author: Peters, C. J.

text:
    State of Connecticut v. Gary G. Castonguay
    (13498)
    (13515)
    Peters, C. J., Covello, Hull, Borden and Santaniello, Js.

      Argued February 19
    decision released May 7, 1991

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant in the first appeal, appellee in the second appeal (defendant).

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and James Thomas, assistant state’s attorney, for the appellee in the first appeal, appellant in the second appeal (state).
   Peters, C. J.

The principal issue in this appeal is whether a criminal defendant’s prior testimony, voluntarily given at a trial that resulted in a conviction subsequently overturned on appeal, may properly be used as substantive evidence against the defendant in a subsequent retrial at which he elects not to testify. In a prior case, State v. Castonguay, 194 Conn. 416, 481 A.2d 56 (1984) (Castonguay I), this court overturned the convictions of the defendant, Gary G. Castonguay, for capital felony, in violation of General Statutes §§ 53a-54a (a) and (c) and 53a-54b, and felony murder, in violation of General Statutes §§ 53a-54c and 53a-54a. The defendant had been charged in a two count indictment with those crimes for the November 21, 1977 shooting death of Plainville police officer Robert M. Holcomb, which occurred during the course of a burglary of the residence of Dennis Thompson (the Thompson burglary). A jury found the defendant guilty on both counts.

Following our reversal and order of a new trial in Castonguay I, the state retried the defendant for the same crimes. Although the defendant elected not to testify at his retrial, the state nonetheless introduced portions of the defendant’s testimony from his cross-examination in his first trial. A jury again found the defendant guilty on both counts. The trial court imposed upon the defendant two consecutive sentences of twenty-five years to life. Pursuant to the defendant’s motion, the trial court vacated one of the two sentences and rendered a new judgment. The defendant now appeals to this court from the judgment on the remaining conviction. We affirm the judgment of the trial court.

I

The defendant argues that the use of the transcript of his testimony from the first trial as substantive evidence at his retrial violated his privilege against compelled self-incrimination. The state counters that neither the federal nor the state constitution required the exclusion of that testimony under the circumstances of this case. We agree with the state.

The record reveals that the defendant elected in Castonguay I to take the stand in his own defense. He testified on direct examination that he neither participated in the Thompson burglary nor shot Holcomb. On cross-examination, however, the defendant admitted to: (1) having committed two other burglaries, the Crispino and Fennessey burglaries, that occurred prior to the Thompson burglary; (2) habitually owning pry bars of a size and shape used in the Fennessey burglary; and (3) grinding the serial numbers off the gun that had been stolen during the Fennessey burglary and later used to kill Holcomb. For reasons unrelated to the defendant’s testimony, we overturned the defendant’s conviction in that case and ordered a new trial.

At the defendant’s retrial, the state sought to introduce as substantive evidence, in its case-in-chief, portions of the testimony elicited from the defendant during cross-examination in his first trial. These admissions were potentially damaging when linked to independent evidence that the state had offered to prove that the individual responsible for the Crispino and Fennessey burglaries had also committed the Thompson burglary and shot Holcomb.

The defendant moved, in limine, for exclusion of the admissions, claiming that their use would violate his privilege against self-incrimination. After argument, the trial court ruled that because the defendant’s testimony in his first trial had not been compelled, the use of the admissions in the retrial did not violate that privilege. The defendant then sought to introduce from the first trial that portion of his direct examination testimony in which he had denied his participation in the Thompson burglary and in the shooting of Holcomb. The state objected, arguing that the testimony in question was unrelated to the admissions that the state sought to introduce and, therefore, inadmissible for the purpose of placing those admissions in context. Furthermore, because the defendant was available to testify, his offer could not be admitted into evidence under the prior testimony exception to the hearsay rule. The trial court accordingly denied the defendant’s request.

On appeal, the defendant argues that: (1) the admission of any of his prior testimony at his retrial violated his privilege against compelled self-incrimination; (2) assuming the admissibility of the cross-examination testimony from Castonguay I, the trial court nonetheless erred in refusing also to admit portions of his direct testimony; and (3) the trial court incorrectly instructed the jury on the use of the admitted prior testimony. The defendant also raises eight additional claims of error. We consider each of these arguments in turn.

A

In Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968), the United States Supreme Court recognized the “general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings.” A considerable body of federal and state decisional law supports that rule. See, e.g., United States v. Mortensen, 860 F.2d 948, 951 (9th Cir. 1988); United States v. Nell, 570 F.2d 1251, 1259 (5th Cir. 1978); Edmonds v. United States, 273 F.2d 108, 112-13 (D.C. Cir. 1959); Bloodsworth v. State, 76 Md. App. 23, 34, 543 A.2d 382 (1988); see also annot., 5 A.L.R.2d 1406, 1411 (1949). These cases establish that, unless a defendant’s prior testimony was involuntary or compelled in a constitutional sense, the use of that testimony against the defendant in a subsequent trial does not violate his privilege against self-incrimination under the fifth and fourteenth amendments to the federal constitution.

The defendant concedes that his testimony at the first trial was not compelled, and that, under Harrison v. United States, supra, the state’s use of portions of his testimony from Castonguay I did not violate federal constitutional law. Nonetheless, the defendant maintains that the use of his prior testimony was improper as a matter of state law. That argument comes to us in a variety of ways. The defendant first argues that any waiver of his privilege against compelled self-incrimination was limited to his first trial and that he did not independently waive his privilege at his retrial. Consequently, the state’s use of his testimony at the retrial was improper. In a related argument, he contends that his first trial, having been reversed by this court in Castonguay I, was a nullity and, therefore, that his testimony therein could not be admitted against him at his retrial. Last, the defendant argues that the Connecticut constitution, article first, § 8, bars the use of his prior testimony at his retrial. For the reasons stated below, we find each of these arguments unpersuasive.

B

The defendant relies on this court’s decision in State v. Grady, 153 Conn. 26, 34, 211 A.2d 674 (1965), for the proposition that a defendant’s waiver of his privilege against self-incrimination is limited to the particular proceeding in which he volunteers testimony. The defendant argues that his retrial constituted a separate, distinct proceeding from his first trial and that, under Grady, his prior testimony was, therefore, inadmissible at the retrial. We are unpersuaded.

In Grady, the defendant was convicted under a two-part information that charged him in the first part with several counts of breaking and entering and related crimes, and, in the second part, with being an “habitual criminal.” Id., 29. The defendant elected a jury trial on the first part of the information and took the stand in his own behalf. He objected on cross-examination, however, to certain questions, the answers to which he knew would be used against him in his trial on the second part. The trial court nonetheless ordered the defendant to answer the questions and, as anticipated, those answers were used against him in the subsequent trial.

The decision in Grady turned on this court’s determination that the defendant’s responses to the challenged questions had been, in some sense, unconstitutionally compelled, and, therefore, that their use in the subsequent trial violated the defendant’s federal and state constitutional privileges against compelled self-incrimination. Id., 34. In sharp contrast to Grady, however, no element of unconstitutional compulsion is present in this case, as the defendant conceded, and as the discussion below illustrates.

Additionally, although there is language in Grady that even an accused’s voluntary waiver of his privilege against self-incrimination is limited to the particular proceeding in which he testifies, that limitation applies only to the power of the state, in a separate, yet related proceeding, to recall the defendant to the stand and subject him to additional cross-examination. It does not limit the subsequent use of a transcript of the defendant’s prior voluntary testimony. See, e.g., annot., 5 A.L.R.2d, supra, 1407; 8 J. Wigmore, Evidence (McNaughton Rev. 1961) § 2276 (4) and (5), pp. 470-72.

The defendant next argues that this court’s reversal of his conviction in Castonguay I rendered his first trial a nullity. He directs our attention to State v. Darwin, 161 Conn. 413, 419, 288 A.2d 422 (1971), wherein we stated: “The purpose of a new trial is to have an error-free trial. The trial is ‘new’ in every sense. It is as if no trial had ever taken place.” The defendant asserts that the state’s use of his prior testimony at his retrial was inconsistent with our decision in Darwin. We disagree.

The weakness in the defendant’s argument lies in its attempt to apply language in Darwin outside its proper context. At issue in that case was the right of a defendant to object at a retrial to evidence that had been illegally seized and introduced into evidence without objection at the first trial. We stated that “[i]t would not be compatible with the theory of a new trial to tie the hands of counsel so that any errors waived in the first trial are forever waived.” Id., 419. We held, therefore, that the failure of the defendant to object to the illegally seized evidence at the first trial did not constitute a waiver of the right to object at a retrial. Id.

Given the issue and holding in Darwin, the defendant’s effort to construe its language so as to bar the state’s use of his prior testimony on the facts of this case is unavailing. There was no impropriety with respect to the admissibility of the defendant’s prior testimony to which he failed to object. We decline to broaden our holding in Darwin to encompass the outcome that the defendant desires.

The defendant next argues that the Connecticut constitution bars the state’s use of his prior testimony. He bases this argument on a textual comparison of article first, § 8 of the state constitution with the fifth amendment to the federal constitution. The former provides that “[n]o person shall be compelled to give evidence against himself”; (emphasis added); while the latter provides that no person “shall be compelled in any criminal case to be a witness against himself.” (Emphasis added.) The defendant couples this claim to an alleged error in the trial court’s instruction to the jury regarding the prior testimony. The defendant argues that because the court instructed the jury that it could consider the prior testimony for any purpose, “as if” the defendant had actually testified in court, the testimony’s introduction was tantamount to compelling the defendant to “give evidence” against himself in violation of the state constitution.

We find the defendant’s argument unpersuasive. In State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), we considered, and rejected, an argument virtually identical to that proffered by the defendant. The defendant in Asherman had argued, on the basis of the textual distinction noted above, that article first, § 8 of the state constitution barred the use of nontestimonial, as well as testimonial, evidence that the defendant had been compelled to provide. We reviewed the history of the state constitutional privilege at length and concluded that there was no constitutional distinction between “being a witness” and “giving evidence” against oneself. Id., 714-15. Beyond the textual distinction that we previously rejected in Asherman, the defendant offers no additional historical argument or other basis on which to construe the state constitutional privilege against compelled self-incrimination more broadly than its federal counterpart. We therefore decline to depart from our reasoning in Asherman.

The defendant’s effort to equate the trial court’s jury instruction with a form of compulsion is similarly unpersuasive. Despite the defendant’s contrary assertion, the trial court’s jury instruction did not physically or morally compel the defendant to do anything at all, much less to incriminate himself, at the retrial. See Fisher v. United States, 425 U.S. 391, 397, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976), and cases cited therein.

C

The defendant next claims that he was deprived of due process and a fair trial when the trial court refused to allow him to introduce portions of his direct testimony from his first trial to balance the state’s offer of his cross-examination testimony. The state counters that the statements comprising the defendant’s offer were self-serving, inadmissible hearsay, were unrelated to the admissions upon which the state intended to rely and, therefore, did not serve to place the state’s offer in context. We agree with the state.

Our cases have long held that, when one party to a litigation or prosecution seeks to introduce admissions that constitute only a portion of a conversation, the opposing party may introduce other relevant portions of the conversation, irrespective of whether they are self-serving or hearsay. Rokus v. Bridgeport, 191 Conn. 62, 68-69, 463 A.2d 252 (1983); State v. Hicks, 169 Conn. 581, 589, 363 A.2d 1081 (1975); State v. Savage, 161 Conn. 445, 448, 290 A.2d 221 (1971); see also Sullivan v. Nesbit, 97 Conn. 474, 477, 117 A. 502 (1922); Clark v. Smith, 10 Conn. 1, 5 (1833); Ives v. Bartholomew, 9 Conn. 309, 312 (1832). The purpose of this rule is to ensure that statements placed in evidence are not taken out of context. State v. Hicks, supra. This purpose also demarcates the rule’s boundaries; a party-seeking to introduce selected statements under the rule must show that those statements are, in fact, relevant to, and within the context of, an opponent’s offer and, therefore, are part of a single conversation.

Although the defendant claims that the trial court’s decision excluding his offer of prior direct testimony was fundamentally unfair and therefore deprived him of his rights to due process and a fair trial, his claim, properly viewed, is one challenging the trial court’s decision on evidentiary grounds only. See State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988). Because a trial court’s ruling on such grounds is accorded great deference, we will reverse such a ruling only in cases manifesting an abuse of discretion and resulting in substantial prejudice or injustice to the defendant. State v. Hernandez, 204 Conn. 377, 390, 528 A.2d 794 (1987); State v. Martin, 170 Conn. 161, 166, 365 A.2d 104 (1976).

The defendant sought to introduce testimony in which he denied his participation in the Thompson burglary and in the shooting of Holcomb. That testimony, however, does not alter the context of the portion of his prior testimony wherein he admitted committing the Crispino and Fennessey burglaries. The defendant expressly conceded this point in arguments before the trial court on the admissibility of the prior testimony. Nonetheless, he argues that, as a matter of fundamental fairness, he should have been allowed to introduce into evidence the statements in which he denied involvement in the shooting of Holcomb. We do not concur.

When a defendant elects to testify, he may offer any explanation of the events for which he is being tried that he desires, subject, of course, to cross-examination. That right, however, applies only when the defendant actually takes the stand in his own defense. It does not enable him to introduce, through another witness, self-serving statements that are otherwise inadmissible hearsay and that do not serve to place an opponent’s offer in a proper context. See Rokus v. Bridgeport, supra, 69. For these reasons, the trial court did not abuse its discretion in excluding the defendant’s offer.

D

The defendant next argues that the trial court improperly instructed the jury on the use of the transcript of the defendant’s cross-examination in Castonguay I, during which the defendant admitted to the Crispino and Fennessey burglaries. He claims that the trial court’s instruction impermissibly reduced the state’s burden of proof by permitting the jury, contrary to law, to find that the defendant had committed the crime with which he was charged because, at least in part, it did not believe the defendant’s plea of not guilty. We are unpersuaded.

Our review of the defendant’s claim is informed by the established rule that jury instructions are not to be subjected to microscopic examination with an eye toward discovering possible inaccuracies. Rather, we consider whether it was reasonably possible that the charge as a whole misled the jury. State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991); State v. Dyson, 217 Conn. 498, 501, 586 A.2d 610 (1991).

The trial court twice instructed the jury on the evidentiary use of the transcript. When the state initially read portions of the transcript into evidence, the trial court instructed the jury that it could use the statements “for any purpose which [the jury] may see fit as if they were now being testified in court under oath.” The court also stated in its final charge to the jury that “unlike other out-of-court statements, of course, the defendant’s out-of-court statements are offered for the truth of such statements, which may affect the credit of his plea of not guilty. So, unlike other witnesses, he does not have to testify in order to have his inconsistent statements or admissions placed before the jury or fact-finders because he has pleaded not guilty. You must examine such statements as to whether they were made, and if you credit them that they were made, you may use them just as you would any other evidence produced in this case and to be examined in the same manner as if given in this trial.”

We interpret the trial court’s initial charge, which equated the transcript testimony with in-court testimony given under oath during the retrial, as instructing the jury that it could consider the defendant’s prior testimony for the truth of the matters asserted. That charge was correct. See State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982); State v. Moynahan, 164 Conn. 560, 576, 325 A.2d 199 (1973).

The portion of the trial court’s final charge quoted above, however, did not comport with the rule established in State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). Prior to Stepney, our cases had often been read to require that a party’s statements, offered as admissions at trial by an opposing party, had to be inconsistent with a position that the declaring party took at trial. In Stepney, however, we clarified our prior cases and held that admissions of a party are admissible against the party without restriction. Id., 251; see also State v. Rosado, 218 Conn. 239, 250-51, 588 A.2d 1066 (1991) (reaffirming our holding in State v. Stepney). The trial court in this case, nonetheless, instructed the jury on the use of the defendant’s admissions as if the inconsistency requirement still existed.

We disagree with the defendant’s contention, however, that the jury instruction had the effect of reducing the state’s burden of proof by allowing the juryjto consider certain facts as proven based on their disbelief of the defendant’s testimony. The trial court’s final charge to the jury occupies forty-four pages of transcript; the disputed portion of the charge constitutes only one paragraph appearing on the seventeenth page of the charge. The trial court carefully and correctly charged the jury on the state’s burden of proof beyond a reasonable doubt, on the presumption of innocence and that it could not draw an unfavorable inference from the defendant’s failure to testify. Considering the jury charge as a whole, we conclude that there was no reasonable possibility that the charge misled the jury.

II

The defendant presents eight additional claims. The majority of these represent challenges to evidentiary rulings lying within the trial court’s discretion. The defendant also argues that the trial court erred in refusing to strike certain jurors who had allegedly been tainted by comments adverse to the defendant and, further, that particular remarks of the prosecutor during closing arguments deprived him of due process and his right to a fair trial.

A

The defendant first argues that the trial court impermissibly restricted the cross-examination of a primary state’s witness, Rocco Testa. Testa testified, under a grant of full immunity, to the following. He and the defendant had agreed to commit the Thompson burglary. The defendant gave Testa gloves, a hat and a flashlight, while the defendant himself had gloves, a pry bar and a gun. Holcomb arrived at the Thompson residence during the course of the burglary and Testa escaped through a window. As Testa fled the premises, he heard a single gunshot.

The record reveals that the trial court allowed the defendant to conduct ample cross-examination designed to impeach Testa. The jury was aware that Testa was testifying under a grant of immunity, that he had committed a number of burglaries and that he had been convicted of a series of felonies in prior years. Nonetheless, the defendant sought to have the state disclose a record of the witness’ prior misdemeanors as well, to be used to impeach the witness further. The defendant also sought to introduce testimony to rebut Testa’s statements that he had not implicated a third party to protect himself in prior criminal prosecutions. The trial court denied both of these requests.

The cross-examination that the trial court allowed was sufficient to satisfy the defendant’s constitutional right to confrontation under the sixth amendment to the federal constitution. See State v. Milner, 206 Conn. 512, 524-25, 539 A.2d 80 (1988). Having satisfied that right, the trial court retained the discretion reasonably to limit the defendant’s further efforts to introduce the excluded records and testimony. Id., 525; State v. Thompson, 191 Conn. 146, 147-48, 463 A.2d 611 (1983). Because the additional evidence in question would have been cumulative of the considerable body of evidence already used to impeach Testa, the trial court did not abuse its discretion in excluding the misdemeanor and third party evidence.

B

The defendant next argues that the trial court should not have admitted evidence of the defendant’s involvement with the Crispino and Fennessey burglaries. He contends that the prejudicial effect of the evidence outweighed its probative value. The state counters that this evidence was admissible for the purpose of identifying the defendant as the party responsible for shooting Holcomb. We agree with the state.

Without question, the evidence of the Crispino and Fennessey burglaries was relevant to the issue of establishing the identity of the defendant as the party responsible for Holcomb’s death. It was incumbent upon the trial court, however, to balance the probative value of this evidence against its prejudicial effect. State v. Braman, 191 Conn. 670, 676-77, 469 A.2d 760 (1983). “ ‘Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . .’ ” (Citations omitted.) Id.

The record discloses that a bank bag containing coins and jewelry taken during the Crispino burglary had been left at the Fennessey home following a burglary of that residence. Additional evidence indicated that entry to the Fennessey home had been gained through use of a pry bar similar to that found near Holcomb’s body and that a gun stolen from the Fennessey home was the same gun that had been used to shoot Holcomb. This evidence tended to identify the party responsible for the Crispino and Fennessey burglaries as the party also responsible for the Thompson burglary and Holcomb’s death.

The trial court heard extensive argument by prosecution and defense counsel on the admissibility of the Crispino and Fennessey burglary evidence and ultimately found that the evidence was more probative of identity than prejudicial. The court also specifically instructed the jury that it could not consider this evidence to show that the defendant had a propensity for misconduct or bad character. On this record, we conclude that the trial court did not abuse its discretion in admitting the Crispino and Fennessey burglary evidence.

C

The defendant next argues that the trial court erred in allowing arguably graphic testimony about the emergency medical treatment that Holcomb received after having been shot. The defendant asserts that the testimony was irrelevant and that its prejudicial effect outweighed its probative value. The state disputes this claim, arguing that the testimony was properly admitted. We agree with the defendant that the medical treatment testimony was irrelevant. We conclude, however, that its admission was harmless.

The facts relevant to this claim are as follows. Leonard Kemler, a thoracic and cardiovascular surgeon, rendered emergency treatment to Holcomb at the New Britain General Hospital where he was brought after having been shot. Kemler testified that when Holcomb was brought into the emergency room, he was unconscious and was “gasping for breath, and they were very obviously agonal, terminal breathings.” Holcomb had been hooked up to an electrocardiogram to monitor his heartbeat, catheters had been inserted into his veins to give him fluids and blood and an incision had been made in his chest into which the doctor had inserted his hand to massage Holcomb’s heart. Kemler testified further that he had made three incisions in the body: “one on the right side, in the right chest to insert a chest tube; one in the left chest to insert a chest tube; and one just under the nipple to get my hand in to massage the heart.”

The trial court ruled that this testimony was relevant to prove that the gunshots had been intended to cause death and had been the proximate cause of death. The defendant argues that, while testimony about the nature of the wounds themselves might have been relevant to show intent to cause death, the specific testimony about the emergency medical treatment was irrelevant to that issue. We agree. The medical treatment testimony itself shed little, if any, light on the cause of death and on whether the nature of the wounds disclosed any indication that they had been intentionally inflicted. Thus, although the trial court had considerable latitude to determine the relevancy of the testimony; see State v. Milner, supra, 518; we conclude that the court exceeded the bounds of its discretion in this case. Our conclusion, however, is based on grounds of relevancy and not undue prejudice. We recognize that medical testimony, by its very nature, may necessarily be graphic. Its graphic nature does not render such testimony inadmissible per se, provided, however, that it is relevant to an element in the case.

Because the admission of the medical treatment testimony constituted an improper evidentiary ruling, and not a constitutional error, the defendant bears the burden of establishing that the admission of the testimony was harmful. State v. Gold, 180 Conn. 619, 640, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). The defendant has not met that burden. The doctor’s testimony was limited in length and the objectionable statements comprised only a minor portion of that testimony. Members of the jury had also been screened during voir dire as to their possible reactions to graphic testimony. Moreover, photographs of Holcomb, depicting the gunshot wounds and the sutured incisions resulting from the medical treatment administered at the hospital, were admitted into evidence and viewed by the jury. In light of these facts, we cannot say that the improper testimony more probably than not affected the result. See State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988), and cases cited therein.

D

The defendant contends that the trial court erred in refusing to conduct an in camera inspection of the psychiatric records of state’s witness Clyde Dick. This error allegedly impaired the defendant’s ability to cross-examine the witness effectively and to impeach his credibility. The state counters that the defendant failed to make the necessary showing under our decisions in State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, 475 U.S. 1119, 106 S. Ct. 1635, 90 L. Ed. 2d 181 (1986), and State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), cert. denied sub nom. Pierson v. Connecticut, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989), before the court could be required to examine the records in question. We agree with the state.

Pursuant to our decisions in Bruno and Esposito, a defendant seeking access to privileged records that he believes contain information that would allow him to impeach a witness’ ability to “comprehend, know or correctly relate the truth,” must make a preliminary showing that “ ‘there is a reasonable ground to believe’ that the failure to produce the records would likely impair his right to impeach the witness.” State v. D’Ambrosio, 212 Conn. 50, 58, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

The record indicates that the trial court granted the defendant considerable latitude in questioning the witness to make a preliminary showing for the disclosure of the psychiatric records. The witness testified that he had sought treatment for alcohol and drug abuse in 1985. He also admitted to having become intoxicated on a number of occasions between November, 1977, and February, 1980. The witness could not recall whether he had abused drugs during that time period. The defendant then asked the witness whether he might have indicated the nature and extent of any drug problem during that time period to the persons treating him in 1985. The state objected to this question as irrelevant and the trial court sustained the objection.

The trial court expressly found that the evidence was insufficient to establish impairment of the witness’ ability to recollect or correctly relate the truth. See State v. Esposito, supra, 180. This finding was appropriate despite the trial court’s ruling sustaining the state’s objection to the aforementioned question. Because the defendant had failed to make the preliminary showing necessary to disclosure of the witness’ psychiatric records, and because the witness withheld consent to an in camera inspection of those records, the trial court properly denied the defendant’s motion to disclose.

E

The defendant challenges the trial court’s charge to the jury on the law of circumstantial evidence. He contends, relying on our decision in State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988), that the court should have instructed the jury that before an inference can be drawn from a basic fact, that fact must first have been proven beyond a reasonable doubt. We disagree.

In its final charge, the trial court instructed the jury that it could draw reasonable inferences from facts that the jury found to be admitted or proved as it determined to be logical and reasonable. The court did not instruct the jury that the facts from which inferences might be drawn had to be proven beyond a reasonable doubt. This charge was consistent with our discussion of the law of circumstantial evidence in McDonough. We stated therein that “[wjhere a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt.” Id., 355.

Because the defendant’s requested charge would have required that all basic facts from which inferences might be drawn had to be proven beyond a reasonable doubt, and not solely those individual facts essential to proof of an element of the state’s case, the requested charge was legally incorrect. The trial court, therefore, properly refused the defendant’s request.

F

The defendant next argues that particular comments that the prosecutor made during his rebuttal argument deprived him of due process and his right to a fair trial. Because the defendant failed to object to the majority of the challenged remarks, he seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Our review of the record discloses that the remarks now challenged represented isolated instances of alleged misconduct, unrepresentative of a pattern of conduct repeated throughout the trial. We therefore decline to review their propriety. See State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987).

For two of the challenged remarks, however, the defendant moved for a mistrial following the completion of the prosecutor’s rebuttal argument. The trial court denied that motion. Because these claims were properly preserved, we review them. State v. Tyler-Barcomb, 197 Conn. 666, 673, 500 A.2d 1324, cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986). The focus of our review is on the prosecutor’s comments viewed in the context of the entire trial, not on the culpability of the prosecutor. State v. Northrop, 213 Conn. 405, 421, 568 A.2d 439 (1990). Moreover, we will not disturb the trial court’s mistrial ruling unless the challenged remarks have “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986).

During his rebuttal argument the prosecutor responded to remarks that defense counsel had earlier made in his closing argument. In those remarks, defense counsel discounted the importance of a piece of glass found on the defendant’s clothing that matched broken glass at the Thompson residence. The prosecutor stated, “[b]ut the defense was very particular about putting glass particles before you, certain glass particles that came off the defendant’s shoes that did not match. And Mr. Kelly’s response now is, glass particles, what do we know about that. And why? Because now there is evidence before you that pants seized from the defendant’s girl friend while she was doing laundry in his apartment contained glass particles which matched the glass in the rear door, the point of entry in the Thompson home. Mr. Kelly waves that away with a toss of the head and a wave of the hand. It can’t be done, ladies and gentlemen. That evidence was not before you in the state’s case in chief because of the Fourth Amendment.” The defense objected and the trial court sustained the objection.

The prosecutor also stated that “a gun cleaning kit was seen in [the defendant’s] possession. How did this get into the lake? Did Rocco Testa have it? The defendant never said he gave it to him.” This statement was apparently offered to rebut an argument that Testa had falsely implicated the defendant by placing incriminating evidence in the lake in question.

At the close of the prosecutor’s rebuttal, the defendant moved for a mistrial based on the aforementioned statements. He argued that the first statement unfairly suggested to the jury that the defense had used the fourth amendment as a trick to attempt to hide incriminating evidence from the jury. The defendant also argued that the portion of his prior direct testimony that the court had excluded from evidence contained a statement that could have covered the gun cleaning kit. The trial court, however, expressly found that the prosecutor’s remarks were insufficiently prejudicial to warrant a mistrial and, therefore, denied the defendant’s motion. The court further indicated that it had instructed the jury on the matters forming the basis of the motion, and that it intended to instruct the jury again on those matters in its final charge.

We are unpersuaded that the trial court’s ruling on the defendant’s motion for a mistrial was improper. As stated earlier, the challenged remarks represented isolated instances of alleged misconduct, not individual strands in a web of prosecutorial impropriety that blanketed the entire trial. Significantly, the trial court sustained the defendant’s contemporaneous objection to the fourth amendment comment. Furthermore, the trial court gave the jury curative instructions regarding the challenged statements. There is no indication that the portion of the defendant’s prior direct examination testimony, which had been excluded from evidence by the trial court, contained any statement relevant to the second ground supporting the defendant’s motion for a mistrial. On this record, we conclude that the challenged remarks did not infect the entire trial so as to have denied the defendant due process.

G

The defendant next claims that he was deprived of his right to an impartial jury because the trial court failed to strike certain seated jurors and members of the jury venire who may have overheard derogatory remarks about the defendant during the jury selection process. The record reveals that after a number of jurors had already been seated, an unidentified member of the venire, while in the company of the venire, stated, in effect, that the defendant was an “SOB” and that “they ought to hang him.” The trial court, upon becoming aware of this remark, proceeded to question all of the venirepersons who might have overheard the remark, most of whom responded that they had not heard the comment. Counsel for the defendant was also afforded the opportunity, without any apparent limitation, to question venirepersons. The trial court concluded that those persons who had heard the remark had not been affected by it. Significantly, the court dismissed the juror that it determined had been the source of the derogatory comments regarding the defendant. Upon the completion of the jury voir dire, the court thereupon denied the defendant’s motion to strike the jury panel.

A trial court’s determination that particular individuals are competent to serve as jurors will not be disturbed absent a showing of abuse of discretion. State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987). Despite the defendant’s protestations to the contrary, the record does not support the defendant’s claim. We cannot say that the court abused its discretion in refusing to strike the jury panel.

H

The defendant’s final argument is that the trial court improperly allowed a state’s witness to testify about a conversation that the witness had had with the defendant prior to the Thompson burglary. The witness, Allen Carder, an acquaintance of the defendant, testified that a few days prior to the Thompson burglary, he and the defendant had had a conversation in a local bar, during which the defendant had asked the witness if he were interested in participating in a burglary that the defendant intended to commit on either Monday, Tuesday or Wednesday of the week of November 21,1977. The defendant further stated during this conversation that he had the tools, including masks, pry bars, gloves and flashlights, for committing the burglary and that the time for the burglary would be between 5 p.m. and 8 p.m.

The defendant argues that the testimony was introduced as evidence of the defendant’s bad character and that the testimony’s prejudicial effect outweighed its probative value. The trial court concluded that the witness’ statements were probative of the defendant’s intent to commit a burglary on one of the days that the witness mentioned. The trial court also concluded that the statements corroborated other evidence tending to identify the defendant as the party responsible for the Thompson burglary and Holcomb’s death.

The defendant’s statements regarding the date, time and tools to be used in committing a burglary were admissible as statements of a party opponent, and were probative of the defendant’s intent to commit the Thompson burglary. See State v. Santangelo, 205 Conn. 578, 592, 534 A.2d 1175 (1987); State v. McDowell, 179 Conn. 121, 124, 425 A.2d 935 (1979). The trial court also instructed the jury in its final charge that evidence of past criminal activity of the defendant was not to be used to find that the defendant had a propensity for criminal activity. We conclude that the trial court properly admitted the testimony of Allen Carder.

Ill

The state concedes that the disposition of its appeal is controlled by this court’s decision in State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990). Because we decline to reconsider our holding therein, we conclude that the trial court properly vacated the defendant’s conviction for felony murder under the second count of the state’s indictment.

The judgment is affirmed.

In this opinion the other justices concurred.

       The state received permission to appeal the trial court’s decision vacating one of the two twenty-five years to life sentences originally imposed upon the defendant.

         The defendant, although conceding that his testimony in his first trial was not compelled, argues that the record is devoid of any indication that he was counseled that his testimony could be used against him in a future trial. Presumably, we are to infer from this argument that the defendant’s waiver of his privilege against self-incrimination at the first trial was not an informed one and, therefore, was not truly voluntary. We decline to draw such an inference.
      The record indicates that, immediately prior to the defendant’s testifying at his first trial, the trial court questioned the defendant and his attorney about the decision to testify. The defendant told the court that he had discussed the matter with his counsel and elected to testify. In allowing the defendant to take the stand, the trial court implicitly found that the defendant had knowingly and intelligently waived his privilege against self-incrimination.
      Because a criminal defendant’s decision to testify is often strategic or tactical, and is made only after serious consultation with counsel about the advantages and disadvantages thereof, it is one we are disinclined to second guess. Cf. Brooks v. Tennessee, 406 U.S. 605, 607-609, 92 S. Ct. 1891, 32 L. Ed. 2d 358 (1972). We can only assume, without more than a bare assertion to the contrary, that counsel provided the defendant with the information necessary to make an informed decision whether to testify.

       We express no opinion on the merits of the decision in State v. Grady, 153 Conn. 26, 211 A.2d 674 (1965). The parties did not address that issue in their briefs or at oral argument and we are disinclined to reconsider that decision in the absence of direct argument by the parties. Thus, we conclude only that the decision in that case, assuming its continued validity, does not support the defendant’s argument that the state’s use of his prior testimony at his retrial was improper.

       The record discloses that Holcomb was shot at approximately 5:30 p.m. on Monday, November 21, 1977.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    McCutcheon and Burr, Inc. v. William W. Berman et al.
    (14113)
    (14114)
    Shea, Callahan, Covello, Borden and Ment, Js.

      Argued January 11
    decision released May 7, 1991

      Richard P. Weinstein, for the appellants in the first case, appellees in the second case (defendants).

      Richard W. Tome, with whom was John H. Hanks, for the appellee in the first case, appellant in the second case (plaintiff).
   Callahan, J.

These two appeals arise from an action to recover a real estate commission. The defendants appeal from the denial of their motion to dissolve a prejudgment attachment of real estate, while the plaintiff appeals from the granting of the defendants’ motion to dismiss. The principal issue in both appeals is whether a real estate listing agreement satisfied the requirements of General Statutes § 20-325a (b). We conclude that those requirements were not satisfied.

The material facts are not in dispute. The plaintiff, McCutcheon and Burr, Inc., is a licensed real estate broker. On or about October 3, 1989, the plaintiff entered into an open listing agreement to sell certain real property, known as the Cromwell West Office Park, the record owners of which were the defendants William W. Berman, Edward Silverman and Loreto G. Marocchini. The defendant Washington Ridge Associates is a Connecticut partnership whose general partners are Berman, Silverman and Marocchini. On the bottom of the listing agreement next to the preprinted term “OWNER(S)” appears the typed name “WASHINGTON RIDGE ASSOCIATES, PTNSHP.” Under this name is the signature of Berman, and typed below his signature is “WILLIAM BERMAN, PARTNER” and a post office box address.

On October 10, 1989, Anchor Companies (Anchor) addressed a letter of intent to the plaintiff broker setting forth its proposal to purchase the property in question for $3,950,000. The letter was signed by Berman on October 11,1989, indicating his assent to enter into negotiations to draw up a purchase contract at that price. On October 24,1989, the defendants and Anchor executed a purchase contract that identified Berman, Silverman and Marocchini as the sellers of the property. The contract was signed by each of the sellers and listed a post office box as their address. The contract was contingent upon Anchor obtaining financing under certain stated terms. Anchor subsequently requested the return of its deposit when it was unable to obtain financing according to those terms. In its complaint the plaintiff claimed that the reason the sale did not go through was its refusal to acquiesce in the defendants’ alleged request that it compromise its commission. The plaintiff brought this action in three counts: (1) a breach of contract claim on the basis of its alleged right to a commission under the listing agreement; (2) a claim for the value of its services under the theory of quantum meruit; and (3) a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. On January 23, 1990, the trial court, R. O’Connell, J., granted the plaintiff’s application for a prejudgment attachment of real estate owned by the defendants. On February 13,1990, the defendants filed a motion to dissolve the prejudgment attachment pursuant to General Statutes § 52-278e. After a hearing, the trial court, Hon. Harry W. Edelberg, state trial referee, denied that motion. The court concluded that although the listing agreement did not include the names, addresses or signatures of Silver-man and Marocchini, the requirements of § 20-325a (b) were satisfied because Berman had signed the agreement on behalf of the partnership. The court reasoned that a strict interpretation of § 20-325a (b) would conflict with the provisions of General Statutes § 34-47 concerning the authority of a partner to bind the partnership. The defendants subsequently filed a motion to dismiss pursuant to Practice Book § 142, and the trial court, Higgins, J., granted the motion on the ground that the court lacked subject matter jurisdiction. In so doing, the trial court concluded that Berman’s signature alone did not satisfy § 20-325a (b) because title to the property was in the names of the three individual sellers, rather than in the name of the partnership. The court concluded that § 20-325a (b) required the names, addresses and signatures of Silverman and Marocchini to be included in the listing agreement in order for it to be binding. Both parties filed an appeal in the Appellate Court, and that court granted the plaintiffs motion to consolidate the appeals. We transferred the cases to ourselves pursuant to Practice Book § 4023.

In the first appeal, Docket No. 14113, the defendants challenge the denial of their motion to dissolve the prejudgment attachment. In the second appeal, Docket No. 14114, the plaintiff claims that the trial court improperly granted the defendants’ motion to dismiss. We conclude that the plaintiff’s cause of action was properly dismissed, although we reach our conclusion by a different procedural route than that traveled by the trial court.

In its challenge to the dismissal of the complaint (Docket No. 14114), the plaintiff asserts that: (1) the trial court incorrectly concluded that the requirements for an enforceable listing agreement set forth in § 20-325a (b) were not met; (2) under the law of the case, the trial court was bound by the earlier ruling by the state trial referee that the provisions of § 20-325a (b) were satisfied; and (3) even if the trial court was correct in concluding that the listing agreement did not meet the requirements of § 20-325a (b), it should not have dismissed the CUTPA count in the complaint because the plaintiff’s CUTPA claim was not subject to those requirements. We find none of these arguments persuasive.

I

The right of a real estate broker to recover a commission is dependent upon whether the listing agreement meets the requirements of § 20-325a (b). New England Land Co. v. DeMarkey, 213 Conn. 612, 621, 569 A.2d 1098 (1990); Revere Real Estate, Inc. v. Carato, 186 Conn. 74, 77, 438 A.2d 1202 (1982). Section 20-325a (b) requires that the listing agreement: “(1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.” In addition, the broker ordinarily must prove that it has found a buyer that is ready, willing and able to purchase the property on terms agreed to by the seller. Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 242, 440 A.2d 306 (1982); Revere Real Estate, Inc. v. Cerato, supra, 77-78.

The defendants contend that the trial court properly concluded that “owner,” as used in § 20-325a (b), means “record owner” and that the listing agreement is therefore unenforceable because it does not include the names, addresses or signatures of Silverman and Marocchini. The plaintiff argues that when construing the term “owner” in § 20-325a (b), this court must read that statute in light of § 34-47, which states that “[ejvery partner is an agent of the partnership for the purpose of its business.” The plaintiff asserts, therefore, that the signature of Berman under the name of the partnership on the listing agreement was sufficient to meet the requirements of § 20-325a (b). In the alternative, the plaintiff argues that it has satisfied the requirements of § 20-325a (b) if the listing agreement, trade name certificate, letter of intent from Anchor Companies, purchase contract and parol evidence are considered together. We disagree with the plaintiff.

It is well established that the requirements of § 20-325a (b) are mandatory rather than permissive and that the statute is to be strictly construed. New England Land Co. v. DeMarkey, supra, 623 (listing agreement must include sale price of property); Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 54, 453 A.2d 771 (1983) (listing agreement lacking addresses of both parties unenforceable); Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230-31, 439 A.2d 946 (1981) (brokerage contract signed by owner’s agent unenforceable under the statute as then worded); Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979) (failure to include broker’s address fatal to listing agreement); Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 305-307, 552 A.2d 827 (1989) (omission of rate of broker’s commission fatal); Howland v. Schweir, 7 Conn. App. 709, 713-15, 510 A.2d 215 (1986) (commission not recoverable where broker could not prove he produced a buyer during effective term of listing agreement); Arruda Realty, Inc. v. Doyon, 35 Conn. Sup. 617, 620, 401 A.2d 625, cert. denied, 176 Conn. 763, 394 A.2d 201 (1978) (owner’s address requirement not satisfied even though the listing agreement included the address of the subject property, which was the same as the owner’s address). “A broker who does not follow the mandate of [§ 20-325a (b)] does so at his peril.” Thornton Real Estate, Inc. v. Lobdell, supra, 230-31.

The plaintiff first claims that the requirements of § 20-325a (b) were satisfied because Berman ostensibly signed the listing agreement on behalf of the partnership. The dispositive issue concerning this claim is whether the purported partnership signature satisfies the statute or whether, as the defendants assert, the term “owner” in § 20-325a (b) means “record owner.” As previously noted, the record title to Cromwell West Office Park was vested in Berman, Silverman and Marocchini, and nowhere does the deed by which they took title refer to their partnership.

The plaintiff contends that “owner” should not be interpreted to mean “record owner” because § 20-325a (b) should be read in conjunction with § 34-47. In other words, the plaintiff asserts that Berman had the authority to bind the partnership under § 34-47 and that his signature, appearing as it did below the name of the partnership, obviated the need for including the names, addresses and signatures of the other two record owners on the listing agreement. The plaintiffs argument, however, ignores the principle that “[a] statutory provision that articulates with greater specificity the resolution of a particular controversy is presumed to prevail over a more general provision.” State v. Daniels, 207 Conn. 374, 393, 542 A.2d 306 (1988); State v. Torres, 206 Conn. 346, 359, 538 A.2d 185 (1988); McKinley v. Musshorn, 185 Conn. 616, 623-24, 441 A.2d 600 (1981). Section 34-47 is a general provision that governs the authority of partners to bind the partnership when carrying on the partnership business. Section 20-325a (b), however, includes specific provisions that dictate when the signature of an owner’s agent satisfies the requirements of the statute. Under those provisions the agent must be authorized to act on behalf of the owner pursuant to “a written document executed in the manner provided for conveyances in section 47-5.” General Statutes § 20-325a (b). It is clear that Berman did not sign the listing agreement as an agent for Silverman or Marocchini as provided for in § 20-325a (b).

We conclude that “owner,” as used in § 20-325a (b), means the record owner or owners as displayed on the land records. The listing agreement in issue, therefore, is not in compliance with the statute because the names, addresses and signatures of Silverman and Marocchini, both record owners, were omitted. Although we might reach a different result if title to the property had been held in the name of the partnership, under the facts of this case we cannot apply the general provisions of § 34-47 when the legislature has specifically addressed in § 20-325a (b) the conditions under which an agent will be allowed to sign a listing agreement on behalf of an owner.

The plaintiff next claims that even if we construe “owner” to mean “record owner,” it has satisfied the requirements of § 20-325a (b) if the listing agreement, trade name certificate, letter of intent, purchase contract and parol evidence are considered together. The plaintiff relies in particular on the fact that the purchase contract includes a provision concerning the brokerage fee. “[S]eparate documents will be deemed to constitute a valid contract under § 20-325a (b) if they collectively satisfy the statutory requirements and relate to the same agreement. [Good v. Paine Furniture Co., 35 Conn. Sup. 24, 27, 391 A.2d 741 (1978)]. It is not within the power of courts to create new and different agreements. Collins v. Sears, Roebuck & Co., 164 Conn. 369, 375, 321 A.2d 444 (1973).” (Emphasis in original.) Jay Realty, Inc. v. Ahearn Development Corporation, supra, 55. The burden of establishing a valid listing agreement in this manner “is great, however, and must consist of more than a reference to the [listing] contract in the sales agreement.” Del Greco Realty Co. v. Lamoureux, 39 Conn. Sup. 95, 97-98, 469 A.2d 1232 (1983). “Parol evidence will be considered if it convincingly shows that the signed and unsigned writings are connected to one another and have been assented to by the parties.” Good v. Paine Furniture Co., supra, 27.

The focus of our inquiry on this issue, therefore, is whether either the listing agreement or the purchase contract “points unquestionably to the other document so as to create a consistent contract.” (Emphasis added.) Jay Realty, Inc. v. Ahearn Development Corporation, supra, 56; Rostenberg-Doern Co. v. Weiner, supra, 306. The plaintiff is unable to satisfy this strict standard. The only reference in the listing agreement to a purchase contract is a provision stating that the broker will not earn a commission if the owner enters into a purchase contract with a buyer procured by the owner. The clause in the purchase contract concerning brokerage makes no mention whatsoever of the listing agreement. Nor does the purchase contract provide any indication of the rate of commission or when a commission would be deemed earned. Finally, the parol evidence offered by the plaintiff does not establish the necessary linkage between the two documents. We conclude, therefore, that the plaintiffs attempt to combine these two documents for the purpose of satisfying the requirements of § 20-325a (b) is unavailing.

The plaintiff also argues that because the state trial referee had concluded that § 20-325a (b) was satisfied when it denied the defendants’ motion to dissolve the prejudgment attachment, the subsequent granting by the trial court of the motion to dismiss on the ground that the plaintiff had not complied with that statute violated the principle of the law of the case. The defendants contend that the law of the case is not applicable here because a trial court ruling on a motion to dissolve a prejudgment remedy employs a different legal standard than a trial court deciding a motion to dismiss. We agree.

“The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. See 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4478. In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. Messenger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 56 L. Ed. 1152 (1912).” (Emphasis added.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982); Daley v. Hartford, 215 Conn. 14, 29, 574 A.2d 194, cert. denied, U.S. , 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990); Rosenblit v. Danaher, 206 Conn. 125, 132, 537 A.2d 145 (1988). “From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling.” Breen v. Phelps, supra, 100.

When a defendant moves to dissolve an ex parte prejudgment remedy, the trial court must determine whether “there is probable cause to sustain the validity of the plaintiff’s claim.” General Statutes § 52-278e (c). It is well established that a probable cause hearing is not intended to be a full scale trial on the merits of the plaintiff’s claim. New England Land Co. v. DeMarkey, supra, 620; Three S Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984); Augeri v. C.F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977). The court’s role in such a hearing is to determine the probability of success by evaluating the arguments and evidence presented by both parties, and its ruling is not intended to be a final resolution on the merits. Augeri v. C.F. Wooding Co., supra. This limited weighing process applies to both factual and legal issues. Id.; Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393, 480 A.2d 561 (1984).

In contrast, the ruling of the trial court on the motion to dismiss necessitated a full review of the merits of the underlying issue, namely, whether the listing agreement satisfied the requirements of § 20-325a (b). Because this ruling involved the application of a different legal standard than that employed in ruling on the motion to dissolve the prejudgment attachment, the law of the case is simply inapposite in these circumstances.

It is necessary to note, however, that the proper procedural mechanism for addressing whether § 20-325a (b) was satisfied would have been a motion to strike under Practice Book § 152, rather than a motion to dismiss under Practice Book § 142. See Kovacs v. Kasper, 41 Conn. Sup. 225, 565 A.2d 18 (1989); Del Greco Realty Co. v. Lamoureux, supra. The defendants argued, and the trial court agreed, that it lacked subject matter jurisdiction over the plaintiff’s claim because the listing agreement did not comply with § 20-325a (b). None of the cases in which we have addressed a failure to comply with § 20-325a (b), however, has involved a motion to dismiss because of a lack of subject matter jurisdiction. See, e.g., New England Land Co. v. DeMarkey, supra (motion to dissolve prejudgment remedy); Thornton Real Estate, Inc. v. Lobdell, supra (summary judgment); Hossan v. Hudiakoff, supra (summary judgment). Furthermore, we are unaware of any cases in which the failure of a listing agreement to satisfy the requirements of § 20-325a (b) was found to create a jurisdictional bar to an action based on that agreement. An action to enforce a listing agreement is essentially a breach of contract claim, and the trial court clearly had subject matter jurisdiction over such a claim. See Conn. Const., amend. XX; Walkinshaw v. O’Brien, 130 Conn. 122, 127, 32 A.2d 547 (1943); see generally Demar v. Open Space & Conservation Commission, 211 Conn. 416, 423-25, 559 A.2d 1103 (1989). We therefore conclude that a motion to strike was the proper means to abate the plaintiffs action. See Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 372, 439 A.2d 396 (1981).

Although the trial court should have treated the motion to dismiss as a motion to strike, this procedural anomaly does not affect our decision. In another case involving an issue of compliance with § 20-325a (b), we noted that “where the pleadings and exhibits are the only evidentiary concerns, the dictates of judicial economy instruct us to resolve the legal validity of a particular agreement under an applicable statute at the earliest time practicable.” New England Land Co. v. DeMarkey, supra, 623. For the purposes of the present case, the primary difference between the granting of a motion to dismiss for lack of subject matter jurisdiction and the granting of a motion to strike is that only in the latter case does the plaintiff have the opportunity to amend its complaint. See Practice Book § 157. The ability to amend after a motion to strike would be unavailing to the plaintiff here, however, because the plaintiff was unable to demonstrate that it could add anything to its complaint by way of amendment that would avoid the deficiencies in the original complaint. Therefore, although the defendants’ motion to dismiss was procedurally incorrect, the resulting foreclosure of the plaintiff’s ability to amend was harmless.

II

The plaintiff further contends that, even if the trial court properly concluded that the listing agreement did not satisfy § 20-325a (b), its CUTPA count should not have been dismissed. In support of this claim the plaintiff relies primarily on Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 525 A.2d 935 (1987). That case, however, is readily distinguishable.

The plaintiff in Dow, a real estate brokerage corporation, was serving as co-broker for the sale of property owned by a limited partnership. Id., 476-77. The named defendant was both a general partner in the limited partnership and the owner of the defendant corporation, a real estate brokerage company that served as primary broker for the property. Id. After the plaintiff had found a buyer, the named defendant induced the limited partnership to enter into a purchase agreement with a different party under terms that benefited the named defendant and his brokerage company. Id., 477. The plaintiff filed, inter alia, a CUTPA claim, and we concluded that the trial court reasonably could have found probable cause to believe that the plaintiff had a valid cause of action under CUTPA. Id., 481-84.

The plaintiffs reliance on Dow is misplaced, however, because the CUTPA claim in Dow, unlike the CUTPA count in the present case, did not arise solely from the listing agreement. We specifically noted in that case that the CUTPA claim was not brought simply as a means of enforcing its listing agreement, but rather was an attempt by the plaintiff to recover for the deceptive practices of the defendants. Id., 483-84. In contrast, in this case the plaintiffs CUTPA claim simply states an alternative means for attempting to collect the commission provided for in the listing agreement.

In further support of its CUTPA claim, the plaintiff argues that even if it was not entitled to collect a commission as a result of the deficiencies of the listing agreement, the defendants’ refusal to pay a commission constituted a CUTPA violation because it was equitably entitled to that commission. Assuming, as the plaintiff contends, that it did in fact produce a ready, willing and able buyer and that the defendants asked the plaintiff to compromise its commission as a condition for going through with the sale, we do not agree that such conduct would provide a basis for a CUTPA violation. Because the listing agreement did not comply with § 20-325a (b), the defendants were legally entitled to refuse to pay a commission and their reliance on the statute cannot translate into a CUTPA violation.

The plaintiffs invocation of equitable principles in support of its CUTPA claim is an attempt to effect an end run around the requirements of § 20-325a (b). “Listing contracts are governed exclusively by § 20-325a . . . .” William Pitt, Inc. v. Taylor, 186 Conn. 82, 84, 438 A.2d 1206 (1982). In Currie v. Marano, 13 Conn. App. 527, 530-33, 537 A.2d 1036, cert. denied, 207 Conn. 809, 541 A.2d 1238 (1988), the Appellate Court rejected an analogous claim. In that case, a broker whose listing agreement did not satisfy the requirements of § 20-325a (b) argued that he was still entitled to his commission because the defendant was equitably estopped from asserting the statute as a defense and because the defendant had been unjustly enriched. Id., 530-32. The court noted that to allow the plaintiff to recover under these theories “would nullify § 20-325a and emasculate the state’s real estate sales licensing system.” Id., 531; see also Barrett Builders v. Miller, 215 Conn. 316, 331-32, 576 A.2d 455 (1990) (Shea, J., dissenting); Goldblatt Associates v. Panda, 24 Conn. App. 250, 253-54, 587 A.2d 433 (1991) (broker precluded from recovering in quantum meruit when listing agreement did not satisfy § 20-325a [b]). The plaintiffs attempt to circumvent the requirements of § 20-325a (b) by filing a CUTPA claim must therefore be denied.

In light of our conclusion that the trial court properly dismissed the complaint, the issues in the defendants’ appeal of the denial of their motion to dissolve the prejudgment attachment in Docket No. 14113 need not be addressed.

The judgment in Docket No. 14114 is affirmed; the appeal in Docket No. 14113 is dismissed and the case is remanded to the trial court with direction to order the release of the plaintiff’s prejudgment attachment.

In this opinion the other justices concurred.

       General Statutes § 20-325a (b) provides: “No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1, 1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.”

       On August 30, 1979, the three individual defendants filed a certificate of adoption of trade name in which they indicated that they were transacting business under the name of Washington Ridge Associates. The deed to Cromwell West Office Park does not refer to the partnership but simply conveyed the property to the three defendants as tenants in common.

       The purchase contract did not refer to Washington Ridge Associates.

       General Statutes § 52-278e provides in pertinent part: “allowance OF PRE JUDGMENT REMEDY WITHOUT HEARING. NOTICE TO DEFENDANT. SUBSEQUENT HEARING AND ORDER. ATTACHMENT OF REAL PROPERTY OF MUNICIPAL officers, (a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing . . . upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff’s claim and (1) that the prejudgment remedy requested is for an attachment of real property ....
      ♦ # Jfc
      “(c) The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section .... If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiff’s claim, then the prejudgment remedy granted shall remain in effect.”
      Although the defendants’ motion did not state whether it was brought pursuant to General Statutes § 52-278e or General Statutes § 52-278k, the fact that this motion was filed shortly after the attachment leads us to conclude that it was brought under § 52-278e. Gibbs v. Mase, 11 Conn. App. 289, 293-94, 526 A.2d 7 (1987), citing City National Bank v. Davis, 181 Conn. 42, 45-46, 434 A.2d 310 (1980).
      In Pinsky v. Duncan, 898 F.2d 852, 854 (2d Cir.), modified, 907 F.2d 17 (2d Cir.), cert. granted sub nom. Connecticut v. Doehr, U.S. , 111 S. Ct. 42, 112 L. Ed. 2d 18 (1990), the Court of Appeals for the Second Circuit held that the ex parte attachment of real estate pursuant to § 52-278e violated the due process clause. Because that decision applies only to attachments filed after March 9,1990; id., 907 F.2d 17; it does not apply to this case.

       “[General Statutes] Sec. 34-47. ACTIONS OF PARTNERS. (1) Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.
      “(2) An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners.
      “(3) Unless authorized by the other partners or unless they have abandoned the business, one or more but less than all the partners have no authority to: (a) Assign the partnership property in trust for creditors or on the assignee’s promise to pay the debts of the partnership, (b) dispose of the good will of the business, (c) do any other act which would make it impossible to carry on the ordinary business of a partnership, (d) confess a judgment, (e) submit a partnership claim or liability to arbitration or reference.
      “(4) No act of a partner in contravention of a restriction on authority shall bind the partnership to persons having knowledge of the restriction.”

       “[Practice Book] Sec. 142. motion to dismiss
      “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the court otherwise directs.”

         The defendants claim that the trial court improperly: (1) concluded that the listing agreement satisfied General Statutes § 20-325a (b); (2) determined that the prospective buyer was ready, willing and able to purchase the property; and (3) admitted hearsay evidence.

       The defendants also argue that the listing agreement is not in compliance with General Statutes § 20-325a (b) because the agreement is dated October 3,1989, yet it states that the term of the agreement commences on October 1,1989. Because we agree with the defendants’ principal argument, we need not address this issue.

       Under General Statutes § 34-48, title to property can be held in the name of a partnership. Although title to Cromwell West Office Park was not in the name of Washington Bidge Associates, the record is unclear as to whether the property was in fact an asset of the partnership. This factual issue, however, has no effect on our decision.

       General Statutes § 47-5 provides in pertinent part: “(a) All conveyances of land shall be: (1) In writing; (2) if the grantor is a natural person, subscribed, with or without a seal, by the grantor with his own hand or with his mark with his name annexed to it or by his attorney authorized for that purpose by a power executed, acknowledged and witnessed in the manner provided for conveyances or, if the grantor is a corporation or partnership, subscribed by a duly authorized person; (3) acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed; and (4) attested to by two witnesses with their own hands.”

       On January 11, 1990, Marocchini appointed Berman as his attorney in fact. That appointment, however, was made well after the execution of the listing agreement in October, 1989.

       We also find support for our conclusion in the legislative history of General Statutes § 20-325a (b). The term “owner” did not appear until 1985 when the statute was amended by replacing the word “seller” with the term “owner.” See Public Acts 1985, No. 85-166, § 1.
      The purpose of this change in terminology was to clarify whose signature was required on the listing agreement, especially in cases where the broker was performing services unrelated to the sale of property, such as locating tenants for owners of rental properties. 28 S. Proc., Pt. 5, 1985 Sess., p. 1557; 28 H.R. Proc., Pt. 7, 1985 Sess., p. 2196; 28 H.R. Proc., Pt. 10, 1985 Sess., p. 3696; Conn. Joint Standing Committee Hearings, Insurance and Real Estate, 1985 Sess., pp. 70-71, 91. Although the legislative history does not address specifically the issue in the present case, it is clear that the overarching purpose of the amendment was to clarify the statutory language in order to make the statute effective and workable. Conn. Joint Standing Committee Hearings, supra. Interpreting the word “owner” to mean “record owner” advances this purpose because a broker can determine who must sign a listing agreement through the simple expedient of examining the land records.

       The purchase contract provides in pertinent part: “Brokerage. Purchaser and Seller represent to each other that they have dealt with no real estate broker, agent or finder, other than McCutcheon & Burr, Incorporated, in connection with this transaction and each agrees to indemnify and hold the other harmless from claims arising from its actions. At Closing, Seller shall pay any fee due to McCutcheon & Burr, Incorporated.”

       Although the plaintiff also relies upon the letter of intent, that document does not contain the names, addresses or signatures of Silverman and Marocchini and therefore would not meet the statutory requirements if read together with the listing agreement. The trade name certificate is signed by all three partners, but it clearly does not have the requisite connection to the listing agreement.

       Practice Book § 152 provides in pertinent part: “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof.”

       In asserting that a failure to comply with General Statutes § 20-325a (b) creates a jurisdictional problem, the defendants rely primarily on the portion of the statute that provides: “No person . . . shall commence or bring any action . . . .” We note that similar language is found in the statute of frauds; General Statutes § 52-550; and in the statute of limitations for tort actions set forth in General Statutes § 52-577. Neither of those statutes creates a jurisdictional bar. See Seipold v. Gibbud, 110 Conn. 392, 395, 148 A. 328 (1930) (statute of frauds); Orticelli v. Powers, 197 Conn. 9, 15-16, 495 A.2d 1023 (1985) (§ 52-577).

       “[Practice Book] Sec. 157. —substitute pleading; judgment
      “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”

       The plaintiff was also unable to demonstrate that it could save the CUTPA count if it had the opportunity to amend that count.

       The first nine paragraphs of the CUTPA count incorporate by reference the entire first count, which represents the claim for breach of the listing agreement. The remainder of the CUTPA count alleges that the defendants engaged in unfair or deceptive acts when they allegedly refused to sell the Cromwell West Office Park for the agreed price because the plaintiff would not compromise all or part of its commission.