author: Glass, J.

text:
    State of Connecticut v. George Arline
    (14377)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued April 29
    decision released July 21, 1992

      Thomas Ullmann, assistant public defender, with whom, on the brief, was Shawn G. Tiernan, deputy assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary E. Baran, assistant state’s attorney, for the appellee (state).
   Glass, J.

After a trial to a jury, the defendant, George Arline, was convicted of the crime of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The trial court sentenced the defendant to a term of imprisonment of twenty years. The defendant appealed to the Appellate Court, which affirmed the judgment of the trial court. State v. Arline, 25 Conn. App. 653, 596 A.2d 7 (1991). This court thereafter granted the defendant’s petition for certification to appeal. We reverse the judgment of the Appellate Court and direct that the case be remanded to the trial court for a new trial.

The jury could reasonably have found the following facts. On December 28, 1987, the complainant was sentenced to ninety days incarceration for two motor vehicle offenses. He was placed in the New Haven community correctional center, where he was assigned to a two person cell with the defendant. Shortly after lights out and the first bed check, the complainant was sexually-assaulted by the defendant. The next day the complainant was transferred to a different correctional facility. He reported the alleged sexual assault to medical personnel at the new facility on the day following his arrival. Id., 655.

The defendant did not testify at the trial. Through cross-examination of the prosecution’s witnesses and direct testimony of defense witnesses, however, the defendant presented evidence tending to discredit the complainant’s testimony. In particular, the defendant elicited testimony from the complainant relating to the favorable disposition of certain criminal charges brought against him subsequent to the alleged sexual assault. The defendant also elicited testimony from the complainant pertaining to a notice of civil claim concerning the alleged sexual assault filed on the complainant’s behalf against the state. The defendant offered this testimony to demonstrate possible motive or bias on the part of the complainant. Prior to final argument, the state filed a motion for a cautionary ruling to bar defense counsel from referring to the subsequent criminal charges or the potential civil claim. The trial court granted the state’s motion on the ground that the argument the defendant proposed to make in summation on that testimony would be strictly speculative and without any basis in the evidence.

During summation, the defendant objected to several arguments made by the state. The defendant specifically objected to one question posed by the prosecutor, claiming that it was a comment on the defendant’s failure to testify. Thereafter, the defendant moved for a mistrial. The trial court denied the defendant’s motion.

On appeal to the Appellate Court, the defendant claimed that the trial court had unconstitutionally limited his final argument and had incorrectly denied his motion for a mistrial made on the basis of prosecutorial misconduct. Id., 654. The Appellate Court concluded that the trial court had properly limited the scope of the defendant’s final argument and that the trial court’s instructions to the jury were sufficient to cure any improper remarks of the prosecutor. Id., 663-64.

We granted certification to review the judgment of the Appellate Court limited to two issues: (1) “Did the Appellate Court correctly conclude that the defendant’s right to the effective assistance of counsel under the sixth amendment to the United States constitution was not abridged by the trial court’s ruling regarding the scope of the defendant’s final argument?”; and (2) “Did the Appellate Court correctly conclude that the defendant’s privilege against self-incrimination under the fifth amendment to the United States constitution was not abridged by the state’s statement in final argument: ‘What motive does George Arline have to come and deny it?’ ” State v. Arline, 220 Conn. 924, 924-25, 598 A.2d 364 (1991). We reverse because we disagree with the Appellate Court’s resolution of the first issue.

I

The defendant first claims that the trial court improperly restricted defense counsel from commenting on certain facts that had been elicited from the complainant on cross-examination, thereby violating the defendant’s right to the effective assistance of counsel under the sixth amendment to the United States constitution. On cross-examination, the complainant had testified that: (1) following the alleged sexual assault, his sentence had been modified from ninety to thirty days; (2) during the period between the alleged sexual assault and the trial, he had been arrested and charged with the crimes of larceny in the first degree, attempt to commit burglary in the third degree, attempt to commit larceny in the second degree and violation of probation, and he had received no jail time for these charges; (3) he had a larceny charge pending at the time of trial; and (4) a notice of civil claim against the state of Connecticut had been filed with the claims commissioner on his behalf, without his permission.

Prior to final arguments, the trial court granted the state’s motion for a cautionary ruling that precluded defense counsel from referring during summation to any charges against the complainant that had been nolled or disposed of subsequent to the alleged sexual assault or to any civil claim that the complainant might pursue with respect to the alleged sexual assault. The defendant argues that the favorable dispositions of the criminal charges against the complainant in conjunction with the complainant’s civil claim against the state supported an inference that the complainant’s testimony had been motivated by these potential benefits. The defendant claims that, had the court permitted his argument in summation, the complainant’s credibility would have been challenged. Although the defendant attempted to impeach the complainant’s credibility on a number of grounds, the criminal charges and the civil claim provided the only evidence of motive or bias.

The Appellate Court upheld the ruling of the trial court and concluded that the defendant’s constitutional right to the effective assistance of counsel had not been abridged. State v. Arline, supra, 25 Conn. App. 661. The court reviewed the complainant’s testimony and concluded that “no evidence was produced that would support the defendant’s theory that the victim fabricated a story in exchange for favorable treatment or because of a pending lawsuit. His claim, therefore, remained speculation and the trial court properly refused to allow comment about it.” Id., 662. We disagree with this conclusion of the Appellate Court.

“ ‘Counsel may comment upon facts properly in evidence and upon reasonable inferences to be drawn from them. State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). Counsel may not, however, comment on or suggest an inference from facts not in evidence. State v. Manley, 195 Conn. 567, 580, 489 A.2d 1024 (1985). . . .’ ” (Emphasis in original.) State v. Ross, 18 Conn. App. 423, 432, 558 A.2d 1015 (1989); State v. Huff, 10 Conn. App. 330, 340, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). Even if the trial court admits incompetent evidence, it “ ‘may be relied on in argument, and alone or in part may support a verdict or finding. . . .’ ” Cohen v. Cohen, 11 Conn. App. 241, 248, 527 A.2d 245 (1987), quoting C. McCormick, Evidence (3d Ed.) § 54. Once testimony regarding subsequent criminal charges against the complainant and the existence of a civil claim had been admitted into evidence, therefore, the defendant had a right to argue in final argument any reasonable inferences from the facts elicited.

“In general, the scope of final argument lies within the sound discretion of the court; Schwartz v. Waterbury Public Market, Inc., 6 Conn. App. 429, 437, 505 A.2d 1272 (1986); subject to appropriate constitutional limitations. Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (complete denial of right to argue violates sixth amendment).” State v. Huff, supra, 341. It is within the discretion of the trial court to limit the scope of final argument to prevent comment on facts that are not properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent the jury from being influenced by improper matter that might prejudice its deliberations. See Herring v. New York, supra, 862; State v. Herring, 210 Conn. 78, 102, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); State v. Huff supra, 340. “While we are sensitive to the discretion of the trial court in limiting argument to the actual issues of the case, tight control over argument is undesirable when counsel is precluded from raising a significant issue.” State v. Ross, supra, 433.

The testimony at issue in the present case was admitted into evidence pursuant to the defendant’s right to confrontation under the sixth amendment to the United States constitution. “The primary interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); and an important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400,3 L. Ed. 2d 1377 (1959). Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985). In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury “facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Lubesky, supra, 482.

Thus, the relevant inquiry is whether it would have been unreasonable for the jury to infer motive or bias on the part of the complainant from the facts of the subsequent criminal charges against him and their dispositions as well as from the existence of a potential civil claim. This court has consistently held that evidence of pending criminal charges against a state’s witness is probative of motive or bias. “[I]t is ‘well settled law that “[t]he fact that the witness is a defendant in a criminal prosecution . . . creates an interest which affects his credibility.” ’ ” State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985); see also State v. Shipman, 195 Conn. 160, 168, 486 A.2d 1130 (1985); State v. Harris, 10 Conn. App. 217, 235, 522 A.2d 323 (1987). It is also generally accepted that the pendency of a civil claim arising out of the same set of circumstances as those that served as the basis for a criminal prosecution is probative of a prosecuting witness’ motive to lie because the outcome of the prosecution may be beneficial to the prosecuting witness. State v. Milum, 197 Conn. 602, 610, 500 A.2d 555 (1985) (trial court improperly prevented defendant in criminal case from cross-examining complaining witness regarding suit for civil damages brought against the defendant on the basis of the same incident as the criminal prosecution).

In this case, both the trial court and the Appellate Court concluded that the defendant’s proposed argument that the complainant had an interest in and could benefit personally from his testimony was speculative and had no basis in the evidence. Both courts improperly assumed, however, that the defendant was required to present specific evidence of an agreement between the state and the complainant or of the complainant’s belief that he had received lenient treatment on his criminal charges in exchange for his testimony. Rather, in order to argue the question of the complainant’s motivation, the defendant needed to establish only a reasonable inference that the complainant could have believed that there was a causal connection between his testimony and the disposition of the criminal charges against him. The fact that a witness denies such a connection, or does not testify as to whether one exists, does not make it unreasonable for a jury to infer, from the fact of favorable dispositions of criminal charges or the existence of a civil claim, that the witness could have believed his testimony would benefit him.

We are persuaded that, in the present case, it was not unreasonable for the defendant to attempt to use the existence of criminal charges against the complainant and the civil claim to raise a question to the jury as to the complainant’s veracity. Although the trial court may have regarded the proffered evidence of motivation as not especially persuasive, it was for the jury to decide the weight of the evidence and its effect on the complainant’s credibility. See, e.g., State v. Pinnock, 220 Conn. 765, 785-86, 601 A.2d 521 (1992); State v. James, 211 Conn. 555, 573, 560 A.2d 426 (1989); State v. Shipman, supra, 163. Once this testimony had been elicited on cross-examination of the complainant, particularly when it provided the only evidence from which the jury could infer motive or bias, defense counsel should have been permitted to argue that evidence in summation to the jury. A trial court “cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it.” Davis v. Alaska, supra, 317.

We conclude, therefore, that the trial court improperly restricted the scope of the defendant’s final argument when it barred the defendant’s attorney from referring to the filing of a notice of claim against the state and to the criminal charges against the complainant that arose between the time of the alleged sexual assault and the trial. We next consider whether the trial court’s action in denying the defendant the opportunity to argue these facts to the jury denied him the right to the effective assistance of counsel afforded by the sixth and fourteenth amendments to the United States constitution.

The right to the assistance of counsel ensures an “opportunity to participate fully and fairly in the adversary factfinding process.” Herring v. New York, supra, 858. The opportunity for the defense to make a closing argument in a criminal trial has been held to be a basic element of the adversary process and, therefore, constitutionally protected under the sixth and fourteenth amendments. Id., 859. Closing argument is an integral part of any criminal trial, for it is in this phase that the issues are sharpened and clarified for the jury and each party may present his theory of the case. “Only then can [counsel] . . . argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt.” Id., 862.

The right to present a closing argument is abridged not only when a defendant is completely denied an opportunity to argue before the court or the jury after all the evidence has been admitted, but also when a defendant is deprived of the opportunity to raise a significant issue that is reasonably inferable from the facts in evidence. This is particularly so when, as in this case, the prohibited argument bears directly on the defendant’s theory of the defense. See State v. Ross, supra, 433-34.

Here, the only evidence presented by the defense was directed at the complainant’s credibility. Although there were numerous evidentiary bases from which the complainant’s credibility could have been questioned, the complainant’s testimony regarding the criminal charges against him and the civil claim provided the only evidence of motive or bias. To deprive defense counsel of any opportunity to argue the motive or bias of the state’s chief witness, where the linchpin of the defense was attacking the credibility of that witness, deprived the defendant of the full and fair participation of his counsel in the adversary process. The trial court’s restriction on defense counsel’s closing argument was particularly significant in this case because the state argued that the complainant had no motive to fabricate his testimony and the defendant was not permitted to rebut that argument. Accordingly, we conclude that the trial court’s limitation on the scope of defense counsel’s final argument was improper and deprived the defendant of his constitutional right to the effective assistance of counsel.

Once a violation of the sixth amendment right to assistance of counsel has been established, we need not inquire as to whether the error resulted in prejudice to the defendant. “[A] per se rule of automatic reversal more properly vindicates the denial of the defendant’s fundamental constitutional right to assistance of counsel guaranteed by the sixth amendment.” State v. Mebane, 204 Conn. 585, 595, 529 A.2d 680 (1987), cert. denied, 484 U.S. 1046, 108 S. Ct. 784, 98 L. Ed. 2d 870 (1988); see 2 W. LaFave & J. Israel, Criminal Procedure § 11.8. We, therefore, reverse the decision of the Appellate Court and remand the case for a new trial.

II

We will consider the defendant’s remaining claim insofar as it may arise again at a new trial. The defendant claims that his fifth amendment privilege against self-incrimination was abridged when the prosecutor commented during closing argument on the defendant’s failure to testify. After commenting at length on the complainant’s lack of motive to fabricate his testimony; see footnote 10, supra; the prosecutor stated: “On the other hand, members of the jury, what motive does George Arline have to come and deny it?” Defense counsel objected and moved for a mistrial, claiming that the prosecutor’s statement necessarily referred to the fact that the defendant had not testified during the trial.

It is well settled that comment by the prosecuting attorney or the trial court on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965). The Connecticut legislature has given statutory recognition to this right by enacting General Statutes § 54-84. This court applies the following test in evaluating whether a prosecutor’s remark has violated this right: “ ‘Was the language used manifestly intended to be, or was it of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the. accused to testify?’ ” State v. Walker, 206 Conn. 300, 307, 537 A.2d 1021 (1988); United States ex rel. Leak v. Follette, 418 F.2d 1266, 1269 (2d Cir. 1969), cert. denied sub nom. Leak v. Follette, 397 U.S. 1050, 90 S. Ct. 1388, 25 L. Ed. 2d 665 (1970). Even an indirect remark by the prosecuting attorney may violate a defendant’s privilege against self-incrimination if it draws the jury’s attention to the failure of the accused to testify. State v. Menzies, 26 Conn. App. 674, 696, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992) (Berdon, J., dissenting from denial of certiorari). Furthermore, “a prosecutor is prohibited from asking for explanations which only a defendant can provide because such questions are an indirect comment on the defendant’s failure to testify.” State v. Bowens, 24 Conn. App. 642, 650, 591 A.2d 433, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991).

Repeated comments by the prosecutor on the failure of a defendant to “tell” or to “explain” certain events and reference to the jury’s inability to assess the demeanor of the defendant have been held to be improper. State v. Walker, supra, 313; State v. DeMartino, 7 Conn. App. 292, 295, 508 A.2d 809 (1986). We note, however, that a prosecutor may use final argument to rebut comments made by the defendant in closing argument or to address the weaknesses of the defendant’s case. See, e.g., State v. Magnotti, 198 Conn. 209, 217-18, 502 A.2d 404 (1985); State v. Kluttz, 9 Conn. App. 686, 707, 521 A.2d 178 (1987); State v. Allen, 9 Conn. App. 169, 178, 517 A.2d 1043 (1986), rev’d on other grounds, 205 Conn. 370, 533 A.2d 559 (1987). While the prosecutor’s comment in the present case appears to exceed the bounds of proper argument, because we do not expect the issue to arise on retrial, we decline to decide whether this comment in itself would have required a new trial because of its impairment of the defendant’s fifth amendment privilege against self-incrimination.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new trial.

In this opinion the other justices concurred.

       General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with a persons [sic] under thirteen years of age.”

       We note that the parties at oral argument were not aware whether a civil suit had yet been filed on the complainant’s behalf, although the notice of claim filed with the claims commissioner indicated that permission to file a lawsuit against the state was being sought. See General Statutes § 4-147.

       The defendant also raised in the Appellate Court claims regarding the trial court’s refusal to allow the defendant access to the complainant’s alcohol treatment and psychiatric records and its refusal to charge the jury on a lesser included offense. State v. Arline, 25 Conn. App. 653, 654, 596 A.2d 7 (1991). These issues were not certified for appeal to this court.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.” The sixth amendment applies to state criminal proceedings by virtue of the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Although the defendant also raises in his brief on appeal the right to present a summation to the jury recognized under article first, § 8 of the Connecticut constitution; State v. Hoyt, 47 Conn. 518, 535-37 (1880); the state constitutional claim is not a certified issue and, therefore, we decline to address it.

       During voir dire of the complainant, outside the presence of the jury, the complainant indicated that these charges had been nolled.

       After indicating that he personally had not filed a claim against the state relating to the alleged sexual assault and that he did not recall having given an attorney authority to file such a claim on his behalf, the complainant testified as follows:
      “[Defense Counsel]. When did you talk to Mr. Jacobs [complainant’s attorney] about the case?
      “[The Complainant]. After I was released from jail.
      “Q. And he filed a claim without your permission?
      “A. Yes.
      * * *
      “Q. You are saying that you did not give permission to your attorney to file a notice of claim against the State of Connecticut, which the Attorney General of the State of Connecticut is defending ... is that what you are saying?
      “A. Not that I recollect.
      “Q. Now, its not that you recollect.
      “A. Well, before it was the question of a lawsuit.
      “Q. Oh, I see. So, filing permission to file a lawsuit with the State of Connecticut in the claims commission, that’s what you were answering no to before?
      “A. Yes.
      “Q. So, you have talked about filing a lawsuit with your attorney?
      “A. I never sat down in his office and talked to him.
      “Q. Did you talk to him on the phone?
      “A. He wanted to—they contacted me to get a hold of him to talk to them about it, but I haven’t been to his office, just he contacted me to go to his office and talk to him, and I haven’t.
      “Q. Did you talk to him on the phone?
      “A. Not about the case.
      “Q. Something else?
      “A. No.”
      Although the notice of claim was never entered into evidence, the complainant’s testimony was sufficient to allow the jury to draw the reasonable inference that it had been filed.

       The motion stated in relevant part: “The State of Connecticut respectfully requests the Court to caution defense counsel that he may not refer to the following matters during the [course] of summation:
      “(1) All cases of the victim which were nolled or disposed of subsequent to the December 28, 1987 incident.
      “(2) Any civil remedy that the victim could pursue with regard to the December 28, 1987 incident.
      “Defense counsel questioned the victim about these issues during the trial. The victim denied any connection between the December 28,1987 incident and the results of any subsequent cases. The victim also denied the existence of any civil lawsuit concerning this matter. . . . The State would urge the Court to caution defense counsel that he may not mention either subject to the jury because there is no evidence concerning either subject and both issues are speculative and without any basis in fact.”
      The trial court granted the motion as worded and instructed defense counsel to guide himself accordingly. The state conceded in oral argument before this court that the motion may have been overbroad. The state claims, however, that the defendant still could have argued the facts that the complainant’s original sentence had been modified and that a larceny charge was pending against the complainant at the time of trial. We reject the state’s contention that the defendant could thus have narrowly interpreted the broad language of the court’s cautionary ruling. Had he done so, he would have risked the appearance of wilfully violating the court’s order.

       Neither party has raised, and, therefore, we do not address, whether this testimony was properly admitted. We note, however, that this court has held that evidence of pending criminal charges and civil actions arising from the crime charged are probative of a prosecution witness’ credibility. See State v. Ortiz, 198 Conn. 220, 224, 502 A.2d 400 (1985); State v. Milum, 197 Conn. 602, 610, 500 A.2d 555 (1985).

       Outside the presence of the jury, after voir dire of the complainant, the parties and the court addressed the permissible scope of the defendant’s cross-examination of the complainant. The court ruled that the defendant could not cross-examine the complainant as to the facts of the crimes with which he was charged after the alleged sexual assault, but could inquire as to the disposition of cases pending between the time of the alleged sexual assault and the trial. Cross-examination on these issues was allowed to establish the defendant’s theory that the complainant had received preferential treatment that affected the reliability of his testimony. The following exchange then took place:
      “The Court:. . . . [Y]our ability to cross-examine concerning any possible preferential treatment is going to be pretty much limited because [the complainant] has already testified that he has no knowledge of anything of that nature, and I don’t know how you are going to get around that when you cross-examine.
      * * *
      “[Assistant State’s Attorney]:.... I don’t think it’s fair to raise this simply on a whim, and then be able to argue this to the jury later, and the victim is going to deny it and say he doesn’t know anything, you heard his answers yesterday on voir dire, that’s what he said.
      “The Court: Certainly there is no question . . . if he does ask those types of questions and the witness says no, how can he argue to the jury, there is no evidence to it.”
      The trial court misinterpreted the complainant’s denial that he had received preferential treatment in exchange for his testimony to create a lack of evidence rather than an issue of credibility for the jury. We note that neither the defense nor the prosecution specifically questioned the complainant in front of the jury as to whether he believed that the dispositions of the criminal charges against him were related to his testimony in the present case.

       The prosecutor argued in summation: “What motive would a 21 year old fellow have to make up such a disgusting and depraved scenario . . . to go through a humiliating, embarrassing, uncomfortable rectal examination; to come into a courtroom of strangers a year and a half afterwards and testify about his most private parts, most embarrassing intimate disgusting details that the human mind could imagine. What motive would he have to lie as they are going to tell you? He has no motive. . . .To believe he is lying is to believe he is out of his mind. . . .”

       We agree with the reasoning of the Maine Supreme Court in State v. Liberty, 498 A.2d 257 (Me. 1985). There the court concluded that restricting a criminal defendant from arguing in summation hearsay evidence that had come in without objection violated the defendant’s constitutional right to the effective assistance of counsel. The court stated: “In closing argument, each party should be permitted to summarize the case from the perspective of that party’s interpretation of all the evidence in the case and the inferences to be drawn therefrom. It is not for the presiding justice to proscribe argument as to a portion of the evidence which the jury has heard. . . .” Id., 259.

       The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be compelled in any criminal case to be a witness against himself . . . .” The fifth amendment is applicable to state criminal prosecutions by virtue of the fourteenth amendment. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).

       “[General Statutes] Sec. 54-84. testimony or silence of accused. (a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       We note that after objection by the defendant to the prosecutor’s comment, the trial court excused the jury and, thereafter, cautioned the prosecutor against making any further comment to the jury about the defendant’s motives.


source: Caselaw Access Project

license: Public Domain

text:
    Ellen Plasil v. Linda Tableman et al.
    (14397)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued May 1
    decision released July 21, 1992

      William R. Moller, with whom were Kimberly A. Knox and, on the brief, Kevin J. Kopetz, for the appellants (defendants).

      David P. Atkins, for the appellee (plaintiff).
   Glass, J.

The principal issue in this appeal is whether the trial court had subject matter jurisdiction to grant prejudgment remedies when the plaintiff, Ellen Plasil, had not paid an entry fee as required by General Statutes § 52-259. The trial court denied the motion of the defendants, Linda Selby Tableman and Stephen D. Tableman, to dissolve, modify or vacate prejudgment remedies of attachment and garnishment. The defendants appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to ourselves pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The relevant facts are undisputed. The plaintiff and the named defendant, Linda Selby Tableman, dissolved their law partnership and agreed to split the fees to be recovered in two pending cases. In a dispute arising out of the settlement received in one of those cases, the plaintiff brought an action against Linda Tableman and her husband, Stephen D. Tableman. Pursuant to General Statutes § 52-278e (a) (2) (D) and (E), the plaintiff simultaneously secured an ex parte attachment on the defendants’ home, a garnishment of funds, including earnings, owed to Stephen Tableman by his employer, and a garnishment of a bank account of the defendants. The defendants claimed insufficiency of process, insufficiency of service of process and want of personal jurisdiction, and filed a motion to dismiss the action pursuant to Practice Book § 143. The defendants also filed a motion to dissolve the prejudgment remedies pursuant to § 52-278e (c). After a hearing on April 8, 1991, the trial court dismissed the complaint for insufficiency of service and dissolved the attachment of the defendants’ home as improperly served. The trial court also dissolved the garnishment as to Stephen Tableman’s earnings. The court noted, however, in its memorandum of decision issued April 18, 1991, that the “plaintiff may re-serve the process found to have been defectively served.” The trial court found, further, on the basis of evidence presented at the April 8, 1991 hearing, that the plaintiff had established probable cause to sustain prejudgment remedies and, accordingly, authorized attachment of the defendants’ home and the garnishment of funds other than earnings.

The plaintiff served the defendants with a corrected summons and complaint on April 19, 1991, together with an order for the prejudgment remedies of attachment and garnishment, based on the previous probable cause finding. The trial court clerk neither assigned a new docket number nor collected a docketing fee from the plaintiff. Instead, above the return date on the order for prejudgment remedies, the clerk wrote in the docket number assigned to the original action. Counsel for both parties subsequently signed a stipulation for a temporary restraining order bearing the original docket number. Thereafter, on May 24, 1991, the defendants filed an answer to the plaintiffs complaint. The defendants then, for the first time, challenged the use of the original docket number on the order for prejudgment remedies, claiming that the writ and summons on which the attachment and garnishment were based had never been properly returned. The defendants filed a second motion to dissolve the prejudgment remedies, and a motion to enter judgment in the April 8, 1991 proceeding. After a hearing on June 17, 1991, the trial court denied the defendants’ motions and granted the plaintiff’s application for supplemental prejudgment remedies. This appeal followed.

I

The plaintiff claims at the outset that this court lacks subject matter jurisdiction over this appeal. Specifically, the plaintiff claims that because the defendants did not appeal the April 18, 1991 trial court rulings within seven days, as required by General Statutes § 52-278l, they waived their right to appeal those rulings. The plaintiff asserts, moreover, that the defendants’ second motion to dissolve prejudgment remedies challenged an existing prejudgment remedy granted after a hearing and, therefore, was governed by General Statutes § 52-278k. The plaintiff contends, therefore, that the June 17, 1991 trial court ruling on the defendants’ second motion to dissolve was not an appealable final judgment within the meaning of General Statutes § 52-2781. See City National Bank v. Davis, 181 Conn. 42, 45-46, 434 A.2d 310 (1980). We agree with the plaintiff that the defendants waived their right to appeal the April 18, 1991 rulings. We conclude, however, that the trial court’s June 17, 1991 ruling on the defendants’ second motion to dissolve prejudgment remedies was an appealable final judgment pursuant to § 52-278l.

The plaintiff’s re-served summons and complaint included an application for prejudgment remedies identical to the application on which the trial court had based its April 18, 1991 decision. The trial court, in ruling on the defendants’ second motion to dissolve prejudgment remedies, expressly incorporated the findings of the April 18, 1991 memorandum of decision. See footnote 7, supra. In addition, the defendants were given the opportunity, at the June 17, 1991 hearing, to present additional evidence as to the validity of the prejudgment remedies. Finally, the trial court, on June 17, 1991, granted the plaintiff’s supplemental application for a prejudgment remedy garnishing another bank account owned by the defendants. The defendants have appealed the trial court’s rulings on their second motion to dissolve prejudgment remedies and on the plaintiff’s supplemental application for prejudgment garnishment.

We are persuaded that the trial court’s June 17, 1991 ruling on the defendant’s second motion to dissolve prejudgment remedies is a final judgment within the meaning of § 52-278l (a) (2). The trial court, at the June 17, 1991 hearing, reviewed and ruled anew on the validity of the prejudgment remedies that it had considered at the April 8, 1991 hearing. The record thus reveals that the trial court treated the plaintiff’s reserved application for prejudgment remedies as a newly filed application under § 52-278e. With respect to the June 17, 1991 rulings, moreover, the defendants complied with the time provisions of § 52-278l (b) and Practice Book § 4009. The defendants’ appeal from the June 17, 1991 rulings of the trial court is, therefore, both jurisdictionally appropriate and timely. Monroe v. Monroe, 177 Conn. 173, 176-78, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); Giordano Construction Co. v. Ross, 182 Conn. 577, 438 A.2d 772 (1980); see also Practice Book § 4000.

II

The defendants rely first upon General Statutes § 52-259 to support their claim that the trial court should have granted their motion to dissolve the prejudgment remedies order. The defendants argue that the plaintiff’s failure to pay an entry fee pursuant to § 52-259 (a) deprived the trial court of subject matter jurisdiction over the re-served complaint. The defendants also assert that the continued use of the docket number assigned to the prejudgment remedy application that was originally filed was improper because the trial court had dismissed the original complaint on April 18, 1991. We have stated: “Prejudgment attachment, although a useful and efficient remedy, can be harsh in its operation and liable to oppressive use because it is summary in its effects. Consequently, its application has been confined within the limits set by statute.” Ledgebrook Condominium Assn. v. Lusk Corporation, 172 Conn. 577, 584-85, 376 A.2d 60 (1977). We conclude, nonetheless, that the statutory procedural protections that are intended to benefit defendants in prejudgment remedy proceedings have been afforded the defendants in the present case.

Section 52-259 (a) provides that a fee shall be paid to the clerk “for entering . . . each civil cause in the superior court.” The statute, however, does not preelude the trial court from assigning to a re-served process the docket number assigned to the original complaint. As the trial court observed, if it were otherwise, the court would have been forced to repeat the entire evidentiary hearing on the issue of probable cause that it had conducted on April 8, 1991. The purpose of a prejudgment remedy probable cause hearing is to satisfy the constitutional due process right of parties whose property rights are to be affected, to be heard “ ‘at a meaningful time and in a meaningful manner.’ ” Ledgebrook Condominium Assn. v. Lusk, supra, 583, quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). The defendants concede the existence of probable cause and the lack of any substantive issue as to the validity of the prejudgment remedies.

Assuming that the trial court clerk had a statutory duty to collect the entry fee pursuant to § 52-259 (a), we conclude, as did the trial court, that the plaintiff should not be penalized for the clerk’s inaction, and that the clerk’s inaction did not deprive the trial court of subject matter jurisdiction. “It is of course difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory and when mandatory or inoperative, but, of all the rules mentioned, the test most satisfactory and conclusive is, whether the prescribed mode of action is of the essence of the thing to be accomplished, or in other words, whether it relates to matter material or immaterial—to matter of convenience or of substance.” Gallup v. Smith, 59 Conn. 354, 358, 22 A. 334 (1890); see also Hall Manor Owner’s Assn. v. West Haven, 212 Conn. 147, 153, 561 A.2d 1373 (1989). Moreover, even if the assignment of a new docket number were necessary for the orderly maintenance of the trial court’s computer files, as urged by the defendants, the plaintiff correctly observes that the administrative defect in this case could have been cured without dissolving the prejudgment remedies. For example, the trial court could have ordered the clerk to assign a new docket number to the re-served process and to collect the fee from the plaintiff. “The clerks of the court are merely recording officers; and if they make a mistake, the court may amend it. Their function is merely ministerial.” State v. Rowe, 1 Conn. Cir. Ct. 427, 430, 186 A.2d 809, cert. denied, 150 Conn. 708, 204 A.2d 934 (1962).

The defendants also rely on Van Mecklenberg v. Pan American World Airways, Inc., 196 Conn. 517, 494 A.2d 549 (1985), in support of their contention that the trial court lacked subject matter jurisdiction. In Van Mecklenberg, this court upheld the trial court’s dismissal of an action where the plaintiff had failed to pay a filing fee with a motion to open the judgment of dismissal, as required by General Statutes § 52-259c. The trial court clerk had stamped the motion as “received” but “upon realizing that the required fee had not been paid, the clerk crossed out the . . . receipt date . . . and immediately returned it to the plaintiff.” Id., 518. The plaintiff failed to refile the returned motion and pay the fee within the time period set forth in General Statutes § 52-212a and Practice Book § 326. The issue in Van Mecklenberg, therefore, was whether the relief sought by the plaintiff had been timely claimed, not whether the clerk’s actions had deprived the trial court of subject matter jurisdiction. This court concluded that the trial court lacked jurisdiction because the motion at issue was “untimely” under the applicable statutory and Practice Book sections. Id., 519.

In the present case, the clerk neither returned nor refused to accept the plaintiff’s papers for nonpayment of the entry fee. The clerk simply accepted the papers. The plaintiffs actions, therefore, were governed by § 52-259 (a), which requires a fee “for entering . . . each civil cause.” The civil cause had been entered. Accordingly, we reject the defendants’ claim that § 52-259c applies in the present case. See footnote 12, supra.

In Bridgeport v. Debek, 210 Conn. 175, 178, 554 A.2d 728 (1989), the sheriff failed in timely fashion to serve certain defendants, who, in turn, failed to file a motion to dismiss in timely fashion. The trial court proceeded to grant various motions of the plaintiff, concluding that the sheriff’s delay in service implicated personal jurisdiction but did not deprive the court of subject matter jurisdiction. We agreed with the trial court and stated: “Our precedents make it abundantly clear that, except in the special circumstances of administrative appeals, defects in process do not deprive a court of subject matter jurisdiction. . . . The Superior Court lacks subject matter jurisdiction only if it has no competence to entertain the action before it.” Id., 179-80.

The defendants in the present case do not claim that the trial court lacked “competence to entertain” the causes of action raised in the plaintiff’s complaint and to which the prejudgment remedies apply. Such causes of action are properly within the subject matter jurisdiction of the trial court. Here, the trial court dismissed the original complaint and dissolved the real estate attachment because they were improperly served. The trial court issued its rulings with leave to the plaintiff to cure the defects and re-serve process. Practice Book §§ 175 and 176; see 1 W. Moller & W. Horton, Connecticut Practice, Practice Book Annotated (1992) § 174, authors’ comments and cases cited.

The defendants, relying upon Hillman v. Greenwich, 217 Conn. 520, 587 A.2d 99 (1991), assert that jurisdictional defects cannot be cured by re-service. In Hillman, this court concluded that the plaintiff “failed to comply in any fashion with [the] basic requirements” of General Statutes § 52-45a when he served the original “bare bones” complaint without a writ of summons. Id., 524-26. Our decision in Hillman, however, did not turn on the lack of technical perfection or exacting conformity in the form of the plaintiffs filings. Id., 526. In Hillman, the plaintiff filed an “amended writ” in an effort to avoid the statute of limitations. We did not suggest that the new, amended writ could not have had validity on its own. We held, rather, that the amended writ did not relate back to the defective writ, about which the defendant had complained in a timely fashion.

In the present case, the trial court concluded that although the filing of an “amended writ” cured the insufficiencies in the process, it did not cure the defect in service of process on the defendants’ counsel rather than directly on the defendants. After the second “amended writ” was issued, supported by proper process, however, the trial court properly reinstated the attachment and garnishment, regardless of the payment of an entry fee or the assignment of a new docket number. Although the defendants had the right to another hearing, they waived that right when they filed an answer to the plaintiff’s re-served complaint. See footnote 6, supra. We note, moreover, that the statute of limitations is not implicated in this case, as it was in Hillman. Accordingly, the trial court reasonably concluded that the matter continued as pending on the trial court docket and, therefore, required neither a new docket number nor payment of an entry fee.

We conclude that the trial court in the present case was not deprived of subject matter jurisdiction by the plaintiffs failure to pay an entry fee with the re-served process and the clerk’s failure to assign a new docket number. “ ‘A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Such jurisdiction relates to the court’s competency to exercise power, and not to the regularity of the court’s exercise of that power. Monroe v. Monroe, [supra] . . . .’ State v. Malkowski, 189 Conn. 101, 105-106, 454 A.2d 275 (1983).” Castro v. Viera, 207 Conn. 420, 427, 541 A.2d 1216 (1988). The failure to collect an entry fee for the re-served complaint or to assign it a new docket number did not deprive the court of jurisdiction or presumptively prejudice the defendants. To strip the plaintiff of her prejudgment remedies would neither facilitate the business of the court nor advance justice, but rather would serve merely “ ‘to exalt technicalities above substance.’ ” LaReau v. Reincke, 158 Conn. 486, 494, 264 A.2d 576 (1969). Accordingly, we conclude that the defendants’ appeal is without merit.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-259 (a) provides in pertinent part: “There shall be paid to the clerks for entering each appeal to the supreme court, or the appellate court, as the case may be, one hundred fifty dollars, and for each civil cause in the superior court, one hundred twenty-five dollars . . . .”

       In her complaint, the plaintiff set forth various claims, including larceny, fraud, unfair trade practices, breach of contract, conversion, and fraudulent conveyance. Stephen Tableman was named as a defendant in the counts alleging larceny, conversion and fraudulent conveyance.

       General Statutes § 52-278e (a) provides in pertinent part: “The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiffs claim and ... (2) that there is reasonable likelihood that the defendant . . . (D) is about to fraudulently dispose of of has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors or (E) has fraudulently hidden or withheld money, property or effects which should be liable to the satisfaction of his debts . . . .” Section 52-278e (a) was amended by Public Acts 1991, No. 91-315, § 1. That amendment does not affect this appeal.

       Practice Book § 143 provides in relevant part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.”

       General Statutes § 52-278e (c) provides: “The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously. If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiffs claim, then the prejudgment remedy granted shall remain in effect. If the court determines there is no such probable cause, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken.” Section 52-278e (c) was amended by Public Acts 1991, No. 91 -315, § 1. That amendment does not affect this appeal.

       Practice Book § 144 provides: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Secs. 112 and 113 and within the time provided by Sec. 142.” Practice Book § 112 requires that a defendant file a motion to dismiss on the basis of a lack of personal jurisdiction prior to filing an answer to the plaintiff’s complaint. The defendants, therefore, waived any claim regarding a lack of personal jurisdiction by filing their answer prior to their motion to dismiss. See also Bridgeport v. Debek, 210 Conn. 175, 178, 554 A.2d 728 (1989).

       In its ruling, the trial court stated: “I find that there has been no substantive claims raised as to the sufficiency of what the plaintiff has filed subsequent to the Court’s (April 18] ruling. I do find that the file reflects that the [writ and] summons [were] returned as a new action and by administrative action of the Court Clerk, were treated as a continuation of a prior document. I find that the dismissal as to insufficiency of the prior process did not preclude the plaintiff from correctly serving the Complaint and returning it to court. I find that was done.” The trial court also ruled: “The writ has now been returned to court and the defendants identify no deficiency in form or service upon them. The defendants were given an opportunity on 6/17/91 to present any additional evidence as to attachments and declined to do so. The court therefore incorporates its findings in its prior memorandum of decision.”

       The defendants claim prejudice from the plaintiffs claim of lack of appellate jurisdiction, made for the first time on appeal. They urge us to decline to review this claim pursuant to Practice Book § 4013 because the “introduction of the issue for the first time in [the] appellee’s brief constitutes appeal by ambuscade.” State v. One 1981 BMW Automobile, 15 Conn. App. 589, 599, 546 A.2d 879 (1989). We conclude, however, that the plaintiffs challenge to this court’s jurisdiction is properly raised because lack of subject matter jurisdiction, whether trial court or appellate, cannot be waived. LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976).

       General Statutes § 52-2781 provides in pertinent part: “(a) An order (1) granting or denying a prejudgment remedy following a hearing under section 52-278d or (2) granting or denying a motion to dissolve or modify a prejudgment remedy under section 52-278e or (3) granting or denying a motion to preserve an existing prejudgment remedy under section 52-278g shall be deemed a final judgment for purposes of appeal.
      “(b) No such appeal shall be taken except within seven days of the rendering of the order from which the appeal is to be taken.”

       General Statutes § 52-278k provides: “The court may, upon any application for prejudgment remedy under sections 52-278c, 52-278e, 52-278h or 52-282, modify the prejudgment remedy requested as may be warranted by the circumstances, and may, upon motion and after hearing, at any time modify or vacate any prejudgment remedy heretofore granted upon the presentation of evidence which would have justified such court in modifying or denying such prejudgment remedy at an initial hearing thereunder.” Section 52-278k was amended by Public Acts 1991, No. 91-315, § 4. That amendment does not affect this appeal.

       The plaintiff confines her argument that this court lacks subject matter jurisdiction to the defendants’ appeal of the trial court’s ruling on the defendants’ second motion to dissolve prejudgment remedies. We are persuaded, nonetheless, that the trial court’s June 17, 1991 ruling granting the plaintiff’s supplemental application for prejudgment remedies is also an appealable final judgment within the meaning of General Statutes § 52-278Z (a) (2). See footnote 9, supra.

       General Statutes § 52-259c provides in relevant part: “There shall be paid to the clerk of the superior court upon the filing of any motion to open, set aside or modify any civil judgment rendered in superior court a fee...."

       General Statutes § 52-259 (a) does not specify whether it is the responsibility of the filing party or of the clerk to ensure that the fee is paid. The plaintiff conceded at oral argument, however, that she did not tender the fee.