaining entry to the store, firemen found a hazy smoke condition inside caused by smoldering cartons. The cartons had been ignited by a portion of the gasoline soaked rag from the “Molotov cocktail” which had fallen inside the store through a three and one-half to four inch triangular hole in the store window caused by the impact of the bottle. Inside the store, next to a counter and approximately four feet away from, and at a slight angle to the window, firemen found an uncapped plastic gallon container half to three-quarters full of a liquid. The plastic cap from the container was found on the sidewalk outside the building in the area of the bro - ken window. A plastic milk crate of the type used in the store was found in the same area outside the fence. A fire official testified that the perpetrator possibly stood on the crate to hurl the bottle. Later testing established that the liquid in both the quart bottle and the gallon container was gasoline and that the contents of both containers were similar in chemical makeup and “most likely” came from the same source. Testing also established the presence of gasoline on the bottle cap. There was expert testimony that the combination of the gasoline in the plastic container and in the bottle had the potential explosive power of twelve to fourteen sticks of dynamite and that an explosion of that magnitude could have occurred if the bottle had penetrated the window. The bottle did not penetrate because the window was made of plexiglass, which is stronger and more impact resistant than regular window glass. Nowhere in the record, however, is there any evidence that the plexiglass window had been installed while the defendant was associated with the store or that he knew the window was plexiglass or that he was aware of the properties of plexiglass.

Early in the morning of March 21, after the incident, the defendant gave a statement to fire investigator John Esposito of the New Haven fire department in which he said that when he arrived at the scene he saw a Coca Cola bottle on fire next to the store and that he made that observation from some fifty feet away. Prior to this time no one had told the defendant what kind of bottle had been involved and it would have been virtually impossible to observe the label or determine the specific type of bottle from that distance under the existing conditions. Police and fire officials also testified that the defendant was fully dressed when he arrived, not at all disheveled as though he had just been awakened, and that his demeanor, in view of the circumstances, was calm and somewhat unusual.

The Agron Superette was nominally owned by Elizabeth Rodriquez, the defendant’s wife. The lease for the premises was in her name and she was the backer for the grocery store beer permit. The defendant, however, actually owned and managed the store although he spent most of his time at another store he owned at 142 Putnam Street. The Agron Superette was run on a day-to-day basis by Francisco Lopez, an employee, who opened and closed the store and waited on customers.

On March 20, 1982, Lopez closed the store for the night at approximately 6 p.m. When he closed, he activated the alarm system, secured the two locks on the front door, and padlocked the gate on the fence surrounding the store. He testified that, at the time he left, the gasoline filled container was not in the store. When police and fire personnel checked the store after the fire they found it secure, all inside and outside doors were locked, there was no sign of a burglary or forced entry, and they found the container in a place where it would have been noticed. Sergeant Robert Lawlor of the New Haven police department and investigator Esposito of the fire department both testified that the gallon container of gasoline could only have been placed in the store by someone with a key. Separate keys were required to unlock the padlock on the gate and the locks on the front door, and to deactivate the alarm system. The only two sets of keys were in the possession of the defendant and Lopez. Lopez and the defendant had a friendly relationship and Lopez had no reason to attempt to damage the store.

The building at 113 Putnam Street was owned by Mario LaPrieta. LaPrieta and his wife Soccorsa lived in an apartment over the store and were asleep in a bedroom directly above the store the morning of the firebombing. The LaPrietas had no keys to the store and had no access to the store once it was closed for the evening.

The defendant had originally taken over the operation of the store at 113 Putnam Street from a previous tenant of LaPrieta’s without LaPrieta’s consent. There was evidence that the landlord-tenant relationship between LaPrieta and the defendant was acrimonious from the beginning and that in September, 1981, LaPrieta had commenced summary process proceedings to evict the defendant. The trial of that matter was scheduled for March 22, 1982, the day after the fire. Although there was evidence that the defendant had a defense which would delay his eviction, it was obvious that the relationship of the parties had broken down and any respite would be only temporary. The evidence further indicated that the defendant desired a grocery store beer permit for the other store he owned at 142 Putnam Street, but the lease for 113 Putnam Street contained a provision that the permit for that address could not be transferred. Local zoning regulations also presented a serious obstacle to obtaining a grocery store beer permit for 142 Putnam Street as long as one existed for 113 Putnam Street. The contents of the Agron Superette were insured against fire for $40,000 and the defendant’s insurance agent testified that the defendant had attempted to increase that amount to $45,000 a few months before the firebombing. There was testimony that before the fire the defendant was in contact with an hispanic male with a large “afro” hairstyle. That evidence was not particularly significant, however, because the person was never located or identified.

It is obvious that there was no direct evidence of the defendant’s involvement in the crime and the defendant claims that the jury could not have concluded from the evidence and the reasonable inferences to be drawn from it, that his guilt had been established beyond a reasonable doubt. This court has repeatedly stated that “ ‘there is no legal distinction between direct and cireumstantial evidence so far as probative force is concerned.’ State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). Tt is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.’ State v. Perez, supra, 227 . . . .” State v. Braxton, supra, 691. We cannot retry the case. Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). Nor can this court “sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984), reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984).

After a scrupulous review of the record we cannot say that the jury could not reasonably have concluded that the cumulative effect of the evidence was sufficient to establish beyond a reasonable doubt that the defendant, with the requisite intent to commit arson in the first degree, had placed or procured the placement of the open container of gasoline in the Agron Superette in order to intentionally aid another unknown person to commit that crime. See State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979).

II

In view of our holding that there was sufficient evidence for the jury to convict the defendant of arson in the first degree under General Statutes §§ 53a-lll and 53a-8, the defendant’s second claim, that the trial court erred by instructing the jury that it could find criminal liability under § 53a-8 because there was insufficient evidence to support such an instruction, is without merit.

III

The defendant next claims that the trial court erred in failing to inquire into defense counsel’s allegedly conflicting representation of the defendant and his wife, Elizabeth Rodriquez, who was called as a defense witness. That error, the defendant argues, deprived him of his rights under the sixth amendment to the United States constitution. It appears from the record that defense counsel, Attorney Earl Williams, represented both the defendant and, at least nominally, his wife in connection with other legal matters concerning the defendant’s business enterprises.

“ ‘Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.’ Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981).” State v. Tyler-Barcomb, 197 Conn. 666, 669, 500 A.2d 1324 (1985); Festo v. Luckart, 191 Conn. 622, 626-27, 469 A.2d 1181 (1983).

The defendant first argues that defense counsel’s interest in having Elizabeth Rodriquez comply with a subpoena for the business records of the Agron Superette to avoid threatened contempt proceedings constituted a possible conflict of interest. He also argues that the fact that the state, apparently with the consent or, at least, the acquiescence of defense counsel, conducted an interview of Elizabeth Rodriquez before she testified as a defense witness created a possible conflict of interest. He claims that both possibilities of conflict “ripened into an actuality” when the state introduced the business records into evidence and used statements gained in the interview of Elizabeth Rodriquez to impeach her direct testimony. The defendant argues “[tjherefore the trial court had a duty to inquire into the circumstances to determine whether the existing conflict of interest adversely affected counsel’s performance.”

The court must explore the possibility of a conflict of interest when it knows or reasonably should know of a conflict. Festo v. Luckart, supra, 629. The mere fact that the trial court required Elizabeth Rodriquez to comply with a valid subpoena to produce her business records did not create a conflict of interest. Absent some indication that the business records adversely impacted on the defendant or created a conflict, the trial court was not required to explore that possibility. Of the meager business records obtained from Elizabeth Rodriquez, it is not clear from the trial record or the defendant’s brief what, if anything, was actually introduced into evidence at the trial or what relevance it had. It appears that the only document relating to the Agron Superette which she produced in response to the subpoena was a copy of a schedule C from a 1980 federal income tax return. Louis Vitale, the Rodriquez’ business adviser, however, in response to a subpoena, produced copies of their complete federal income tax returns for the years 1980, 1981 and 1982. In fact, defense counsel read to the jury from those returns, presumably to indicate that the Rodriquez’ had substantial income and the defendant did not have to resort to arson. The record simply does not reveal that any business record obtained from Elizabeth Rodriquez created a conflict of interest or indicated any circumstance requiring the trial court to inquire into that possibility.

The defendant’s second argument is difficult to understand and his brief is not enlightening as to how the interview of Elizabeth Rodriquez by the state constituted a conflict of interest. Hindsight might dictate a different strategy or advice but there is nothing in the record to indicate that the interview resulted from or created a conflict or that the trial court should reasonably have known of or anticipated a conflict.

“In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). The defendant has failed to demonstrate, and the record does not reveal, an actual conflict of interest or that defense counsel’s performance was adversely affected by either circumstance of which he complains.

IV

The defendant’s final claim is that he was denied the effective assistance of counsel. He acknowledges that such a claim ordinarily is more properly pursued by a petition for a new trial or a petition for a writ of habeas corpus. He claims, however, that the appellate record in this case supports a finding of ineffective assistance of counsel. We disagree.

An ineffective assistance of counsel claim requires the defendant to show “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.” State v. Rivera, 196 Conn. 567, 570, 494 A.2d 570 (1985). On the appellate record before us we cannot determine that the defendant has met either requirement. We therefore cannot conclude that he was denied effective assistance of counsel.

Further, ineffective assistance claims, even those arguably supported by the record, should be resolved in the trial court where the attorney whose conduct is in question has an opportunity to testify. State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480 (1986).

There is no error.

In this opinion the other justices concurred.

       “[General Statutes (Rev. to 1981)] Sec. 53a-lll. arson in the first degree: class a felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is injured, either directly or indirectly; or (3) at the scene of such fire or explosion a peace officer or firefighter is subjected to a substantial risk of bodily injury.
      “(b) Arson in the first degree is a class A felony.”

       “[General Statutes] Sec. 53a-8. 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.”