text:
    WALTER KRASOWSKI ET AL. v. LOUIS FANTARELLA ET AL.

      Mami Smith Katz, in support of the petition.
    Decided February 4, 1999
   The petition of the defendants Louis Fantarella, Sr., Laura Fantarella and Louis Fantarell, Jr., for certification for appeal from the Appellate Court, 51 Conn. App. 186 (AC 17625), is denied.


source: Caselaw Access Project

license: Public Domain

text:
    THOMAS MARRA v. COMMISSIONER OF CORRECTION

      Raymond J. Rigat, special public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided February 4, 1999
   The petitioner Thomas Marra’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 305 (AC 17631), is denied.

KATZ and PALMER, Js., did not participate in the consideration or decision of this petition.


text:
    DWAIN CHARLTON v. COMMISSIONER OF CORRECTION
   The petitioner Dwain Charlton’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 87 (AC 18189), is denied.

James A. Shanley, Jr., special public defender, in support of the petition.

James A. Killen, assistant state’s attorney, in opposition.

Decided February 4, 1999


text:
    STATE OF CONNECTICUT v. SAMUEL DUNBAR

      John A. East III, assistant state’s attorney, in support of the petition.

      G. Douglas Nash, public defender, in opposition.
    Decided February 10, 1999
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 51 Conn. App. 313 (AC 17143), is denied.

NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.


author: BERDON, J.,

text:
    STATE OF CONNECTICUT v. SAMUEL DUNBAR

      G. Douglas Nash, public defender, in support of the cross petition.
   The defendant’s cross petition for certification for appeal from the Appellate Court, 51 Conn. App. 313 (AC 17143), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s cross petition for certification to appeal.

NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.

John A. East III, assistant state’s attorney, in opposition.

Decided February 10, 1999


text:
    BURNEST FREENEY v. COMMISSIONER OF CORRECTION

      David B. Rozwaski, special public defender, in support of the petition.

      James A. Killen, assistant state’s attorney, in opposition.
    Decided February 10, 1999
   The petitioner Bumest Freeney’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 378 (AC 17383), is denied.


text:
    BARBARA A. SCINTO ET AL. v. HOWARD B. SOSIN ET AL.

      J. Daniel Sagarin, David A. Slossberg and Wesley W. Horton, in support of the petition.

      Louis R. Pepe and Richard F. Wareing, in opposition.
    Decided February 10, 1999
   The defendants’ petition for certification for appeal from the Appellate Court, 51 Conn. App. 222 (AC 17441), is denied.


text:
    CADLE COMPANY v. ROBERT A. GINSBURG
   The defendant’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 392 (AC 17539), is denied.

Kenneth A. Votre, in support of the petition.

Timothy D. Miltenberger, in opposition.

Decided February 10, 1999


text:
    SUSAN CHARBONNEAU v. DAVID CHARBONNEAU, SR.

      Claudia S. Weiss, in support of the petition.
    Decided February 10, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 51 Conn. App. 311 (AC 17885), is denied.


author: PALMER, J.

text:
    STATE OF CONNECTICUT v. DWAYNE ANDREWS
    (SC 15551)
    Callahan, C. J., and Katz, Palmer, McDonald and Peters, Js.
    Argued October 29, 1998
    officially released March 9, 1999

      Donald Da/cers, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

A jury convicted the defendant, Dwayne Andrews, as an accessory for aiding and abetting a murder in violation of General Statutes §§ 53a-54a (a) and 53a-8. The trial court rendered judgment in accordance with the jury verdict, from which the defendant appealed to this court. The principal issue on appeal is whether the trial court improperly prohibited the defendant from cross-examining the state’s key witness, Richard Dawkins, regarding possible undue pressure arising out of the trial court’s admonishment to Dawkins that he could not avoid giving further testimony without facing incarceration. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At all times relevant to this appeal, the defendant, a New Haven resident, worked for his brother, Edward Andrews, supervising Edward’s marijuana distribution business. The defendant’s responsibilities included collecting money generated by the organization’s marijuana sales. Gerald Royal also distributed marijuana for Edward Andrews, as did another individual, identified only as “Butchie,” who worked closely with Royal. Butchie owed Edward Andrews approximately $900, but because Butchie was incarcerated, the defendant had tried on several occasions to collect the debt from Royal. The defendant, however, was unsuccessful, and had become “fed up” with Royal as a result.

On the evening of July 19, 1993, the defendant and another individual visited the defendant’s cousin, Thad Stanley, at his place of employment. At that time, the defendant told Stanley that he was going to visit Royal again to attempt to collect the $900.

At approximately 10:20 p.m. that night, Royal was drinking with several friends, including Dawkins, on the porch of 17 Hurlburt Street in New Haven. Two African-American males, both of whom had hoods over their heads, approached the porch. One was dressed in black and the other wore a camouflage jacket. The man in black purchased two “nickel bags” of marijuana from Royal for $10. He then asked Royal for five more bags of marijuana at a price of $20. Royal, however, refused to sell him the additional marijuana at that price. The man in black, who was armed with a handgun, then shot Royal once in the back as Royal attempted to run inside the house.

Immediately thereafter, the man wearing the camouflage jacket pulled out a gun and held it to Dawkins’ head. The man then told Dawkins to “run it,” a street term meaning that Dawkins was to empty his pockets. Dawkins, however, had nothing in his pockets. The man in black, who had run across the street, called to the man wearing the camouflage jacket, telling him to “let [it] go,” whereupon the man in the camouflage jacket fled with the man dressed in black. Thereafter, Dawkins found Royal in the house, lying on his back, unable to speak and short of breath. Dawkins called an ambulance, which transported Royal to the hospital. Shortly thereafter, however, Royal died from injuries sustained as a result of the gunshot wound to his back.

When the police arrived, Dawkins described the two men and their attire. Dawkins then accompanied the police to the station house, where he gave the police a tape-recorded statement regarding the incident. Daw-kins indicated that he did not know either of the two men.

On July 26, 1993, Dawkins returned to the police station and was shown a single photograph of eight African-American males and an enlargement of a portion of that same photograph. The defendant appeared in both the photograph and the enlargement. Dawkins identified the defendant as the man who had put a gun to his head on the evening of July 19. On July 28, 1993, the police showed Dawkins a different array of individual photographs depicting eight different African-American males, including the defendant. Dawkins again identified the defendant as the person in the camouflage jacket who had put a gun to his head on July 19, and gave the police a tape-recorded statement to that effect. Additional facts will be provided as necessary.

On appeal, the defendant claims that: (1) the trial court violated his rights under the confrontation clause of the sixth amendment to the United States constitution by precluding him from cross-examining Dawkins regarding the fact that Dawkins had agreed to resume his testimony only after the court had warned Dawkins that he would be incarcerated if he failed to do so; and (2) we should invoke our supervisory authority over the administration of justice to grant him a new trial due to certain allegedly improper comments made by the prosecutor during his closing argument to the jury. We reject the defendant’s claims and, accordingly, affirm the judgment of the trial court.

I

The defendant’s primary claim is that the trial court violated his confrontation clause rights under the United States constitution by barring certain cross-examination of Dawkins, the state’s key witness. We disagree.

The following additional facts are necessary to our resolution of this issue. In February, 1996, the defendant and Dawkins, who has an extensive criminal record, were incarcerated in the same cellblock at the New Haven Correctional Center (correctional center). On February 10, an inmate approached Dawkins and asked him for a written statement exonerating the defendant in connection with the events of July 19,1993. Dawkins agreed, and prepared a handwritten statement that differed from his previous statements to the police in two important respects: First, he indicated that the defendant was not the individual in the camouflage jacket who had held a gun to his head on the night of Royal’s murder, and second, that he was intoxicated that night. Dawkins gave his handwritten statement directly to the defendant. Later, on June 13, 1996, after Dawkins had been released from jail, an investigator working on the defendant’s behalf visited Dawkins and took a signed, sworn statement from him that was identical in all material respects to the one that he previously had given to the defendant in jail.

At trial, the state elicited Dawkins’ testimony regarding his version of the events taking place on the evening of July 19,1993, including his contradictory statements about the defendant’s culpability. In attempting to explain those statements, Dawkins’ testimony was confusing and, at times, inconsistent.

Before the conclusion of his testimony on direct examination, Dawkins, out of the presence of the jury, stated that he no longer wanted to testify and that he wished to speak to an attorney. The trial court informed Dawkins that he was required to testify and, further, denied Dawkins’ request for an attorney. Dawkins then sought to assert his privilege against self-incrimination guaranteed by the fifth amendment to the United States constitution. The trial court, however, ruled that, in light of Dawkins’ testimony up to that point, there was no legitimate basis for his invocation of the privilege.* The defendant then inquired as to whether he would receive jail time if he refused to testily. The court confirmed that Dawkins would be incarcerated if he persisted in his refusal to provide testimony and, furthermore, that the amount of time that would be imposed for his refusal to testify depended upon how many questions Dawkins refused to answer. The trial court then took a brief recess so that Dawkins could decide how he wished to proceed. At the conclusion of the recess, Dawkins informed the court that he was willing to resume testifying.

The jury was recalled, and the prosecutor proceeded with his direct examination of Dawkins. During the course of his testimony, Dawkins positively identified the defendant as the person in the camouflage jacket who had held a gun to his head on the night of Royal’s murder.

On cross-examination, the defendant highlighted the fact that Dawkins had given two statements, one on February 10,1996, and another on June 13,1996, stating “unequivocally” that the defendant was not the man who had held a gun to his head on July 19, 1993. The defendant also elicited testimony from Dawkins that, at that time, there were several charges pending against him, including assault, violation of probation and violation of a protective order. The defendant then asked Dawkins whether he previously had indicated to the court that he wished to assert his fifth amendment privilege and refrain from testifying any further. The state objected to the defendant’s question and the trial court sustained the objection. Thereafter, the defendant asked Dawkins if he had been threatened with contempt if he failed to testify. The trial court sustained the state’s objection to that question as well. The defendant, however, was permitted to ask Dawkins why he had informed the court, outside the jury’s presence, that he did not wish to provide any additional testimony. Dawkins responded: “I just didn’t want to testify no more.” When pressed further about why he did not wish to testify, Dawkins stated: “Because I got my own problems.” Although Dawkins admitted that his trial testimony would not have any effect on his “own problems,” Dawkins nevertheless insisted that his reluctance to testify was the result of his desire to “take care of my business.” Dawkins thereafter testified that his unwillingness to testify was due to the fact that he thought that he had been summoned to court in connection with his own pending cases, which he wanted to resolve, but had learned belatedly that he was there to testify in the defendant’s case.

In his lengthy cross-examination of Dawkins, the defendant also questioned Dawkins about any conversations he had had with the state about his pending charges. The defendant also elicited the following admissions from Dawkins: (1) that he had not noticed whether the suspect had a moustache; (2) that he had been drinking throughout the day of July 19, 1993, and that he had had much more to drink than he originally indicated; (3) that he previously had lied in court; and (4) that he could not remember how dark it was at the time of the fatal shooting. Dawkins also acknowledged that he had been convicted of the crimes of robbery, larceny and failure to appear. The defendant also adduced additional conflicting testimony from Dawkins regarding the various statements that he had given about the defendant’s involvement in the events of July 19. On redirect examination, Dawkins again identified the defendant as the person who had held a gun to his head on the night of the murder.

Prior to the defendant’s recross-examination of Daw-kins, defense counsel, out of the presence of the jury, renewed his request for permission to question Dawkins concerning “the fact that [Dawkins] at one point was refusing to testify and then was instructed by the court that he could receive a certain amount of jail time for every question he refused to answer.” In support of his request, defense counsel argued that the trial court’s explanation to Dawkins that he was required to testify and, if he did not, the likely consequences of his failure to do so, were relevant to establish that Dawkins had felt pressured to testify against the defendant. The trial court again sustained the state’s objection to that specific line of questioning.

On appeal, the defendant does not challenge the trial court’s ruling that Dawkins had no legitimate basis for asserting his fifth amendment privilege against self-incrimination, nor does the defendant claim that the trial court improperly warned Dawkins regarding the likely consequences of his refusal to testify. Rather, the defendant asserts that, even though the court’s admonition to Dawkins was proper, the defendant nevertheless had a right to inform the jury that Dawkins agreed to resume testifying only after he had been informed by the court that he faced incarceration if he failed to testify. Specifically, the defendant claims that he was entitled to question Dawkins about the trial court’s admonition to him concerning the consequences of his failure to testify in order to demonstrate that he had been pressured to resume his testimony against the defendant and, thus, the court’s ruling denying the defendant the opportunity to question Dawkins in that regai’d violated the defendant’s constitutionally protected right to confront the state’s witness. We disagree with the defendant that the trial court improperly restricted his cross-examination of Dawkins.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” (Citation omitted; internal quotation marks omitted.) State v. Gould, 241 Conn. 1, 15-16, 695 A.2d 1022 (1997); accord State v. Barletta, 238 Conn. 313, 331, 680 A.2d 1284 (1996). However, “[t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Emphasis in original; internal quotation marks omitted.) State v. Moye, 214 Conn. 89, 94, 570 A.2d 209 (1990). Thus, “[t]he confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . . [Furthermore, the] trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . . [Finally, the] proffering party bears the burden of establishing the relevance of the offered testimony.” (Citations omitted; internal quotation marks omitted.) State v. Beli-veau, 237 Conn. 576, 585-86, 678 A.2d 924 (1996); see also State v. Lee, 229 Conn. 60, 70, 640 A.2d 553 (1994) (trial court has wide latitude to place reasonable limits on cross-examination “based upon concerns about. . . harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant” [internal quotation marks omitted]).

When Dawkins refused to continue his testimony, he was forsaking a duty that “has long been recognized as a basic obligation that every citizen owes his Government.” United States v. Calandra, 414 U.S. 338, 345, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974); see also United States v. Bryan, 339 U.S. 323, 331, 70 S. Ct. 724, 94 L. Ed. 884 (1950) (“[w]e have often iterated the importance of this public duty [to testify] which every person within the jurisdiction of the Government is bound to perform when properly summoned”); Blackmer v. United States, 284 U.S. 421, 438, 52 S. Ct. 252, 76 L. Ed. 375 (1932) (“[i]t is . . . beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving . . . testimony whenever he [or she] is properly summoned”). “It is the duty of all good citizens when legally required to do so to testify to any facts within their knowledge affecting [the] public interest and . . . no one has a natural right to be protected in his refusal to discharge that duty.” (Internal quotation marks omitted.) Blodgett v. Cosgrove, 117 Conn. 301, 306, 167 A. 925 (1933). Because of the importance of this obligation to the proper functioning of our judicial system, courts have the power to incarcerate witnesses who refuse to testify. E.g., General Statutes § 51-35; see also Practice Book § 1-16. Only a witness who can establish that he or she is entitled to invoke a recognized exception to the general obligation to provide testimony, such as the existence of a valid testimonial privilege, will be excused from testifying.

For purposes of this appeal, it is undisputed that Dawkins had no legally valid reason for refusing to testify. In response to Dawkins’ unjustified refusal to testify, the trial court properly explained to him that he was required to testify and informed him of the consequences of his continued refusal to do so. In so advising Dawkins, the trial court did not suggest or imply that Dawkins should testify in any particular manner, either favorably or unfavorably to the defendant. Rather, the court, in neutral and appropriate terms, merely informed Dawkins that he was legally obligated to testify and that he faced incarceration if he wrongfully persisted in refusing to do so. Thus, the fact that Dawkins agreed to resume testifying in response to the court’s warning bore no relation to any legitimate purpose of cross-examination, including the defendant’s constitutionally protected right to question Daw-kins about facts tending to show motive, interest, bias or prejudice. In other words, the defendant has not demonstrated how the trial court’s admonition to Daw-kins could have had even the slightest effect on Daw-kins’ credibility or veracity.

Furthermore, the defendant otherwise was afforded wide latitude in his cross-examination of Dawkins, whose credibility was subject to attack on many fronts. For example, the defendant established that, at the time of trial, Dawkins: (1) was incarcerated, awaiting the resolution of several pending criminal charges; (2) had multiple prior convictions for robbery, larceny and failure to appear; (3) previously had lied under oath; and (4) had given two written statements in which he had fully and unequivocally exculpated the defendant, which was inconsistent with earlier statements given to the police. Moreover, the defendant was permitted to question Dawkins extensively regarding his refusal to testify and the reasons for his refusal. Finally, the defendant’s testimony, on both direct and cross-examination, frequently was confusing and, at times, contradictory.

The defendant relies on one case, State v. Johnson, 21 Conn. App. 291, 573 A.2d 1218 (1990), to support his claim that the trial court improperly barred him from questioning Dawkins about the court’s admonition to Dawkins. In Johnson, the defendant had been charged with robbery. Id., 292. At trial, the state sought to elicit the testimony of Charles Douglas, who had reported to the police that the defendant robbed him of $6 at gunpoint. Id. Douglas initially had attempted to avoid testifying by seeking to invoke his constitutional privilege against self-incrimination. Id., 295. The trial court, however, informed Douglas that he was not entitled to invoke that privilege. Id. Douglas also was warned that he could be charged with contempt for his refusal to testify, that he could be charged with perjury if he testified falsely and that he could be charged with making a false report to the police if he failed to provide testimony. Id. Douglas thereafter agreed to testify and, on cross-examination, the defendant asked him the following question: “ ‘If you changed your story here you could be charged with making a false report . . . right?’ ” Id. The trial court ruled that the witness was not required to answer that question. Id. On appeal, the Appellate Court concluded that the trial court improperly had precluded the defendant from eliciting Douglas’ response to the question, stating as follows: “The claim of bias that the defendant sought to develop was admissible to afford the jury a basis for an inference that there was potentially undue pressure placed on Douglas to testify. The question went to assessing the motive or bias of the complainant. It was error, therefore, to exclude the question.” Id. The Appellate Court went on to conclude, however, that, under the circumstances, “the disallowing of that one question was inconsequential”; id., 296; and, therefore, the impropriety was harmless beyond a reasonable doubt. Id.

Johnson is distinguishable from this case because, in Johnson, the defendant sought to question the witness, Douglas, about the possibility of being prosecuted for making a false report, a prospect about which Douglas expressly had been advised, and not, as in this case, about whether he would be held in contempt and incarcerated if he refused to testify. Because Douglas had a strong interest in testifying in accordance with his original complaint to avoid exposing himself to prosecution, either for making a false report or, alternatively, for perjury — a prospect about which he also had been warned by the trial court — the Appellate Court properly concluded in Johnson that the trial court should have allowed the defendant to cross-examine Douglas on that issue. In this case, by contrast, Dawkins was asked only whether he had been informed that he would be incarcerated if he refused to testify, not whether he faced prosecution for making a false report. Moreover, Dawkins was never advised that he was in any jeopardy for providing a false report to the police if he persisted in refusing to testify, nor was he informed that he faced a possible perjury charge if he testified in a manner inconsistent with the statements he previously had provided to the police. Thus, the defendant in Johnson, unlike the defendant in this case, had a viable claim that his cross-examination of the state’s key witness had been unduly restricted.

In sum, we are not persuaded that any “pressure” Dawkins may have felt as a result of the warning he received regarding the consequences of his failure to testify bore any relation to Dawkins’ veracity as a witness. Accordingly, we reject the defendant’s confrontation clause claim.

II

The defendant also claims that we should grant him a new trial due to the prosecutor’s allegedly improper rebuttal argument to the jury. The defendant does not contend that his constitutional rights were violated by the alleged misconduct. Rather, he contends that, in light of the nature of the alleged misconduct, we should reverse his conviction in the exercise of our supervisory authority over the administration of justice. We are not persuaded.

The following additional facts are necessary to our disposition of this claim. In his rebuttal argument, the prosecutor made the following comments: “Ask yourselves this, ladies and gentlemen [of the jury]. If [the defendant] was not the one who was out there with the gun and the camouflage jacket that night, how would he even know that . . . Dawkins was a witness in this case? How would he know that? Because we all know from what . . . Dawkins has said that they don’t know each other, they’ve never seen each other before. Never. The only opportunities they’ve ever had to see each other would have been the night of the shooting and when they end up at [the correctional center] together back in February of [1996]. That was it. That was it.

“[S]o [the defendant] is sitting in a cell and he knows he’s accused of murder, but he doesn’t know what his accuser looks like. He doesn’t know . . . Dawkins at all. But, yet, for some unexplained, inexplicable reason, an unknown inmate is sent over to . . . Dawkins and . . . Dawkins is told to write a statement about that shooting and you say that [the defendant] had nothing to do with it and that you were drunk. How did that happen? How did [the defendant] suddenly come to some sort of realization, jeez, this is the fellow who’s accusing me, let me get a statement from him, how did that happen? The only way that could have ever happened, ladies and gentlemen, is because [the defendant] was out there that night and he knows whose face he had that gun to. It must have [come as] quite a surprise to him when he suddenly found . . . Daw-kins a cell or two away from him back in February of 1996.”

At trial, the defendant raised no objection to these comments. On appeal, however, the defendant claims that the prosecutor’s rebuttal argument was improper because, in light of the rules of discovery applicable in criminal cases; see generally Practice Book § 40-1 et seq., formerly Practice Book § 732 et seq.; there is a likelihood that the defendant was aware of Dawkins’ identity not because he was the person who had accosted Dawkins on the evening of July 19, 1993, but, rather, by virtue of the information provided to him by the state under our rules of practice relating to discovery in criminal matters.

“We have previously acknowledged that prosecu-torial misconduct can occur in the course of closing argument.” State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996). Moreover, “even when prosecu-torial misconduct is not so egregious as to implicate the defendant’s right to a fair trial, an appellate court may invoke its supervisory authority to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . Such a sanction generally is appropriate, [though], only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.” (Citations omitted; internal quotation marks omitted.) State v. Pouncey, 241 Conn. 802, 811-12, 699 A.2d 901 (1997). As we previously have noted, however, “[i]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Internal quotation marks omitted.) State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994); accord State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993). “Furthermore, we must review the comments complained of in the context of the entire trial.” State v. Robinson, supra, 746.

Because the defendant did not raise a contemporaneous objection to the prosecutor’s remarks, the record on appeal does not reflect whether, at the time Dawkins was approached by the defendant’s emissary seeking the exculpatory statement, the defendant already was aware of Dawkins’ identity as a result of the state’s disclosure of that information to him under our discovery rules. We will not presume bad faith by the prosecutor in the absence of a showing by the defendant of such deliberate misconduct. Moreover, defense counsel’s failure to object to the prosecutor’s argument when it was made suggests that defense counsel did not believe that it was unfair in light of the record of the case at the time. See, e.g., State v. Satchwell, 244 Conn. 547, 565, 710 A.2d 1348 (1998) (defendant’s failure to object to prosecutor’s closing argument indicated that defendant did not consider it to be seriously prejudicial); State v. Robinson, supra, 227 Conn. 745-46 (same).

However, even if it is assumed, arguendo, that the prosecutor should have refrained from making the challenged comments, we cannot say that they were so offensive as to require reversal of the defendant’s conviction under our supervisory authority, a power that we exercise only with great caution and when clearly warranted by compelling circumstances. See, e.g., State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998). In this case, no claim has been made that the prosecutor’s allegedly objectionable argument compromised the fairness of the defendant’s trial, or that the prosecutor’s conduct during the trial otherwise was improper in any way. Under these circumstances, the defendant has not demonstrated that the drastic remedy of a new trial is necessary to deter such alleged misconduct in the future. Accordingly, we reject the defendant’s invitation to invoke our supervisory powers to reverse his conviction and grant him a new trial.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       General Statutes § 53a-8 provides in relevant part: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender. ...”

       The defendant also was charged with conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a). The jury, however, could not agree on a verdict as to the conspiracy count and, consequently, the trial court declared a mistrial as to that count.

       The defendant appealed directly to this court pursuant to General Statutes (Rev. to 1995) § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       A “nickel bag” is street jargon for $5 worth of marijuana.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall epjoy the right . . . to be confronted with the witnesses against him . . . The defendant has not raised a claim under the Connecticut constitution.

       For example, Dawkins initially indicated that he was not certain whether the person he had identified in the photographs was the person wearing the camouflage jacket who had held a gun to his head on July 19, 1993. However, when Dawkins reviewed a copy of the statement that he had given to the police within two weeks of the murder, he admitted that, at the time he selected the defendant’s photograph, he had no doubt that the person he had identified was the man who had accosted him on July 19.
      As to why he had agreed to prepare a statement exonerating the defendant when the two men were incarcerated together at the correctional center, Dawkins first indicated that the inmate who requested the statement had directed Dawkins to do so. Later, Dawkins testified that he had drafted the statement “[b]ecause I felt that [the defendant] wasn’t the guy, [that he] wasn’t involved in that hold-up.” Immediately thereafter, however, Dawkins again indicated that he had felt pressured to compose the exculpatory statement.
      Finally, on the issue of his drinking on the night of the murder, Dawkins acknowledged that, in the statement he had delivered to the defendant in jail, he claimed that he had been intoxicated. Dawkins then testified that he had been somewhat intoxicated, but not drunk. When questioned further by the state, Dawkins explained that “[i]ntoxicated and drinking is the same thing.”

       Dawkins announced his unwillingness to continue testifying after the lunch recess on the first day of his testimony.

       The record contains no indication, and the defendant does not claim, that Dawkins was represented by counsel, or improperly denied the representation of counsel, in connection with his testimony in this case.

       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, nor be deprived of life, liberty, or property, without due process of law . . . .”

       The defendant made no claim that the trial court had improperly rejected Dawkins’ assertion of his constitutional privilege against self-incrimination.

       The relevant portion of the colloquy between the trial court and Dawkins is as follows:
      “[Mr. Dawkins]: It’s jeopardizing a man’s life over there. I’m testifying against him.
      “The Court: But that’s not a fifth amendment reason not to testify.
      “[Mr. Dawkins]: If I don’t say nothing, you’re going to lock me up?
      “The Court: Yes.
      “[Mr. Dawkins]: For how long?
      “The Court: Well, it depends on how many questions are asked and how many questions you refuse to answer.
      “[Mr. Dawkins]: So I get a year for each question?

        “The Court: You may well get a substantial amount of time for each question. So you’re going to have to decide whether or not you’re going to answer questions . . . .”

       Dawkins indicated that he had two years remaining on his probationary term.

       Dawkins was steadfast in his denial that he had ever discussed his pending charges with the state.

       Dawkins testified that he had been convicted of failure to appear in 1995, robbery in the first degree in 1994, larceny in the third degree in 1992, larceny in the second degree in 1984 and robbery in the second degree in 1983.

       For example, Dawkins first said that he had told the truth in his statement exonerating the defendant, and then said that he had not been truthful in that statement. Later, Dawkins again said that the information in his exculpatory statement was true. He then reversed himself again, indicating that he had falsely exculpated the defendant in his jailhouse statement and in the similar statement that he had provided to the defendant’s investigator.

       The defendant also does not claim that the trial court improperly rejected the defendant’s request to speak to an attorney. The defendant, however, suggests that, without legal advice, Dawkins was more susceptible to pressure by the court to resume his testimony.

       See, e.g., United States v. MacCloskey, 682 F.2d 468, 478 n.19 (4th Cir. 1982) (“the best procedure to follow after a witness has improperly invoked ... [a testimonial] privilege ... is to issue an order, outside of the jury’s presence, directing [the witness] to testify and admonishing him [or her] that the continued refusal to testify would be punishable by contempt”); United States v. Zappola, 646 F.2d 48, 54 (2d Cir. 1981) (“[t]he procedure that should [be] followed by the [trial] court when faced with [a witness’] refusal to testify [is] [1] the issuance of an order, outside the presence of the jury, directing [the witness] to testify and [2] a warning that continued refusal to testify despite the court’s order would be punishable by contempt”).

       General Statutes § 51-35 provides in relevant part: “Witness refusing to testify; imprisonment. ... (a) Any court or family support magistrate may commit to a community correctional center any person legally summoned who refuses to appear and testify before it in any case, there to remain at his own expense until he so testifies. . . .”

       Practice Book § 1-16 provides in relevant part: “A criminal contempt may be punished summarily if the conduct constituting the contempt was committed in the actual presence of the court . . . and such punishment is necessary to maintain order in the courtroom. . . .”

       “Certain exemptions from . . . giving testimony are recognized by all courts. But every such exemption is grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth. Dean [John] Wigmore stated the proposition thus: ‘For more than three centuries it has now been recognized as a fundamental maxim that the public . . . has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.’ . . . [Thus, every] exemption from testifying . . . presupposes a very real interest to be protected.” United States v. Bryan, supra, 339 U.S. 331-32.

       The defendant acknowledges that his cross-examination of Dawkins was extensive and effective.

         We note that, in Johnson, as in this case, there was no claim that the trial court improperly rejected the witness’ assertion of his fifth amendment privilege.

       The trial court issued the first two warnings. Douglas’ attorney informed the court that he had advised Douglas that he could be charged with making a false report if he refused to testify.

       It is not clear from the Appellate Court opinion in Johnson why Douglas, the victim of the robbery, had been so advised by his attorney. See generally State v. Johnson, supra, 21 Conn. App. 295. We may surmise, however, that his attorney was concerned that the state might charge Douglas with making a false report if he refused to testily because, as the complainant, his refusal to provide testimony reasonably could have been viewed by the state as an indication that his complaint was false.

       We do not know why the Appellate Court in Johnson indicated that the warnings given to Douglas “afford[ed] the jury a basis for an inference that there was potentially undue pressure placed on Douglas to testify.” (Emphasis added.) State v. Johnson, supra, 21 Conn. App. 295. If the warnings given to Douglas were proper — and there is nothing in the opinion of the Appellate Court to suggest otherwise — then we do not understand why any “pressure” to testify that may have been placed upon Douglas as a result of those warnings fairly may be characterized as potentially “undue” influence. Nevertheless, the question posed to Douglas by the defendant was relevant to the issue of whether Douglas had an interest in testifying in a manner consistent with his complaint to the police; accordingly, we do not quarrel with the Appellate Court’s conclusion that, in the circumstances of that case, the trial court should have allowed the defendant to query Douglas about the possibility that he could be charged with filing a false report if he changed his story.

       We note, moreover, that, according to the state, the trial court record is fully consistent with the conclusion that the defendant was unaware of Dawkins’ identity as of February 10, 1996.


author: KATZ, J. BERDON, J.,

text:
    ALYSSA RIVERA v. DOUBLE A TRANSPORTATION, INC., ET AL.
    (SC 15972)
    Callahan, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued December 8, 1998
    officially released March 16, 1999

      Louis D. Ferreri, for the appellant (plaintiff).

      Douglas A. Casale, for the appellees (defendants).
   Opinion

KATZ, J.

The principal issues in this appeal are whether, in the absence of an allegation of physical injury: (1) General Statutes § 52-584 applies to a claim for negligent infliction of emotional distress; and (2) the trial court properly determined that the plaintiffs claim for false imprisonment is controlled by § 52-584. The trial court concluded that the two year statute of limitations provided by § 52-584 barred both the claims of the plaintiff. We affirm the judgment.

The record discloses the following undisputed facts. On October 14, 1994, the plaintiff, Alyssa Rivera, who was four years of age and developmentally delayed, was a passenger on a school bus owned and operated by the named defendant, Double A Transportation, Inc. (Double A). Double A transported the plaintiff to the Israel Putnam School, a facility operated by and under the direction of the defendant city of Meriden and the defendant board of education of the city of Meriden, where she was enrolled in a special preschool program. The plaintiff remained on the bus after the other children had disembarked at the school. Neither the bus driver nor the school personnel searched the bus for remaining passengers. The driver then returned the bus to Double A’s parking lot in Wallingford, where he left it, once again neglecting to verify that the vehicle was empty of passengers. The plaintiff, who was unable to leave, remained on the bus for approximately three hours until Double A’s personnel discovered her.

On August 26, and August 27, 1997, on the basis of those events, the plaintiff brought a four count complaint alleging one count of negligent infliction of emotional distress and one count of false imprisonment against both Double A and the municipal defendants. As a result of the defendants’ conduct, the plaintiff allegedly suffered great emotional distress, posttrau-matic stress disorder, and aggravation of her developmental delays. The defendants moved for summary judgment, claiming that because the plaintiff had not commenced the action within the two year limitation period provided in § 52-584, the action was time barred. The plaintiff argued in response that because she had not sustained “bodily injuries,” the three year limitation period of General Statutes § 52-577 should control. The trial court granted the defendants’ motions as they related to the two counts alleging negligent infliction of emotional distress, but denied the motions as they pertained to the two counts alleging false imprisonment. Following the defendants’ motion for reconsideration and reargument, the trial court granted the motions for summary judgment as to the false imprisonment counts, thereby rendering judgment on the entire complaint for the defendants.

The plaintiff appealed the judgment of the trial court to the Appellate Court, and pursuant to Practice Book § 65-1, and General Statutes § 51-199 (c), this court transferred the appeal to itself.

I

The first issue requires an interpretation of the term “injury to the person” in § 52-584 and a concomitant determination of whether, in the absence of a claim for “physical injury,” the trial court properly applied § 52-584 in granting the defendants’ motions for summary judgment as to the two counts alleging negligent infliction of emotional distress.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381 [now § 17-46]. . . . Suarez v. Dick-mont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).” (Internal quotation marks omitted.) Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 380-81, 374 A.2d 820 (1998).

In the present case, no affidavit or other proof was offered by the defendants in support of their motions. In deciding whether the trial court properly concluded that § 52-584 controls this case, we are confined solely to the complaint and to the statute under consideration. Because it is undisputed that the claims of negligent infliction of emotional distress allege only emotional injuries, our scope of inquiry in deciding whether physical injury is required in order for § 52-584 to apply is further limited.

Our analysis of this issue is guided by well established principles of statutory construction. “Statutory construction is a question of law and therefore our review is plenary.” Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . State v. Burns, 236 Conn. 18, 22-23, 670 A.2d 851 (1996); State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80 (1995).” (Internal quotation marks omitted.) Connecticut National Bank v. Giacomi, 242 Conn. 17, 32, 699 A.2d 101 (1997).

We examine first the words of the statute itself. “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . . .” General Statutes § 52-584. The word “injury” is not defined in chapter 926 of the General Statutes, entitled “Statute of Limitations.” Section 52-584 uses the phrase “injury to a person” without limitation, and there is nothing in the statute to suggest the proposed limitation.

The legislative history is unfortunately somewhat deficient as it relates to what the legislature intended “injury to the person” to include. At the time of passage, the legislature was focused on the need for a time limit and the dangers inherent in allowing parties to bring stale claims. Conn. Joint Standing Committee Hearings, General Law, Pt. 1, 1957 Sess., p. 152. There are but two brief references to the inclusive nature of the term “injury”: “Of course this statute is not limited to automobile accident cases. It is concerned with any negligence action . . . and also malpractice actions”; 13 H.R. Proc., Pt. 5,1969 Sess., p. 2404, remarks of Representative Lawrence J. Merly; and “we know more and more, now, that many, many claims are not readily apparent. Now, there’s an exception in the statute, when the injury was apparent or should have been known, now this is [a] very hard burden to get over. And there are all sorts of back injuries, nerve injuries some [e]motional injuries.” 13 S. Proc., Pt. 5, 1969 Sess., p. 2060, remarks of Senator T. Clark Hull. Therefore, to the extent that the legislative history is informative as to the issue on appeal, it leaves the plaintiffs position highly vulnerable.

Finally, the plaintiff can point to no case, nor can we find one, to support her limited interpretation. On the contrary, although an injury signifies a wrong done to a person, or in other words, a violation of that person’s right, we have concluded that the word is not used in such a technical sense in the statute. Rather, it is used more generally. In the context of applying § 52-584 to decide whether a particular action was commenced in a timely fashion, we have stated that “an injury occurs when a party suffers some form of actionable harm.” Burns v. Hartford Hospital, 192 Conn. 451, 460, 472 A.2d 1257 (1984); see Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 521, 562 A.2d 1100 (1989); Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987); Cats v. Rubenstein, 201 Conn. 39, 43, 513 A.2d 98 (1986); see Durrett v. Leading Edge Products, Inc., 965 F. Sup. 280, 284-85 (D. Conn. 1997) (in negligence actions brought under Connecticut law, “injury” means actionable harm for statute of limitations purposes).

Contrary to the plaintiffs proposed interpretation, this court has never hypothesized that mental injury alone could not be the subject of “injury to the person,” provided that it is causally connected to a defendant’s negligence. Indeed, recent developments in tort law reflect a broadening of the definition of a compensable injury to include emotional distress even in the absence of physical impact or proof of an ensuing bodily injury. In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 344, 398 A.2d 1180 (1978), this court stated that “there is no logical reason for making a distinction, for purposes of determining liability, between those cases where the emotional distress results in bodily injury and those cases where there is emotional distress only.” Similarly, Judge Borden, then a member of the Appellate Court, stated in Buckley v. Lovallo, 2 Conn. App. 579, 589, 481 A.2d 1286 (1984), that “[w]e see no reason to subject a claim of mental suffering, which is ordinarily evidenced by subjective complaints, to stricter scrutiny or greater care than a claim of physical suffering evidenced by the same type of complaints. [Mjedical science has unquestionably become sophisticated enough to provide reliable and accurate evidence on the causes of mental trauma. . . . Medical science and mental health fields have advanced sufficiently to enable a trier of fact to determine the extent of mental suffering by the same standard of proof as physical suffering. ... A plaintiff need only establish a claim for mental or emotional distress by a fair preponderance of the evidence, unfettered by any additionally exacting gauge.” (Citations omitted; internal quotation marks omitted.) See also Morris v. Hartford Courant Co., 200 Conn. 676, 683, 513 A.2d 66 (1986); Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). This line of authority is persuasive because it recognizes that “the human body consists of bone, flesh, ligaments, and nerves, controlled by the brain . . . and that . . . the fact that the stimulus is gradual, in the form of sustained tension, worry, strain, frustration, or harassment, does not, in the opinion of the majority of the Courts that have dealt with the question, make nervous injury any the less compensable than if it were caused by sudden shock.” (Internal quotation marks omitted.) Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del. Super. 1986).

This treatment is consistent with decisions of this court and the Appellate Court construing “health” to include mental health under General Statutes § 53-21, which leaves that term undefined. See, e.g., State v. Payne, 240 Conn. 766, 774-75, 695 A.2d 525 (1997); State v. Jones, 29 Conn. App. 683, 688-89, 617 A.2d 918 (1992); State v. Velez, 17 Conn. App. 186, 199, 551 A.2d 421 (1988) , cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906, 109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989) ; State v. Mancinone, 15 Conn. App. 251, 277, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989). Furthermore, courts in other-jurisdictions have also interpreted health and injury to include mental health. See Harrison v. State, 644 N.E.2d 888, 890 (Ind. App. 1994) (affirming conviction for placing child in situation that may endanger his life or health, based on dictionary definition of “health” as including physical, psychological, mental and emotional states); State v. Barr, 354 So. 2d 1344, 1346-47 (La. 1978) (“unjustifiable pain and suffering” can include psychological harm under cruelty to juvenile statute); Commonwealth v. Miller, 385 Mass. 521, 525 n.6, 526, 432 N.E.2d 463 (1982) (affirming extortion conviction by ruling that phrase threatens “an injury to the person” includes severe mental anguish); People v. Igaz, 119 Mich. App. 172, 189, 326 N.W.2d 420 (1982) (same); State v. Galusha, 164 Vt. 91, 93-94, 665 A.2d 595 (1995) (same).

The plaintiff also argues that if the legislature had intended § 52-584 to apply when there has been only mental injury and no physical injury, it clearly would have done so. This argument fails to give sufficient weight to the breadth of the term “injury,” which, under both the common and legal usage of the term, includes harm to the mind as well as to the body. See Red Rooster Construction Co. v. River Associates, Inc., 224 Conn. 563, 570, 620 A.2d 118 (1993) (when statute “makes use of words [that] have an accepted meaning at the common law they ought, in the absence of other controlling reasons, to be expounded and received with that meaning” [internal quotation marks omitted]). Indeed, if the legislature had intended to distinguish between harm to one’s physical health and harm to one’s mental health, it could have done so expressly as it has in other statutes. See, e.g., General Statutes § 46a-lla (concerning protection of persons with disabilities, abuse defined as “the wilful infliction of physical pain or injury or the wilful deprivation by a caretaker of services which are necessary to the person’s health or safety”); General Statutes § 45a-677 (a), (b), (f) and (g) (distinguishing powers or duties of guardians of mentally retarded persons regarding physical or mental health and safety); General Statutes § 45a-670 (regarding inability of mentally retarded person “to meet essential requirements for his physical health and safety” for purposes of appointing guardians).

We further note that, because § 52-584 pertains to medical malpractice actions; Lambert v. Stovell, 205 Conn. 1, 5, 529 A.2d 710 (1987); the plaintiffs proposed interpretation of injury to the person could create a schism in the treatment of cases involving malpractice by a psychiatrist and malpractice by other types of medical doctors. It is counterintuitive to suggest that the legislature intended, without comment, to differentiate between different types of medical malpractice actions.

Finally, we note that the phrase “injury to the person” is used in a variety of statutes as well as in our rules of practice, but is defined in none of them. See, e.g., General Statutes § 52-25lb (prevailing party in action “to recover damages for injury to the person” or to real property arising out of violation of General Statutes § 46a-58 [discriminatory practices] may recover attorney’s fees and costs [emphasis added]); General Statutes § 37-3b (interest may be recovered and allowed in action to recover damages for injury to person, or to real or personal property, caused by negligence); Practice Book § 16-19 (“[i]n any action seeking damages for injury to the person, the amount demanded in the complaint shall not be disclosed to the jury” [emphasis added]). We know of no case in which injury as used in these various provisions has been limited in accordance with the plaintiffs proposed interpretation.

Accordingly, we conclude that mental suffering, even if unaccompanied by physical trauma to the body, constitutes an injury to the person under § 52-584. To hold otherwise would create an artificial distinction at odds with our well settled cases in which the terms “injury” and “health” have been debated. Therefore, the trial court properly applied § 52-584 to determine that the action was untimely. Because there were no issues of fact remaining with regard to the two counts alleging negligent infliction of emotional distress, we conclude that the court correctly granted the defendants’ motions for summary judgment on those counts.

II

In the second issue on appeal, the plaintiff claims that the trial court improperly applied § 52-584 to her allegations of false imprisonment. Specifically, she claims that, in the absence of an allegation of physical injury, § 52-584 does not apply to the two counts of her complaint alleging that the defendants’ conduct caused her to be imprisoned in the school bus. The plaintiff labels these claims as “sounding in negligent false imprisonment . . . .” That false imprisonment is an intentional tort, however, is well settled. “[F]alse imprisonment is the unlawful restraint by one person of the physical liberty of another.” Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 499, 101 A.2d 500 (1953). “False imprisonment comes within the category of intentional torts for which the remedy at common law was an action of trespass. McGann v. Allen, 105 Conn. 177, 188, 134 A. 810 (1926). ‘A person is not liable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it.’ 32 Am. Jur. 2d, False Imprisonment § 9; 1 Restatement (Second), Torts § 35.” Green v. Donroe, 186 Conn. 265, 268, 440 A.2d 973 (1982). Nothing less than a rather extreme brand of recklessness will substitute for the standard requirement of intention in false imprisonment cases. Id., 269.

The second issue in this appeal does not, however, turn on the plaintiffs characterization of these counts or whether, despite this history, we should recognize a cause of action for negligent false imprisonment. Rather, irrespective of the existence of such a creature, the plaintiffs second claim rests entirely on her proposed distinction between mental and physical injury, a distinction we have already rejected. As we have stated in this opinion, in determining the applicability of § 52-584, we do not differentiate between physical and mental injury. Therefore, we reject this claim.

Ill

The plaintiff next contends that the trial court improperly granted the defendants’ motion for summary judgment because there existed a material issue of fact as to whether the defendants’ conduct constituted intentional false imprisonment, an intentional tort governed by § 52-577. Specifically, the plaintiff asserts that because the defendants’ alleged conduct was “substantially certain” to cause the plaintiff harm, they intended to confine her. She asserts that this issue of intent was sufficient to support the application of § 52-577. The defendants argue two points in response. First, they claim that the plaintiff failed to preserve the issue. Second, they argue that the complaint alleges only reckless conduct, which should not be equated with intentional conduct, particularly when § 52-584 specifically covers allegations of recklessness. We agree with the defendants’ first response. Consequently, because she failed properly to preserve the third claim, we do not decide whether the complaint sufficed to raise a material issue of fact regarding the defendants’ intent.

“[B]e cause our review is limited to matters in the record, we will not address issues not decided by the trial court. Practice Book § 4185, [now § 60-5] (‘court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial’); Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims ‘neither addressed nor decided’ by court below are not properly before appellate tribunal); State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982) (‘[o]nly in the most exceptional circumstances will this court consider even a constitutional claim not properly raised and decided in the trial court’).” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998).

The plaintiffs objection to the defendants’ motions for summary judgment asserts that “the issue is whether as a matter of law the plaintiffs case is governed by Connecticut General Statutes § 52-577, not § 52-584, and therefore is not barred by the Statute of Limitations.” The only argument advanced in the plaintiffs objection to the motions for summary judgment, however, is the one we disposed of in the first issue addressed in this opinion — that because the allegations of psychological suffering are “not a claim for ‘physical injury’ . . . they are governed by Connecticut General Statutes § 52-277.” Additionally, there appears to have been no oral argument with regard to the plaintiffs objection. Consequently, no transcript was filed with this court.

Therefore, the trial court did not have the opportunity to rule on the plaintiffs claim that there existed an issue of material fact as to the defendants’ intent. It is the appellant’s burden to provide an adequate record for review. Practice Book § 60-5; Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision; Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995); to clarify the legal basis of a ruling; Leverty & Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, 379, 471 A.2d 958 (1984); or to ask the trial judge to rule on an overlooked matter. Wolk v. Wolk, 191 Conn. 328, 335 n.l, 464 A.2d 780 (1983). In the absence of any such attempts, we decline to review this issue.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN and NORCOTT, Js., concurred.

BERDON, J.,

concurring in part and dissenting in part. First, to the extent that the majority holds that our standard of review on the granting of a motion for summary judgment based solely on the pleadings is de novo — I agree.

Second, although I do not join the analysis of the majority opinion with respect to the applicability of the two year statute of limitations set forth in General Statutes § 52-584, I agree with the bottom line that it applies to negligent conduct whether it results in physical or mental injury to the person. Thus, the trial court correctly granted the motions for summary judgment on those counts that allege causes of action for negligent infliction of emotional distress.

My agreement with the majority opinion ends there. The portion of the opinion pertaining to the counts alleging false imprisonment stands our precedent on its head. The majority does not deny that those counts raise a cause of action for false imprisonment; nor does it deny that false imprisonment is an intentional tort that is governed by the three year' statute of limitations period pursuant to General Statutes § 52-577; nor does it deny that the action was brought within the three year period required by § 52-577. Rather, the majority affirms the trial court’s decision to grant the motions for summary judgment on the false imprisonment counts on the following basis: in the trial court the plaintiff allegedly failed to preserve the issue of whether the “court improperly granted the defendants’ motion[s] for summary judgment because there existed a material issue of fact as to whether the defendants’ conduct constituted intentional false imprisonment, an intentional tort governed by § 52-577.” That is absolutely incorrect.

Notwithstanding the majority’s arguments to the contrary, the issue before the trial court was whether the complaint sufficiently alleged a cause of action for false imprisonment. This question was distinctly raised by the parties when the trial court, upon reconsideration, granted the defendants’ motions for summary judgment on the false imprisonment counts. The trial court initially denied the motions for summary judgment as to the first and second counts, presumably because those counts in fact alleged a cause of action for false imprisonment and came within § 52-577, the three year statute of limitations. The defendants’ motion for reargument and reconsideration of their motions for summary judgment placed the matter directly at issue again when they alleged in the motion for reconsideration: “It is the Defendants’ position that the Plaintiffs Counts 1 and 2 sound in . . . recklessness and as a result are subject to [General Statutes] § 52-584, the two year negligence statute of limitations and are therefore time barred.” (Emphasis added.) After reconsideration, however, the trial court inexplicably granted the motions for summary judgment.

Nevertheless, this court made it absolutely clear in Green v. Donroe, 186 Conn. 265, 440 A.2d 973 (1982), as the majority concedes, that recklessness can be the basis of the intentional tort of false imprisonment. In Green, the court held: “False imprisonment comes within the category of intentional torts for which the remedy at common law was an action of trespass. McGann v. Allen, 105 Conn. 177, 188, 134 A. 810 (1926). ‘A person is not hable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it.’ 32 Am. Jur. 2d, False Imprisonment § 9; 1 Restatement (Second), Torts § 35. . . . In the context of false imprisonment the label of ‘reckless’ fairly characterizes a state of mind amounting to knowledge that confinement is substantially certain to result from the wrongful conduct but not attaining the proportions of an actual intention to bring it about. Nothing less than this rather extreme brand of recklessness will substitute for the standard requirement of intention in false imprisonment cases.” (Citations omitted.) Green v. Donroe, supra, 268-69. Therefore, the allegations by the plaintiff that the defendants’ predicate conduct was reckless supports the plaintiffs cause of action for the tort of false imprisonment.

Despite the foregoing, the majority predicates its decision, in part, on the fact that the plaintiffs appellate brief labels part of her complaint as sounding in “negligent false imprisonment. . . .” (Emphasis added.) The truth of the matter is that the plaintiff was merely echoing Green v. Donroe, supra, 186 Conn. 268-72, wherein the court’s opinion is peppered with references to negligence, albeit in the form of an extreme brand of recklessness, as an adequate basis for an action for false imprisonment. See, e.g., id., 270 (“[n]egligent conduct which results in a confinement of sufficient consequence to constitute the actual damage required to maintain a negligence action is a sufficient basis for imposing liability”).

More importantly, counts one and two of the complaint clearly allege a cause of action based upon intentional false imprisonment. Both counts are labeled “False Imprisonment . . . .” Among the other allegations in each count, the plaintiff alleges that “[a]t all relevant times herein subsequent to the departure of the bus from school, the minor plaintiff was locked and/or imprisoned in the bus and unable to leave.” Moreover, in their motion for reargument and reconsideration, which I quoted previously, the defendants concede that the complaint alleges false imprisonment based on the reckless behavior of the defendants. Thus, the record is adequate for review because, as the majority recognizes in part I of its opinion, “[i]n deciding whether the trial court properly concluded that § 52-584 controls this case, we are confined solely to the complaint and to the statute[s] under consideration.” Consequently, we need no articulation of the trial court’s granting of the motions for summary judgment in order to employ a plenary review of this issue.

The majority implicitly assents, however, to the defendants’ argument that “the plaintiff did not submit any affidavit and/or other proof which raised an issue of material fact.” This is a vacuous argument for two reasons. First, the defendants were the moving parties and, as the majority concedes in part I of its opinion, had the burden of proof that they were entitled to judgment as a matter of law. Second, since no affidavits were submitted by either party, the defendants obviously were relying on the insufficiency of the allegations in the complaint. In other words, the motions for summaiy judgment took on the role of motions to strike.* * As I have shown, both counts allege a cause of action based upon the intentional tort of false imprisonment subject to the three year statute of limitations.

For this court to ignore pleadings that clearly allege a cause of action based upon the intentional tort of false imprisonment is reminiscent of what Charles Dickens, more than 100 years ago, vividly portrayed about “the mischief done by abuse of the common law forms of civil procedure. Rich v. Director, Office of Workers’ Compensation Programs, 798 F.2d 432, 434 (11th Cir. 1986); see also 1 C. Dickens, Bleak House (International Collectors Library) c. 1, p. 4 (describing members of bar as tripping one another up on slippery precedents, [and] groping knee-deep in technicalities).” (Internal quotation marks omitted.) Martin v. Plainville, 240 Conn. 105, 117 n.4, 689 A.2d 1125 (1997) (Berdon, J., dissenting).

The majority’s unfair reading of the pleadings and its refusal to review the trial court’s decision regarding the plaintiffs claims of false imprisonment deprive this plaintiff, who was of the tender age of four at the time of the incident, of her day in court. Consequently, she has no opportunity to obtain compensation for her emotional distress, posttraumatic stress disorder and the aggravation of her developmental delay allegedly caused by the defendants’ actions. Justice for this young child — who was locked in a school bus alone for approximately three hours — is nowhere to be found in the majority opinion.

Accordingly, I concur in part and dissent in part.

       General Statutes § 52-584 provides: “Limitation of action for injury to person or property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       Alyssa Rivera, a minor, brought this action through her mother, Evelyn Rivera, as mother and next friend. References to the plaintiff are to Alyssa only.

       The city of Meriden, the board of education of the city of Meriden and Elizabeth Ruocco, the Meriden superintendent of schools, who was also named as a defendant in this case, are hereinafter referred to jointly as the municipal defendants.

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

       General Statutes § 53-21 provides: ‘Tiyury or risk of injury to, or impairing morals of, children. Sale of children. Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, or (3) permanently transfers the legal or physical custody of a child under the age of sixteen years to another person for money or other valuable consideration or acquires or receives the legal or physical custody of a child under the age of sixteen years from another person upon payment of money or other valuable consideration to such other person or a third person, except in connection with an adoption proceeding that complies with the provisions of chapter 803, shall be guilty of a class C felony.”

       On the first page of the plaintiffs objection to the motions for summary judgment is stamped the notation, “no oral argument; testimony not required.”

       See footnote 3 of this concurring and dissenting opinion and the accompanying text regarding the character of the motion at issue.

       A fundamental problem with the majority opinion is that it implicitly places the burden of proof on the plaintiff. It is well settled, however, that the moving party, in this case the defendants, has the burden of demonstrating that it is entitled to summary judgment. Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). It seems that the majority ignores its own concession.

       The defendants’ legal argument is actually a claim that the plaintiff has not alleged a legally sufficient cause of action for the intentional tort of false imprisonment. Before an answer is interposed, such a claim should be tested by a motion to strike pursuant to Practice Book § 10-39 (a) (“[w]henever any party wishes to contest [1] the legal sufficiency of the allegations of any complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof’). The trial court, however, decided this issue based on a motion for summary judgment pursuant to Practice Book § 17-49 (“[summary judgment] shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law”). There is a substantial difference between a motion for summary judgment and a motion to strike. The granting of a defendant’s motion for summary judgment puts the plaintiff out of court as it did in this case. See Practice Book § 17-49. The granting of a motion to strike allows the plaintiff to replead his or her case. See Practice Book § 10-44. It appears that the procedural irregularity of the present case simply has caused the majority to be confused.