text:
    STATE OF CONNECTICUT v. JOSE A. PAGAN, JR.
    (AC 28199)
    Harper, Lavine and Beach, Js.

      Argued January 15
    officially released April 15, 2008

      Glenn W. Falk, special public defender, for the appellant (defendant).

      Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Jose A. Pagan, Jr., appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly denied his motion to suppress his statements that were made without the benefit of a Miranda warning. We affirm the judgment of the trial court.

The following procedural history and facts are relevant to the defendant’s appeal. The defendant was charged in a six count substitute information with three counts of sexual assault in the first degree for engaging in sexual intercourse with a female who was younger than age thirteen; see General Statutes § 53a-70 (a) (2); and three counts of risk of injury to a child for having contact with the intimate parts of a child younger than sixteen and for subjecting the child to contact with his intimate parts in a sexual and indecent manner likely to impair the health and morals of the child. See General Statutes § 53-21 (a) (2). Prior to the start of evidence, the defendant filed a motion to suppress an alleged confession he made to police officers on April 20,2005. After the victim and her cousin, who was the defendant’s former fiancee, had testified, the court heard evidence on the motion to suppress. The court found the following facts.

Christopher Kramer, a New London police officer, was dispatched to 57B Michael Road, the defendant’s residence on the date in question. The dispatch was at the defendant’s request, as he had complained to the police that he was receiving harassing telephone calls from the victim. The defendant met Kramer in the parking lot and invited him into his apartment to discuss the nature of the allegedly harassing telephone calls. While the two were talking, Robert Pickett, another New London police officer, arrived at the defendant’s apartment. Pickett had been investigating the victim’s complaints of sexual assault against the defendant. Prior to Pickett’s arrival, Kramer was unaware of the victim’s complaints.

Kramer met Pickett outside the door to the defendant’s apartment to talk, and then the officers entered the defendant’s apartment together. Kramer was wearing a police uniform; Pickett was in plain clothes. Pickett identified himself to the defendant as a police officer. The defendant presented his operator’s license when Pickett requested his identification. There is no dispute that the defendant was not advised of his rights pursuant to Miranda. Pickett informed the defendant of the victim’s allegation of sexual assault and showed him receipts Pickett had obtained from the Red Roof Inn, where a sexual assault allegedly had taken place. Pickett told the defendant that he was just trying to ascertain the truth. The defendant made certain incriminating statements to the officers. While they were in the apartment, Pickett did not tell the defendant that he was under arrest, nor did he tell him he could leave, as the defendant was in his own apartment.* *

Pickett asked the defendant to go to the police station to give a written statement, and the defendant agreed to the request. The defendant may have thought that he was going to the police station to talk about his complaint about harassing telephone calls. Pickett was taking the defendant to the police station, however, to talk about the allegations of sexual assault. Kramer did not accompany them.

During the trip to the police station, the defendant voluntarily sat unrestrained in the front seat of Pickett’s unmarked police vehicle. While he was in the police vehicle, the defendant made a cellular telephone call to his then fiancee and said that he was on the way to the police station. The defendant did not tell his then fiancee that he had been restrained in his apartment, that the door had been locked, that he was not going to the police station freely or that Pickett had done anything coercive to make him think that his movements were restrained or that he was under arrest. When they arrived at the police station, the defendant asked to telephone his attorney. Pickett permitted him to do so. Pursuant to his attorney’s advice, the defendant declined to give Pickett a written statement. The interview stopped, and Pickett took the defendant back to his apartment. The court found that there was no restraint of any kind imposed on the defendant, that he was not under arrest and that the nature of the questioning in his apartment was cursory.

On the basis of those findings, the court concluded that nothing of significance with respect to the motion to suppress transpired at the police station and that it was the interaction between the officers and the defendant that occurred in the defendant’s apartment that was relevant to the motion to suppress. The court determined that the crux of the issue was not whether Pickett interrogated the defendant but whether the defendant made the alleged remarks. The court ultimately found, in reliance on its factual findings and the relevant law, that the defendant voluntarily agreed to go to the police station and that the circumstances did not require the officers to give the defendant a Miranda warning. In summary, the court stated that it would deny the motion to suppress and permit the state to place the defendant’s allegedly incriminating statements into evidence so that the jmy could make the credibility determination as to whether the defendant had made them.

On appeal, the defendant claims that the court improperly concluded that a reasonable person in his position would have thought that he was at liberty to terminate the interview. He also argues that the court did not give sufficient weight to the fact that although he invited Kramer into his apartment, he did not invite Pickett into his home. “Two threshold conditions must be satisfied in order to invoke the warnings constitutionally required by Miranda: (1) the defendant must have been in custody; and (2) the defendant must have been subjected to police interrogation. . . . [Although the circumstances of each case must certainly influence a determination of whether a suspect is in custody for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. . . . Further, the United States Supreme Court has adopted an objective, reasonable person test for determining whether a defendant is in custody. . . . Thus, in determining whether Miranda rights are required, the only relevant inquiry is whether a reasonable person in the defendant’s position would believe that he or she was in police custody of the degree associated with a formal arrest.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Britton, 283 Conn. 598, 604, 929 A.2d 312 (2007).

“The defendant bears the burden of proving that he was in custody for Miranda purposes. . . . Two discrete inquiries are essential to determine custody; first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. . . . The first inquiry is factual, and we will not overturn the trial court’s determination of the historical circumstances surrounding the defendant’s interrogation unless it is clearly erroneous. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. . . . The ultimate determination of whether a defendant was subjected to a custodial interrogation, therefore, presents a mixed question of law and fact, over which our review is de novo.” (Internal quotation marks omitted.) Id., 605.

On the basis of our review of the transcript, the court’s memorandum of decision and the relevant law, we conclude that the court properly determined that the defendant was not in custody at the time he made incriminating remarks to Pickett. There is no dispute as to how or why Kramer and Pickett came to be in the defendant’s apartment on the afternoon in question. The tone, nature and tenor of the conversation between the officers and the defendant with respect to the victim’s claim that the defendant had sexually assaulted her is the substance of the defendant’s claim. The defendant claimed that Pickett locked the door and called him a liar. Pickett and Kramer both deny that Pickett locked the door. The court found that the defendant’s testimony about the conversation was not credible. It is well established that appellate courts do not make credibility determinations. See State v. Rivera, 74 Conn. App. 129, 136, 810 A.2d 824 (2002). We are bound by the court’s factual determination that the defendant’s testimony concerning the coercive nature of Pickett’s questioning was not credible.

Moreover, the court supported its credibility decision with the conclusion that the defendant got into Pickett’s police vehicle voluntarily, that he was not restrained and that he sat in the front passenger seat and made a cellular telephone call to his then fiancee. The defendant did not offer any evidence that during that telephone call he told his then fiancee that his trip to the police station was not voluntary, that he was restrained in his apartment or that the door was locked. Pickett permitted the defendant to telephone his lawyer, as is required by law, and ceased the interview when the defendant, on the advice of counsel, said that he would not provide a written statement. Pickett then drove the defendant back to his apartment.

The defendant has failed to uphold his burden to demonstrate to this court that the trial court improperly concluded that he was not in custody in his apartment when he made incriminating statements to the officers. The court’s factual findings as to the circumstances of Pickett’s questioning the defendant are supported by evidence in the record. This court does not set aside a trial court’s factual findings unless they are clearly erroneous. See State v. Jones, 281 Conn. 613, 654, 916 A.2d 17, cert. denied. 552 U.S. 868, 128 S. Ct. 164, 169 L. Ed. 2d 112 (2007). The defendant was in his own home, and he initiated the police presence by making a harassment complaint against the victim. Although Pickett did not arrive to discuss the harassment complaint, the defendant at no time told him he was not welcome to enter the apartment. The defendant had access to a telephone, which he used in the police vehicle to call his then fiancee and at the police station to speak with his lawyer.

The circumstances under which Pickett questioned the defendant are similar to those in State v. Johnson, 241 Conn. 702, 699 A.2d 57 (1997). In Johnson, “[t]he detectives, who had approached the defendant at his father’s home, had asked the defendant if he would speak with them, and he had voluntarily agreed to do so. The interview took place in the familiar surroundings of his father’s kitchen. There was no evidence that the defendant was ever handcuffed or otherwise restrained at the time of the statements, nor did the officers use or threaten the use of force, or display their weapons. The court expressly found that the police had been neutral and reserved. The defendant had access to a telephone. The defendant’s father entered the kitchen during this period. The defendant never expressed a desire to leave, stop talking, or speak with his father.” Id., 719-20. Under those circumstances, our Supreme Court could not conclude that the defendant had met his burden of proving custodial interrogation. Id., 720.

The defendant here has not brought to our attention any basis to believe that he was not free to terminate Pickett’s interview, except that the court’s credibility determination was erroneous. That is not sufficient to carry his burden.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The jury found the defendant not guilty of four of the charges against him.

       In his motion to suppress, the defendant represented that he “was interrogated by the police during which time the police allege he made incriminating statements. Given that the defendant was not advised of his Miranda rights ... he respectfully moves to have said statements suppressed.”

       We decline to identify the victim or others through whom the victim’s identity maybe ascertained in accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child. See General Statutes § 54-86e.

       Pickett testified during the hearing on the motion to suppress that after he told the defendant that he had receipts from the Red Roof Inn, he asked the defendant if he had had sex with the victim. According to Pickett, the defendant said that “he did but he could not recall how many times, but stated that there was two times specifically that occurred at 57B Michael Road.”
      Pickett also testified that during their trip to the police station, the defendant told him that “he did put his penis inside of her but pulled out because it hurt her.” Pickett also testified that the defendant told him while they were in the police vehicle that “the reason he had sex [with the victim] was because he felt that he was a brother toward her and didn’t want another man or another boy treating her with disrespect.” The defendant denied making those statements to Pickett.

       According to the police, the tone of the conversation was calm, but the defendant testified to the contrary. The defendant testified that when Pickett entered the apartment, Pickett closed and locked the door. The defendant also testified that Pickett took a hard line with him, calling the defendant a liar and wanting to know about the sexual contact that the defendant had had with the victim. He further testified that Pickett put words in his mouth. The court did not credit the defendant’s testimony that the police held him in his own apartment and that Pickett’s behavior was coercive, causing the defendant to feel that he was restrained. The court supported its credibility determination by citing the fact that the defendant was unrestrained when he was transported to the police station, and the substance of the defendant’s cellular telephone conversation with his then fiancee, made during the trip, did not include any assertion that he was being compelled to cooperate while he was in the police vehicle.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JEANETTE CHARTOUNI v. JAMES DEJESUS
    (AC 27972)
    DiPentima, Harper and Stoughton, Js.
    Argued February 6
    officially released April 15, 2008

      Steven G. M. Biro, for the appellant (plaintiff).

      Robert J. Cooney, with whom, on the brief, was Suzannah K. Nigro, for the appellee (defendant).
   Opinion

PER CURIAM.

In this medical malpractice action, we review the trial court’s denial of a motion to restore the case to the docket after dismissal and its subsequent denial of a motion to reargue. Because we conclude that the court did not abuse its discretion, we affirm the judgment of the trial court.

The plaintiff, Jeanette Chartouni, initiated this action against the defendant, James DeJesus, a podiatrist, in January, 2008, claiming injuries as a result of the defendant’s treatment of her right big toe. On August 18,2003, the court dismissed the action for failure to comply with a scheduling order. On October 28, 2003, the plaintiff filed a verified motion to restore the case to the docket, citing Practice Book § 17-43 and alleging mistake as the cause of the noncompliance. Approximately two and one-half years later, on April 10, 2006, the plaintiff filed an affidavit in support of her motion to restore and thereby reclaimed the motion. On May 4, 2006, the defendant filed an objection to the plaintiffs motion to restore. Thereafter, on June 13, 2006, the court sustained the defendant’s objection, stating: “Notwithstanding the unspecified periods of military service and illness of the plaintiffs counsel, there is no chronology that completely explains the two and one-half year delay in claiming the motion to restore other than a lack of due diligence . . . .’’On July 3, 2006, the plaintiff filed a motion to reargue the motion to restore the case to the docket, along with a motion for oral argument and hearing to present testimony on the motion to reargue. The court denied the plaintiffs motions on August 7, 2006, stating: “It is not appropriate on a motion to reargue to present additional facts that could have been presented at the time of the original motion. See Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001).” This appeal followed.

On appeal, in addition to claiming that the court improperly denied her motion to restore, the plaintiff also claims that the court improperly failed to consider clarifying information and authority in denying her motion to reargue. We are not persuaded by either claim.

A motion filed pursuant to Practice Book § 17-43 “is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, [the reviewing] court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Walton v. New Hartford, 223 Conn. 155, 169-70, 612 A.2d 1153 (1992). The provision of Practice Book § 17-43 pertinent to this case required the court to consider whether the plaintiff had been prevented by mistake, accident or other reasonable cause from prosecuting her case.

The record reveals that the plaintiffs motion to restore, while filed within three months of the dismissal, was not prosecuted until two and one-half years later. A careful review of the record reveals that this remarkable delay was not explained adequately. The court acted well within its discretion in finding that the plaintiff lacked due diligence in prosecuting her case. See Skinner v. Doelger, 99 Conn. App. 540, 546-51, 915 A.2d 314 (failure to prosecute case with due diligence constitutes sufficient reason for court to exercise discretion and dismiss case, notwithstanding that action might appear unnecessarily harsh), cert. denied, 282 Conn. 902, 919 A.2d 1037 (2007).

We also review under the abuse of discretion standard the plaintiffs argument that the court should have considered additional facts and authority in deciding her motion to reargue. Opoku v. Grant, supra, 63 Conn. App. 692-93. “[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. ... [A] motion to reargue ... is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.” (Citations omitted; internal quotation marks omitted.) Id. Here, as in Opoku, the plaintiff proffered no controlling authority or set of facts overlooked or misconstrued by the court in denying the motion to restore, instead offering only additional facts and authority available at the time of the original argument. Thus, the court properly relied on Opoku and did not abuse its discretion when it denied the motion to reargue.

The judgment is affirmed.


author: HARPER, J.

text:
    FARHAD MOASSER v. JAMES A. BECKER ET AL.
    (AC 27894)
    DiPentima, Harper and Hennessy, Js.

      Argued December 4, 2007
    officially released April 22, 2008

      Philip M. French, for the appellant (plaintiff).

      Mark F. Katz, for the appellee (defendant Judith Becker).
   Opinion

HARPER, J.

The plaintiff, Farhad Moasser, appeals from the judgment of the trial court ordering disbursement of the proceeds of a foreclosure sale. The plaintiff claims that the court improperly (1) disbursed the proceeds of the foreclosure sale and (2) calculated the amount of deficiency judgment owed to the plaintiff. We reverse the judgment with respect to the first claim and dismiss that portion of the appeal involving the second claim.

The roots of this appeal can be traced to a series of judgment liens obtained by the plaintiff in 1988 and 1989 against James A. Becker. These hens attached to Becker’s one-half interest in a parcel of real estate that he and his then wife, the defendant Judith Becker, owned as joint tenants. On October 30, 1992, the plaintiff filed an action to foreclose on those liens. Years of contentious litigation ensued, and not until November 13, 2004, did the foreclosure sale occur. On July 12, 2006, the court ordered disbursement of the sale proceeds. This appeal fohowed.

I

The plaintiff first claims that the court failed to disburse properly the proceeds of the November 13, 2004 foreclosure sale. He advances five separate arguments in support of this claim. He argues that the court improperly (1) deducted an attorney’s fee award from the overall foreclosure sale proceeds, (2) denied his request for postjudgment interest on this attorney’s fee award, (3) denied his request for an additional postjudgment attorney’s fee award, (4) calculated the amount of committee fees to be deducted from the foreclosure sale proceeds and (5) disbursed a portion of the foreclosure sale proceeds to a fellow lienholder. We will review each argument in turn.

A

Disbursement of Attorney’s Fees

The plaintiff first argues that the court improperly deducted a prior attorney’s fee award from the overall foreclosure sale proceeds, as opposed to solely from the defendant’s portion of those proceeds. We agree with the plaintiff.

The following facts and procedural history are relevant to our disposition of the plaintiffs argument. On January 5, 1995, the plaintiffs foreclosure action was tried before an attorney trial referee. On July 7, 1995, the referee filed her report recommending foreclosure. On November 2, 1995, the court rendered judgment in accordance with the referee’s recommendation. On September 13, 1996, the court granted the defendant’s motion to intervene as a party defendant in order to grant her an opportunity to redeem the property. The court, however, specifically precluded the defendant “from relitigating . . . any . . . matters which are the law of the case” due to the fact that she had had knowledge of the case for more than two years prior to her moving to intervene. Over the course of the next two years, the plaintiff sought to effectuate the foreclosure, only to have his attempts forestalled by various defenses asserted by the defendant.

James Becker and the defendant were divorced in 1994. In connection with their divorce, James Becker transferred his one-half interest in the subject property to the defendant. Shortly thereafter, two mortgages on the property, both superior in right to the liens of the plaintiff, were assigned to Jeanne Altschul, the mother of the attorney representing the defendant in this matter, as trustee. Following the assignments, the defendant ceased making payments on these mortgages, and Altschul began paying applicable taxes on the property. The plaintiff thereafter filed a second amended complaint, adding allegations of fraud and conspiracy against the defendant and Altschul.

A second trial before an attorney trial referee was conducted between December, 2000, and January, 2001. Upon the completion of this trial, the defendant and Altschul moved to dismiss the plaintiffs second amended complaint. They claimed that because the plaintiff had failed to follow the procedures of the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 et seq., in recording liens awarded pursuant to a judgment of the United States District Court for the District of Connecticut, the trial court lacked subject matter jurisdiction. In his June 11, 2001 report, the attorney trial referee recommended judgment in favor of the plaintiff with respect to the fraud and conspiracy claims, as well as with respect to the motion to dismiss. The referee also recommended that the plaintiff be awarded attorney’s fees, pursuant to General Statutes § 52-350f, for work performed between the time of the November 2, 1995 judgment, which had initially authorized foreclosure, and the date of the filing of the most recent attorney trial referee report. In support of this recommendation, the referee found that the litigation occurring during this time amounted to postjudgment procedures involving defenses advanced solely for the purpose of delay. The referee further recommended that “Jeanne Altschul and [the defendant] should pay [the plaintiffs] attorney’s fees personally, since their defense was solely for the purpose of delay.” On January 14, 2002, the court rendered judgment in accordance with the June 11, 2001 report.

After the foreclosure sale occurred on November 13, 2004, the court ordered the distribution of the foreclosure sale proceeds in its July 12, 2006 memorandum of decision. In this memorandum, the court ordered that the January 14, 2002 attorney’s fee award be deducted from the overall sale proceeds, rather than solely from the defendant’s portion. The parties now contest the interpretation of the January 14, 2002 judgment. The defendant argues that that judgment ordered the court to deduct the attorney’s fee award from the foreclosure sale proceeds in the manner in which it did; the plaintiff argues that that judgment ordered the court to deduct the attorney’s fee award solely from the defendant’s portion of the proceeds.

Our analysis involves interpretation of the January 14, 2002 judgment. “The law of judgments ... is well settled. The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment. ... As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it. . . . Effect must be given to that which is clearly implied as well as to that which is expressed.” (Citations omitted; internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 806-807, 695 A.2d 1010 (1997).

Our review of the January 14, 2002 judgment leads us to conclude that the only reasonable interpretation of that judgment is that the attorney’s fee award contained therein was intended to be a personal obligation of the defendant and Altschul. The January 14,2002 memorandum of decision provides in relevant part: “The attorney trial referee concluded that . . . the Beckers and Jeanne Altschul, trustee, were obligated to pay the plaintiffs legal fees . . . because the defenses interposed by those defendants were solely for the purposes of delay . . . .” The memorandum further provides: “The issue of applicability of General Statutes §§ 52-350f and 52-400c is resolved in favor of the plaintiff because it is the function of the trial court to determine whether the defenses presented by the defendants were solely for delay, which is a question of fact. . . . The attorney trial referee determined as a matter of fact that the defenses maintained by the defendant were solely for the purpose of delaying the plaintiff . . . .” (Citation omitted; internal quotation marks omitted.)

Despite the memorandum’s reference to “the Beckers” as being liable for attorney’s fees, the only “defendants” who had interposed postjudgment defenses, and thus would be eligible to have been taxed with an attorney’s fee award pursuant to §§ 52-350f and 52-400c, were the defendant and Altschul. Furthermore, the referee unambiguously stated in his June 11, 2001 report, on which the January 14, 2002 judgment had been rendered, that “Jeanne Altschul and [the defendant] should pay [the plaintiffs] attorney’s fees and costs personally, since their defense was solely for the purpose of delay.” We therefore conclude that the only reasonable interpretation of the January 14, 2002 judgment is that the defendant and Altschul, as opposed to James Becker, were to be hable for the attorney’s fee award contained therein. It follows that that award was to be deducted from the defendant’s portion of the foreclosure sale proceeds. As the court failed to do so, we must reverse the judgment of the court.

B

Postjudgment Interest on Attorney’s Fees

The plaintiff next argues that the court improperly denied his request to assess postjudgment interest on the attorney’s fees awarded in the January 14, 2002 judgment. We decline to review this argument.

The following additional facts are necessary for our analysis. After the foreclosure sale had occurred, the plaintiff requested in his November 16, 2005 motion for an order of disbursement an assessment of postjudgment interest on the January 14, 2002 attorney’s fee award, pursuant to General Statutes § 37-3a. The court ruled on the plaintiffs motion in its July 12, 2006 memorandum of decision. Nowhere in that July 12,2006 memorandum of decision did the court discuss, or indeed even mention, the plaintiffs request for interest on the January 14, 2002 attorney’s fee award.

Although “[o]ur rules of practice require that the trial court state its decision on each issue in the case and its conclusion as to each issue in the case and its conclusions as to each claim of law raised by the parties . . . [i]t remains the appellant’s responsibility to furnish an adequate appellate record.” (Citations omitted; internal quotation marks omitted.) Cottiero v. Ifkovic, 35 Conn. App. 682, 685-86, 647 A.2d 9, cert. denied, 231 Conn. 938, 651 A.2d 262 (1994). Thus, the failure of a litigant to file a motion for articulation upon a court’s failure to rule on a claim vitiates appellate review of the claim. See Practice Book § 66-5; LaPenta v. Bank One, N.A., 101 Conn. App. 730, 738, 924 A.2d 868, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007); Cottiero v. Ifkovic, supra, 685-86; Gennarini Construction Co. v. Messina Painting & Decorating Co., 5 Conn. App. 61, 66, 496 A.2d 539 (1985); W. Horton & K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2007 Ed.) § 66-5, authors’ comments, p. 177. Such is the case here. The court failed to rule on the plaintiffs request for an award of postjudgment interest, yet the plaintiff failed to file a motion for articulation asking the court to address the overlooked matter. Accordingly, we decline to review the plaintiffs argument.

C

Postjudgment Attorney’s Fees

The plaintiff similarly argues that the court improperly denied his request for additional attorney’s fees recompensing litigation expenses incurred after the January 14, 2002 judgment. The plaintiff argues that the court improperly determined that no statutory authority existed that would justify such an award. We agree with the plaintiff.

The plaintiff, in his November 16, 2005 motion for an order of disbursement, requested an award of postjudgment attorney’s fees pursuant to General Statutes §§ 52-350Í, 52-400c and 52-249. The court, in its July 12, 2006 memorandum of decision ruled as follows: “Although the plaintiffs counsel worked long and hard on this case and successfully also, there is no statutory or other authority to warrant the imposition of legal fees in addition to the $27,705 previously awarded in the January 14, 2002 memorandum of decision.”

“Connecticut adheres to the American rule, which provides that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.” (Internal quotation marks omitted.) Young v. Vlahos, 103 Conn. App. 470, 479, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008). If warranted, “[t]he amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id. However, “analysis of whether the court applied the correct legal standard is a question of law subject to plenary review.” Wieselman v. Hoeniger, 103 Conn. App. 591, 598, 930 A.2d 768, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007).

We see no reason why the statutory sections relied on by the plaintiff would not authorize the attorney’s fee award requested by the plaintiff, were the court to have concluded the plaintiff were so entitled upon a balancing of the equities. For the court to have failed to engage in such an analysis, simply concluding that no statutory authority existed, clearly reflects a misconception of the law. See, e.g., Tsitaridis v. Tsitaridis, 100 Conn. App. 115, 916 A.2d 877 (2007) (reversing judgment on trial court’s failure to apply applicable statute). Accordingly, we reverse this portion of the judgment and remand for consideration of the plaintiffs claim for attorney’s fees.

D

Committee Costs

The plaintiff next argues that the court improperly calculated the amount of committee fees to be deducted from the foreclosure sale proceeds. We decline to review this argument.

The following additional facts and procedural history are relevant to our analysis. On January 21, 2003, the court ordered the plaintiff to pay costs of $3557.85 incurred by the foreclosure committee in connection with the foreclosure sale that the court ordered in its January 14,2002judgment. Prior to the foreclosure sale, the defendant appealed from the court’s January 14, 2002 judgment. We affirmed the judgment. See Moasser v. Becker, 78 Conn. App. 305, 828 A.2d 116, cert. denied, 266 Conn. 910, 832 A.2d 70 (2003).

After the court rendered another judgment of foreclosure by sale on October 4, 2004, the property was sold by committee on November 13, 2004. On December 23, 2004, the court ordered the committee be allowed an additional fee of $5966.40 for costs incurred in connection with this second auction. The court, in its July 12, 2006 memorandum of decision, deducted the $5966.40 committee fee from the overall foreclosure sale proceeds. The memorandum is silent with respect to the $3557.86 committee fee. The plaintiff does not now challenge the court’s decision to deduct the $5966.40 committee fee from the overall proceeds but, rather, argues that the court should have “required the reimbursement to the plaintiff for this earlier incurred sum [of $3557.86 in committee expenses].”

“[This] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . . Practice Book § 60-5. ... To allow such a claim to be raised on appeal would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Ingels v. Saldana, 103 Conn. App. 724, 730, 930 A.2d 774 (2007). The plaintiff, in his November 16, 2005 motion for an order of disbursement, did not request reimbursement for the first $3557.85 committee fee that he had allegedly paid. Therein, the plaintiff “instead [indicated] that the defendant . . . should pay for the second committee fee, which she alone necessitated.” As the plaintiff failed to present to the court his argument that the defendant should have reimbursed his payment of the first committee fee, we decline to afford it review.

E

Disbursement of Duel and Holland Mortgage

The plaintiffs final argument is that the court improperly disbursed the proceeds of the foreclosure sale to Duel and Holland, a mortgagee with rights superior to those of the plaintiff. The plaintiff himself acknowledges that the court had previously ordered, in its January 14, 2002 memorandum of decision, that the sale proceeds be distributed in such a manner. The plaintiff does not take issue with this initial determination, instead supporting his argument by making generalized references to subsequent judgments that he asserts “modified” the court’s order to satisfy the Duel and Holland mortgage via the proceeds of the plaintiffs foreclosure sale.* Unfortunately for the plaintiff, we have scoured the record, including the judgments referenced by the plaintiff, and can find nothing that would preclude the court from treating the Duel and Holland mortgage in the manner in which it did. Accordingly, we need not address this claim further. See, e.g., Ingels v. Saldana, supra, 103 Conn. App. 728-29 (appellant’s mischaracterization of trial proceedings precludes appellate review).

II

The plaintiffs final claim is that the court failed to calculate properly the amount of the deficiency judgment owed the plaintiff. We dismiss this portion of the plaintiffs appeal, as the court’s decision to award a deficiency judgment does not amount to a final judgment.

In its July 5, 2005 memorandum of decision, the court clearly manifested its intent to award the plaintiff a deficiency judgment pursuant to General Statutes § 49-14. Furthermore, as a matter of law, the plaintiff appears to be entitled to a deficiency judgment pursuant to this provision. At no point, however, did the court calculate or award the amount of the deficiency, instead directing counsel for the parties “to agree on the amount of said deficiency judgment,” and “if there is any controversy about the exact numbers, the matter should be claimed to the foreclosure short calendar . . . .’’To the extent that the plaintiffs claim relates only to the court’s determination of his liability on the deficiency, and the amount of the deficiency remains outstanding, the matter is not final. See, e.g., Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985) (judgment as to liability only, without determination of damages, interlocutory in character and not appealable). “General Statutes § 52-263 limits appellate jurisdiction to appeals that are taken from final judgments.” Ingels v. Saldana, supra, 103 Conn. App. 731. Accordingly, we dismiss this portion of the appeal.

The judgment is reversed as to the order deducting the January 14,2002 postjudgment attorney’s fee award from the overall sale proceeds and the case is remanded with direction to deduct that award from the defendant Judith Becker’s portion of the sale proceeds; further, the judgment is reversed as to the denial of the plaintiffs request for attorney’s fees relative to expenses incurred after the January 14, 2002 judgment, and the case is remanded for further proceedings as to that request; the appeal is dismissed as to the challenge to the court’s calculation of the deficiency judgment. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       James Becker is the former husband of Judith Becker, a codefendant. Judith Becker is the only defendant involved in this appeal; neither James Becker nor any of the other defendants, Jeanne Altschul, the city of Stamford, Union Trust Company, Mechanics and Farmers Savings Bank, Connecticut National Bank, Duel and Holland, and Pilar Smith, are parties to this appeal. Henceforth, all references to the defendant will refer only to Judith Becker.

       At this point in time, the defendant was not a party to the cause of action.

       James Becker did not join in these defenses.

       The plaintiff had filed a first amended complaint shortly after the court granted the defendant’s motion to intervene to reflect her status as a party defendant.

       General Statutes § 52-350Í provides in relevant part that a “money judgment may be enforced ... by foreclosure of a real property lien, to the amount of the money judgment with . . . any attorney’s fees allowed pursuant to section 52400c.”
      General Statutes § 52400c in turn provides in relevant part: “In the discretion of the court, a reasonable attorney’s fee maybe allowed to the prevailing party ... for counsel at any . . . hearing that is reasonable and necessary for the enforcement of rights pursuant to a postjudgment procedure that is held on a claim or defense that the court determines was made for the purpose of harassment or solely for the purpose of delay.”

       General Statutes § 37-3a provides in relevant part that “interest at the rate oí ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .”

       The plaintiff asserts that the court did expressly rule on his request for pos(judgment attorney’s fees and, in so doing, denied that request because “[t]he referee did not recommend interest on [the attorney’s fee award].” (Internal quotation marks omitted.) The plaintiff has relied, however, on the court's earlier July 5, 2005 memorandum of decision to support this assertion. It suffices to state that this court has previously determined, in dismissing the plaintiffs prior appeal from the July 5, 2005 decision, that that decision does not constitute a final judgment on the matter.

       As a matter of clarification, this request was in addition to the court’s January 14, 2002 attorney’s fee award and the plaintiffs November 16, 2005 request for an award of postjudgment interest.

       General Statutes § 52-249 (a) provides in relevant part: “The plaintiff in any action of foreclosure of a . . . lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment . . . shall be allowed the same costs, including a reasonable attorney’s fee, as if there had been a hearing on an issue of fact. ...”

       Although not acknowledged by the plaintiff, the court also ordered as much in its initial foreclosure judgment of November 2, 1995.

       The one specific reference that the plaintiff does provide, to the court’s October 4, 2004 oral judgment, amounts to a patent mischaracterization of that proceeding. On the whole, we consider the plaintiffs representation of that proceeding to be troubling. Although the plaintiff correctly reiterates the court’s initial statement from that proceeding that a foreclosure buyer would purchase subject to a superior mortgage, the plaintiff fails to mention the court’s later acknowledgement that in this instance, the superior Duel and Holland mortgage would actually need be satisfied at the time of the foreclosure of the inferior lien of the plaintiff because the superior Duel and Holland mortgage had been recorded pursuant to a court judgment.

       Specifically, the court stated that “the plaintiff is entitled to a deficiency judgment representing the difference between the debt owed the plaintiff and the money he obtains from the [distribution of the proceeds of the foreclosure sale].”

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       The plaintiffs assertion that the court calculated the amount of the deficiency judgment in its July 5, 2005 memorandum of decision again amounts to a mischaracterization of the record. Although the court calculated the amount of the total debt due to the plaintiff, nowhere has the court taken the next necessary step and calculated the amount of the deficiency due to the plaintiff.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. JAMES R. DARROW
    (AC 28864)
    Harper, Robinson and Borden, Js.
    Argued January 9
    officially released April 22, 2008

      G. Douglas Nash, special public defender, for the appellant (defendant).

      John P. Gravalec-Pannone, senior assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, James R. Darrow, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the trial court improperly declined to instruct the jury on self-defense, defense of premises and defense of property. We agree that the defendant was entitled to a self-defense instruction and, therefore, reverse the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In the mid-1990s, the defendant was involved in a romantic relationship with Sharon Benoit, a married woman. After Benoit ended her relationship with the defendant in March, 1997, he had a meeting with her husband, Donald Benoit. During that meeting, the defendant told Donald Benoit that Sharon Benoit had been planning to have Donald Benoit murdered. Donald Benoit reported this information to the police. During his investigation into Donald Benoit’s complaint, Joseph Russo of the Norwich police department learned that the defendant admitted to Sharon Benoit that he had killed John Avery in the 1980s. Shortly thereafter, Russo alerted state police Detective Steven Rief of the possible murder.

Relying on Russo’s information, Rief and his partner, Richard Bedard, interviewed the defendant’s sister, Lynn Darrow (Darrow), and his cousin, Bruce Richard. Details of the victim’s life emerged, but little was revealed of his final moments. In the summer of 1984, Darrow first met the victim, Avery, on a dairy farm where they both worked. Darrow and the victim had a romantic relationship, and the victim moved in with the Darrow family in October, 1984. Because they were having “relationship problems and [the victim] was drinking and using drugs,” Darrow asked the victim to move out of her family’s house in April, 1985. One week later, Darrow discovered that she was pregnant with the victim’s child. In May, 1985, the victim told Darrow he was leaving but would be back before the baby was bom. Darrow never saw the victim again. In 1996, Darrow learned from Richard that on an autumn day long ago, the defendant told Richard that he had killed the victim and buried the body in Peck Hollow in Franklin. Neither Darrow nor Richard believed that the defendant had killed the victim because he was known for telling stories. Darrow and Richard never reported the information to the police prior to their interviews with Rief and Bedard.

Rief and Bedard then interviewed the defendant and obtained at least three confessions. The defendant was arrested. After a search, police investigators found the victim’s remains in Peck Hollow. In a postmortem report, the medical examiner determined the cause of death to be blunt traumatic head injury. The jury found the defendant guilty of murder, and the court sentenced him to forty years incarceration. This appeal followed.

On appeal, the defendant claims that the court improperly denied his request to instruct the jury on the defense of self-defense. He argues that there was sufficient evidence presented at trial to warrant a self-defense instruction, and, therefore, he was entitled, as a matter of law, to have the jury informed of the availability and the elements of self-defense. We agree with the defendant.

“It is trae that [i]f the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction.” (Internal quotation marks omitted.) State v. Cruz, 75 Conn. App. 500, 510, 816 A.2d 683 (2003), aff'd, 269 Conn. 97, 848 A.2d 445 (2004). Self-defense is a recognized legal defense. See General Statutes (Rev. to 1985) § 53a-19. A defendant is entitled to a proper instruction on self-defense for which there is foundation in evidence, no matter how weak or incredible. State v. Harris, 46 Conn. App. 216, 236, 700 A.2d 1161, cert. denied, 243 Conn. 930, 701 A.2d 662 (1997). A defendant’s initial burden is slight, for he has no burden of persuasion; he merely has to introduce sufficient evidence to warrant presenting his claim, of self-defense to the jury. State v. Ramos, 271 Conn. 785, 800, 860 A.2d 249 (2004); State v. Singleton, 97 Conn. App. 679, 691, 905 A.2d 725, cert. granted on other grounds, 280 Conn. 949, 912 A.2d 484 (2006). Thus, “[a] court should view the evidence most favorably to the defendant and should give the charge if the evidence is sufficient, if credited by the jury, to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in self-defense.” State v. Terwilliger, 105 Conn. App. 219, 224 n.5, 937 A.2d 735, cert. granted on other grounds, 286 Conn. 902, 943 A. 2d 1103 (2008).

The following additional facts are necessary to our resolution of the issue. The defendant provided three versions of the murder, set forth in two written confessions and one oral confession. In his first written confession, the defendant stated that he came home from ice fishing in February or March, 1985 or 1986, to find the victim stealing two guns and some money. The defendant “was very pissed off because [the victim] had broken into the house.” The victim was “headed out” the door when the defendant “caught” him. The defendant pushed the victim into the ground, smashing his head against the cement floor, resulting in “a pretty good crease” in the victim’s head. The defendant then grabbed both of the victim’s arms and pulled them back until they “popped.” He then bound and gagged the victim. After the defendant cleaned the victim’s blood from the floor, he put the victim in his truck. At this point, the victim was “busted up” and “didn’t have a chance.” The defendant then drove the victim to a nearby gasoline station, from which he called a drug dealer known as “Purple.” Purple told the defendant that his “boss Thomas” would meet the defendant at another gasoline station. The defendant then drove his truck and parked it in a cornfield. Here, he told the victim that he was “giving him up to Thomas.” The victim, conscious at this point, pleaded with the defendant to not “give him up.” As arranged, the defendant gave the victim to Thomas to settle his drug debt, and he never saw or heard from the victim again.

According to the defendant’s second written confession, he came home from fishing one afternoon in February or March, 1985, when he encountered the victim in his basement “packing money and guns and stuff into bags.” The victim stabbed the defendant in the right forearm with a knife before the defendant “slammed him into the floor.” The defendant then bent both of the victims’ arms over the defendant’s knee until he heard them “pop at the elbow.” The defendant then bound and gagged the “semiconscious” victim. He then carried the victim along the railroad tracks behind the Darrows’ house. The defendant “was pissed off because what [the victim] had done to [him],” and he had “snapped and all [he] could see was blood because [he] was so pissed off.” The defendant then made the victim walk in front of him, and he told the victim that he would beat him and leave him in a wooded area. When the victim kicked the defendant and called Lynn Darrow a “whore,” the defendant hit the victim in the face with a limb from a tree. The victim became “mush” and “started gurgling into the mud.” The defendant pushed the victim with his hands, and the victim sunk into the swamp at Peck Hollow.

At trial, Rief testified that the defendant made at least one other confession. The following colloquy occurred:

“[Defense Counsel]: In fact, you heard other versions of what happened that you didn’t include in either of these written statements; isn’t that true?
“[The Witness]: That is true. . . .
“[Defense Counsel]: Did [the defendant] tell you at one time that he caught [the victim] stealing from the home, that in the process of catching him, they had some kind of struggle and that [the victim] hit his head on the floor, on the cement floor, and that he carried [the victim’s] body all the way to his burial place? Didn’t he tell you that?
“[The Witness]: Yes, he did.”

Consistent with Rief s testimony that the defendant confessed to killing the victim in his home, Sharon Benoit testified that the defendant told her that “he had killed [the victim] and taken his body thirteen miles and buried him in the woods.” Additionally, Harold Wayne Carver II, the state’s chief medical examiner, testified that it was unusual but possible that the victim sustained his mortal injury when his head struck a hard piece of wood on the basement’s cement floor.

Before the court denied the defendant’s request for a self-defense charge, it correctly noted that “in order for there to be a self-defense claim, the killing would have to take place ... at the residence.” The court, however, declined to instruct on self-defense, explaining: “What concerns me here is the following, and one of the reasons why this court did not give justification because I think it would be confusing to the jury. . . . We are asking the jury whether [the defendant] reasonably believes [that] the use of imminent physical force was necessary [and], in my opinion, they cannot make these determinations from the fact that [the victim] is stealing and the fact that it is at [the defendant’s] home. ... I feel that there is no way we can ask the jury to infer [the defendant’s] state of mind from . . . the dearth of facts that were provided.”

We conclude that no matter how weak or incredible the evidence was, the defendant met his burden of providing an evidentiary foundation to inject the issue of self-defense into the case. Evidence that the defendant killed the victim in his home during the altercation was sufficient to boost the defendant over the requisite evidentiary threshold. “Upon a valid claim of self-defense, a defendant is entitled to proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the [murder] was not justified.” (Internal quotation marks omitted.) State v. Singleton, supra, 97 Conn. App. 692. Therefore, the defendant was entitled to a self-defense instruction as a matter of law.

We next address the court’s reasoning that “to give a self-defense [charge] would be to ignore [the version of the confession], which came in later in time, and . . . supersedes [the version of the confession], which came in prior in time because [the defendant] gave various versions.” We emphasize the well settled rule that “[w]hile the preliminary question of admissibility of a confession is for the court, the credibility and weight to be accorded the confession is for the jury.” State v. Vaughn, 171 Conn. 454, 460-61, 370 A.2d 1002 (1976). Though the jury was presented with different versions of the events and multiple confessions, choosing among competing inferences and determining the credibility of the confessions are functions within its exclusive province. State v. Iban C., 275 Conn. 624, 634, 881 A.2d 1005 (2005) (credibility determinations within exclusive province of jury); State v. Mungroo, 104 Conn. App. 668, 673, 935 A.2d 229 (2007) (choosing among competing inferences within exclusive province of jury), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008); see also State v. Martin, 285 Conn. 135, 148, 939 A.2d 524 (2008) (jury permitted to consider any proven fact in combination with other proven facts and cumulative effect of all evidence presented).

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

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

       The defendant claims that the court improperly denied his request for an instruction on defense of premises and defense of property. Specifically, he argues that because the victim illegally entered the premises, he was not required to retreat and “had the right to use deadly physical force under this form of justification because it was appropriate under the rules of self-defense.” (Internal quotation marks omitted.) The defendant does not offer any discussion of legal authority to support these claims independently and separately from his claim concerning an instruction on self-defense. We therefore consider the claims inadequately briefed and decline to afford them review. See State v. Carocoglia, 95 Conn. App. 95, 129, 895 A.2d 810, cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006).

      See footnote 2.

       Self-defense is defined in General Statutes (Rev. to 1985) § 53a-19, which provides: “(a) Except as provided in subsections (b) and (c), a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       AU of the defendant’s confessions were given at the same time.

       At trial, Rief testified that because they did not believe the story, he and Bedard did not investigate the identities of Purple or Thomas, whether a drug debt existed or why “giving up” the victim would “settle” the debt.

       The defendant submitted a written request for a jury instruction on self-defense. Therefore, he adequately preserved this issue for appeal. See State v. Sivak, 84 Conn. App. 105, 111, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d 573 (2004). Also, immediately after the charge to the jury, the defendant took exception to the court’s failure to charge on self-defense.


author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. IAN WRIGHT
    (AC 28633)
    McLachlan, Lavine and Robinson, Js.
    Argued January 23
    officially released April 22, 2008

      Ian Wright, pro se, the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The pro se defendant, Ian Wright, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence, filed pursuant to Practice Book § 43-22, on the ground that it lacked jurisdiction to consider the motion. On appeal, the defendant claims that the court had jurisdiction to correct a sentence that violated his constitutional protection against double jeopardy. The defendant’s claim is merely a collateral attack on his conviction, and we therefore affirm the judgment of the trial court.

The defendant was charged and convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a (a), as enhanced by General Statutes § 53-202k, and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. At trial, evidence was presented that the defendant and his brother, David Wright, were at the Jamaican American and Puerto Rican Club in Bridgeport on October 15, 2000. Late that evening, they entered a hallway near the restrooms and engaged in a fight with Wilfredo Sanchez. The defendant and his brother drew their guns and fired them, hitting Sanchez and John Williamson, a bystander. Sanchez died of his injuries. State v. Wright, 77 Conn. App. 80, 822 A.2d 940, cert. denied, 266 Conn. 913, 833 A.2d 466 (2003).

The prosecution’s theory was that the defendant was either the shooter or an accessory to his brother, who was the shooter. Although neither the defendant nor his brother testified at trial, the defense strategy was to suggest that David Wright had shot Sanchez without the defendant’s knowledge or participation. At the conclusion of the evidence, the jury found the defendant guilty of both charges. Upon being polled, the jurors indicated that the defendant was guilty of murder as an accessory. The court accepted the verdict and rendered judgment accordingly. On March 22,2002, the defendant was sentenced to a total effective term of thirty-five years incarceration. This court affirmed the judgment of conviction. Id.

On December 18, 2006, more than three and one-half years after the date of his sentencing, the defendant filed a pro se motion to correct an illegal sentence pursuant to Practice Book § 43-22. The court filed its memorandum of decision on January 11, 2007, dismissing the defendant’s motion on the ground that it lacked subject matter jurisdiction to entertain the claim. The court concluded that “[t]he sentence in question does not exceed statutory maximum limits, is not ambiguous or internally contradictory [and does not] abridge what is asserted to be a double jeopardy right.” This appeal followed.

The defendant claims that the court had jurisdiction to correct his sentence because it violated his constitutional protection against double jeopardy. Specifically, he argues that he could not be convicted as an accessory to murder because the information did not include an accessorial liability charge. He claims that the polling of the jurors demonstrated that he was “acquitted” as being the principal in the crime. For that reason, he argues that the sentence imposed for his conviction as an accessory to murder violates the prohibition against double jeopardy.

The defendant has misunderstood the nature of the charge against him and has misstated the law of accessorial liability. The defendant’s argument presupposes that there are two independent crimes, the crime of murder and the crime of being an accessory to murder. “[T]here is no such crime as being an accessory; the defendant was charged with [one] substantive offense .... The accessory statute merely provides alternate means by which a substantive crime may be committed.” (Internal quotation marks omitted.) State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985). “This state . . . long ago adopted the rule that there is no practical significance in being labeled an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility.” Id., 164. The defendant is incorrect, therefore, when he argues that his liability turns on whether he was found to be a principal or an accessory. Those labels are hollow. See id., 165.

The defendant insists that he was “acquitted” of being a principal to the crime of murder. The jury did not acquit the defendant, it found him guilty of murder. Upon the polling of the individual jurors, each juror specifically indicated that the defendant was guilty of murder as an accessory. “A defendant may be convicted as an accessory, even if charged only as a principal, as long as the evidence presented at trial was sufficient to establish accessorial conduct.” State v. Bagley, 35 Conn. App. 138, 142, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994). Accordingly, the defendant has no colorable double jeopardy claim. Although the defendant has framed his issue in terms of a double jeopardy violation, he actually is claiming that because his conviction as an accessory is illegal, his sentence is necessarily illegal. For that reason, he claims that Practice Book § 43-22 is the proper procedural vehicle for challenging that illegal sentence.

“[A] challenge to the legality of a sentence focuses not on what transpired during the trial or on the underlying conviction. In order for the court to have jurisdiction over a motion to correct an illegal sentence after the sentence has been executed, the sentencing proceeding, and not the trial leading to the conviction, must be the subject of the attack.” State v. Lawrence, 281 Conn. 147, 158-59, 913 A.2d 428 (2007).”

In the present case, the defendant’s claim, by its very nature, presupposes an invalid conviction. The defendant does not claim that the sentence he received exceeded the maximum statutory limits prescribed for the crime for which he was convicted. He also does not claim that he was denied due process at his sentencing hearing or that his sentence is ambiguous or internally contradictory. If the defendant’s claim were to fall into any of those categories, Practice Book § 43-22 would be the proper vehicle by which he could invoke the trial court’s jurisdiction. Because the defendant’s claim falls outside that set of narrow circumstances in which the court retains jurisdiction over a defendant once that defendant has been transferred into the custody of the commissioner of correction to begin serving his sentence, the court lacks jurisdiction to consider the claim pursuant to a motion to correct an illegal sentence under Practice Book § 43-22. See State v. Lawrence, supra, 281 Conn. 159.

We conclude that the defendant’s claim that his sentence is illegal because it violates his constitutional protection against double jeopardy is actually a claim of an improper conviction, which is, in reality, a collateral attack on his conviction and does not fall within the purview of Practice Book § 43-22. The court, therefore, properly dismissed the defendant’s motion to correct his sentence on the ground that it lacked jurisdiction to consider the motion.

The judgment is affirmed.

In this opinion the other judges concurred.

       On December 18, 2006, the defendant filed his pro se motion to correct an illegal sentence. After the court dismissed his motion, he applied for a waiver of fees, costs and expenses, and for the appointment of counsel to prosecute an appeal from that dismissal. On February 26, 2007, the court granted the fee waiver application but denied his request for the appointment of counsel. On March 14, 2007, the defendant filed this pro se appeal.
      After the defendant filed his appeal, our Supreme Court decided State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007). The court held that an indigent defendant is entitled to the assistance of counsel in connection with a claim of an illegal sentence. Appointed counsel is required for the purpose of determining whether a sound basis exists for filing a motion to correct an illegal sentence. If such a basis is found to exist, the appointment of counsel will extend to representing the defendant in the preparation and the filing of the motion and, thereafter, in connection with any direct appeal from the denial of the motion. Id., 627-28.
      On July 26, 2007, this court, sua sponte, issued the following order in this case: “In accordance with State v. Casiano, [supra, 282 Conn. 614], the defendant shall be permitted to file a motion for appointment of counsel within twenty days of this order with the trial court. Should the defendant qualify, counsel will be appointed to: (a) make a determination as to whether there exists a sound basis for filing a motion to correct an illegal sentence and (b) if counsel determines that a sound basis exists, represent the defendant.”
      The defendant did not file a motion for the appointment of counsel with the trial court at any time after this court issued that order. Consequently, he is proceeding pro se in this appeal.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       The issue of subject matter jurisdiction presents a question of law over which our review is plenary. State v. Carmona, 104 Conn. App. 828, 832, 936 A.2d 243 (2007), cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008).

       “The double jeopardy clause of the fifth amendment to the United States constitution, which is applicable to the states through the due process clause of the fourteenth amendment, protects against multiple punishments for the same offense in a single trial. . . . [Our Supreme Court has] also held that the due process guarantees of article first, § 9, of the Connecticut constitution include protection against double jeopardy.” (Internal quotation marks omitted.) State v. Moore, 100 Conn. App. 122, 139, 917 A.2d 564 (2007).

       The defendant’s conviction was affirmed on direct appeal. State v. Wright, supra, 77 Conn. App. 80. This court concluded that “there was ample evidence to support the jury’s finding that the defendant was guilty of murder as an accessory.” Id., 93.

       A valid double jeopardy claim would fall within the purview of Practice Book § 43-22. “[T]he trial court had jurisdiction to alterthe sentence pursuant to Practice Book § 43-22, because otherwise the constitutional prohibition against double jeopardy would have been violated.” State v. Cator, 256 Conn. 785, 804-805, 781 A.2d 285 (2001). In the present case, for the reasons set forth in this opinion, the defendant’s claim is not a colorable double jeopardy claim.


text:
    STATE OF CONNECTICUT v. GARY D. WORKMAN
    (AC 28558)
    Flynn, C. J., and Robinson and McDonald, Js.
    Argued February 5
    officially released April 22, 2008

      Heather A. Abel, senior assistant public defender, for the appellant (defendant).

      Melissa Patterson, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Tatiana Messina, deputy assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Gary D. Workman, appeals from the judgment of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that (1) the evidence was insufficient to support a finding of a violation of probation, and (2) the court abused its discretion in revoking his probation and sentencing him to two years incarceration. We affirm the judgment of the trial court.

The following procedural history and facts are relevant to the defendant’s appeal. On April 13, 2005, the defendant was sentenced to five years incarceration, execution suspended, and three years of probation after being found guilty of attempt to commit larceny in the first degree in violation of General Statutes §§ 53a-49 and 53a-122, and two counts of forgery in the second degree in violation of General Statutes § 53a-139. On the day of his sentencing, the defendant met with an intake assistant for the Bridgeport office of adult probation. The defendant reviewed and signed a form setting forth the conditions of his probation. The conditions required, in relevant part, that the defendant report to his probation officer as directed, inform the officer of his whereabouts and any changes in his contact information, and make restitution in the amount of $1820.92 to Hudson Bank, which was to be paid in monthly installments within the first two years of his probation.

On April 29, 2005, the defendant’s probation officer, Moses Santiago, sent a letter to a shelter on Jessup Avenue in Westport, the only address that the defendant had provided, instructing the defendant to report to the office of adult probation on May 12, 2005. On the same day, Santiago telephoned the Interfaith Housing Program, which operated the Jessup Avenue shelter, in an attempt to locate the defendant. Staff members informed Santiago that the defendant did not reside at the Jessup Avenue address. They provided Santiago a Bridgeport address for the defendant and also suggested that Santiago search for the defendant at a day drop-off center in Norwalk. Santiago was unable to locate the defendant. The defendant did not report to the office of adult probation on May 12, 2005. Santiago requested that an arrest warrant be issued for the defendant for violation of probation on May 20, 2005. The defendant was arrested on May 30, 2005.

A violation of probation hearing was held on December 1, 2006, and, following the presentation of evidence, the court found that the state had established by a fair preponderance of the evidence that the defendant had failed to report in violation of the terms of his probation. The court also determined that the beneficial purposes of probation had been exhausted, and it imposed a sentence of two years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to support a finding of a violation of probation. He argues that the state did not present any evidence to show that he had notice to report or that he failed to notify the probation office of his whereabouts. He maintains that he was homeless during the beginning of his probation and that once he obtained permanent residence, he sent his contact information by letter to the probation office in Norwalk. We disagree.

A revocation of probation hearing has two components and two purposes. First, a trial court must make a factual determination as to whether a probationer has violated a condition of his probation. State v. Durant, 94 Conn. App. 219, 227, 892 A.2d 302 (2006), aff'd, 281 Conn. 548, 916 A.2d 2 (2007). “To support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation. ... In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination that a condition of probation has been violated only if we determine that such a finding was clearly erroneous. . . . A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) State v. Fowler, 102 Conn. App. 154, 165-66, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007).

At the revocation of probation hearing, the defendant testified that he had never received the notice to report. He maintained that he had sent letters to the office of probation at the Norwalk courthouse to update his contact information. The only letter that was produced at the hearing, however, was a letter addressed to the bail commissioner, dated October 3, 2005, almost five months after the defendant’s arrest. The defendant acknowledged that it was reasonable to expect correspondence from the probation office to be sent to the Jessup Avenue address because that was the only mailing address he provided. In addition, the defendant testified that when Santiago attempted to contact him in May, 2005, he still was residing at the Jessup Avenue shelter “[o]ff and on.” When asked by the court whether he had access to any telephone that he could have used to contact the office of adult probation, the defendant testified that he did not. Thus, the defendant failed to provide any evidence to support his testimony that he notified the probation office of his whereabouts in May, 2005. He also admitted that he failed to make restitution payments because he could not obtain employment. Furthermore, the state presented evidence that the defendant failed to report to or contact the office of adult probation by mail or by telephone, and that despite all his efforts, Santiago could not locate the defendant. On the basis of our review of the record, we conclude that the evidence supports the court’s finding that the defendant violated the terms of his probation.

n

The defendant next claims that the court abused its discretion in revoking his probation and sentencing him to two years incarceration. In support of his claim, the defendant asserts that he was not given the “opportunity to benefit from the propose of probation . . . .” He argues that because Santiago instituted violation of probation proceedings “almost immediately” after the term of his probation began on April 13, 2005, “[t]here was no opportunity for the court to make the determination as to [whether] the beneficial aspects of probation are no longer served.” The defendant further maintains that “ [b]y imposing the two year sentence on [the defendant], a grave injustice has been done.” We conclude that the court did not abuse its discretion.

As a preliminary matter, we set forth the legal principles and the standard of review pertinent to our discussion. “If a violation [of probation] is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. ... On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination the trial court is vested with broad discretion. ... In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender .... The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public. . . .

“The standard of review of the trial court’s decision at the sentencing phase of the revocation of probation hearing is whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Bryant, 98 Conn. App. 602, 606, 910 A.2d 243 (2006), cert. denied, 281 Conn. 909, 916 A.2d 52 (2007).

Our review of the record reveals that the court properly considered whether the beneficial aspects of the defendant’s probation were being served. The court had before it evidence of the defendant’s history of criminal convictions for larceny and forgery in Connecticut and in Iowa. It considered Santiago’s testimony that the defendant failed to report to or contact the office of adult probation as well as the defendant’s testimony that he never received his notice to report and that he sent letters to the probation office. Ultimately, it was within the province of the court, as the trier of fact, to “weigh the conflicting evidence and to determine the credibility of the witnesses”; (internal quotation marks omitted) State v. Marcisz, 99 Conn. App. 31, 36, 913 A.2d 436, cert. denied, 281 Conn. 922, 918 A.2d 273 (2007); and it concluded that “[the defendant] just didn’t report. [He] didn’t do anything. So, the beneficial purposes of probation have been exhausted.” Finally, the court’s sentencing of the defendant to two years incarceration when he was exposed to five years incarceration indicates that the court balanced the defendant’s liberty interests and the rehabilitative purposes of probation against the need to protect the public. See State v. Bryant, supra, 98 Conn. App. 608.

The judgment is affirmed.

In this opinion the other judges concurred.

       Even though the defendant was to be monitored by Santiago at the probation office in Bridgeport, the defendant testified that he sent correspondence to the Norwalk courthouse because he believed that was where he would be monitored.

       During his closing argument, defense counsel clarified that the letter dated October 3, 2005, was a letter to ask for a continuance regarding a court appearance and not to contact anybody about probation.


text:
    STATE OF CONNECTICUT v. MARK J. DESPRES
    (AC 27523)
    McLachlan, Harper and Peters, Js.
    Submitted on briefs February 19
    officially released April 22, 2008

      Mark J. Despres, pro se, the appellant (defendant), filed a brief.

      Michael L. Regan, state’s attorney, Timothy F. Costello, deputy assistant state’s attorney, and Lawrence J. Tytla, supervisory assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

PER CURIAM.

The pro se defendant, Mark J. Despres, appeals from the denial of his motion to correct an illegal sentence filed pursuant to Practice Book § 43-22.

The defendant originally was charged with capital felony and conspiracy to commit murder in connection with the murder for hire of Anson B. Clinton III on March 10, 1994. On May 6, 1997, the defendant pleaded guilty to murder and conspiracy to commit murder pursuant to a plea agreement. As part of the plea agreement, the state agreed to enter a nolle prosequi as to the capital felony charge. The trial court accepted the pleas and imposed concurrent sentences of forty-five years of imprisonment on each charge.

On appeal, the defendant raises six issues. We agree with the state’s characterization of those issues as follows: (1) whether the defendant’s conviction and sentence for both murder and conspiracy to commit murder violate his constitutional protection against double jeopardy, (2) whether the defendant’s federal constitutional right to a grand jury extends to criminal proceedings in Connecticut state courts, (3) whether the court had jurisdiction to accept the defendant’s pleas and impose sentence because he was not indicted by a grand jury, and (4) whether the statutes modifying Connecticut’s grand jury procedures and establishing probable cause hearings are constitutionally defective. We affirm the judgment of the trial court.

We find no merit to the defendant’s claim that his fifth amendment protection against double jeopardy was violated by his conviction of both conspiracy to commit murder and murder. It has been settled law in Connecticut, at least since 1981, that being convicted of a principal crime and conspiracy to commit that crime does not violate double jeopardy principles because the elements of conspiracy requiring an agreement to commit the crime, plus an act in furtherance of the crime, are separate and distinct from the substantive crime itself. State v. Johns, 184 Conn. 369, 378-79, 439 A.2d 1049 (1981).

As to the defendant’s claim that he had a fifth amendment right to a grand jury, we note that the United States Supreme Court has determined that this requirement applies only to federal prosecutions and is not applicable to the states. See Hurtado v. California, 110 U.S. 516, 534-35, 4 S. Ct. 111, 28 L. Ed. 232 (1884). Our Supreme Court has also recognized this principle. State v. Couture, 194 Conn. 530, 548-49, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

We have carefully examined the balance of the defendant’s claims on appeal, and we find that they have no merit.

The judgment is affirmed.

       This motion and appeal were filed by the defendant pro se. After the filing of his appellate brief, our Supreme Court decided State v. Casiano, 282 Conn. 614, 922 A.2d 1065 (2007) (holding defendant has right to appointment of counsel to determine if motion to correct illegal sentence has sound basis). At the defendant’s request, the trial court then appointed counsel, who reviewed the defendant’s claims to determine if a sound basis existed for filing the appeal. See id., 627-28. After counsel’s report, which concluded that “no sound basis exists for litigating” the appeal, counsel's appointment was terminated.

       A complete statement of the facts of the underlying crime is set forth by the Supreme Court in its review of the conviction of Beth Ann Carpenter. See State v. Carpenter, 275 Conn. 785, 789-92, 882 A.2d 604 (2005), cert. denied, 547 U.S. 1025, 126 S. Ct. 1578, 164 L. Ed. 2d 309 (2006).