81 Conn. App. 503 | Conn. App. Ct. | 2004
Opinion
The defendant, William L. Anker-man, appeals from the judgment of conviction, rendered
The jury reasonably might have found the following facts from the evidence presented at the trial. The defendant was an attorney admitted to practice in Connecticut and a partner in the law firm of Ankerman and Smith (law firm). Leslie Forbes retained the law firm to represent his minor daughter, the victim, Elizabeth Forbes, who had been injured when struck by an automobile on November 3, 1992. The victim was fifteen years old at the time she was injured. The victim’s claim for damages was settled for $100,000. On November 12, 1993, Philip A. Wright, Jr., judge of probate in Wall-ingford, where the Forbeses resided, appointed Leslie Forbes and his wife, Earldine R. Forbes, as guardians. The Probate Court approved the settlement. After the agreed on attorney’s fees and certain expenses were deducted from the settlement amount, the sum of $66,110 was deposited in a bank account under the name of “Ankerman & Smith, Trustees for Elizabeth Forbes.” The Probate Court required a bond of $30,000 of the guardians and, after additional expenses had been paid, on January 16, 1994, the guardians filed an inventory in the Probate Court showing net proceeds of the settlement of $59,039.45.
On or about October 21,1994, attorney David C. Smith sent the guardians a check drawn on the trust account for $16,259.42 and advised them that he was retaining $49,894.32 “for payment or as a contingency for payment” for certain listed medical claims and Probate Court fees. Those included claims by Yale University School of Medicine (Yale) for $10,523 and Blue Cross/ Blue Shield for $33,894.32. Those two claims, totaling
On November 8, 1994, the victim reached the age of eighteen. On January 6, 1996, Smith left the law firm to accept a position outside of Connecticut and informed the victim’s parents that the defendant would continue to take care of the matter.
The defendant never told the Forbes family that he had withdrawn the money and, at one point in 1997, told Earldine Forbes that he had all of her daughter’s money. In December, 1997, no other accounting having been filed, Judge Wright scheduled a hearing for January 7, 1998, to consider removal of the guardians.
Judge Wright scheduled a hearing for May 20, 1998, at which the Forbes family, Zemetis and the defendant appeared. The defendant produced a series of bank statements that revealed that the money that had been in the account was gone. Zemetis asked where the money was and the defendant replied: “It’s gone, it’s all gone. I’m sorry.” He told Leslie Forbes that he was sorry that he had taken the victim’s money. The defendant stated that he would attempt to obtain a mortgage loan to repay the money he had taken, but that he would need time to procure the funds.
On July 6, 1998, the defendant wrote a letter to the statewide grievance committee (committee), with a copy to Zemetis, in which he admitted to overdrawing the legal fees account and characterized his conduct as wrongdoing.
I
The defendant has raised twelve issues in his brief. As we have noted, several of the claims of error were not preserved properly. The record also reveals that the defendant has failed to request review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. “It is well established that generally this court will not review claims that were not properly preserved in the trial court. . . . The defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned. . . . Finally, because the defendant has neglected to analyze his claim of plain error, he has failed to demonstrate a manifest injustice. . . . Accordingly, we decline to review his unpreserved claim.” (Citations omitted; internal quotation marks omitted.) State v. Harvey, 77 Conn. App. 225, 230-31, 822 A.2d 360, cert. denied, 265 Conn. 906, 831 A.2d 252 (2003). In his brief, the defendant makes only passing references to Golding and has provided us with no analysis of its four prongs.
II
A
In one of his many claims, the defendant asserts that the court improperly heard a case that may not have
“Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. . . . The question of whether the court has such jurisdiction, however, must be informed by the established principle that every presumption is to be indulged in favor of jurisdiction.” (Internal quotation marks omitted.) State v. Velky, 263 Conn. 602, 605-606, 821 A.2d 752 (2003). Our review of claims concerning subject matter jurisdiction is plenary. See Cohen v. Yale-New Haven Hospital, 260 Conn. 747, 754, 800 A.2d 499 (2002).
The defendant posits that because the information charged that the crime was committed in the town of Wallingford or at other locations, the jury could have convicted him if the crime had occurred in another state. That argument is wholly without merit. The evidence showed that the victim lived in Connecticut, the bank where the account was maintained was in Connecticut and the defendant’s actions in taking the victim’s money occurred in Connecticut. It is clear that the court had subject matter jurisdiction.
The defendant also claims that the crime may have occurred outside of the judicial district in which he was tried. “It is a well established rule that, outside the area of administrative appeals, venue is not a jurisdictional but a procedural question; consequently, venue, unlike subject matter jurisdiction, can be waived by the parties.” State v. Kelley, 206 Conn. 323, 332, 537 A.2d 483 (1988). Thus, to the extent that the defendant is chal
B
The defendant next claims that the court abused its discretion by limiting questions to prospective jurors during voir dire examination. “It is well established that the trial court is vested with broad discretion to determine the extent and form of the voir dire examination.” State v. Faust, 237 Conn. 454, 462, 678 A.2d 910 (1996). Voir dire that touches on the facts of the case should be discouraged. State v. Rios, 74 Conn. App. 110, 117, 810 A.2d 812 (2002), cert. denied, 262 Conn. 945, 815 A.2d 677 (2003).
The defendant complains of two rulings limiting his examination and claims that they were harmfully prejudicial to him. He has not set out those questions in accordance with our rules, leaving this court to search through the filed transcripts.
During the examination of the third potential juror, defense counsel stated that the state would introduce evidence that the larceny had occurred while the defendant was acting as an attorney, and asked whether the potential juror could be fair and impartial in such a case. An objection that the question concerned the evidence to be introduced was overruled, but before the next venireperson was called, counsel addressed the question again. The court agreed that a question concerning an attorney accused of embezzlement in the course of his duties as an attorney would be getting into the evidence. Defense counsel thereafter refrained from asking that question, but did question potential jurors on their ability to remain impartial in a case in which the defendant was an attorney charged with embezzlement. We cannot say that the court abused its discretion when it ruled that such questions were
The other claim concerning the voir dire arose when it became apparent that some of the venirepersons previously had had jury service. Defense counsel was not allowed to ask those persons what the verdict had been in the cases on which they had served. Our Supreme Court previously has held that it is not an abuse of discretion to disallow such questions. See State v. Couture, 218 Conn. 309, 317-19, 589 A.2d 343 (1991).
We discern no prejudice to the defendant resulting from those rulings and conclude that the court did not abuse its discretion in ruling as it did.
C
The defendant next claims error in various eviden-tiary rulings by the court. We have frequently held that a court has broad discretion in ruling on the admissibility and relevance of evidence. State v. Gombert, 80 Conn. App. 477, 488, 836 A.2d 437 (2003). We will refer to additional facts where necessary.
1
The defendant first claims that the court improperly denied his motion to suppress the letter he wrote to the committee on July 6,1998. Prior to commencement of the trial, the court, Lager, J., held a hearing on the defendant’s motion to suppress. Certain facts were stipulated to, including the following: When the defendant wrote the letter, he had not been ordered to do so by the probate judge, the committee itself or the committee’s counsel; when he wrote the letter, the defendant was not under investigation by the committee; and when he wrote the letter, the defendant was not under arrest or in custody, and the letter was not the product of an interrogation.
The defendant filed a motion to suppress the statements in his letter under both the fifth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Because he claimed no greater protection under the Connecticut constitution, the court properly considered the claim under the federal constitution. See State v. Green, 261 Conn. 653, 656-57 n.7, 804 A.2d 810 (2002).
The claim made by the defendant before the trial court and repeated in his brief to this court was that he was obligated under certain ethical duties imposed by the Rules of Professional Conduct and our rules of practice to report to the committee what he had done. The defendant argues, therefore, that his statement was compelled. In essence, his claim is that the requirement of rule 8.3 (a)
The defendant provided no authority for those contentions and our research has not revealed any.
In the present case, the defendant was not under a duty to report his own misconduct to the committee. We agree, therefore, with the court that the letter written by the defendant was voluntary and not the result of any state compulsion. In the absence of any compulsion, the statements contained in the letter were voluntary. “Voluntary statements of any kind are not barred by the fifth amendment.” (Internal quotation marks omitted.) State v. Medina, 228 Conn. 281, 290, 636 A.2d 351 (1994).
2
The defendant next claims that the court improperly admitted into evidence a letter that he wrote on December 6,1998, to Zemetis, proposing a plan to pay $55,000 to the victim. The letter was admitted into evidence over objection that it was an offer to compromise and inadmissible under § 4-8 of the Connecticut Code of
3
The defendant next claims that the court improperly admitted into evidence an amended final accounting
The account was the final event in winding up the victim’s estate and therefore was relevant. “We repeatedly have stated that evidence is relevant if it has a logical tendency to aid the trier in the determination of an issue. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Lugo, 266 Conn. 674, 693-94, 835 A.2d 451 (2003).
In the present case, the determination reserved for the jury was whether the defendant had embezzled funds from the trust account. The final accounting provided the jury with evidence of the closing of that account. We have stated that “[t]he state may properly present evidence to show the sequence of events as they unfold.” State v. McNair, 54 Conn. App. 807, 815, 738 A.2d 689, cert. denied, 251 Conn. 913, 739 A.2d 1249 (1999). Thus, it is clear that the final accounting was relevant and admissible, and that any of its admitted inaccuracies, elicited during cross-examination, were matters pertinent to whatever weight the jury might assign to them.
4
The defendant next claims that the court improperly permitted the prosecutor to inquire as to why the insur-
Our Supreme Court has stated that “[t]he party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence.” (Internal quotation marks omitted.) State v. Ceballos, 266 Conn. 364, 405, 832 A.2d 14 (2003). In the present case, Zemetis’ testimony was in response to the defendant’s questioning of the victim. Zemetis testified that the bond was paid because the person who had custody of the funds had misused them. In light of the obvious suggestion that the victim had been paid some or all of the money, we cannot say that the court abused its discretion.
5
The defendant next claims that the court improperly sustained an objection to one of his answers on cross-examination as nonresponsive to the question that had been posed. The defendant took the witness stand in his defense. The following exchange took place during his cross-examination:
*517 “[The Prosecutor]: The money is gone, isn’t it, sir?
“The Defendant: It’s not in that account.
“[The Prosecutor]: It’s gone, is it not, sir? Tell us where it is, if it’s not in this account?
“The Defendant: I have a blank check here that I am—
“[The Prosecutor]: I object, it’s not responsive.
“[Defense Counsel]: It is responsive.
“The Court: It’s not responsive. Pose your question.”
Defense counsel subsequently explained in an offer of proof that the defendant had a check in the amount of $13,251, payable to himself, which was available to the victim if they could agree on the amount owed. That, however, was not relevant to the charge that he had stolen the money in the first place, and the court did not abuse its discretion in its ruling.
D
Finally, the defendant claims that the evidence was insufficient for conviction. He filed a motion for a judgment of acquittal at the end of the state’s case and again at the conclusion of the evidence. He claimed that the state had failed to prove that he wrongfully had taken the money from the account and that the amount was more than $10,000.
The standard of review on a claim of insufficiency of the evidence has been stated frequently. First, we construe the evidence in the light most favorable to sustaining the verdict, and then we determine whether, on the facts so construed, together with the inferences reasonably drawn therefrom, the cumulative force of the evidence established guilt beyond a reasonable doubt. State v. Gombert, supra, 80 Conn. App. 494-95.
The judgment is affirmed.
In this opinion the other judges concurred.
The law firm of Ankerman and Smith was dissolved, and the defendant continued to practice law as a solo practitioner.
Judge Wright testified that a final accounting should have been filed shortly after the victim became eighteen years old and, at that time, the funds should have been dispersed to her and the trust account closed.
The defendant was unable to obtain a mortgage loan.
On the basis of the letter, the committee commenced a complaint against the defendant and presented it to the Superior Court. After a hearing, the court suspended the defendant from the practice of law for three years. This court recently affirmed the suspension. See Statewide Grievance Committee v. Ankerman, 74 Conn. App. 464, 812 A.2d 169, cert. denied, 263 Conn. 911, 821 A.2d 767 (2003).
For example, the defendant’s brief states that “[t]his [claim] is also renewable under State v. Golding, [supra, 213 Conn. 233].”
“The Superior Court hearing a criminal matter acquires subject matter jurisdiction from its authority as a constitutional court of unlimited jurisdiction. Conn. Const., art. 5, § 1.” (Internal quotation marks omitted.) State v. Mack, 55 Conn. App. 232, 236, 738 A.2d 733 (1999).
Rule 8.3 (a) of the Rules of Professional Conduct provides in relevant part that “[a] lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority. . . .”
In its brief, the state cites Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 97-38 (1997), which provides in relevant part that “[i]n light of the fact that the text of Rule 8.3 (a) refers to ‘another lawyer,’ Rule 8.3 does not contain any requirement that a lawyer report himself or herself. . . .” (Emphasis added.)
Connecticut Code of Evidence § 4-8 provides: “(a) General Rule. Evidence of an offer to compromise or settle a disputed claim is inadmissible on the issues of liability and the amount of the claim.
“(b) Exceptions. This rules does not require the exclusion of:
“(1) Evidence that is offered for another purpose, such as proving bias or prejudice of a witness, refuting a contention of undue delay or proving an effort to obstruct a criminal investigation or prosecution, or
“(2) statements of fact or admissions of liability made by a party.”
Our Supreme Court has stated that “[t]he policy of protecting offers of compromise in civil cases does not extend to efforts to stifle criminal prosecution by buying off the prosecuting witness or victim.” (Internal quotation marks omitted.) State v. Milum, 197 Conn. 602, 613, 500 A.2d 555 (1985). Furthermore, one commentator has noted that § 4-8 contains terms that have a civil but not criminal connotation and that it is unclear whether § 4-8 of the Connecticut Code of Evidence applies to criminal cases. See C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.26.1, p. 263.
The defendant also claimed that Zemetis was incompetent to testify as to why the money was paid. That claim is without merit, as it was Zemetis who made the claim on the bond and, therefore, knew why it had been paid.