text:
    Commercial Union Insurance Company v. Frank Perrotti and Sons, Inc., et al.
    (7353)
    Dupont, C. J., Borden and Spallone, Js.
    Argued September 13
    decision released November 21, 1989

      W. Martyn Philpot, Jr., assistant corporation counsel, with whom was Merle Berke-Schlessel, for the appellants (plaintiffs).

      Harold C. Donegan, with whom, on the brief, was Linda A. LaTorraca, for the appellee (named defendant).

      Frederick J. Trotta, with whom, on the brief, was Joseph F. Trotta, for the appellee (defendant K-Mart Corporation).
   Dupont, C. J.

This is an appeal from the trial court’s granting of directed verdicts in favor of the defendants. The plaintiff Commercial Union Insurance Company (Commercial) brought an action against the defendants, seeking reimbursement for sums paid to the city of New Haven, under a contract of insurance, for repair of a bulldozer damaged by a fire at a city landfill. The city intervened as a party plaintiff, seeking reimbursement for the cost of renting a replacement bulldozer while the damaged bulldozer was under repair. The trial court directed the jury to render a verdict for the defendants because the court found that the allegations in the plaintiffs’ complaints were insufficient to allege that the proximate cause of the harm to the city and to Commercial was the negligence of the defendants, and that the plaintiffs, in any event, failed to prove that their harm was caused by the defendants’ negligence. The trial court also dismissed cross complaints that had been filed by the defendants seeking indemnification from other defendants.

The allegations of the plaintiffs’ complaints were essentially the same. One defendant, Frank Perrotti and Sons, Inc. (Perrotti), picked up trash at the premises of another defendant, K-Mart, Corporation (K-Mart). Unknown to the Perrotti driver, the trash in the closed container included several damaged but full fuel cans containing flammable fluid. The driver loaded them in his dumpster and proceeded to the town landfill, where the trash, including the cans, was deposited. Soon thereafter, a fire was discovered in the same pile of trash. A city bulldozer was used in an attempt to extinguish the fire by covering it with dirt, and the bulldozer itself caught fire.

Both plaintiffs stated in their pleadings that K-Mart negligently and carelessly placed several containers of flammable liquid in its trash bin; that it knew or should have known that the Perrotti driver would deposit the cans in the town landfill; that the driver transported the cans to and deposited them at the landfill in violation of city regulations, despite a notice clearly posted at the entrance to the landfill prohibiting the deposit of flammable substances therein; that, as a direct result, combustion occurred and a fire in the landfill resulted; that the bulldozer operator tried to extinguish the blaze by covering it with dirt; that the bulldozer became engulfed in flames; and that its electrical system, fuel lines and other parts therefore were destroyed.

The dispositive issues in this case are whether the allegations of the plaintiffs’ complaints are sufficient to state causes of action against the defendants, and, if so, whether the evidence was sufficient to prove the allegations of the causes of action by a fair preponderance of the evidence.

A verdict may be directed only where the jury could not reasonably reach any other conclusion; Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986); Morales v. Trinity Ambulance Service, 9 Conn. App. 386, 387, 519 A.2d 90 (1986), cert. dismissed, 202 Conn. 806, 520 A.2d 1287 (1987); or where the decisive question is one of law. Lombardi v. J.A. Bergren Dairy Farms, Inc., 153 Conn. 19, 23, 213 A.2d 449 (1965); Simmons v. Southern Connecticut Gas Co., 7 Conn. App. 245, 250, 508 A.2d 785 (1986); Living & Learning Centre, Inc. v. Griese Custom Signs, Inc., 3 Conn. App. 661, 491 A.2d 433 (1985). Here, a verdict was directed in favor of the defendants, based, in part, on the court’s conclusion that the allegations in the complaints were insufficient as to causation.

In assessing the sufficiency of the allegations in the complaints, the court must consider those allegations in the light most favorable to the plaintiff. Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980); Perruccio v. Arseneault, 7 Conn. App. 389, 393, 508 A.2d 831 (1986). “The modern trend is to read the pleadings broadly and realistically rather than technically.” DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 390, 494 A.2d 1222, cert. denied, 197 Conn. 813, 499 A.2d 62 (1985). “ ‘What is necessarily implied need not be expressly alleged.’ ” Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975). In determining whether a pleading sufficiently states a cause of action, the facts alleged are viewed “in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them.” Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985).

It is true that no single allegation in either of the complaints specifies that a spark was struck at a particular moment or in a particular manner. The complaints, however, clearly allege actions by both defendants that, taken as a whole, considered in the light most favorable to the plaintiff, construed broadly and taking into account what is implied as well as what is expressly alleged, would enable the jury reasonably to infer causation.

As to K-Mart, the complaints clearly alleged that the department manager negligently instructed his employee to deposit the cans of combustible liquid in the dumpster. As to Perrotti, the complaints clearly alleged that it had violated the city’s regulations prohibiting deposits of flammable substances by wastehandlers and others in the city’s landfill.

Perrotti argues that the plaintiffs’ pleading of causation is insufficient as to it because the complaint alleged no breach of duty that would support a cause of action in negligence. It argues that it had no duty to inspect all trash before depositing it at the landfill and that its driver, therefore, could not be expected to be aware of the presence of the cans. The complaint, however, does not rely on common law negligence, but rather upon an alleged breach of an ordinance, that, if it occurred, could have been proved to be negligence per se, so that no other breach of duty on its part would be required. See Staudinger v. Barrett, 208 Conn. 94, 101, 544 A.2d 164 (1988). If a plaintiff alleges that a statute, ordinance or regulation has been violated, thereby relying on negligence per se, and also alleges that there is a causal connection between such negligence and the injuries sustained, a cause of action has been stated. See Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987).

K-Mart does not argue that the allegations of the complaints are insufficient to state a cause of action as to it, but argues instead that the plaintiffs failed to prove that any negligence on its part was the proximate cause of the damages sustained by the plaintiffs. Allegations in both of the plaintiffs’ complaints were that K-Mart was negligent because it included cans of a flammable nature in its trash and rubbish collection, and that it knew or should have known that those cases would be taken to a landfill by Perrotti. Those allegations were sufficient to state a cause of action against K-Mart. See Lombardi v. J.A. Bergren Dairy Farms, Inc., supra, 22-23. Thus, the allegations in the plaintiffs’ complaints were sufficient to state causes of action against both Perrotti and K-Mart.

The second basis on which the trial court directed the verdict for the defendants was its conclusion that no proof was offered by the plaintiffs as to the cause of the fire. Directed verdicts are disfavored; Boehm v. Kish, supra, 394; and a directed verdict is justified only “if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed; [Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986)]; McDonald v. Connecticut Co., 151 Conn. 14, 17, 193 A.2d 490 (1963); or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” Boehm v. Kish, supra, 389. Moreover, when reviewing the decision of the trial court to direct a verdict, the Appellate Court must consider the evidence presented in the light most favorable to the plaintiff. Id., 388; Amodio v. Cunningham, supra; Campbell v. Pommier, 5 Conn. App. 29, 31, 496 A.2d 975 (1985). The question of proximate cause is ordinarily a question of fact for the trier. Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983); Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 485, 523 A.2d 940 (1987). Proximate cause “becomes a question of law . . . [only] ‘ “when the mind of a fair and reasonable man could only reach one conclusion . . . .” ’ ” Burns v. Gleason Plant Security, Inc., supra. Although the jury cannot base its conclusions upon “mere guess or speculation,” it is entitled to draw reasonable inferences from the evidence before it. Lemmon v. Paterson Construction Co., 137 Conn. 158, 163, 75 A.2d 385 (1950). Causation need not be proven by direct evidence, but can be inferred from circumstantial evidence. Facey v. Merkle, 146 Conn. 129, 135, 148 A.2d 261 (1959); Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473 (1958); Colligan v. Reilly, 129 Conn. 26, 29-30, 26 A.2d 231 (1942). As long as some evidence of causation is introduced, the question of whether the evidence is sufficient to establish proximate cause should go to the jury. Colligan v. Reilly, supra.

Here, although other hypothetical events have been postulated by the defendants as possible causes of the fire, the jury could reasonably have concluded that K-Mart’s act of depositing full cans of flammable fuel in its trash, to be transported to the dump, was a proximate cause of the fire. For example, the jury could have believed that spontaneous combustion resulted or that a spark from Perrotti’s truck ignited the discarded fuel. The test for whether proximate cause exists is whether the harm suffered is “of the same general nature as the foreseeable risk created by the defendant’s negligence.” Mehri v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973); Burns v. Gleason Plant Security, Inc., supra. The harm suffered by the plaintiffs was of the same general nature as the foreseeable risk caused by K-Mart’s acts. Sufficient evidence of causation as to K-Mart was presented, and the question of causation should have been submitted to the jury. Furthermore, the plaintiffs need not have eliminated other possible causes in order for a jury to find the evidence on causation sufficient; they merely had to establish that the defendants’ negligence was a “substantial factor” in the injury suffered by the plaintiffs. Wu v. Fairfield, supra; Ferri v. Pyramid Construction Co., 186 Conn. 682, 687, 443 A.2d 478 (1982).

Section 16-13 of the New Haven Code of Ordinances requires that all “combustible materials . . . shall have been separated from . . . other rubbish before reaching said dumping place or ground and upon reaching said dumping place or ground each shall be dumped or deposited in the place or on the ground where designated by the person in charge thereof, or by signs erected for that purpose.” Violation of the ordinance could have been shown to constitute negligence per se. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 380 n.7, 441 A.2d 620 (1982). Perrotti’s argument, therefore, that it did not have a duty to inspect the trash in order to separate the flammable material from other trash, and that it was unaware of the presence of the cans of combustible liquid, is irrelevant. If a violation of the ordinance had been proved, the jury could have concluded that the violation constituted negligence per se. See D. Wright & J. FitzGerald, Connecticut Law of Torts (2d. Ed.) § 38.

The trial court refused to allow the ordinance to be admitted into evidence, and the plaintiffs objected. The ordinance was relevant and necessary to proof of the allegations of the plaintiffs’ complaints. Had the ordinance been introduced, the jury would have had the option of deciding whether the ordinance was violated, and, if so, whether that violation was a proximate cause of the plaintiffs’ damages. The exclusion of the ordinance, therefore, constituted error.

The trial court was technically correct in directing a verdict for Perrotti, but that is so only because the court itself prevented the plaintiffs from introducing the requisite evidence that would have prevented a directed verdict.

We conclude that the allegations in the complaints were sufficient to support a cause of action in negligence against both K-Mart and Perrotti, and that enough evidence was offered so that a jury could have found K-Mart’s negligence to be a proximate cause of the plaintiffs’ harm. Therefore, the trial court erred by directing a verdict for the defendant K-Mart. The failure of the court to allow the introduction of the ordinance prevented a jury from holding Perrotti liable. A new trial is necessary to allow the plaintiffs to prove their case against Perrotti, and a new trial also is necessary because the court should not have directed a verdict for K-Mart.

The plaintiffs also argue that the trial court erred in not treating them as two separate plaintiffs for purposes of cross-examination and for determining the number of peremptory challenges to which they were entitled. Although we need not reach this question in view of our decision that the court should not have directed verdicts for the defendants, we will nevertheless address the question because it is likely to recur on retrial. Mourison v. Hansen, 128 Conn. 62, 67, 20 A.2d 84 (1941).

The plaintiffs here did not use all of their peremptory challenges, cross-examination was not limited, and the directed verdicts eliminated any possibility that the plaintiffs were injured by juror bias. The plaintiffs were, therefore, not harmed by the treatment of them as one party, but upon retrial the possibility of harm by such treatment exists.

“[W]here there are several plaintiffs or defendants . . . each is entitled to ... [be treated as a ‘party’ for the purpose of determining the number of] peremptory challenges . . . [to which he or she is entitled].” Mourison v. Hansen, supra; see also Krause v. Almor Homes, Inc., 147 Conn. 333, 160 A.2d 753 (1960); Reid v. New Haven, 133 Conn. 446, 52 A.2d 140 (1947). Under General Statutes § 51-241, each plaintiff here is therefore entitled to three peremptory challenges. We agree with the plaintiffs that they should have been treated as two separate parties for purposes of determining the number of peremptory challenges they could exercise.

The plaintiffs argue that they should also have been treated as two separate parties for purposes of cross-examination. We agree. In a civil case, the Supreme Court has held that “[t]he right of cross-examination is not a privilege but is an absolute right and if one is deprived of a complete cross-examination he has a right to have the direct testimony stricken. . . . It is only after the right of cross-examination has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary with the trial court.” Gordon v. Indusco Management Corporation, 164 Conn. 262, 271, 320 A.2d 811 (1973).

There is error, the judgment is set aside as to Frank Perrotti and Sons, Inc., and K-Mart Corporation, the dismissals of the cross complaints filed by Frank Perrotti and Sons, Inc., and by K-Mart Corporation are set aside, and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Commercial and the city filed separate complaints.

       The plaintiffs have withdrawn their appeal from the directed verdict in favor of Tobacco Valley Sanitation Service Company, a third defendant. Tobacco Valley subcontracted its contract for trash removal with K-Mart to Perrotti.
      Because the court found neither K-Mart nor Perrotti liable, it dismissed Perrotti’s cross complaint against K-Mart.

       The plaintiffs further claim error in the trial court’s denial of their request to amend their complaints. Their request to amend was not made until after they had completed their case-in-chief. The granting of a belated request to amend is discretionary. Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 360, 525 A.2d 57 (1987); Carckrae v. Carckrae, 10 Conn. App. 566, 569, 524 A.2d 672 (1987). A decision of the trial court on a belated motion to amend a complaint is rarely overturned. Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985); Citizens National Bank v. Hubney, 182 Conn. 310, 313, 438 A.2d 430 (1980). Since we hold that the allegations of the original complaints were sufficient to state causes of action, it is not necessary to review this claim of error. We note, however, that the proposed amendments to the complaints were not preserved as part of the record, and were not marked as exhibits for identification. Therefore, had we found the allegations in the original complaints insufficient as a matter of law, we would nevertheless have been unable to review the claim.

       The case of Orselet v. DeMatteo, 206 Conn. 542, 539 A.2d 95 (1988), relied on by the defendant Perrotti, is inapposite to the question raised by the facts of this case. Orselet holds that where the parties are subrogor and subrogee, there is but one cause of action for purposes of res judicata. Id., 546-47.

       The plaintiffs also claim error in the trial court’s decision to exclude a fire chiefs testimony because the plaintiffs had not previously revealed him as an expert witness. Since this issue is not likely to recur on retrial, we do not decide it.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. Earl Williams, Jr.
    (7142)
    O’Connell, Stoughton and Foti, Js.
    Argued September 21
    decision released November 21, 1989

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roland D. Fasano, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of sexual assault in the second degree, General Statutes § 53a-71 (a) (l), and risk of injury to a child, General Statutes § 53-21. The defendant claims that the trial court erred (1) in failing to give an adverse inference charge when the state failed to call the victim’s nine year old sister as a witness, and (2) in precluding the defendant from asking the ten year old victim, in the presence of the jury, if she had engaged in any other sexual activity within seventy-two hours prior to the incident. We find no error.

The jury could have reasonably found the following facts. The defendant and his companion, Gina Barnes, lived in Meriden with their five daughters. The victim, B, the eldest of the daughters, was ten years old during the summer of 1987. In the early morning hours of August 1,1987, Barnes left the defendant in charge of four of their five daughters while she and the youngest child traveled to New York. The four older girls were sleeping when she left the apartment. Shortly after Barnes left, the defendant awakened B, who shared a bed with her nine year old sister, A, and told B he wanted her to go out for some milk. After the victim was up and out of bed, the defendant told her to go into her mother’s bedroom, take off her clothes and get onto the bed. Because the defendant had a belt and B was frightened, she complied with the defendant’s commands. While B was on the bed, the defendant sexually assaulted her. After the assault, the defendant told B to wash up. She went into the bathroom, and put her clothes back on without washing herself. After leaving the bathroom, B returned to her bedroom, woke up A, and told her what the defendant had done. B then called her cousin, Cynthia Hudson, and repeated the allegations to both Hudson and Hudson’s friend, Laura Brockman.

Hudson and Brockman went to the Meriden police station and reported the incident to Officer Robert Hettrick. The women then accompanied Hettrick to the defendant’s home. B again related the incident to Hudson, Brockman and Hettrick. The officer took B to the emergency room where she gave additional statements to Officer Marsha Anderson and to Mary Nicholas, a physician. A physical examination revealed the presence of spermatozoa in the vaginal vault. Seminal fluid was found on the shorts and underpants B wore before and after the sexual assault.

The defendant first claims that the trial court erred in failing to give a missing witness, or Secondino charge, when the state failed to call A, who was the first person to see the victim after the assault. We do not agree.

Whether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a question of fact for the trier. Perl v. Case, 3 Conn. App. 111, 115, 485 A.2d 1331 (1985). This court cannot reverse or modify the trial court’s determinations of fact unless they are clearly erroneous. Buddenhagen v. Luque, 10 Conn. App. 41, 44, 521 A.2d 221 (1987). We cannot reach such a conclusion here.

A negative inference may be drawn if a party fails to produce a -witness who (1) is within his power to produce, and (2) would naturally have been produced by him. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960); Chomko v. Patmon, 19 Conn. App. 483, 488, 563 A.2d 311 (1989). The defendant’s allegations fail to meet the second prong of this test.

“A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra. A prospective witness whose testimony would be comparatively unimportant, cumulative or inferior to what has been offered, should be dispensed with on the grounds of expense and inconvenience, without the need for an adverse inference charge. State v. Adams, 14 Conn. App. 119, 129, 539 A.2d 1022 (1988).

Putting A on the stand would have served no purpose. First, A would not have been able to testify directly as to the facts of the crime. She was not an eyewitness to the offense. She was asleep when the sexual assault took place and learned of the incident from the victim only after the fact. Moreover, A’s testimony would not have added “peculiar or superior information” over that provided by other witnesses.

In addition, the state asserts that A’s testimony would have been no more than additional constancy of accusation evidence. In light of the fact that five adults testified in this capacity, the trial court’s determination that it was unnecessary for the jury to hear the testimony of this child before a verdict could be reached was well grounded. B related the same events to A that she did to Hudson, Hettrick, Anderson, Nicholas and her mother. After B testified at trial, each of these adults took the stand and told the court the details B had related to them. Each of these witnesses verified that B consistently named the defendant as her assailant. Because there is no need to give a Secondino charge for a witness whose testimony would have been no more than cumulative, we conclude that the trial court did not err in refusing to give a missing witness charge as to the state’s failure to produce A.

The defendant’s final claim is that the trial court violated his sixth and fourteenth amendment rights to confrontation and due process when it precluded the defendant from asking the ten year old victim, in the presence of the jury, if she had engaged in any other sexual activity within the preceding seventy-two hours of the alleged assault. We disagree.

Prior to trial the defendant moved, pursuant to General Statutes § 54-86f, the Rape Victim’s Shield Law, to offer evidence of the ten year old victim’s prior sexual conduct. The court conducted a hearing outside the presence of the jury and determined that “there was not the slightest scintilla of anything produced, even by the [defendant], that’s going to allow this court to let that kid get on the witness box and have you, with all due respect, throw mud on her.”

General Statutes § 54-86f greatly restricts the admissibility of evidence of the prior sexual conduct of a sexual assault victim. State v. Rothenberg, 195 Conn. 253, 259-60, 487 A.2d 545 (1985). Testimony as to the sexual history of a victim is not admissible unless the proposed evidence satisfies one of the exceptions to the statute’s proscription. State v. Butler, 11 Conn. App. 673, 681, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 938 (1987). Once this claim is made, the statute provides for a hearing to determine whether the probative value of the evidence outweighs the prejudicial effect on the victim. If this threshold question cannot be answered in favor of the defendant, his constitutional rights to due process and confrontation are not violated by the court’s restriction of the questions he may pose to the victim before the jury.

In his pretrial motion, the defendant relied upon the statute’s first exception, which provides that no evidence of the victim’s prior sexual conduct shall be admissible unless it is “offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury.” At the pretrial hearing the defendant called two witnesses, B and her mother, Gina Barnes. He then testified himself. B stated that her father raped her and that he was the only possible source of the semen found within her. She also testified that she had no other sexual relations during the period of July 28 through August 1, 1987.

Barnes stated that she and the defendant never discussed whether B was sexually active, that she believed H, the man the defendant claimed was the source of the semen, was in jail at the time of the incident, that H never lived in her home, and that she was not aware of the victim’s being sexually involved with anyone around the time of the incident.

The defendant was the last witness at the pretrial hearing. On direct examination he testified that he was not the source of the semen, that H had lived with them in the past, that he and Barnes- were aware that the victim was sexually active with H at the end of July, 1987, and that he and Barnes discussed these matters. On cross-examination the defendant testified that H did not live with the family at the time of the incident, that he had not seen H since January, 1987, and that he was alone with his daughters on the morning of August 1, 1987.

After review of the defendant’s tenuous allegations, we conclude that the trial court rightfully refused to allow the defendant to ask the victim if she had been sexually active during the three days prior to the incident. Repetition of the denials of both B and Barnes in front of the jury would have had no probative value and could have greatly prejudiced the victim.

This court has determined that the rape shield statute serves a number of public policies, including, but not limited to, protecting the victim’s sexual privacy, shielding her from undue harassment, enabling her to testify in court with less fear of embarrassment, avoiding prejudice to the victim, avoiding jury confusion and avoiding lost time on collateral matters. State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). In light of the fact that the defendant’s brief concedes that B only would have denied the allegations again if she were allowed to testify in front of the jury, it is difficult to perceive any justification for breaking down the barriers of the rape shield statute except to harass and embarrass B and confuse or mislead the jury. The trial court did not err in excluding this evidence.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-71 provides in part: “sexual assault in the second degree. ... (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

       “[General Statutes] Sec. 53-21. injury or risk op injury to, or impairing morals OP, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or' morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The constancy of accusation exception has been defined as follows. “In sex-related cases witnesses to whom the complainant has related the particulars of the incident are permitted to recount the details of the statement . . . provided that the complainant first testifies concerning the offense . . . and also identifies the persons to whom she made the statement. . . . The statement is admissible as an exception to the hearsay rule to corroborate the complainant’s testimony by showing constancy of accusation.” (Citations omitted.) State v. Ouellette, 190 Conn. 84, 97, 459 A.2d 1005 (1983); see also State v. Velez, 17 Conn. App. 186, 189, 551 A.2d 421 (1988), cert. denied, 210 Conn. 810, 556 A.2d 610 (1989).

       “[General Statutes] See. 54-86f. admissibility of evidence of prior sexual conduct. In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       Although the defendant testified at trial that he was sure the victim was sexually active with H, his brief makes no mention of H’s culpability but states instead that the most likely alternative suspect would be Barnes’ brother.


author: Norcott, J.

text:
    State of Connecticut v. Earl Anderson
    (7111)
    Daly, Norcott and Foti, Js.
    Argued October 18
    decision released November 28, 1989

      Martin Zeldis, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Jacqueline J. Footman, deputy assistant state’s attorney, with whom, on the brief, was Cathryn Krinitsky, assistant state’s attorney, for the appellee (state).
   Norcott, J.

After a jury trial, the defendant was convicted of larceny in the second degree in violation of General Statutes § 53a-123. He claims on appeal that the trial court erred (1) in refusing to suppress the out-of-court identification of the defendant, (2) in allowing a police officer to give opinion testimony concerning her experience with crime victims, and (3) in refusing to comply with the defendant’s requested jury instruction concerning eyewitness identifications.

The following facts are not in dispute. At approximately 6:15 p.m. on November 23,1986, Josephine Dod was returning to her house with her mother, daughter and grandson after a day of shopping. The family arrived at Dod’s house in Windsor, and, after Dod had parked her car and walked to the trunk of the vehicle, she heard someone call to her from the street. Dod walked to the edge of her driveway to the person who had hailed her. The person, who Dod noted was a tall, slim, black male, asked for directions to Bloomfield. As Dod was giving directions, the man grabbed her shoulder bag and, after a brief struggle, ran across the street to a running car and sped away. Dod’s purse, which was in the shoulder bag, contained approximately $30, several gold rings, a driver’s license and an alien registration card.

From testimony at the pretrial hearing on the defendant’s motion to suppress Dod’s out-of-court identification of the defendant, the trial court could have reasonably concluded the following. Officer Patricia Sullivan of the Windsor police department responded within minutes of the incident, arriving at Dod’s house where she found the victim in an extremely emotional state. Between 7 and 7:15 p.m., after attempting to calm down an extremely agitated Dod, Sullivan began to take her statement. Later that same evening, at approximately 11:30 p.m., Dod went to the Windsor police station to view photographs in an attempt to identify the perpetrator. Sullivan had assembled an array of seven photographs, including one of the defendant. Although she was somewhat calmer, Dod remained highly agitated and, after viewing the photographs for about two minutes, was unable to make an identification. She made arrangements to return at a later time in order to make another attempt at identifying the perpetrator.

On December 1, 1986, Dod returned to the Windsor police station. Under the supervision of Detective Alfred Galin, she viewed a second photo array of nine photographs. This array consisted of the same seven photographs Dod had viewed previously plus two additional photographs. Dod immediately identified the defendant as the person who had taken her bag.

At trial, both Dod and Sullivan testified about the November 23,1986 incident and the circumstances surrounding the two out-of-court photographic identifications. Their testimony was consistent with that given during the pretrial hearing.

I

On appeal, the defendant first claims that the trial court erred in finding that the identification process employed by the police was not unnecessarily suggestive. He also claims that, notwithstanding the matter of suggestiveness, the identification by Dod was wholly unreliable: The trial court concluded that it was “not at all persuaded there has been any suggestiveness in the showing of the array to the victim in this case.” We agree with the trial court and find no error.

“It is well settled that in order to succeed on a motion to suppress identification evidence, the defendant must prove (1) that the identification procedures were unnecessarily suggestive; and (2) that the resulting identification was not reliable in the totality of the circumstances.” State v. Myers, 193 Conn. 457, 464, 479 A.2d 199 (1984). If the defendant fails to prove the element of suggestiveness, there is no need to consider whether the identification was reliable. “Only if the procedures used to identify the accused are unnecessarily suggestive are we required to analyze the factors that determine the reliability of an identification for due process purposes. United States v. Amrine, 724 F.2d 84, 87 (8th Cir. 1983); United States v. Hurt, 476 F.2d 1164, 1168 (D.C. Cir. 1973); State v. Amarillo, 198 Conn. 285, 294, 503 A.2d 146 (1986).” State v. Miller, 202 Conn. 463, 470-71, 522 A.2d 249 (1987).

The defendant contends that the identification procedure in this case was unnecessarily suggestive because the inclusion of his photograph in the two arrays, viewed eight days apart, constitutes impermissible suggestiveness. “ 'Although “we have recognized that pictorial recurrence can be suggestive in that it increased the risk of misidentification” . . . the recurrent use of a defendant’s photo in successive arrays is not presumptively suggestive.’ ” (Citations omitted). State v. Mayette, 204 Conn. 571, 581-82, 529 A.2d 673 (1987).

The cases that analyze the issue of recurrent photographs in identification processes focus on the procedural infirmity inherent when the police show the person making the identification “pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.” Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). Accordingly, in State v. Ledbetter, 185 Conn. 607, 613, 441 A.2d 595 (1981), our Supreme Court found that “[t]he suggestive ingredient in the photo display is the recurrence of a single photo, the defendant’s, in two separate displays.” (Emphasis added.) See also State v. McKnight, 191 Conn. 564, 572, 469 A.2d 397 (1983).

In the present case, the trial court was correct in concluding that the repetition of the exact seven photographs in the array, including the defendant’s photograph, in a subsequent nine photograph array, did not constitute impermissive suggestiveness. It is clear from our review of the record that the police in no way highlighted or emphasized the defendant’s photograph, nor did they in any manner verbally or demonstratively indicate to the identifying victim anything that might be construed as suggestive. Furthermore, Dod’s highly agitated, emotional condition, which persisted throughout the brief first photographic array session, is strong evidence that the first attempt at identification was rendered a nullity.

It bears repeating that the recurrent use of a defendant’s photograph in successive arrays is not presumptively suggestive. It is axiomatic that “[a] defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). This the defendant has failed to do. We are not persuaded that any unnecessary suggestiveness occurred here.

The defendant further argues that because the trial court made no determination on the reliability of the identification, we should review the record to determine whether the identification was wholly unreliable. The defendant fails to cite any authority and there is no precedent to support the type of “single-inquiry” analysis he urges. State v. Miller, supra, 474. Having found that the photographic identification procedure employed was not unnecessarily suggestive, the court’s inquiry properly stopped there. There was no need to consider the reliability of that procedure. Accordingly, the trial court was correct in denying the defendant’s motion to suppress the out-of-court identification.

II

The defendant next contends that the trial court erred in allowing Officer Sullivan to give opinion testimony concerning the comparative reliability of crime victims’ identifications. He argues that because Dod’s identification was the sole issue in this case, the court’s admission of the opinion testimony constitutes reversible error. We disagree.

At trial, the following exchange ensued while the prosecutor was questioning Sullivan on redirect examination:

“Q. [Prosecutor]: Now in your nine years on the police force have you had experience in investigating complaints of this nature before?
“A. Yes, I have.
“Q. Before November 23, 1986?
“A. Oh yes, I have.
“Q. And have you had experience in dealing with victims in a case of this nature?
“A. Yes, I have.
“Q. And have you had experience in dealing with victims who maybe are very upset or hysterical on the first confrontation or the first meeting with them?
“A. Yes, I have.
“Q. And based on that experience as a police officer does it happen sometimes that a victim is very upset and can’t, cannot assist you in the investigation, but later can assist you?
“A. That happens quite often.
“[Defense counsel]: Objection, Your Honor. Irrelevant and there hasn’t been a proper foundation laid.”

After the state argued that Sullivan’s testimony was “based on her experience as a police officer” and that the view expressed “doesn’t require expert testimony,” the court overruled the objection. We agree with the trial court’s finding that at that point there was nothing “expert” about the quality of Sullivan’s testimony. Indeed, no opinion was given at all. Sullivan’s response was an observation drawn from her work as a police officer. We also cannot agree that the subject matter was irrelevant to Sullivan’s testimony concerning the investigation of the crime in question here. Questions concerning the relevance of evidence are left to the discretion of the trial court and will not be disturbed unless the court has clearly abused its discretion in its resolution. State v. Fritz, 204 Conn. 156, 167-68, 527 A.2d 1157 (1987); Vazzano v. Slater, 6 Conn. App. 1, 6, 502 A.2d 440 (1986); State v. Hardwick, 1 Conn. App. 609, 616, 475 A.2d 315 (1984). We find that the court did not abuse its discretion in its ruling, and, therefore, there is no error.

The defendant also argues for the first time on appeal that the trial court erred in allowing a second redirect by the state. During that questioning, the following exchange occurred:

“Q. [Prosecutor]: I have another question. Based on your experience as a police officer and a person who dealt with a number of victims who say have [sic] to be complainants in matters of the nature, would you say that a person’s memory is better the day of the event or better several days later when they have had time to calm down?

“A. Several days later, their memory is usually better.”

The defendant offered no objection to this exchange.

Generally, evidentiary claims will not be reviewed on appeal where counsel did not properly preserve a claim by objection and exception. See State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986); see also State v. Rothenberg, 195 Conn. 253, 262-63, 487 A.2d 545 (1985). Having failed to preserve this issue for appeal, the defendant, in his reply brief, asks that he be afforded Evans review of this claim. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

We must ask a series of questions in order to determine whether Evans review is warranted. We first ask whether the defendant has raised an issue which, “ ‘by its terms, implicates a fundamental constitutional right? This question looks solely to whether the label which the defendant places on the claim is constitutional in nature.’ ” State v. Huff, 10 Conn. App. 330, 334, 523 A.2d 906 (1987). Here, the defendant claims that his federal and state constitutional rights to due process and a fair trial were violated by the admission of this testimony. The defendant has, therefore, passed the first step of Evans with this constitutional label.

The second question is whether the defendant’s claim is adequately supported by the record. “ ‘This question requires that we review the record in a limited way and determine, on the basis of that limited review, whether the defendant’s claim is truly of constitutional proportions or is simply characterized as such by the defendant.’ ” (Emphasis in original.) Id.

Our limited review reveals that the defendant’s claim is not of constitutional magnitude. “Only the most exceptional circumstances will save a claim from the fatal consequences of counsel’s failure to make a timely exception. State v. Evans, [supra].” State v. Chauvin, 8 Conn. App. 307, 310, 512 A.2d 969 (1986). The defendant here has failed to demonstrate that this claim is so exceptional as to merit review absent any proper preservation at trial.

The rule concerning admissibility of the testimony of this witness is a rule of evidence and not of constitutional law. See State v. Smith, 198 Conn. 147, 156, 502 A.2d 874 (1985). Because the defendant has failed to pass the second step required for Evans review, we decline to consider this claim any further.

Ill

The defendant’s final claim is that the trial court erred in its instructions to the jury on eyewitness identification by refusing to include in its charge an instruction on identification based on United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), and an instruction concerning photographic identification based on Simmons v. United States, supra. The defendant had requested both instructions at trial.

“The Telfaire instruction tells the jury to consider in appraising the identification testimony of a witness the adequacy of his opportunity and his capacity to observe the offender; the length of time available for the witness to observe the offender; the proximity of the witness to the offender; whether the witness had seen or known this person in the past; whether the identification was a product of the witness’ own recollection; and the credibility of the witness. United States v. Telfaire, [supra].State v. Davis, 198 Conn. 680, 685, 504 A.2d 1372 (1986). The Simmons instruction requested by the defendant cautions the jury about problems that arise when photographs are used to obtain an identification. Specifically, the defendant’s requested instruction includes a caution to the jury concerning police use of an improper identification procedure.

With respect to the defendant’s Telfaire request, we note that there is no constitutional right to an instruction on the fallibility of eyewitness identifications. United States v. Roundtree, 527 F.2d 16, 19 (8th Cir. 1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1133, 47 L. Ed. 2d 332 (1976); State v. Hardison, 16 Conn. App. 142, 146, 546 A.2d 968 (1988). “ ‘Although such an instruction may be given in an appropriate case; see State v. Harden, 175 Conn. 315, 322, 398 A.2d 1169 (1978); it is not reversible error for a trial court to refuse to give a Telfaire instruction where the conviction of the defendant did not turn upon the testimony of eyewitnesses who were uncertain, unclear or inconsistent. State v. Davis [supra 685].’ ” State v. Hardison, supra, quoting State v. Elliott, 8 Conn. App. 566, 573, 513 A.2d 1285, cert. denied, 201 Conn. 813, 517 A.2d 630 (1986). “ ‘The ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.’ State v. Harden, [supra].” State v. McKnight, 191 Conn. 564, 583, 469 A.2d 397 (1983).

We cannot conclude from our review that the eyewitness, Dod, was uncertain, unclear or inconsistent in her identification of the defendant. Notwithstanding her highly emotional condition immediately after the incident and during the first brief photographic array, Dod unhesitatingly and confidently identified the defendant during the second array and in court. Even though her initial description of her assailant was general, on review we cannot characterize that description as unclear or inconsistent.

Concerning the trial court’s instructions, we note that the court instructed the jury, inter alia, that: “the reliability of the identification witness [was] of paramount importance”; they should thoroughly scrutinize such testimony and consider “all the facts and circumstances which existed at the time of the observation of the perpetrator by the witness”; in addition to weighing such factors as the length of time the witness had to observe the assailant, lighting conditions, and potential distractions to a witness’ attention, the jury should consider the emotional condition of the witness as well as her general powers of observation; they should take into account “any occasions in which the witness failed to make an identification. . . . or made an identification which was inconsistent with her identification at trial”; and, finally, they must be “satisfied beyond a reasonable doubt of the identity of the defendant as the one who committed this crime” or find the defendant not guilty.

We conclude that the trial court’s instructions “adequately covered the dangers of misidentification.” See State v. McKnight, supra. It was, therefore, not error for the trial court to refuse to charge the jury in the language identical to that in the defendant’s request. See State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986). Because we have found that there was no unnecessary suggestiveness in the photographic arrays, the defendant’s claim that the trial court erred in failing to give the requested charge based on Simmons is without merit.

There is no error.

In this opinion the other judges concurred.

       When this matter came to trial, Detective Alfred Galin had retired and resided in Florida.

       Even if we were to conclude that the recurrent use of the defendant’s photograph in successive arrays was suggestive, we find from our review of the entire record that the identification was clearly reliable under the “totality of the circumstances.” See Neil v. Biggers, 409 U.S. 188, 190-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).

       We note that even if the defendant had properly preserved this claim for review, we would find no reversible error. The defendant, on recross, elicited the following from the witness.
      “Q. [Defense Counsel]: Officer, in your experience and training would a person’s memory be better the day of an event, be better the day the event occurred or fifteen months later?
      “A: Oh, given those correlations, I would have to say closer to the day that the event occurred than fifteen months later.”
      It was after this line of questioning that the state also asked for the officer’s opinion. In essence, the prosecutor repeated the same question to Officer Sullivan as had the defendant’s counsel.
      While we cannot unequivocally say that the type of testimony first elicited from Sullivan by the defendant’s counsel on recross and then repeated, in effect, by the state during its second redirect is not the type of opinion testimony that our appellate courts have condemned; see State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988); see also State v. Lamme, 19 Conn. App. 594, 603-604, 563 A.2d 1372 (1989); it is clear from the record that defense counsel invited the responses. The defendant cannot rely upon the admission of evidence which he himself introduced as a basis for a reversal of his conviction. State v. Smith, 212 Conn. 593, 610, 563 A.2d 671 (1989); State v. Kinsey, 173 Conn. 344, 349, 377 A.2d 1095 (1977); State v. Vilhotti, 11 Conn. App. 709, 713, 529 A.2d 235 (1987).

       The defendant’s requested instructions concerning eyewitness identification read as follows:
      “6. Are you satisfied that the identification made by the witness subsequent to the offense was the product of her own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made. If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to her for identification, you should scrutinize the identification with great care.
      “7. It must be recognized that the use of photographs may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in her memory the image of the photograph rather than of the person actually seen, reducing the trustworthiness of subsequent line-up or courtroom identification. This is not to say that such testimony concerning the use of photographs is to be disregarded by you, but I instruct you to appraise carefully such testimony balanced by the testimony revealed during cross-examination of such witnesses.”


text:
    Linda C. Waterman v. United Caribbean, Inc., et al.
    (7682)
    Borden, O’Connell and Foti, Js.
    Argued September 19
    decision released November 28, 1989

      Paul L. Bollo, for the appellants (defendants).

      Haden P. Gerrish, with whom, on the brief, was Bruce F. Cohen, for the appellee (plaintiff).
   Foti, J.

The defendants appeal from the declaration of a mistrial following the court’s granting of a motion to set aside the judgment. The defendants claim that the court lacked the power to set the judgment aside. We agree, and find error.

The facts are not in dispute. The plaintiff sued the defendants, United Caribbean, Inc., Freyer Corporation and Carl H. Freyer individually and as a promoter and business manager of Freyer Corporation. The complaint sought damages for default on a promissory note, breach of fiduciary duty, fraudulent conveyance, negligent misrepresentation and fraud. The trial was completed on August 17,1987, and the last posttrial brief was filed on May 23, 1988.

Because he had not rendered a decision within 120 days of the close of trial, the trial judge, on October 5, 1988, sent a letter to all parties of record requesting that they waive the provisions of General Statutes § Sl-lSSb, and extend the time for the court to render its decision until December 15,1988. Although the plaintiff consented to the proposed extension of time, the defendants notified the court on October 25,1988, that they would not execute the consent. On October 26,1988,156 days after the last posttrial brief was filed, the court rendered a judgment that substantially favored the defendants Carl Freyer and Freyer Corporation. Thereafter, on October 28,1988, the defendants filed a written waiver of General Statutes § 51-183b.

The plaintiff filed motions to set aside the judgment and for a new trial, because the judgment was not rendered within 120 days of the completion date of trial, as required by General Statutes § 51-183b. The court vacated the judgment, declared a mistrial, and assigned the matter for a new trial. The court’s decision was based on the fact that all parties had not consented to the issuance of the late judgment before it was rendered.

Before turning to the merits of the defendants’ appeal, we address the plaintiff’s claim that this case is not properly before this court. The plaintiff argues that when a trial court’s judgment is set aside or opened, a case returns to its prior status, as if the original judgment had never been entered. The plaintiff asserts that because the court vacated its October 26, 1988 decision, there is no final judgment from which an appeal may be taken.

Although the general rule is that an order setting aside a verdict or opening a judgment is not ordinarily a final judgment within the meaning of General Statutes § 52-263; Solomon v. Keiser, 212 Conn. 741, 746, 562 A.2d 524 (1989); our Supreme Court has recognized an exception to this rule. It has held that an order of the trial court opening a judgment is an appealable final judgment where the issue raised is the power of the trial court to open. Id., 747-48, citing Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980).

In the present case, the sole issue presented by the defendants is whether the trial court had the power to set aside the judgment. This appeal fits within the exception carved out in Costle. We therefore turn to the merits of the defendants’ claim.

General Statutes § 51-183b mandates that judgment in a civil, nonjury case be rendered within 120 days from the completion date of the trial unless “the parties . . . waive the provisions of this section.” Atrial ends with the filing of the last posttrial brief. Frank v. Streeter, 192 Conn. 601, 604, 472 A.2d 1281 (1984). In the present case, the last posttrial brief was filed on May 24, 1988, and the decision was not rendered until October 26, 1988. Thus, the 120 day period allowed by General Statutes § 51-183b had passed and the judgment was not timely.

A judgment rendered outside of the statutory period is voidable, or defective, but it is not void. Frank v. Streeter, supra, 603. Where a decision is voidable, the court does not lack subject matter jurisdiction to render the judgment. Whitaker v. Cannon Mills Co., 132 Conn. 434, 438, 45 A.2d 120 (1945); Foley v. Douglas & Bro., Inc., 121 Conn. 377, 380, 185 A. 70 (1936). Such a judgment is “erroneous unless there are circumstances amounting to a waiver of the irregularity or the consent of both parties . . .” Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 537, 294 A.2d 573 (1972).

Contrary to the plaintiffs claim, § 51-183b does not require that the consent of all parties be obtained prior to a late judgment. The statute requires only an “objection seasonably made after the filing of the decision.” Id., 538. Failure or refusal of a party to consent to a waiver of the statute’s requirement before a late judgment does not preclude that party from waiving or asserting that requirement after a late judgment has been rendered. Indeed, if such a precondition did exist, failure to obtain the prior consent of all the parties would necessarily cause any late judgment to be void rather than merely voidable, and this is clearly not the established rule. We conclude, therefore, that a late decision can be avoided only by a party who has not waived the provisions of § 51-183b, and that a party who has not waived those provisions before the judgment may do so afterwards.

The trial court in the present case had the power to render judgment on October 26,1988, because, although the decision was late, it had jurisdiction over the subject matter. It did not, however, possess the power to set aside the judgment at the request of the plaintiff, who by her express waiver had accepted the late judgment and was therefore bound by it. At the time of judgment, the defendants were the only parties who could have avoided the judgment by seasonably moving to vacate it. On October 28, 1988, however, the defendants waived their statutory right to a timely judgment, as they were entitled to do.

The plaintiff’s argument that the defendants must be estopped from waiving after a prior refusal to consent is without merit. There is no indication that either the plaintiff or the court had detrimentally relied on the defendants’ refusal to consent. The plaintiff also argues that to allow the defendants to waive the provisions of § 51-183b results in a miscarriage and circumvention of justice and that it is manifestly unfair. This claim, too, is without merit. The defendants did not gain a favorable decision by their refusal to consent, as the trial court need not have rendered a late judgment. The late judgment merely gave the defendants the option to avoid that judgment by asserting their right to a timely judgment, or to waive that right.

In summation, General Statutes § 51-183b places no obligation upon the parties to a civil action, but requires the judge to render a timely decision. The parties may waive the provisions of the section, refuse to waive, or take no action. See Bogaert v. Zoning Board of Appeals, supra, 537-38. Although the judgment herein was voidable, ultimately, all of the parties expressly waived the defect of its untimeliness, and it should not have been set aside.

There is error, the judgment is set aside and the case is remanded with direction to render judgment as on file.

In this opinion the other judges concurred.

       General Statutes § 51-183b provides: “Any judge of the superior court and any state trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       The memorandum of decision provides: “Judgment may enter for the plaintiff against [United Caribbean, Inc.] on its promissory note of $50,000 dated September 25, 1981; judgment may enter for the defendants Carl Freyer and Freyer Corporation on the basis that: plaintiff has failed to sustain her burden of proof of fraudulent misrepresentation; fraudulent nondisclosure of material information; mismanagement; breach of fiduciary duties; or that the so-called ‘corporate veil’ should be ‘pierced.’ ”


author: Per Curiam.

text:
    State of Connecticut v. Robert W. Pettersen
    (7818)
    Daly, Foti and La very, Js.
    Argued November 3
    decision released November 28, 1989

      John J. Carta, Jr., for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Michael Dannehy and Julia DiCocco Dewey, assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The defendant appealed from the judgment of conviction, after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21. The matter was remanded to the trial judge for the purpose of conducting an in camera inspection of the psychiatric records of the victim. State v. Pettersen, 17 Conn. App. 174, 551 A.2d 763 (1988). After obtaining the written consent of the victim and her mother, the trial judge complied with the order on remand and found “that there is no relevant evidence in the victim’s psychiatric records which would be admissible for impeachment purposes and that, notwithstanding nonaccess to said records, the defendant was not denied the right of cross-examination guaranteed to him by the Sixth Amendment of the United States Constitution.” The defendant claims that the trial court erred in making that finding.

We have reviewed the psychiatric records submitted as sealed exhibits and after a careful and thorough examination we conclude that the trial court did not abuse its discretion in denying the defendant access to the privileged material. State v. D’Ambrosio, 212 Conn. 50, 58-59, 561 A.2d 422 (1989).

There is no error.


author: Spallone, J.

text:
    State of Connecticut v. Isiah Thompson
    (6606)
    Spallone, O’Connell and Norcott, Js.
    Argued October 4
    decision released December 5, 1989

      Robert J. Sweeney, special public defender, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from his convictions, after a jury trial, of two counts of possessing and selling cocaine in violation of the state dependency-producing drug law, General Statutes § 21a-278 (b). The defendant claims that the trial court erred in its jury instructions on the element of possession and in refusing to permit the defendant to call the prosecuting attorney as a witness. We find no error.

The jury could have reasonably found the following facts. At about 10 p.m. on December 22, 1986, the Bridgeport police established a drug surveillance in the State Street and Lee Avenue area. Officer Daniel Herlihy conducted his surveillance, with the aid of field glasses, from the front porch of a building on Lee Avenue. He observed the defendant standing near the rear of an automobile abandoned on the street. For approximately two hours, Herlihy observed the defendant’s repeated pattern of activity. The defendant would hail passing cars by waving or shouting. The car would stop and the driver or passenger would approach the defendant and engage in brief conversation. The defendant would bend down, pick up something from the ground at the rear of the abandoned car and exchange items with the driver or passenger of the waiting vehicle.

At approximately 11 p.m., Herlihy stopped a vehicle driven by a person who had just completed such an exchange with the defendant. The driver handed the officer a small white packet, later determined to contain cocaine. The defendant was immediately placed under arrest, searched and found to be in possession of $244 but no drugs. The area near the abandoned car was searched and seven packets of white powder, later determined to be cocaine, were found on the road under the right rear fender.

At trial, the defendant denied any connection to the drugs found by the abandoned car. The defendant submitted a request to charge the jury on the issue of possession and claims that the trial court erred in failing to include a requested paragraph in the jury instructions. The defendant would have had the court charge that if the jury found the defendant not to be in exclusive control of the premises, it could not, without additional evidence, infer that the defendant knew of the presence of the drugs. Because the narcotics were located in a public area beneath an abandoned car, the defendant argues, the jury had to find, beyond a reasonable doubt, that the defendant was in exclusive control of the drugs. We disagree.

The charge on exclusive possession requested by the defendant is inappropriate in this case. The charge originated in Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 150 (1958), and the exclusive control determination has been applied to cases concerned with the possession and control of drugs in “premises,” e.g., apartments, homes, and motor vehicles containing at least two people. See State v. Delossantos, 211 Conn. 258, 277-78, 559 A.2d 164, cert. denied, U.S. , 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989); State v. Pena, 16 Conn. App. 518, 525, 548 A.2d 445, cert. denied, 209 Conn. 803, 552 A.2d 1217 (1988). These cases hold that the exclusive control of premises supports an inference that the resident or owner is aware and in control of any contraband present. If, however, the resident is not in exclusive control of the premises, specific evidence of knowledge and control is required to support the inference of possession.

The defendant offers no explanation nor cites any supportive authority for why this court should consider an abandoned car to be “premises,” to be treated at law as if it were a car with multiple occupants. Unlike the cases concerned with the control of premises, the defendant’s possession of the drugs was not inferred from his exclusive control of the abandoned car. The defendant was charged with the knowing possession of matter known to be contraband with the intent to sell. Possession, actual or constructive, was defined in the trial court’s jury instructions as “the power to exercise dominion or control over the drugs” (Emphasis added.) Possession and control of the car was not at issue.

We conclude that the charge as given was correct and appropriate. The court correctly defined the elements of the crime. The jury could reasonably have found that the defendant knew the packets were under the car and knew the packets contained drugs. Notwithstanding that the drugs were found in a publicly accessible area, the jury could have reasonably found that the defendant exercised dominion and control over, and so was in possession of, the contraband. See State v. Melillo, 17 Conn. App. 114, 117-18, 550 A.2d 319 (1988) (defendant found in possession of drugs hidden in base of tree).

In his second claim of error, the defendant asserts that the trial court should have permitted him to call the prosecutor, assistant state’s attorney C. Robert Satti, Jr., to the stand. Prior to this trial, Satti had filed an amended information against John Colter charging Colter with the sale of narcotics. Satti also argued the facts of the information to the court when Colter later changed his plea to guilty. Colter had been arrested at the same time, date and place as the defendant for activities unrelated to the defendant. The amended information filed by Satti states the time of Colter’s arrest as 10 p.m. The defendant argues that because he was arrested after 11 p.m., evidence concerning the time discrepancy would tend to contradict the testimony of Herlihy. The defendant’s motion to disclose exculpatory information requested that the state make available the Colter amended information and Satti’s testimony from Colter’s change of plea proceeding. The motion was denied, as was the defendant’s subsequent request to examine Satti at trial on his prior statements. The defendant claims that he was impermissibly denied the opportunity to introduce evidence that would have put in doubt Herlihy’s identification of the defendant. We disagree.

Rule 3.7 of the Rules of Professional Conduct codifies what is commonly called the “advocate-witness rule,” and many cases have considered the application of this rule to determine whether a client may seek testimony from his own lawyer at trial. The rule permits an attorney actively participating in the case to be a witness as to merely formal matters but discourages testimony as to other matters on behalf of his client except when essential to the ends of justice. State v. Blake, 157 Conn. 99, 102, 249 A.2d 232 (1968), citing Number 19 of the Canons of Professional Ethics; see also State v. Rapuano, 192 Conn. 228, 231, 471 A.2d 240 (1984).

The rule does not render the attorney incompetent as a witness or disqualify him from testifying, although it may be a serious impropriety for him both to testify and to continue active participation in the case. State v. Blake, supra; Lebowitz v. McPike, 151 Conn. 566, 570, 201 A.2d 469 (1964); Puglio v. Puglio, 18 Conn. App. 606, 608, 559 A.2d 1159 (1989). To have an advocate-witness, the party must demonstrate the necessity for the testimony, such as “an emergency the likelihood of which could not reasonably have been anticipated in time for [the attorney] to withdraw from the case before trial.” State v. Blake, supra.

The Supreme Court has applied this unforeseeable exigency standard to cases in which a party wanted to have his own attorney as a witness. See, e.g., State v. Rapuano, supra; State v. Blake, supra; Lebowitz v. McPike, supra; Miller v. Urban, 123 Conn. 331, 334, 195 A. 193 (1937). The courts in this state have not previously had an opportunity to consider the standard to be applied where, as here, a criminal defendant seeks testimony from the prosecuting attorney. There are, however, numerous federal cases that address this issue and that consistently apply the test of “compelling need.” See, e.g., United States v. Prantil, 764 F.2d 548 (9th Cir. 1985); United States v. Dack, 747 F.2d 1172 (7th Cir. 1984); United States v. Schwartzbaum, 527 F.2d 249 (2nd Cir. 1975), cert. denied, 424 U.S. 942, 96 S. Ct. 1410, 47 L. Ed. 2d 348 (1976).

This compelling need test is consistent- with the advocate-witness rule in that there is no absolute bar to calling a participating prosecutor as a witness. The possibility for abuse, however, is of such a magnitude as to require the satisfaction of a higher standard. United States v. Prantil, supra, 554. In United States v. Birdman, 602 F.2d 547, 553-55 (3rd Cir. 1979), cert. denied, 444 U.S. 1032, 100 S. Ct. 703, 62 L. Ed. 2d 668 (1980), the United States Court of Appeals for the Third Circuit examined the case law and identified four policies served by applying the compelling need standard to the situation of prosecutor-witness.

First, there is the risk that the prosecutor may not be a fully objective witness. Id., 553. Second, there exists the justifiable fear that, when a prosecutor takes the witness stand, “the prestige or prominence of the prosecutor’s office will artificially enhance his credibility as a witness.” United States v. Johnston, 690 F.2d 638, 643 (7th Cir. 1982). Third, the jury may understandably be confused by the prosecutor’s dual role. Id. The jury would be required to segregate the factual testimonial account of the prosecutor-witness from the exhortations of the prosecutor-advocate. United States v. Prantil, supra, 553. “Naturally, the potential for jury confusion is perhaps at its height during final argument when the prosecutor must marshall all the evidence, including his own testimony, cast it in a favorable light, and then urge the jury to accept the government’s claims.” Id. Finally, a broader concern for public confidence in the administration of justice suggests the maxim that “ ‘justice must satisfy the appearance of justice.’ ” United States v. Johnston, supra; United States v. Birdman, supra, 554. Public confidence in our criminal justice system may be eroded by even the appearance of impropriety. United States v. Prantil, supra.

Permitting a defendant to call his prosecuting attorney as a witness, therefore, “inevitably confuses the distinctions between advocate and witness, argument and testimony, [and] is acceptable only if required by compelling and legitimate need.” United States v. Schwartzbaum, supra, 253. Because these concerns implicate fundamental tenets of our adversarial system, we adopt the federal standard. Accordingly, we hold that a defendant must demonstrate a compelling need before a participating prosecutor will be permitted to testify.

The trial court is charged with making the determination of the materiality of the witness’ testimony and must, of course, honor the defendant’s constitutional rights of confrontation and compulsory process. United States v. Prantil, supra, 552. The defendant who wants to call his prosecutor as a witness must demonstrate that the testimony is necessary and not merely relevant, and he must show that he has exhausted other available sources of comparably probative evidence. Id., 551.

The defendant in the present case does not meet the requirements of the compelling need test. The defendant states that he would have examined the prosecutor as to the hour of Colter’s arrest, as specified by the prosecutor in the Colter amended information and at the subsequent plea proceeding. This detail would have been used to impeach Herlihy’s credibility. The prosecutor’s testimony for impeachment purposes was not vital to the defense. See id., in which the prosecutor’s testimony was vital to the defense because he was both a witness to and a participant in the factual events at issue.

The defendant had alternate means that he did not exhaust of bringing the evidence before the jury. Colter himself testified for the defense and could have been examined concerning the hour of his arrest. The amended information could have been used, if necessary, to refresh Colter’s memory. Colter’s amended information and the transcript from his plea proceeding would have been sufficient in themselves to establish inconsistencies. See United States v. Schwartzbaum, supra (prosecutor not needed to testify to government prepared memorandum). Upon the defendant’s request, the court could have taken judicial notice of the documents. See State v. Crump, 201 Conn. 489, 500, 518 A.2d 378 (1986); State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476 (1964). There was no compelling need to examine Satti and the court committed no error in refusing the defendant’s request to do so.

There is no error.

In this opinion the other judges concurred.

       The defendant requested the following instruction. “Therefore, if you find that the defendant was not in exclusive possession of the premises where the narcotics were found, in order to infer that he knew of their presence, and that he was in control of them, you must also find that he made an incriminating statement or that there are other circumstances which tend to support that inference.”

       Rule 3.7 of the Rules of Professional Conduct, entitled Lawyer as Witness, provides in pertinent part:
      “(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
      “(1) The testimony relates to an uncontested issue;
      “(2) The testimony relates to the nature and value of legal services rendered in the case; or
      “(3) Disqualification of the lawyer would work substantial hardship on the client.”


author: Lavery, J.

text:
    Eugene E. Krohner v. Seyburt Associates Limited Partnership
    (7793)
    Borden, O’Connell and Lavery, Js.
    Argued October 5
    decision released December 5, 1989

      Martin A. Gould, with whom, on the brief, was Alfred J. Garofolo, for the appellant (plaintiff).

      Richard P. Weinstein, with whom, on the brief, was Kerry M. Wisser, for the appellee (defendant).
   Lavery, J.

The plaintiff appeals from a judgment denying him an easement by prescription over a portion of the defendant’s land. The plaintiff claims that the trial court erred (1) in concluding that the plaintiff had failed to establish or define the bounds of the claimed prescriptive easement with reasonable certainty, and that he had failed to show that his or his tenants’ use of the claimed prescriptive easement was different from that use made by the general public, and (2) in making two evidentiary rulings. We find no error.

The trial court found the following facts. Since 1956, the plaintiff has owned property in West Hartford located at 39 South Main Street. A commercial building stands on the property, and is leased by a Radio Shack franchise and the Royal Paint and Wallpaper Company. The building faces east, and has parking spaces along its east and north walls. On the rear wall there is a loading dock for the two stores. The only way for a delivery truck to reach the loading dock without passing over the defendant’s property to the north is to back the truck around the north side of the plaintiff’s building to the loading dock. Even that method is impossible if cars are parked along the north wall of the building.

For twenty years, delivery and other vehicles avoided this problem by using the property at 29-31 South Main Street, which is situated immediately to the north, and which was purchased by the defendant in 1986. Although part of the boundary line was blocked by a chain link fence, the fence ended approximately twenty to thirty feet short of each end of the boundary line, thereby allowing access to the plaintiff’s property via the defendant’s.

The portion of the defendant’s property under discussion was part of a paved parking lot for a supermarket formerly located on the property. To the west of the defendant’s property was another commercial building occupied by a bank. The property immediately south of the bank and immediately west of the plaintiff’s property is owned by the United States government and has a post office situated on it. A chain link fence separates the post office property from the plaintiff’s. The properties on which the bank and the post office are located both front on LaSalle Road.

For twenty years, a shortcut known as the Arapahoe Road Extension ran between South Main Street and LaSalle Road. It ran over the south portion of the defendant’s property and over that of either the owners of the bank building or the post office. Although the exact contours of the shortcut shifted depending on how cars were parked in the defendant’s parking lot, it was possible to use the shortcut to access LaSalle Road from South Main Street, and vice versa. Delivery trucks leaving the plaintiff’s loading dock through the opening in the fence entered the portion of the Arapahoe Road Extension that ran over the defendant’s property. The shortcut was not a public road, although it was used by delivery trucks for Radio Shack and Royal Paint and Wallpaper, and by patrons of the supermarket, bank, and post office, as well as by motorists passing between South Main Street and LaSalle Road.

In February, 1988, the defendant put a construction fence on its property, effectively blocking the shortcut. Construction of a retail and office building complex is now underway on the south portion of the defendant’s property.

Radio Shack and Royal Paint and Wallpaper deliveries are now being made by trucks backing into the area along the north side of the plaintiff’s building to reach the loading dock. Although this method of delivery is burdensome and inconvenient for the plaintiff’s tenants, the elimination of access over the defendant’s premises has not made deliveries to the loading dock impossible or impractical.

To acquire a right-of-way by prescription there must be a use that is open, visible, continuous and uninterrupted for fifteen years, and made under a claim of right. General Statutes § 47-37; Putnam, Coffin & Burr, Inc. v. Halpern, 154 Conn. 507, 515, 227 A.2d 83 (1967). Use made under a claim of right means use that is made without recognition of the rights of the servient tenement. Zavisza v. Hastings, 143 Conn. 40, 46, 118 A.2d 902 (1955). Where the use of a right-of-way is in common with the public, the common use is considered to negate a presumption of grant to any individual use. In such a case, the individual user must, in order to establish an independent prescriptive right, perform some act of which the servient owner is aware and which clearly indicates his individual claim of right. Missionary Society v. Coutu, 134 Conn. 576, 582, 59 A.2d 732 (1948). Whether the requirements for such a right have been met in a particular case presents a question for the trier of facts after the nature and character of the use and the surrounding circumstances have been considered. Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 464, 338 A.2d 470 (1973); Klein v. DeRosa, 137 Conn. 586, 589, 79 A.2d 773 (1951).

In this case, the court found that “the Arapahoe Road Extension was used by the general public, including the plaintiff, for over twenty years as a convenience in traveling from South Main Street westerly to LaSalle Road and vice versa for access to the U.S. Post Office . . . the bank and as a general throughway.” The court further found that “the use of the accessway by the plaintiff and his tenants was no different from that use made by the general public which was to traverse the parking lot of the defendant.” The court also found that although the plaintiff and his tenants made a distinct use to gain access to the loading dock, there was nothing in the evidence to show that as to the general public this use was so different or unique that it would have put the defendant’s predecessor on notice of a use different from that of the general public.

The finding by the trial court that the use by the plaintiff and his tenants was not different from the use by the general public defeats the plaintiff’s claim for an easement by prescription. The trial court reasonably and legally reached that conclusion from the evidence before it.

The second basis for the trial court’s judgment was that the plaintiff had failed to establish the bounds of the claimed right-of-way with sufficient certainty. The plaintiff’s two evidentiary claims of error are relevant only to this basis for the trial court’s judgment. These claims are (1) that the trial court should have allowed the plaintiff to give opinion testimony as to the width of the alleged easement, and (2) that the court should have overruled the defendant's objection to the introduction as a full exhibit of a photocopy of the town assessor’s map with the claimed easement marked on it. Because we have found the first basis for the trial court’s judgment adequate to sustain that judgment, we need not review these two claims of error.

. There is no error.

In this opinion the other judges concurred.


text:
    Francis A. Miniter et al. v. Zoning Board of Appeals of the Town of Berlin
    (7814)
    Spallone, O’Connell and Foti, Js.

      Argued October 4
    decision released December 5, 1989

      Stephen L. Savarese, for the appellants (plaintiffs).

      E. Timothy Sullivan, Jr., corporation counsel, for the appellee (defendant).
   Foti, J.

The plaintiffs appeal from the judgment of the trial court upholding the decision of the defendant zoning board of appeals of the town of Berlin (board), which sustained the town building inspector’s disapproval of their proposed building plans and alternate application for a variance to construct a second kitchen in a single-family home located in a single-family residence zone. The plaintiffs claim that the court erred (1) in finding that their request for a variance of the applicable zoning regulation constituted a concession of the propriety of the local building inspector’s interpretation of the regulation and consequently estopped them from appealing that official’s decision, and (2) in failing to review the board’s decision to uphold the zoning enforcement officer’s interpretation of the regulation. We find error.

The plaintiffs, a husband and wife, have built a house in Berlin’s Mountain Reserve zone. Because the plaintiffs desired to add a kitchen facility for a mother-in-law suite, they submitted building plans to the building inspector, the town’s zoning enforcement officer, in order to obtain a building permit. The building inspector refused to approve the complete mother-in-law suite, indicating that an additional kitchen left open the possibility that the home could be used as a two-family dwelling in the future. In response to this decision, the plaintiffs filed an application with the defendant board seeking a reversal of the building inspector’s ruling. General Statutes § 8-6 (l). As an alternative strategy, the plaintiffs also requested that the board grant them a variance from the zoning regulations as provided in General Statutes § 8-6 (3). The board’s denial of the plaintiffs’ application addressed only their request for a variance, stating that “[t]his unit, including a kitchen and bath, constitutes a potential for a two family dwelling.”

The plaintiffs appealed the board’s decision to the Superior Court in accord with General Statutes § 8-8. This appeal requested relief “from the decision of the building inspector for a second kitchen facility in a single family residential dwelling,” and from the denial of the application for a variance. The trial court denied the plaintiffs’ appeal, holding that the statutory remedies available to the plaintiffs were mutually exclusive, and “that the plaintiffs, by requesting a determination in the alternative, conceded that the building inspector was correct in his interpretation of the regulation and therefore are now estopped from appealing the board’s decision denying a reversal of the building inspector’s ruling.” The court also held that the board’s denial of the variance was supported by the record.

The plaintiffs first claim that the trial court erred in finding that the remedies possible under General Statutes §§ 8-6 (1) and 8-6 (3) are mutually exclusive. We agree.

Section 8-6a of the General Statutes states that “[wjhenever an application to a zoning board of appeals for the grant of a variance is joined with an appeal from any order, requirement or decision made by the official charged with the enforcement of this chapter, or any bylaw, ordinance or regulation adopted under the provisions of this chapter, the board shall first decide the issues presented by such appeal.”

General Statutes § 1-1 (a) mandates that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of language.” “Courts must interpret the statutes as they are written . . . and cannot, by construction, read into them provisions which are not clearly stated. . . . It is a cardinal rule of construction that statutes are to be construed so that they can carry out the intent of the legislature. This intent is to be ascertained from the language of the statute itself where the language is plain and unambiguous.” (Citations omitted.) Edelson v. Zoning Commission, 2 Conn. App. 595, 599, 481 A.2d 421 (1984).

The plain language of § 8-6a clearly allows a party to file a bifurcated claim with a zoning board relying on both §§ 8-6 (1) and 8-6 (3) and requesting simultaneous relief under each of these subsections. Simply put, § 8-6a permits the concurrent filing of both an appeal from a zoning enforcement officer’s ruling and a request for a variance. When a party applies for a review under both §§ 8-6 (1) and 8-6 (3), § 8-6a specifically requires that a zoning board first decide the issues presented by the § 8-6 (1) application for a building permit. Should the board uphold the denial of the building permit, it must then act upon the § 8-6 (3) request for a variance of the zoning ordinance.

In the immediate case, there is no indication that the defendant board ever reviewed the plaintiffs’ application for a building permit. Its denial was addressed solely to the plaintiffs’ application for a variance. The Superior Court compounded the board’s error when it premised its decision on a finding that the plaintiffs were estopped from relying on the remedies of both §§ 8-6 (1) and 8-6 (3) and consequently reviewed only the plaintiffs’ application for a variance.

The defendant argues that the Superior Court was correct in its interpretation of §§ 8-6 (1) and 8-6 (3) as mutually exclusive remedies and relies upon Barausky v. Zoning Board of Appeals, 38 Conn. Sup. 651, 459 A.2d 258 (1983). This reliance is misplaced, however, in light of the fact that Barausky is distinguishable from the present case.

In Baransky, the defendant property owner ran a fabric business from a building that was on a parcel of land that abutted the plaintiffs land. After an ordinance was passed declaring the area an R-40 residential zone, the defendant continued the operation of his business as a nonconforming use. Eventually, the defendant closed the business and the building remained unused for three years. When the defendant found a buyer for the property who wanted to use the building as a framing shop, he applied to the town’s zoning enforcement officer for a permit to operate the new business on the property. When the zoning permit was denied, he applied to the zoning board of appeals for the reinstatement of his nonconforming use. The court held that the defendant had pursued the wrong remedy. It stated that the only two remedies open to the defendant at this time were either (1) to appeal the denial of the permit, or (2) to apply for a variance to allow a commercial use in a R-UO residential zone. “By applying . . . to reinstate their nonconforming use, however, the defendants, in effect, improperly mixed alternative remedies. This they could not do, since . . . those zoning board powers are mutually exclusive.” (Emphasis added.) Id., 654.

The zoning powers referred to by the Baransky court as mutually exclusive are (1) the power to allow or overlook a nonconforming use, and (2) the power to grant a variance permitting commercial use in a noncommercial zone. The remedies made available by §§ 8-6 (1) and 8-6 (3) are not affected by this ruling and can be applied for simultaneously.

The defendant further argues that the proposed mutually exclusive line of reasoning and its limitation on remedies is analogous to the situation presented in Lauricella v. Planning & Zoning Board of Appeals, 32 Conn. Sup. 104, 342 A.2d 374 (1974). In Lauricella, the plaintiffs appealed from the decision of the building inspector and also requested a special exception to allow the erection of the proposed buildings, noting that the request was being made without prejudice and with reservation of all rights. The defendant argued that the plaintiffs had waived the right to appeal the board’s upholding of the inspector’s decision by requesting the special exception. The court noted that “‘[t]he defendant seeks to apply the established rule that, having sought to avail themselves of the zoning reguations by making application thereunder, the plaintiffs are precluded in the same proceeding from raising the question of their constitutionality or legality. . . . The plaintiffs have successfully avoided that limitation on their claims by the clear reservation of all rights, which had as its purpose the express denial of any such waiver as is now claimed by the defendant.” (Emphasis added; citation omitted.) Id., 106.

The defendant’s reliance on Lauricella is also misplaced. The plaintiffs in the present case are not attacking the legality or constitutionality of the regulations that they are seeking to vary, and, therefore, there was no need for them to make their request for simultaneous review without prejudice and with reservation of all rights. The plaintiffs’ position is that the zoning enforcement officer was incorrect in his interpretation of the regulations, but, in the alternative, if he was correct, they request a variance.

We conclude that the proper standard of review was not followed here. “An administrative agency such as the board in the instant case is called on to determine the applicability of the law to a given state of facts presented to it. The trial court [has] to decide whether the board correctly interpreted the regulation and applied it with reasonable discretion to the facts. Pascale v. Board of Zoning Appeals, 150 Conn. 113, 117, 186 A.2d 377 [1962].” Thorne v. Zoning Board of Appeals, 156 Conn. 619, 620, 238 A.2d 400 (1968). “ 'In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.’ ” Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988), quoting Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1967). In accord with that standard, it was the board’s duty, pursuant to General Statutes § 8-6a, to review and decide the plaintiffs’ appeal before acting on the application for a variance. On appeal to the Superior Court, the court should have determined whether the board correctly interpreted the regulations and applied them with reasonable discretion to the facts. This was not done here.

There is error, the judgment is set aside and the case is remanded to the trial court for further proceedings in accordance with law.

In this opinion the other judges concurred.

       In accord with section 4.11 of the zoning regulations of the town of Berlin, the town’s Mountain Reserve zone allows only detached, single-family dwellings, farms and golf courses.

       General Statutes § 8-6 provides in pertinent part: “The zoning board of appeals shall have the following powers and duties: (1) To hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of this chapter or any bylaw, ordinance or regulation adopted under the provisions of this chapter.”

       General Statutes § 8-6 (3) provides that the zoning board of appeals has the following power and duty: “(3) to determine and vary the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured, provided that the zoning regulations may specify the extent to which uses shall not be permitted by variance in districts in which such uses are not otherwise allowed. No such board shall be required to hear any application for the same variance or substantially the same variance for a period of six months after a decision by the board or by a court on an earlier such application.”

       The plaintiffs allege that under the zoning regulations of the town of Berlin a “dwelling unit” is defined as: “A building or portion thereof, providing complete housekeeping facilities for one family,” and that a second kitchen would not violate the “complete housekeeping” standard.

       We note that the plaintiffs do not claim in their statement of issues that the trial court erred in upholding the defendant’s denial of their application for a variance.