author: Spallone, J.

text:
    Gennarini Construction Company, Inc. v. Messina Painting and Decorating Company
    (5106)
    Spallone, Daly and Norcott, Js.
    Argued March 10—
    decision released August 16, 1988

      Sharon Wicks Domfeld, for the appellant (defendant).

      Ernest C. LaFollette, for the appellee (plaintiff).
   Spallone, J.

The defendant appeals from the trial court’s denial of its postjudgment motion for supplemental interest and attorney’s fees, filed pursuant to General Statutes § 49-41a. We find no error.

The facts pertinent to this appeal, and a recounting of the procedural maze this case has traversed, are as follows. The plaintiff, Gennarini Construction Company, Inc., and the defendant, Messina Painting & Decorating Company, were, respectively, the general contractor and a painting subcontractor performing work on a public works project in Danbury. A dispute arose between the parties over amounts the defendant claimed due under the subcontract. In November of 1983, pursuant to the contract, the dispute was submitted to arbitration.

The defendant prevailed in the arbitration proceedings and, in conformity with the submission, was accorded the appropriate awards on February 3, 1984.

On March 5, 1984, the plaintiff filed an application in the Superior Court to vacate the award. On the next day, the defendant filed a motion to confirm the award. Incorporated in the defendant’s motion was a proposed order which read in pertinent part: “Upon the foregoing application seeking confirmation of the Arbitrator’s award referred to therein, it is hereby ordered that said award be confirmed and a supplemental award of interest and attorney’s fees be granted in the amount of $__”

On June 1, 1984, the defendant filed a separate motion for order, again seeking supplemental interest and attorney’s fees for its defense of the application to vacate the arbitrator’s award.

On September 20,1984, the court, Meadow, J., filed a memorandum of decision and judgment entered thereon. On that same date, the court signed the order annexed to the March 6, 1984 motion to confirm, but the portion which ordered that “a supplemental award of interest and attorney’s fees be granted” was stricken. The judgment, therefore, denied the plaintiff’s application to vacate and confirmed the existing award in favor of the defendant.

On October 8, 1984, the plaintiff filed an appeal of that judgment to this court. On October 9, 1984, the defendant, not knowing that an appeal had been taken by the plaintiff, filed yet another motion for an order of supplemental interest and attorney’s fees for its successful defense of the plaintiff’s motion to vacate the arbitrator’s award. The trial court, Zoarski, J., concluding that the taking of an appeal by the plaintiff precluded it from addressing the defendant’s postjudgment motion, withheld decision and recommended that the defendant reclaim the motion after the conclusion of the appeal. The defendant seemingly acquiesced to the court’s refusal to rule on the motion.

During the presentation of the plaintiff’s appeal to this court, the defendant filed a preliminary statement of issues; see Practice Book § 4013; raising the claim that the trial court erred in its failure to award it the supplemental monies it sought. By decision issued in August, 1985, this court found no error in the affirmanee of the arbitration award by the trial court. Gennarini Construction Co. v. Messina Painting & Decorating Co., 5 Conn. App. 61, 496 A.2d 539 (1985) (Gennarini I). This court, however, declined to address the defendant’s claim of error concerning the supplementary award on the ground that the issue was not properly raised.

Soon after the release of Gennarini I, the defendant returned to the trial court and reclaimed the October 9, 1984 motion for order which had been passed. Oral argument was held before the trial court, Maiocco, J., on October 7,1985. Not having received any response concerning the outcome of this argument, the defendant again reclaimed the motion on April 11,1986. Four days later, the defendant was notified, via a notation on the claim slip, that the motion for order had been denied by the court, Maiocco, J., on February 3, 1986. The defendant filed this appeal from the denial of its motion on May 2, 1986.

On March 26, 1987, in response to a directive from this court, the trial court issued a memorandum of decision articulating the basis for its denial of the motion for order. In the memorandum, the court expressly stated that it was “satisfied that the subject matter of fees and interest, whether prior to or subsequent to the arbitrator’s decision, was fully before the trial court, [Meadow, J.,] and that the trial court, in effect, rejected the defendant’s request to supplement the arbitrator’s award, by confining its determination to a confirmation of the particular award itself.”

This decision clearly indicates that Judge Maiocco, on the basis of the record before him, determined that the issue of supplemental fees had been fully presented to and decided by Judge Meadow, and thus, the defendant was barred under the doctrine of res judicata from raising this claim once again.

The dispositive issue of this appeal, therefore, is whether Judge Maiocco properly decided that the defendant was foreclosed from litigating its claim that it was entitled to supplemental fees. We conclude that he did.

“The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. State ex rel. Campo v. Osborn, 126 Conn. 214, 218, 10 A.2d 687 (1940); 46 Am. Jur. 2d, Judgments § 394, pp. 558-59. The doctrine is but a manifestation of the recognition that endless litigation leads to confusion or chaos. To prevent multiplicity of actions equity will enjoin further litigation of a cause of action which has already been adjudicated. Local 1219 v. Connecticut Labor Relations Board, 171 Conn. 342, 355, 370 A.2d 952 (1976). If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made. Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 196, 91 A.2d 778 (1952).” Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559-60, 436 A.2d 24 (1980).

The first determination to be made is whether this claim was properly raised and decided on its merits before Judge Meadow. We agree with the trial court’s finding that the issue of supplemental attorney’s fees for the defense of the plaintiff’s motion to vacate the arbitration award was raised explicitly in the first action in the Superior Court. Not only was a demand made in the body of the motion to confirm the arbitration award which the defendant filed on March 5,1984, but a second, independent request was made for this award approximately three months later. See footnote 4, supra. We do not doubt that Judge Meadow was aware of the claim the defendant was making. Considering the court’s awareness of the requested award, the affirmative act of striking from its order any reference to supplemental attorney’s fees is seen more clearly as a denial of the request on its merits than as an unconscious removal of surplusage in the order. Given these conclusions, we must affirm Judge Maiocco’s finding that the defendant was barred from litigating this issue a second time. See State v. Aillon, 189 Conn. 416, 423-26, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983) (Aillon IV); Cain v. Moore, 182 Conn. 470, 473-74, 438 A.2d 723 (1980), cert. denied, 454 U.S. 844, 102 S. Ct. 157, 70 L. Ed. 2d 129 (1981); Wade’s Dairy, Inc. v. Fairfield, supra, 559-61; Bernstein v. Busker, 4 Conn. App. 541, 544, 495 A.2d 737, cert. denied, 197 Conn. 817, 500 A.2d 1337 (1985).

In its presentation of this case on appeal, the defendant apparently disregards the effect of the res judicata doctrine and entreats us to decide the merits of its claim. This we will not do.

By arguing that it is entitled to the fees it seeks pursuant to General Statutes § 49-41a, the defendant attacks not the judgment of Judge Maiocco, who never reached this issue, but rather the 1984 decision of Judge Meadow. This amounts to no more than an impermissible collateral attack of that first judgment.

A collateral attack is an attack upon a judgment, decree or order offered in an action or proceeding other than that in which it was obtained, in support of the contentions of an adversary in the action or proceeding, as where the judgment is offered in support of a title or as a foundation for applying the doctrine of res judicata. 46 Am. Jur. 2d, Judgments § 630; see also F. James, Civil Procedure § 11.5, p. 533-34.

“We have strongly disfavored collateral attacks upon judgments because such belated litigation undermines the important principle of finality. Vogel v. Vogel, 178 Conn. 358, 362, 422 A.2d 271 (1979); Jensen v. Nationwide Mutual Ins. Co., 158 Conn. 251, 260, 259 A.2d 598 (1969). ‘ “ ‘The law aims to invest judicial transactions with the utmost permanency consistent with justice .... Public policy requests that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown. . . ’ Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952), quoting 1 A. Freeman, Judgments (5th Ed.) § 305, pp. 602-603.” Meinket v. Levinson, 193 Conn. 110, 113, 474 A.2d 454 (1984). Such an attack on a prior judgment will prevail only if it can be shown that the judgment is void, as for want of jurisdiction; “mere error” will not suffice. F. James, supra, § 11.5, p. 534; 1 A. Freeman, Judgments (5th Ed.) §§ 357-372, pp. 742-79.

The defendant has not challenged the competency of the original trial court which ruled on the motion to confirm the arbitration award. Inasmuch as the defendant claims only judicial error, we conclude that sufficient opportunities have been afforded the defendant to make a direct attack on Judge Meadow’s decision. Whereas the defendant did not take advantage of these options, exemplified by its failure to cross appeal from that judgment in Gennarini I, see footnote 6, supra, it cannot now be heard to complain. “A case cannot be presented by halves. In the event of an appeal to this court an appellee must be prepared to have the case decided with reference to all facts on the record presented for determination by either party. Coughlin v. McElroy, 72 Conn. 444, 447-48, 44 A. 743 [1899].” Nowell v. Nowell, 163 Conn. 116, 122, 302 A.2d 260 (1972). The defendant should have been more diligent in ensuring that it had properly protected its rights. See, e.g., Lashgari v. Lashgari, 197 Conn. 189, 200, 496 A.2d 491 (1985); Glemboski v. Glemboski, 184 Conn. 602, 606-607, 440 A.2d 242 (1981); Vogel v. Vogel, supra, 361; Doran v. Doran, 3 Conn. App. 277, 282-83, 487 A.2d 1106 (Borden, J., dissenting), cert. denied, 195 Conn. 804, 491 A.2d 1104 (1985); cf. Beccia v. Waterbury, 192 Conn. 127, 131-32, 470 A.2d 1202 (1984) (party not foreclosed from raising for first time on remand an alternate basis for affirmance of judgment when first judgment vacated and case remanded).

Because our decision on the res judicata issue is dis-positive of this appeal, we need not address the defendant’s substantive claims. We will leave the question of the availability of attorney’s fees pursuant to General Statutes § 49-41a for determination at a more appropriate time and in a more appropriate case where the issues have been properly presented.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 49-41a. enforcement of payment by general CONTRACTOR TO SUBCONTRACTOR AND BY SUBCONTRACTOR TO HIS SUBCONTRACTORS. (a) When any public work is awarded by a contract for which a payment bond is required by section 49-41, the contract for the public work shall contain the following provisions: (1) A requirement that the general contractor, within thirty days after payment to the contractor by the state or a municipality, pay any amounts due any subcontractor, whether for labor performed or materials furnished, when the labor or materials have been included in a requisition submitted by the contractor and paid by the state or a municipality ....
      “(b) If payment is not made by the general contractor or any of its subcontractors in accordance with such requirements, the subcontractor shall set forth his claim against the general contractor and the subcontractor of a subcontractor shall set forth its claim against the subcontractor through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor, and the subcontractor shall be liable to its subcontractor, for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor, or the subcontractor, upon written demand of its subcontractor, shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interest-bearing escrow account in a bank in this state, provided the general contractor or subcontractor may refuse to place the funds in escrow on the grounds that the subcontractor has not substantially performed the work according to the terms of his or its employment. In the event that such general contractor or subcontractor refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorney’s fees of such party.”

       The following submission was made to the arbitrator:
      “1. Does Gennarini Construction Co., Inc., owe Messina Painting & Decorating Co. any money pursuant to a subcontract entered into on December 1,1982 for painting work on the Old Danbury Jail Rehabilitation Project? If so, how much money does Gennarini owe Messina?
      “2. Does the Arbitrator have authority to enter a remedy under Section 49-41a (b) of the General Statutes? If so, should the statute be applied in this case and, if so, what shall the remedy be?”

       In its decision, the arbitrator made the following awards:
      “1. Gennarini Construction Co., Inc., does owe Messina Painting & Decorating Co. money pursuant to a subcontract entered into on December 1,1982 for painting work on the Old Danbury Jail Rehabilitation Project. Gennarini owes Messina $4874.42, plus $250 for caulking work added to the subcontract price by mutual agreement, for a total of $5124.42.
      “2. The Arbitrator does have authority to enter a remedy under Section 49-41a (b) of the General Statutes. That statute should be and is hereby applied in this case. In addition to the amounts specified in my Award with respect to the first issue, set forth above, I hereby direct Gennarini to pay Messina the sum of $358.71 representing interest and $2969 representing reasonable fees of an attorney.”

       The record indicates that this individual motion for an award of supplemental attorney’s fees and interest was never decided.

         By agreement of the parties, the plaintiff’s motion to vacate and the defendant’s motion to confirm were heard and decided together by the trial court.

       The defendant’s failings on appeal were explicitly discussed in Gennarini I: “We do not address the merits of the defendant’s claim that the trial court erred in failing to award supplemental interest and attorney’s fees under General Statutes § 49-41a (b). The defendant did not file a cross appeal raising this issue. Practice Book § [4005]; and the claim is not properly before us. Connecticut National Bank v. Nagy, 2 Conn. App. 448, 449, 479 A.2d 1224 (1984). The defendant claims that there was no judgment or decision from which it could properly cross appeal under Practice Book § [4005] because the trial court did not rule on the issue of supplementary interest and attorney’s fees in its memorandum of decision and because the court ‘passed’ the issue pending this appeal when the defendant filed a postjudgment ‘Motion for Order’ requesting a particular financial award. The trial court’s failure to rule on this issue, however, did not authorize the defendant to disregard the rules of court; rather, the defendant’s remedy was to use the rules of practice to secure a ruling by the trial court on this issue, for this court to review.
      “A motion for rectification addressed to the trial court pursuant to Practice Book § [4051], followed by a motion to review addressed to this court under Practice Book § [4054], if necessary, would have been' appropriate. Alternatively, the defendant could have requested that this court order the trial court to complete the record pursuant to Practice Book §§ [4183] and [4053]. Since the defendant did not follow any of these procedures, the issue is not a proper subject of review for this court. Connecticut National Bank v. Nagy, supra, 449.” (Footnotes omitted.) Gennarini Construction Co. v. Messina Painting & Decorating Co., 5 Conn. App. 61, 66-67, 496 A.2d 539 (1985).

       Our review of the record and transcripts in this case discloses the possibility that, in addition to the revival of its request for fees expended in defense of its arbitration award in the Superior Court, the defendant was also seeking an award of fees for its successful defense of the award in this court. If this is in fact so, we acknowledge that the request for fees associated with the defense of Gennarini I was raised for the first time before Judge Maiocco and could not, therefore, be barred by the doctrine of res judicata. Our suspicion in this regard, however, can be of no help to the defendant in this appeal. If appellate attorney’s fees were indeed being sought, it is clear from the transcripts that the trial court was not apprised of any possible legal distinctions in the types of recovery requested. In addition, inclusion of a new claim in a motion which has been revived is a questionable procedure in itself and we will not speculate whether the trial court, had it known that two types of recovery were being requested, would have allowed the revival of the old motion. Finally, the defendant has not made this claim in the appeal before us. Although we feel the need to clarify the limits of the judgment rendered by Judge Maiocco, we will not go so far as to decide an issue of our own creation.

       The defendant presented the following issues for our review: “1. Did the Trial Court err in denying an award of supplemental interest and attorney’s fees pursuant to [General Statutes] Sec. 49-41a (b)?
      “2. Does an award of supplemental interest and attorney’s fees include fees incurred in litigating and establishing entitlement to such fees?”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Stanley V. Tucker v. City of Hartford et al.
    (5774)
    Bieluch, O’Connell and Stoughton, Js.
    Submitted on briefs March 17—
    decision released August 16, 1988

      Stanley V. Tucker, pro se, the appellant (plaintiff), filed a brief.

      Richard H. Goldstein, corporation counsel, and Richard M. Cosgrove, deputy corporation counsel, filed a brief for the appellees (defendants).
   O’Connell, J.

The plaintiff is appealing from the judgment of a state trial referee, acting as the trial court, in this tax appeal. He claims (1) that the trial court erred in determining the market value of the three properties which are the subject of this appeal, (2) that the trial court erred in failing to find that the defendants’ failure to rectify the assessments on one property for the years 1979 through 1981, in accordance with the judgment in Hartford v. Tucker, 8 Conn. App. 209, 512 A.2d 944 (1986), constituted fraud and rendered all subsequent assessments on that property null and void, and (3) that the trial court was without power to determine the assessments for the properties in question. We find no error.

The plaintiff is the owner of properties in Hartford located at 65 Amity Street, 69 Amity Street, and 121 Allen Place. The plaintiff brought this action under General Statutes § 12-118 seeking review of the board of tax review’s refusal to reduce the October 1, 1983 tax assessments on the three properties. The plaintiff subsequently amended his complaint, extending the appeals to include the October 1,1984, October 1,1985, and October 1,1986 assessments. In addition, the plaintiff alleged that the 1978 through 1986 assessments of 121 Allen Place were null and void based on an earlier tax appeal brought by the plaintiff; Hartford v. Tucker, supra; and further alleged that the defendants’ failure to comply with that decision constituted fraud. The plaintiff also alleged, pursuant to General Statutes § 12-119, that the 1982 and 1983 tax assessments on the 69 Amity Street and 121 Allen Place properties were manifestly excessive.

The trial court found that the market value of the 69 Amity Street property for the years in question was $20,000 as compared with the assessor’s market value of $11,790, and that the market value of the property at 65 Amity Street for the years in question was $67,000, as compared with the assessor’s market value of $37,500.

With regard to 121 Allen Place, the court found that the judgment in Hartford v. Tucker, supra, set the fair market value to be $86,000 for the years 1978 through 1981 only; it further found the fair market value for 1982 to be $180,000, as compared with the assessor’s valuation of $120,000; it found the market value in 1983 to be $60,000 because of fire damage to the property, as compared with the assessor’s market value of $120,000; and it found the value for the years 1984 through 1986 to be $120,000, in accordance with the assessor’s valuation of $120,000 for those years. The trial court also found that the plaintiff’s allegation of fraud, based on the defendants’ failure to set the assessments as directed by Hartford v. Tucker, supra, for the years 1979 through 1981, was without merit, and that the subsequent assessments were not vitiated due to the defendants’ claimed noncompliance with the remand from this court in that case.

The defendants reduced the assessments on the Allen Place property for the years 1979 through 1981 and 1983, in accordance with the judgment. The defendants have not altered, however, the assessments on any of the three properties for those years in which the market value was found by the trial court to be higher than that set by the city assessor, and the lower assessed values remain in place.

We note that an action pursuant to General Statutes § 12-119 is not directed to bringing about a change in the assessment list, as is an action under General Statutes § 12-118, but is directed to relief against the collection of an illegal tax. Fenwick v. Old Saybrook, 133 Conn. 22, 23-24, 47 A.2d 849 (1946); see also Hartford v. Faith Center, Inc., 196 Conn. 487, 490-91, 493 A.2d 883 (1985); Woodbury v. Pepe, 6 Conn. App. 330, 333, 505 A.2d 723 (1986). This case, however, was handled by both the parties and the trial court as one brought solely under § 12-118. “Where, as here, a case was tried upon a certain theory, we will dispose of the case on the theory on which it was tried and on which the trial court decided it.” Crozier v. Zaboori, 14 Conn. App. 457, 463, 541 A.2d 531 (1988).

The plaintiff first claims error in the trial court’s determination of the market value of the subject properties. The valuation of property for assessment purposes is a question of fact for the trier. Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 607, 424 A.2d 282 (1979). “The trier arrives at his own conclusions as to the value of land by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value.” O’Brien v. Board of Tax Review, 169 Conn. 129, 136, 362 A.2d 914 (1975). “The conclusions reached by the trier must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law.” Id., 133.

This claim of error as to the valuation of the properties amounts to no more than an argument that the trial court should have adopted the valuations presented by the plaintiff’s appraiser. The trial court’s determination of the value of the properties was based on the appraisals offered by both parties as well as a viewing of the subject properties. The court’s conclusions as to the value of the plaintiff’s properties are adequately supported by the evidence and do not depend on an erroneous rule of law. Id.

The plaintiff’s second claim is that the trial court erred in not finding that the defendants’ failure to change the assessments on the Allen Place property for the years 1979 to 1981 in accordance with the decision in Hartford v. Tucker, supra, constituted fraud and rendered all subsequent assessments on that property null and void. Our review of the record indicates that the court’s finding of an absence of fraud is adequately supported by the record and is not clearly erroneous. Under such circumstances, we will not disturb the court’s finding. Practice Book § 4061; Licari v. Blackwelder, 14 Conn. App. 46, 51-52, 539 A.2d 609 (1988). In the absence of fraud, the plaintiff’s claim as to the invalidity of the assessments subsequent to 1981 is meritless.

The plaintiff’s final claim of error is that the court was without power to determine the value of the Amity Street properties. The purpose of an appeal from a decision of the board of tax review is for the trial court to ascertain the true and actual value of the property in question. General Statutes § 12-118; O’Brien v. Board of Tax Review, supra; Dickau v. Glastonbury, 156 Conn. 437, 444, 242 A.2d 777 (1968). That is precisely what the trial court did in this case. There is, therefore, no merit to the plaintiffs claim.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 12-118 provides: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. . . . The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and costs. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and costs. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

       General Statutes § 12-119 provides: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of a summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the superior court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”


author: Stoughton, J.

text:
    State of Connecticut v. Michael J. Marsala
    (6088)
    Bieluch, O’Connell and Stoughton, Js.
    Argued March 16—
    decision released August 16, 1988

      Burton M. Weinstein, with whom, on the brief, was Richard Emanuel, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Gary W. Nicholson, assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant appeals from a judgment of conviction, rendered after a trial to a jury, of the crimes of violating the state dependency producing drug law. The first count of the substituted information charged that the defendant unlawfully sold a narcotic substance in violation of General Statutes § 21a-278 (b), and the second count charged that the defendant possessed a narcotic substance with intent to sell or dispense in violation of General Statutes § 21a-278 (b).

On appeal, the defendant claims that the trial court erred (1) in denying his motion to suppress evidence seized from his person, and (2) in denying his motions for a judgment of acquittal which he filed on the ground that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

During the hearing on the defendant’s motion to suppress, the trial court could reasonably have found the following facts: On October 1, 1986, Monroe police officers obtained a warrant to search a house at 154 Swendsen Drive, which was occupied by the defendant and several others, and to search the defendant’s person for narcotics and other substances. Several police officers, including Officers Rudolph D’Ambrosia and Michael Chacho who signed the affidavit supporting the issuance of the search warrant, went to the vicinity of the house and conducted a surveillance in the hope of arresting the defendant in the act of making a narcotics sale. D’Ambrosia watched from a window in a house across the street while Chacho was in a police car a few blocks south. There also were officers in another car a few blocks north. There was radio communication between the officers.

At approximately 5 p.m., D’Ambrosia saw two people arrive at the house separately, sit with the defendant on the porch for about one-half hour, and then depart together. At approximately 6 p.m., a young man drove up in a red Pontiac. The car stopped in front of the house and the defendant emerged from the house and walked to the car. D’Ambrosia observed the defendant lean or reach into the car and then walk back to the house.

D’Ambrosia called in the other police officers and they arrived within moments. Officer Michael Rinaldi walked up to the defendant, handed him a copy of the warrant and patted him down for weapons and contraband. Rinaldi found two $20 bills and two small packets of cocaine in the defendant’s front left pocket. The operator of the red Pontiac, David Savirne, was searched by other officers and was found to have nothing in his possession but a small packet of cocaine and pocket change.

The affidavit supporting the application for the search warrant recited the following information. A named police officer from Trumbull notified the Monroe police that the defendant was a heavy seller of cocaine and other illegal drugs. The police also had received a telephone call from a resident of Swendsen Drive reporting that he had seen what appeared to be drug activity at 154 Swendsen Drive, that he had seen many vehicles drive up to the house, and that a bearded man would come from the house to each vehicle and engage in some sort of transaction. In light of the above reports, Monroe police officers drove by the house several times each day and evening over a period of time and observed numerous vehicles occupied by young males in front of the house as well as a man walking between the house and the vehicles. Additionally, a confidential informant spoke to a Monroe police officer about drug trafficking at 154 Swendsen Drive and gave the police a list of registration numbers of vehicles that he had frequently seen there engaging in similar transactions with the man from the house. On September 29, 1986, this confidential informant told the police that the activity at 154 Swendsen Drive the previous weekend had been particularly heavy. On September 23, 1986, a police officer told Chacho that another informant had told him that he was aware of a man named Mike on Swendsen Drive who was selling cocaine to young people who drove up to the front of the house. The following day a resident of Swendsen Drive phoned Chacho and expressed concern about the activity in front of 154 Swendsen Drive.

The trial court granted the defendant’s motion to suppress the evidence seized from the house under the authority of the search warrant, finding that there was nothing in the affidavit from which the issuing judge could have determined the basis of knowledge of the two informants and nothing in the observation of the defendant’s activities set forth in the affidavit which served to corroborate the information. The court, however, denied the defendant’s motion to suppress evidence seized from his person, reasoning that D’Ambrosia, one of the affiants, had set up a surveillance, and that his own observations at Swendsen Drive corroborated the information that he had received. The court determined that this combined information constituted probable cause to arrest the defendant.

I

The defendant first claims that the court erred in denying his motion to suppress evidence seized from his person on two separate, theories. His first line of attack is that the search in which the evidence was discovered was actually conducted pursuant to an invalid warrant, and thus suppression is required. The defendant also claims that the search preceded the defendant’s arrest, rather than being conducted pursuant to it, and that there was no legal justification for the warrantless search or arrest of the defendant.

It is beyond dispute that the trial court found that the warrant executed upon the person and residence of the defendant was fatally defective in that the underlying affidavit lacked the requisite indicia of reliability and basis of knowledge. The state concedes this and attempts to justify the seizure of the cocaine on two separate theories: (1) the “good faith” exception to the exclusionary rule as enunciated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) and Massachusetts v. Sheppard, 468 U.S. 981, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984); and (2) the investigative stop doctrine as set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

We agree with the defendant insofar as he maintains that the court erred in finding that probable cause existed for his arrest and, hence, that the cocaine was discovered pursuant to a valid search incident to a valid arrest. Accepting that the affidavit, standing alone, was insufficient to establish probable cause for the defendant’s arrest, it is apparent that when the police undertook further surveillance, they only observed further activity of the sort set forth in the warrant. No other activity consistent with a narcotics transaction occurred. The police merely acquired more information of the same quality; nothing added to nothing still yields nothing. There was no probable cause for the defendant’s arrest.

We are unpersuaded by the state’s contention that the cocaine was discovered during the scope of an investigative stop within the meaning of Terry v. Ohio, supra. Although the affidavit’s numerous allegations taken together with the observed suspicious behavior of the defendant were sufficient to give the officers a reasonable and articulable suspicion that the defendant was engaged in a narcotics transaction, we con-elude that the search conducted here exceeded the scope of limited intrusion allowed in a Terry type “frisk.”

From the testimony adduced at the suppression hearing, Rinaldi approached the defendant and handed him the search warrant. Immediately thereafter, Rinaldi proceeded to “pat [the defendant] down.” He volunteered during direct examination that this was a normal procedure for the safety of himself and others and that he was “checking for both weapons and contraband.”

There is no question that, when an officer entertains a reasonable belief that an individual is armed, he may conduct a limited search of that person to confirm or allay his suspicion during the course of an investigatory stop. Such searches must, however, be confined in their scope to “intrusion(s) reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, supra, 29. In the companion case of Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968), the court held that it was impermissible for an officer to go beyond a limited search for weapons and to reach into a defendant’s pocket and remove envelopes containing heroin. Id., 65. Such searches are not designed to prevent the destruction of evidence. Michigan v. Long, 463 U.S. 1032, 1050 n.14, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). Here, Rinaldi freely admitted he was searching for contraband. There is no indication that he felt anything, let alone the paper envelopes of cocaine, before he put his hands in the defendant’s pockets. There is no merit to this claim.

The state’s argument that the contraband seized pursuant to a search warrant which is later held to be invalid is still admissible under the “good faith” doctrine of United States v. Leon, supra, stands on somewhat different ground. The defendant vigorously urges that this claim is not reviewable owing to certain procedural deficiencies. In brief, the defendant claims that it was incumbent on the state to press the trial court for a ruling on the issue or to except to the trial court’s failure to rule on the issue and thus it should be deemed abandoned. Karls v. Alexander Realty Corporation, 179 Conn. 390, 393 n.1, 426 A.2d 784 (1980); McHugh v. McHugh, 181 Conn. 482, 490 n.4, 436 A.2d 8 (1980). The defendant also claims that this court should refuse to review this claim because the state did not file a preliminary statement of issues under Practice Book § 4013 (a) (1) presenting for review an alternate ground upon which the judgment may be affirmed. Lynch v. Davis, 181 Conn. 434, 437, 435 A.2d 977 (1980); City Council v. Hall, 180 Conn. 243, 247 n.5, 429 A.2d 481 (1980). We disagree.

The record indicates that the state argued that the good faith exception was available should the trial court have determined that the search of the defendant was improper, and it briefed this issue on appeal. The defendant’s reply brief ably addressed this claim and the claim was fully argued before us. See D'Arcy v. Shugrue, 5 Conn. App. 12, 28, 496 A.2d 967, cert. denied, 197 Conn. 817, 499 A.2d 56 (1985). On these facts, there is no prejudice to the appellant. See DiSesa v. Hickey, 160 Conn. 250, 263, 278 A.2d 785 (1971). Therefore, we will review this claim.

In State v. Brown, 14 Conn. App. 605, 543 A.2d 750 (1988), this court held that an exclusionary rule does exist under article first, § 7, of our state constitution and that an exception exists to that rule when police officers act in objective good faith in relying upon a search warrant issued by a detached and neutral magistrate. Id., 632. Unlike Brown, however, the issue of the good faith exception was not decided in the trial court proceeding. Our review of the record indicates that although the state elicited testimony consistent with its good faith argument, the trial court upheld the search of the defendant’s person on a completely different theory and was completely silent as to its conclusions on the state’s good faith argument.

We are not able to determine whether this case fits within the good faith exception as set forth in Brown without a factual determination by the trial court concerning (1) whether the affiants misled the issuing judge within the standards of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), (2) whether the issuing judge wholly abandoned his judicial role as discussed in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L. Ed. 2d 920 (1979), (3) whether the police officers could have had a reasonable belief in the validity of the warrant in light of the indicia of probable cause; Brown v. Illinois, 422 U.S. 590, 610-11, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (Powell, J., concurring); and (4) whether the warrant was so facially deficient in its lack of particularity, regarding the place to be searched or the articles to be seized, that the executing officers, could not reasonably presume it to be valid. United States v. Leon, supra, 923.

We remand the case, therefore, to the trial court for its determination of these issues.

II

The defendant’s second claim is that the evidence produced at trial was insufficient to establish his guilt on both counts beyond a reasonable doubt. Assuming that the evidence discussed earlier was properly admissible, the defendant undertakes to show that with respect to the first count of the information, which charged the defendant with unlawfully selling a narcotic substance, the evidence of a sale was “grossly insufficient.” The defendant also contends that the evidence at trial was insufficient to establish beyond a reasonable doubt his “intent to sell” with respect to the second count of the information. We disagree. We address this claim because depending upon the factual determination to be made by the trial court in light of our earlier finding, the defendant’s sufficiency claim may be relevant.

In all claims involving the sufficiency of evidence, broad deference is to be accorded to the conclusions of the trier of fact. The question to be resolved is whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983); quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Thus, we approach the analysis with a view toward sustaining the verdict of the jury and will affirm the conviction if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Cates, 202 Conn. 615, 627, 522 A.2d 788 (1987); State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984); State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981).

Because we must weigh the cumulative effect of the evidence adduced at trial in this analysis, we address the sufficiency claims as to both counts together. Evidence was presented at trial that indicated a high volume of activity at 154 Swendsen Drive involving the defendant and persons in vehicles which would pull up to his home at numerous times of the day and night. If we assume, arguendo, as does the defendant, that the evidence seized from him was admissible, the jury also had the following facts: (1) two packets of cocaine in a pharmaceutical fold, both one inch by one quarter of an inch and made of torn magazine papers; and (2) two $20 bills. Additionally, evidence was presented at trial to indicate that Savirne, as he attempted to pull away from Swendsen Drive, was found to possess on his person nothing but a small packet of cocaine similar to those seized from the defendant in his right front pocket and “pocket change.” The two packets seized from the defendant weighed 170 mg. and 160 mg., respectively. The packet seized from Savirne weighed 170 mg.

The jury obviously inferred from the above facts that Savirne drove up to 154 Swendsen Drive and had obtained the packet of cocaine from the defendant in exchange for some or all of the money found in the defendant’s pocket. Similarly, the jury also obviously inferred that the two packets of cocaine seized from the defendant were being held by the defendant for purposes of sale in much the same manner as the transaction which had occurred between the defendant and Savirne was conducted. We must determine whether these inferences were so unreasonable that the verdict cannot be supported. State v. Baskins, 12 Conn. App. 313, 317, 530 A.2d 663 (1987).

We conclude that these inferences were permissibly drawn. “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” Id., quoting State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985). The jury could have reasonably concluded, on the basis of the testimony concerning the pattern and frequency of the defendant’s activities and the evidence seized from his person and from Savirne that the defendant was engaged in the sale of narcotics to the occupants of vehicles which would drive up to his home. We find no merit to the defendant’s claim that the evidence was insufficient to establish guilt beyond reasonable doubt.

There is error and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendant made two such motions, an oral motion at the close of the state’s case and a written motion after the verdict which was denied on the day of sentencing.


author: O'Connell, J.

text:
    Carmen Rivera v. Gilbert Rivera
    (5817)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued May 6—
    decision released August 16, 1988

      Earl I. Williams, with whom, on the brief, was Randy Lynn Cohen, for the appellant (defendant).

      Jean L. Welty, for the appellee (plaintiff).
   O'Connell, J.

This is the defendant’s appeal from a judgment dissolving the parties’ marriage. The defendant claims that the court erred in refusing to admit into evidence tapes of illegally intercepted telephone conversations. We find no error.

The following facts are necessary to the resolution of this appeal. In February, 1986, the defendant husband placed a recording device on the telephone line of the family home and recorded conversations between his wife and a third party. The defendant sought to introduce tapes of the recorded conversation as part of his case-in-chief on the issue of fault, and alternatively for impeachment purposes as evidence of prior inconsistent statements. The court refused to admit these tape recorded conversations into evidence for any purpose.

General Statutes § 52-184a provides that “[n]o evidence obtained illegally by the use of any electronic device is admissible in any court of this state. ” (Emphasis added.) General Statutes § 53a-187 (a) defines wiretapping as “the intentional . . . recording of a telephonic . . . communication by a person other than a sender or receiver thereof, without the consent of either the sender or receiver, by means of any instrument, device or equipment.” General Statutes § 53a-189 makes wiretapping a class D felony known as eavesdropping. It is abundantly clear that the tapes at issue were made illegally and that their introduction into evidence was expressly barred by the language of § 52-184a.

The defendant argues that General Statutes § 53a-187 (b), which exempts law enforcement officers from the eavesdropping proscription, makes illegally obtained tapes admissible in all cases except eavesdropping prosecutions. A plain reading of § 53a-187 (b), however, does not support this contention. Section 53a-187 (b) simply declares that the eavesdropping statutes do not “affect the admissibility of evidence in any proceeding other than a prosecution for eavesdropping.” It is readily apparent that in order to pursue an eavesdropping prosecution, the unlawful tapes must be introduced in evidence. The clear purpose of the exemption set forth in General Statutes § 53a-187 (b) is the reverse of that contended by the defendant. Section 53a-187 (b) allows the introduction of illegal tapes into evidence in eavesdropping prosecutions while not interfering with the general prohibition of § 52-184a.

The defendant’s reliance on cases from other jurisdictions in an effort to impose an interspousal exception on Connecticut’s wiretap law is unavailing. We decide this case by construction of our own exclusionary statute, General Statutes § 52-184a, a counterpart of which was not in effect in the other jurisdictions when their decisions were rendered.

The trial court was correct in refusing to admit tapes of illegally intercepted telephone conversations into evidence.

There is no error.

In this opinion the other judges concurred.

       The trial court appears to have found that the third party was not a paramour of the plaintiff wife.

       General Statutes § 53a-189 provides: “(a) A person is guilty of eavesdropping when he unlawfully engages in wiretapping . . . of a conversation. (b) Eavesdropping is a class D felony.”

       General Statutes § 53a-187 (b) provides in pertinent part: ‘‘This section and sections 53a-188 and 53a-189 shall not apply to wiretapping by criminal law enforcement officials in the lawful performance of their duties and do not affect the admissibility of evidence in any proceedings other than a prosecution for eavesdropping . . . .” (Emphasis added.)


author: Dupont, C. J.

text:
    State of Connecticut v. Charles Mendez
    (5892)
    Dupont, C. J., Spallone and O’Connell, Js.

      Argued May 4—
    decision released August 16, 1988

      Donald D. Dakers, public defender, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant is appealing from a judgment of conviction, rendered after a jury trial, of the crimes of assault in the first degree, in violation of General Statutes § 53a-59 (a) (1), attempted assault in the first degree, in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49, and burglary in the third degree, in violation of General Statutes § 53a-103 (a). The defendant claims that the trial court erred (1) in permitting the state’s expert witness to testify as to his opinion concerning an ultimate issue of fact, (2) in excluding from evidence certain medical records of the defendant, (3) in its jury instructions regarding the identification evidence adduced at trial, (4) in failing to charge the jury as requested concerning the defendant’s alleged intoxication at the time the crimes were committed, and (5) in failing to find that the state’s actions during closing argument constituted intentional prosecutorial misconduct. We find no error.

The jury could reasonably have found certain relevant facts. Two Yale University security officers, Mark Ciarciello and Barbara Morton, were on patrol when they observed a man pushing a shopping cart filled with clothing, a radio and stereo equipment. While questioning the individual as to where he had obtained these items, the officers observed that his rear pocket contained several sharpened screwdrivers and what appeared to be a handle of either a hatchet or a hammer. The officers ordered the individual to put his hands over his head to allow them to examine the contents of his pocket. A scuffle ensued during which the individual grabbed Ciarciello’s revolver and proceeded to fire upon the officers, striking Ciarciello three times in the back of his left thigh and once in the right leg, and wounding Morton in the right arm. The assailant then fled the scene.

The New Haven Salvation Army store had been burglarized earlier that same evening. An employee of the store identified the items contained in the shopping cart as having been stolen from the store. The defendant had been a resident of a Salvation Army shelter during the prior six months and had worked intermittently at the store during that time period. The defendant had worked in the store on the day the burglary occurred and had helped process the items that were taken. After the date of the burglary, the defendant did not report to work and never returned to the store. Outside the store the police located a plastic turntable dustcover on which the defendant’s fingerprints were found. After his arrest, the defendant admitted to the police that he had perpetrated the Salvation Army burglary and had shot the officers, but claimed that he had been intoxicated at the time he committed these acts. At his trial, the defendant presented two distinct but inconsistent theories of defense. He claimed that his identity as the assailant had not been proven beyond a reasonable doubt, and that, if it were, he could not be found guilty because of his intoxication.

Following the shooting, both officers viewed a photographic array but were unable to select any photograph as that of their assailant. Subsequent to the defendant’s arrest, however, both officers viewed a second photographic array and identified the defendant’s photograph as that of their assailant. Ciarciello testified that prior to his identification of the defendant in the second photographic array, he had viewed a single old police photograph of the defendant. Ciarciello could not recall the precise circumstances under which he viewed the single photograph but he believed it was displayed to him by a police officer. Both officers subsequently identified the defendant in court. The trial court denied the defendant’s motion to suppress Ciarciello’s photographic identification and in-court identification of the defendant. The court found that although Ciarciello’s viewing of the single photo rendered the identification unnecessarily suggestive, the identification was reliable under the totality of the circumstances.

The defendant’s first claim is that the trial court erred in permitting the state’s expert witness, a medical doctor, to testify as to his opinion whether Ciarciello “suffer[ed] a serious loss or impairment of a bodily function or a bodily organ” as a result of the shooting. The state had the burden of proving beyond a reasonable doubt that the defendant had caused “serious physical injury” to the victim. The defendant argues that the doctor’s response to the question was inadmissible since it embraced an opinion on an ultimate issue to be decided by the trier.

An expert witness is not ordinarily permitted to express an opinion on an ultimate issue of fact which is to be decided by the trier of fact. State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988); Kowalewski v. Mutual Loan Co., 159 Conn. 76, 80, 266 A.2d 379 (1970). “ ‘Experts can sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass.’ ” State v. Vilalastra, supra, quoting C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. 1988) § 7.17.3, p. 186. The doctor’s testimony, which included a description of the injuries suffered and the permanent impairment rating given to Ciarciello by the doctor pursuant to workers’ compensation proceedings, was necessary for the jury to intelligently make a finding as to whether Ciarciello had suffered a “serious loss or impairment of the function of any bodily organ.” We conclude that the trial court did not abuse its discretion in permitting the doctor’s testimony. State v. Rogers, 207 Conn. 646, 652, 542 A.2d 1136 (1988).

The defendant’s second claim is that the trial court erred in excluding from evidence medical records of the defendant which indicated that, six months prior to the commission of the offenses which are the subject of this appeal, the defendant was admitted to a hospital and referred to a detoxification center. The medical records were found by the trial court to be too remote in time to be probative on the issue of whether the defendant was intoxicated at the time the offenses were committed. The defendant argues that these medical records were relevant to his claim at trial that because he was intoxicated on the night the burglary and assault occurred, he was unable to form the specific intent required for the crimes with which he was charged.

A trial court possesses broad discretionary power in determining the relevancy or remoteness of evidence. Monroe v. Crandall, 3 Conn. App. 214, 219, 486 A.2d 657 (1985); Hayes v. Coventry, 2 Conn. App. 351, 354, 478 A.2d 620 (1984). Its determination should not be disturbed on appeal unless a clear abuse of discretion is shown. State v. DeForge, 194 Conn. 392, 396, 480 A.2d 547 (1984); Larensen v. Karp, 1 Conn. App. 228, 235, 470 A.2d 715 (1984) (Dupont, J., dissenting). The trial court acted well within its discretion in concluding that the medical records, stemming from events which occurred several months prior to the crimes committed, were not probative as to whether the defendant was intoxicated at the time the shootings occurred.

The defendant next claims error in the trial court’s failure to instruct the jury on the identification evidence adduced at trial in accordance with the defendant’s requested charge based on the “model” Telfaire instruction on identification. United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). Although the defendant concedes that the trial court was not required to adopt verbatim the defendant’s requested instruction; State v. Harrell, 199 Conn. 255, 269-70, 506 A.2d 1041 (1986); he argues that the court’s instructions on identification were so limited as to constitute harmful error. We do not agree.

Our review of the instruction given by the trial judge indicates that it adequately covered the dangers of misidentification. The jury instructions given in this case are virtually identical to those found to be adequate in State v. Harrell, supra, 270 n.15. “While the instruction did not delineate specific factors for the jury to consider in assessing identification testimony in such detail as in Telfaire”; id., 270; the jury in this case as in Harrell was warned to “consider carefully whether that witness is accurate in his belief and in his testimony.” The jury was further warned to “receive with caution any identification testimony from an eyewitness” and to “consider what opportunity each person had to make that observation, whether or not that person had seen the defendant before and all of the other circumstances surrounding such observation.”

We cannot agree with the defendant’s argument that the circumstances surrounding the pretrial identification of the defendant, as well as some inconsistency in pretrial eyewitness identifications of the defendant, required a more detailed jury instruction. We conclude that the jury charge fairly and adequately addressed the dangers of misidentification and no injustice was done to either party in the case. State v. Davis, 198 Conn. 680, 687, 504 A.2d 1372 (1986); State v. Elliott, 8 Conn. App. 566, 573, 513 A.2d 1285, cert. denied, 201 Conn. 813, 517 A.2d 630 (1986).

The defendant’s fourth claim is that the trial court erred in failing to charge the jury, as requested, that once the issue of the defendant’s intoxication was raised, the state had the burden of proving beyond a reasonable doubt that such intoxication did not negate the specific intent required for the offenses charged. The court repeatedly instructed the jury that the state at all times had the burden of proving, beyond a reasonable doubt, that the defendant possessed the specific intent required of the crimes with which he was charged. The court also emphasized the effect that the defendant’s allegation of intoxication had on the jury’s determination of whether the state carried its burden of proving that the defendant possessed the intent required for the offenses charged. The charge requested by the defendant is no more than a rephrasing in the negative of the instructions actually given by the court. The court’s jury charge gave a clear understanding of the significance of intoxication in this case as well as proper guidance to the jury as to its ultimate determination of that issue. “Although the trial court’s instructions to the jury may not have been phrased precisely to the defendant’s liking, there is no error when, as here, the charge stated the law correctly.” Kapilotis v. Shop Rite Supermarket, Inc., 14 Conn. App. 250, 252, 540 A.2d 376 (1988).

The defendant finally claims that the state’s conduct during closing argument constituted intentional prosecutorial misconduct. During closing argument, the state placed on a bulletin board a sketch and a photograph of the defendant, both of which had been admitted into evidence as exhibits, and a photocopied enlargement of the photograph that had not been admitted into evidence. Although the trial court denied the defendant’s motion for a mistrial based on this action, the court directed the state to remove the photocopied enlargement. The defendant argues that the placement before the jury of the photocopy which had not been admitted into evidence was prejudicial and deprived him of a fair trial.

The defendant has failed to provide this court with a transcript of the closing arguments. Without a transcript, we have no basis for concluding whether the state had the opportunity to comment on the pictures prior to the defendant’s objection or whether the jury had an adequate opportunity to view the pictures. It is the obligation of the appellant to provide this court with an adequate appellate record for review. Accurate Forging Corporation v. UAW Local No. 1017, 189 Conn. 24, 28, 453 A.2d 769 (1983); State v. McNellis, 15 Conn. App. 416, 448-49, 546 A.2d 292 (1988). Without such a complete record, we decline to engage in speculation as to what occurred during closing argument. Furthermore, the court excused the jury as soon as the controversy arose and did not thereafter allow the state’s attorney to comment on the photocopy during final argument.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53'a-59 provides in pertinent part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. ...”
      General Statutes § 53a-3 (4) defines “serious physical injury” as meaning “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”

       The trial court charged the jury as follows: “You heard testimony from eyewitnesses in this case. The eyewitnesses [sic] of identification are well known and you should receive with caution any identification testimony from an eyewitness and consider carefully whether that testimony is accurate in his belief and in his testimony. You should consider what opportunity each person had to make that observation, whether or not that person had seen the defendant before and all of the other circumstances surrounding such observation.
      “Eyewitness identification is sometimes unreliable, but its weight like the weight of any testimony is ultimately for you to decide.”

       We note also that the identity of the defendant was hardly in substantial dispute in light of his confession to the police. See State v. Harrell, 199 Conn. 255, 270, 506 A.2d 1041 (1986).

       The defendant had requested that closing arguments not be recorded and therefore transcripts were unavailable. The defendant has provided this court with a brief transcript commencing with the defendant’s objection to the state’s actions and concluding with the court’s denial of the defendant’s motion for a mistrial.


text:
    State of Connecticut v. Mitchell Bowden
    (5858)
    Spallone, Bieluch and O’Connell, Js.

      Argued March 17—
    decision released August 16, 1988

      Carole C. Cooke, special public defender, with whom, on the brief, were William M. Bloss, special public defender, and Glenn Kaas, law student intern, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, was Mary Galvin, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2) and 53a-48, and possession of a sawed-off shotgun in violation of General Statutes § 53a-211. The defendant claims that the trial court erred (1) in denying his motion to suppress evidence and statements made to the police, (2) in limiting his cross-examination of a witness, and (3) in instructing the jury with regard to accomplice credibility. We find no error.

The jury could reasonably have found the following facts. On September 17, 1985, at approximately 9:05 a.m., a robbery occcurred at a bank located on Girard Street in New Haven. Witnesses to the robbery described the perpetrators as three black males whose identities were concealed by stocking masks. Two of the perpetrators were further described as being approximately five feet ten inches tall, and a third was said to have been taller. In addition, one robber was clad in a beige jacket and another was armed with a shotgun. The robbers stole $25,000, including an envelope containing worn and mutilated bills removed from circulation by the bank, and $200 of so-called “bait money.” In bank parlance bait money is currency with previously recorded serial numbers, used by a bank for subsequent identification in the event of a robbery.

New Haven police and agents from the federal bureau of investigation were dispatched to investigate the robbery. A local resident observed two black males running from the direction of the bank and entering a blue or grey Toyota automobile, bearing a District of Columbia license plate with the numbers “902.” A short time thereafter, the car was located nearby in the vicinity of 161 Pine Street. An individual observed two black males leaving the car and entering a six-family home at 161 Pine Street. Shortly after 11 a.m., the defendant and his uncle left the Pine Street house and were stopped at gunpoint by a New Haven police officer. The defendant and his uncle were separated, searched for weapons and the defendant was placed in the backseat of a police cruiser. The defendant was not handcuffed, and the door to the cruiser may have been left open.

Approximately two minutes later, the defendant was requested to produce identification, and upon reaching into his pockets, was requested to exit the cruiser. The defendant pulled an address book and a $20 bill from his back pocket, stating “I don’t have an I.D. This is what I have.” The currency was ripped, and bore a stamp over the serial number similar to those used by bank tellers when removing bills from circulation. The defendant again was asked to produce identification and this time while emptying his front pockets of a wad of bills and a cigarette lighter, stated: “[T]his is all I have.” The currency included several $5 bills which were taken to the bank for serial number comparison with the bank’s bait money.

Pending a report on this comparison, the defendant was detained by the police. Approximately twenty-five minutes was required to confirm a match between the serial number of a bill in the defendant’s possession and one stolen from the bank, whereupon the defendant was taken to the New Haven police station and advised of his rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). When asked at the station how he obtained possession of the stolen money, the defendant responded that he had received the bill in a marihuana sale which had occurred between 8:30 and 9 a.m., a time prior to the occurrence of the robbery.

I

The defendant first claims that the trial court erred in denying his motion to suppress evidence seized from him when stopped by law enforcement officers on the morning of the robbery, because he was arrested without probable cause. We disagree.

The defendant claims that the actions of the police at either of two points in the chronology of the events which preceded the actual booking at the police station, constituted an arrest. The defendant claims that he was arrested either (1) upon being placed in the police cruiser, after being subjected to an investigatory stop, or (2) upon being further detained while the law enforcement officers checked the money surrendered by the defendant against the serial numbers of the bait money on file at the bank. We disagree, and hold that at both of these points the defendant was the subject of a lawful investigatory stop. Terry v. Ohio, 392 U.S. 1, 27-31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The officers’ initial reasonable suspicion ripened into probable cause to arrest, upon confirmation that the serial number of one of the bills surrendered by the defendant matched one stolen in the robbery.

At trial and in oral argument before this court, the defendant conceded that the initial Terry stop was proper. See United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985) (“if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion”); State v. Mitchell, 204 Conn. 187, 195-96, 527 A.2d 1168 (1987), cert. denied, U.S. , 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). We therefore need not address the propriety of the initial stop. Rather, the defendant’s claim addresses two other aspects of the detention: (1) the placement of the defendant in the police cruiser; and (2) the length of the detention itself.

We first examine the defendant’s claim regarding his placement in a police cruiser prior to proffering the evidence in question. A primary objective of a Terry stop is the preservation of the “status quo” for a short period of time to enable the investigation of a crime or of a potential suspect upon the arousal of a law enforcement officer’s reasonable suspicion. Terry v. Ohio, supra; State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985). “Determination of the means that are reasonably necessary to maintain the status quo necessarily depend upon a fact-bound examination of the particular circumstances of the particular governmental intrusion on the personal security of a suspect.” State v. Braxton, supra, 689. In Braxton, our Supreme Court upheld the detention of a bank robbery suspect in the rear seat of a police cruiser, while the detaining officer awaited the arrival of a police detective for questioning, and of a witness for possible identification. While the present case differs from Braxton, as we are not presented with circumstances in which a lone police officer must detain a suspected criminal, we conclude that our Supreme Court’s reasoning is applicable here. “A police officer who has articulable grounds to believe that a crime has been committed and to detain someone who may be implicated in that crime must be permitted to make reasonable use of the resources at his disposal at the site of the investigatory stop. ... In choosing among his available options, he may reasonably determine that it is less intrusive for him to place the suspect in the back seat of a police car than to secure the suspect’s presence through alternate devices such as handcuffs.” State v. Braxton, supra, 690.

We conclude that, in the present case, the detention of the defendant in the rear seat of the police cruiser for a period of two to three minutes by the detaining officers was reasonable on several grounds. First, the officers were faced with detaining two suspects. By separating the defendant and his uncle, and placing the defendant in the rear of the police cruiser, the police were better able to forestall an attempt by the two men, acting in concert, to escape detention.

Second, because the reports to the police regarding the crime indicated (1) that three to four robbers were involved, (2) that at least two were armed, (3) that one or two robbers remained at large, and (4) that the remaining perpetrators were probably still in the immediate vicinity, the placement of the defendant in a cruiser helped prevent intervention by the remaining possibly armed perpetrators.

Finally, placing the defendant in the cruiser freed all of the officers involved, like the officer in Braxton, “safely [to] continue to assist in the investigation of the crime without risking the escape of the suspect.” State v. Braxton, supra, 690. We find no error in the actions of the law enforcement officers in this regard.

Addressing the second aspect of the defendant’s claim regarding his detention, it is clear that the length of a detention under Terry v. Ohio, supra, is not determinative of its constitutionality. “ ‘The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed, or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.’ ” (Emphasis added.) State v. Mitchell, supra, 197, quoting State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973). In the course of upholding a twenty minute Terry stop, the United States Supreme Court articulated an analysis for determining whether the duration of an investigatory stop was impermissibly long. “In assessing whether a detention is too long in duration to be justified as investigative, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was only to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. . . United States v. Sharpe, 470 U.S. 675, 686-87, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985); see State v. Foster, 13 Conn. App. 214, 217-19, 535 A.2d 393 (1988); State v. Mitchell, supra, 198.

We conclude that the police acted reasonably in detaining the defendant while the evidence received by them in response to their identification request was checked against the bait money serial numbers on file at the bank. In addition, we note that the defendant’s failure to produce identification, also served to prolong the Terry stop. We hold that, under the circumstances of the present case, the defendant’s twenty-five minute detention was reasonable. Compare State v. Foster, supra (one hour stop determined reasonable); and cases cited therein.

We therefore conclude that the detention of the defendant by the investigating officers was constitutionally permissible, and that the defendant’s motion to suppress was properly denied.

II

The defendant next claims error in the trial court’s restriction of the cross-examination of state’s witness Joy Herring, a tenant of 161 Pine Street. Herring testified that she was in her apartment when the defendant and his uncle arrived on the morning of the robbery, carrying a rifle and a white bag. Direct testimony elicited at trial revealed that at least two other men had visited Herring’s apartment that morning. The defendant claims that the trial court erred in restricting his cross-examination of Herring with regard to her ability to describe the men, other than the suspects, who arrived at her apartment on the morning of the robbery. The trial court sustained the state’s objections on the grounds of irrelevancy.

“The right of an accused effectively to cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment. Cross-examination regarding motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial court, but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment. ‘Thus, a claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis; whether the constitutional standard has been met, and if so, whether the court nonetheless abused its discretion. State v. Gaynor, [182 Conn. 501, 509-10, 438 A.2d 749 (1980)].’ State v. Heinz, [3 Conn. App. 80, 86, 485 A.2d 1321 (1984)]. (Citations omitted.)” State v. Cox, 7 Conn. App. 377, 383-84, 509 A.2d 36 (1986). The defendant failed to satisfy either requirement. The defendant’s cross-examination of Herring revealed that two armed men entered her apartment the morning of the robbery, but that she did not report this to the police when she met with them on two separate occasions a short time thereafter. It was also established through cross-examination that although Herring knew that her apartment building was surrounded by police on the day of the robbery, but that in leaving the apartment, she did not reveal to them that the armed men were located there. We conclude that the evidence elicited through cross-examination was sufficient to allow the jury to evaluate any possible bias the witness held toward protecting any of the other men who visited her apartment that morning. The actual descriptions of the other men were irrelevant, cumulative and collateral to the information obtained through cross-examination, and as such “[their] exclusion did not unduly restrict the defendant’s right of cross-examination.” State v. Cox, supra, 384.

The defendant also failed to demonstrate that the trial court abused its discretion by showing that the restrictions on cross-examination were clearly prejudicial. Id.; State v. Gaynor, supra, 510. The record indicates that the restriction placed on the defendant’s cross-examination of the witness addressed only the descriptions of the other male visitors to the witness’ apartment on the morning in question. The defendant was not denied an opportunity to test either the witness’ credibility or the accuracy or reasonableness of her direct testimony. State v. Cox, supra, 384, State v. Heinz, supra, 87. We conclude that the defendant’s claim that the trial court unduly limited his constitutional right of cross-examination is meritless.

Ill

The defendant’s final claim of error is that the trial court’s instruction to the jury regarding accomplice credibility was incorrect as it applied to Joy Herring. The defendant claims that the trial judge erred in failing specifically to charge the jury that Joy Herring’s testimony be carefully examined for bias toward the state and against the defendant, as a result of her possible participation in the robbery as an accomplice or coconspirator. We disagree.

“When a proper request is filed pursuant to Practice Book § 852 or exception is taken pursuant to § 854 the test is whether the charge properly covered the substance of the written request or properly and adequately covered the specific subject matter of the exception.” State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). “ ‘The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if the charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request; its responsibility is performed when it gives instructions to the jury in a manner calculated to given them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.’ ” State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986), quoting State v. Harden, 175 Conn. 315, 322-23, 398 A.2d 1169 (1978).

Our review of the record indicates that the trial court instructed the jury with regard to potential bias and prejudices of witnesses in general, and with regard to analyzing the credibility of all witnesses who appeared before them. Further, although the instruction on accomplice testimony and reliability began with a reference to one of the defendant’s coconspirators who had turned state’s evidence, the instruction was sufficiently broad to address the testimony of Joy Herring, as an uncharged accomplice. The trial court instructed the jury in pertinent part, that, “[i]n weighing the testimony of an accomplice, who has not yet been sentenced or whose case has not yet been disposed of, or who has not yet been charged for the offenses for which the state has evidence, you should keep that in mind, in that he may, in his own mind, be looking for or hoping for some favorable treatment in the sentence or disposition of his own case. And that, therefore, he may have such an interest in the outcome of this case, that is, his testimony may have been colored by that fact.” (Emphasis added.)

We conclude that the instruction, as a whole, was an adequate and accurate discussion of the law concerning the evaluation of the testimony of an alleged accomplice. We further conclude that, although not directed expressly to the witness in question, the charge “properly covered the substance of the written request.” State v. Harrell, supra, 264.

There is no error.

In this opinion the other judges concurred.

       The evidence that the defendant claims should have been suppressed consisted of “money, an address book and clothing seized from him at the time of the arrest, certain statements the defendant allegedly made after his arrest, and hair samples that were seized from him while he was in custody.”

       Although the defendant refers to both the federal and state constitutions, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state claims. We, therefore, decline to undertake such an analysis. State v. Carey, 13 Conn. App. 69, 72 n.1, 534 A.2d 1234 (1987); Fischer v. Goldstein, 14 Conn. App. 487, 491 n.5, 542 A.2d 731 (1988).

       It is unclear from the record, and of no consequence to this appeal, whether the defendant’s uncle also was detained in the rear of a second police vehicle.

       We also conclude that the trial court was correct in finding that the defendant voluntarily proffered the evidence gathered by police during his detention on Pine Street. See footnote 1, supra. On the basis of an examination of the totality of the circumstances, we conclude that the state sustained its burden of proving that the evidence in question was given voluntarily, and that the trial court’s determination was not clearly erroneous. See State v. Reddick, 189 Conn. 461, 468-69, 456 A.2d 1191 (1983), and cases cited therein.