text:
    State of Connecticut v. Thurlow Carey
    (8556)
    Daly, O’Connell and Landau, Js.
    Argued September 12, 1990
    decision released July 30, 1991

      John M. Hudock, certified legal intern, with whom was Todd D. Fernow, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Pedro Segarra, former deputy assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the revocation of his probation. He claims that the evidence presented at his revocation hearing (1) was insufficient as a matter of law, (2) violated his constitutional right to due process of law, and (3) violated his right to cross-examine witnesses. We reverse the judgment of the trial court.

The record discloses that on June 13, 1988, the defendant pleaded guilty to assault in the third degree in violation of General Statutes § 53a-61 and was sentenced to ninety days in the custody of the commissioner of correction. The defendant’s sentence was suspended and he was placed on probation for one year subject to a condition that he have no further contact with the victim of the assault. During the defendant’s probationary period, he was arrested twice for allegedly assaulting the victim. After the first arrest, the defendant’s probation officer filed a motion for violation of probation pursuant to Practice Book § 943 and, following the second arrest, filed a substitute motion apparently intending to include both arrests. The substitute motion indicated that the reason for the motion was “[subsequent arrests.”

The sole witness at the revocation hearing was the defendant’s probation officer. Following her testimony, the state rested and the defendant declined to present evidence on his own behalf. The court found that the defendant had violated his probation and put the original sentence into effect. The defendant appealed.

We first address the threshold question of whether this matter was properly before the trial court. The question was raised by this court sua sponte at oral argument and, because neither party’s appellate briefs addressed the issue, we granted a continuance in order to receive supplemental briefs.

We must first determine if we are barred from considering this question sua sponte because of the Supreme Court’s decision in Lo Sacco v. Young, 210 Conn. 503, 508-509, 555 A.2d 986 (1989). The gravamen of the Lo Sacco decision is that procedural rules, as opposed to substantive requirements, are considered waived if not raised by the parties. Because the rule at issue in the present case concerns the court’s subject matter jurisdiction, it is clearly substantive and therefore may be raised at any time. See DiBerardino v. DiBerardino, 213 Conn. 373, 377, 568 A.2d 431 (1990).

Even if the rule here is procedural, the present case is sufficiently distinguishable from Lo Sacco to permit us to raise it on our own motion. In the present case, we directed the parties’ attention to the apparent noncompliance with Practice Book § 943 during oral argument. Section 943 establishes the procedure for initiating a violation of probation proceeding. Both parties stated that they had not considered whether there had been compliance with the rule and that this was an oversight. Neither party claimed that there had been any express or implied waiver of the rule and both parties accepted the opportunity to brief the issue. This procedural history contrasts sharply with Lo Sacco where the Appellate Court, without warning or notice, raised a rule of practice in its decision sua sponte and then relied on it as the sole basis for its decision. The Lo Sacco parties were never given an opportuniuty to address the rule. Because this court pointed out the overlooked rule in the present case, and gave the parties an opportunity to fully brief the issue, this case falls outside the Lo Sacco proscription against Appellate Court action sua sponte.

The defendant vigorously argues in his supplemental brief that the failure of the state to follow the procedure mandated by Practice Book § 943 deprived the trial court of subject matter jurisdiction. Practice Book § 943 provides for the commencement of a violation of a probation proceeding by motion only if (1) the revocation is based upon a conviction for a new offense and (2) the defendant is before the court pursuant to that conviction. This proceeding did not satisfy either requirement and therefore it was improperly commenced by motion. The state does not claim any attempt was made to initiate the proceeding by either of the other two permissible methods (i.e., an arrest warrant or a written notice signed by a judge and served by a probation officer).

“It has long been recognized that penal statutes and rules of criminal procedure are to be strictly construed to protect the fundamental constitutional right to liberty.” State v. Cook, 183 Conn. 520, 522, 441 A.2d 41 (1981). In Cook, the Supreme Court affirmed the trial court’s dismissal of probation revocation proceedings because the arrest warrant lacked a judge’s signature, and therefore failed to comply with the rule of practice. Id., 523. The present case is more egregious than Cook because here there was no warrant, nor was there any compliance with the alternative methods by which violation of probation proceedings might have been started.

The state argues that we should apply the doctrine that “ ‘[d]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.’ ” (Emphasis added.) State v. Fleming, 198 Conn. 255, 263, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 2d 541 (1952). We do not apply that rule to this case, however, because it pertains to a criminal prosecution and it is black letter law that a probation revocation hearing is not a stage of a criminal prosecution. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); State v. Wright, 24 Conn. App. 575, 580, 590 A.2d 486 (1991). Probation violation matters are discrete statutory procedures to which many of the substantive and procedural rules of criminal law do not apply. Payne v. Robinson, 207 Conn. 565, 571, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988) (inapplicability of the exclusionary rule); State v. Smith, 207 Conn. 152, 177, 540 A.2d 679 (1988) (different standard of proof); State v. White, 169 Conn. 223, 239-40, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975) (different hearsay evidence rule); State v. Baxter, 19 Conn. App. 304, 312-13, 563 A.2d 721 (1989) (conditional right to liberty). We appreciate that the thrust of these cases is to affirm probation revocations when criminal prosecution standards are not met. We are not prepared, however, to create a double standard effectively holding that violation proceedings are not criminal prosecutions when that interpretation benefits the state, but are criminal prosecutions when that interpretation benefits the state. Thus, we decline to apply the doctrine of State v. Fleming, supra, to the present case.

Connecticut has not ruled on whether a court’s power to grant probation is inherent or purely statutory. Although other jurisdictions are not unanimous on the question, it is generally held that the power to suspend execution of a sentence and place a defendant on probation is dependent upon statutory provision and can be exercised only in accordance with the terms of the statute. State v. Wright, 202 N.W.2d 72, 76 (Iowa 1972); see also 21 Am. Jur. 2d, Criminal Law § 568; 56 A.L.R.3d 916. Penal statutes are to be strictly construed in favor of the defendant and not extended by implication. State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987). Rules of practice are to be interpreted according to the same rules of construction as statutes. State v. Cook, supra, 521.

It is axiomatic that when a procedure is established by statute, lack of strict compliance with the statute makes the matter subject to dismissal for lack of jurisdiction. Shine v. Powers, 37 Conn. Sup. 710, 711, 435 A.2d 375 (1981). This principle has been applied to, inter alia, appeals from administrative agencies to the courts; Donis v. Board of Examiners in Podiatry, 207 Conn. 674, 683, 542 A.2d 726 (1988); appeals from trial courts to appellate tribunals; DeTeves v. DeTeves, 202 Conn. 292, 295, 520 A.2d 608 (1987); and highway defect actions against the state pursuant to General Statutes § 13a-144. Kuchinski v. Burns, 23 Conn. App. 198, 200, 579 A.2d 585 (1990). Accordingly, probation revocation proceedings are valid only if they strictly comply with the statutes and rules of practice that established them. The state’s failure to comply with Practice Book § 943 governing the commencement of a violation of probation proceeding deprived the trial court of subject matter jurisdiction.

We note the disparity between General Statutes § 53a-32 (a) and Practice Book § 943. See State v. Baxter, supra, 312 n.8. The statute does not include a provision for the commencement of a violation of probation proceedings by motion. We are therefore facially confronted with reconciliation of the rule of practice and the statute to determine a possible violation of the constitutional doctrine of separation of powers. See State v. Clemente, 166 Conn. 501, 507, 353 A.2d 723 (1974). It is a well founded principle, however, that a court should decide a question on nonconstitutional grounds whenever possible. State v. Williams, 200 Conn. 310, 322, 511 A.2d 1000 (1986). We satisfy this principle today by holding that Practice Book § 943 requires strict compliance and that strict compliance was lacking. Accordingly, because the rule of practice in question was not satisfied, we do not reach the constitutional issue raised by the conflict between the rule and the statute.

The judgment is reversed and the case is remanded with direction to dismiss the proceeding.

In this opinion the other judges concurred.

       Practice Book § 943 provides in pertinent part: “In cases where the revocation of probation is based upon a conviction for a new offense and the defendant is before the court or is being held in custody pursuant to that conviction, the revocation proceeding may be initiated by a motion to the court by a probation officer and a copy thereof shall be delivered personally to the defendant. All other proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of his probation or his conditional discharge or by a written notice to appear to answer to the charge of such violation, which notice, signed by a judge of the superior court, shall be personally served upon the defendant by a probation officer and contain a statement of the alleged violation.” (Emphasis added.)

       Even if violation of probation were a crime, it is doubtful that the words “subsequent arrests” would be sufficient to satisfy the Fleming court’s requirement that the defendant be “fairly apprized of the charges against him . . . State v. Fleming, 198 Conn. 255, 263, 502 A.2d 886 (1986).

       General Statutes § 53a-32 (a) provides in pertinent part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. Such written statement, delivered with the defendant by the arresting officer to the official in charge of any correctional center or other place of detention, shall be sufficient warrant for the detention of the defendant.”


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    State of Connecticut v. Donald Payne
    (8993)
    Norcott, Landau and Cretella, Js.
    Argued December 4, 1990
    decision released August 13, 1991

      Thomas M. Conroy, special public defender, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom were Ronald Fasano, former assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction that followed his conditional pleas of nolo contendere to two counts of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2) and two counts of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1). The dispositive issue in this case is whether, under the Connecticut constitution, the question of probable cause is to be determined by the totality of the circumstances analysis set out in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), or by the stricter two-pronged test of the Aguilar-Spinelli cases as previously adopted by our Supreme Court in State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985).

The following facts are relevant to our discussion of this issue. On June 24, 1989, New Haven police officers searched the defendant’s Sheffield Avenue apartment pursuant to a search warrant that had been issued in connection with their investigation of a series of burglaries that had taken place in the city’s Prospect Street section. In the affidavit that was attached to the warrant Detective Mel Cartoceti and Officer Edwin Ingraham stated that a “known and reliable informant” had named the defendant as one of two individuals that were burglarizing homes in the Prospect Street area. Police seized several items from the defendant’s apartment that were connected with two of the burglaries, and the defendant was subsequently arrested and charged with two counts of burglary in the first degree in violation of General Statutes § 52a-101 (a) (2), two counts of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1) and two counts of kidnapping in violation of General Statutes § 53a-92 (a) (2) (B).

On December 12,1989, the defendant filed a motion to suppress the items seized from his apartment. At the hearing on the motion, the state conceded that the warrant and supporting affidavit did not meet the requirements of Aguilar-Spinelli, but argued instead that the warrant should be upheld because the officers executing it relied in good faith on the judge’s endorsement. See United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The trial court agreed, and the defendant subsequently entered pleas of nolo contendere to four of the counts conditioned on the reservation of his right to appeal the trial court’s denial of his motion to suppress.

The defendant instituted this appeal on March 23, 1990, initially claiming that the trial court improperly found a good faith exception to the exclusionary rule under the Connecticut constitution. After the defendant had filed his brief, our Supreme Court decided this issue in State v. Marsala, 216 Conn. 150, 151, 579 A.2d 58 (1990), holding that “a ‘good faith’ exception to the exclusionary rule is incompatible with the constitution of Connecticut . . . .” Accordingly, on September 19, 1990, this court allowed the state to file a statement of alternative grounds. Practice Book § 4013 (a) (1). In its statement, the state asserts, in pertinent part, that (1) the Gates totality of the circumstances test should be used to determine probable cause for the issuance of a warrant in all cases where the warrant is based on informant information and, alternatively, (2) the Gates test should be used at least in those cases where an informant’s tip is not the basis for initiating a police investigation but instead is used to identify suspects and corroborate facts.

Our decision in this case is controlled by our Supreme Court’s recent rulings in State v. Johnson, 219 Conn. 557, 594 A.2d 933 (1991), and State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). In those cases, the court overruled its previous holding in Kimbro and found that “the ‘totality of the circumstances’ analysis adopted in Gates will continue to guarantee the people of Connecticut ‘the full panoply of rights’ that they have come to expect as their due.” State v. Barton, supra, 546. “Under that analysis, the task of a magistrate in determining the existence of probable cause to search is to make a practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the ‘veracity’ and the ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Barton, supra, 552. When an affidavit indicates that the police have relied on information from a confidential informant, ‘the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented.’ Id., 544.” State v. Johnson, supra, 563.

We must now consider the affidavit presented in this case in light of these standards. The affidavit stated that Sergeant William White of the New Haven police department had learned from a “known and reliable informant” that the defendant was one of two black males who had taken part in a series of burglaries that the department was investigating. The informant told White that the burglaries had taken place in the Prospect Street section of New Haven and that the burglars had used gloves and masks and had taken jewelry and in one instance a television set. According to the affidavit, this information was in agreement with what the police had already learned in the course of their investigation of the burglaries. The affidavit also stated that the informant gave White the second burglar’s address and told him that the man lived with a woman named Priscilla and that he may have sold some of the stolen items to the Reverend Kimber of the Pitts Chapel. A check with United Illuminating Company confirmed that Priscilla Langley was receiving electric services at the address given by the informant. The New Haven police records also showed that a domestic dispute had been reported at that address between the second man named by the informant and his girl friend, Priscilla Langley. Finally, although Kimber denied having bought any items from the second man named, he admitted that he knew the man and told the police that the man had worked for him as a maintenance worker but had recently been released from the job because of problems.

It is clear that the affidavit at issue in this case did not expressly state the informant’s basis of knowledge or the basis on which the police believed the informant to be reliable. It did, however, provide a substantial basis for the trial court to infer that the informant’s information was reliable. The affidavit stated that each piece of information given by the informant either confirmed what was already known by the police or was subsequently confirmed by the police. We accordingly affirm the judgment of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

        Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).

       We follow the lead of the Supreme Court in Barton and Johnson and review the warrant and accompanying affidavit under Gates. State v. Johnson, 219 Conn. 557, 563, 594 A.2d 933 (1991); State v. Barton, 219 Conn. 529, 546, 594 A.2d 917 (1991).


author: Foti, J.

text:
    State of Connecticut v. Jose J. Gonzalez
    (9056)
    Foti, Laveky and Heiman, Js.

      Argued May 1
    decision released August 13, 1991

      Deborah L. DelPrete, deputy assistant public defender, with whom were Richard Emanuel, assistant public defender, and, on the brief, G. Douglas Nash, 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 Stephen J. Sedensky, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), carrying a pistol on his person without a permit in violation of General Statutes §§ 29-35 and 29-37 (b), and possessing a weapon in a motor vehicle in violation of General Statutes § 29-38.

On appeal, the defendant challenges the trial court’s (1) failure to investigate or inquire into an allegation of possible jury misconduct, (2) charge to the jury on the elements of the crime of attempt and (3) denial of the defendant’s motion for judgment of acquittal claiming that the evidence was insufficient to support the convictions.

The jury could reasonably have found the following facts. At approximately 8 p.m. on August 20,1988, the victim was driving north on Interstate 95 into Bridgeport. He exited Interstate 95 at the connector, exit 27a, and was driving around a bend on the one lane ramp when he came upon the defendant’s automobile. The ramp branched into two lanes, but the defendant drove his car down the middle of the roadway. As soon as the defendant’s car moved far enough to the left, the victim passed it on the right. As he was passing, he noticed that both the defendant and the defendant’s female passenger seemed upset. The victim exited the connector at exit 2, which he followed onto Golden Hill Street, where he stopped at a traffic light. While he was stopped at the light, the defendant, who had followed him off the connector, pulled his car around the victim’s and parked at an angle in front of it. The defendant got out of his car carrying a set of handcuffs and approached the victim, who had gotten out of his car. The defendant threatened the victim, who, because of the handcuffs, believed that the defendant was a police officer. The defendant accused the victim of cutting him off and the victim insisted that he could not have cut the defendant off because he had been driving behind him.

During the argument, a woman got out of the defendant’s car carrying a stick, and approached the two men. When the victim asked the woman if she was going to hit him with the stick, she began to swing it, but the victim managed to block her arm and avoid the blow. The woman retaliated by scratching his face and he grabbed her wrist. At this point, the victim blacked out. His next recollection was that the defendant had said “come on” to the woman and they both got into the defendant’s car and drove away. The victim had been shot in the throat with a .25 caliber bullet and blood was coming out of his mouth. The bullet had entered his neck under his chin and lodged behind his left ear. He was hospitalized for two to four days and suffered a permanent loss of feeling in the left side of his neck.

The victim was unarmed during the argument, and he held both of the woman’s arms, so she could not have shot him. He was shot from point blank range, and, although he did not see who had shot him, the only other person outside of the car was the defendant.

A taxi driver witnessed this incident. He had been sitting in his cab ten to twenty-five feet from the two men when they began to push each other. The witness observed one of the men pull out a pistol and lunge at the other man. He heard a gunshot and saw one of the men fall into the bushes, and the other speed away in a car accompanied by a woman who was holding a stick.

I

The defendant first claims that his state and federal constitutional rights were violated when the trial court failed to investigate an allegation of juror misconduct.

The following additional facts are relevant to this claim. The jury was instructed on October 19,1989, and deliberations commenced at noon. Sometime after the luncheon recess, the jurors requested to rehear some of the testimony. At 4:07 p.m. the jury requested and received reinstruction on the definition of attempted murder. Deliberation continued until 5 p.m. at which time the jury was discharged for the evening. On the next morning, October 20,1989, a juror passed a note to the clerk, that read: “Your Honor, something was said by [another juror] that may have prejudiced the jury. May I speak to you about it?”

The jury commenced deliberations at 10 a.m. At 11:10 a.m., when the defendant arrived at court after having been delayed, the court reconvened. Prior to this, at about 10:15 a.m., the court advised counsel of the juror’s note and indicated that its response would be “No.” Prior to the court’s reconvening, the jury indicated by a note that a verdict had been reached.

In the absence of the jury, the court indicated to counsel that the jury would be brought out, the juror’s note would be answered, and then “I will ask them to return to the jury room just for the sake of having an opportunity to have their own deliberations in respect to. . . my answer to their question. And if they have [nothing] further and wish to return a verdict, they may knock on the door and we are ready to accept same. But I will give them an opportunity. I will not have colloquoy here in the courtroom with the panel. So that’s what I’m going to do. You may take your exceptions following that.”

The jury returned and the court stated: “Ladies and gentlemen of the panel, I haven’t been able to respond to the first question that you have placed to me by a member, which is now the court’s exhibit four, due to circumstances beyond my control.

“I am now going to answer that question. I will read it for the record so you’ll know it because it is a communication from the jury. And I will give you my answer to it. When I give you my answer to it, I will allow you to step out.
“If you have any further deliberations in regard to that answer, you may do so. You may not, and if you do not because you’ve indicated by your recent note that you are ready to return a verdict, then you may merely knock on the door, come back out and we are ready to accept your verdict. But I don’t have colloquoy here. So if you want to discuss jury business, you do it in there. If you do not, you at least have the opportunity and then you come back out. Okay.
“The question was, ‘Something was said by [a juror] that may have prejudiced the jury. May I speak to you about it?’
“And the answer to that question, given by [the inquiring juror], is no, you may not.
“So if you’d like to go out and if there’s any further discussion, you merely knock on the door and we’ll accept your verdict.”

The jury returned to the jury room and both the state and the defendant took exceptions. The state excepted on the ground that “the court should answer the question either by asking that particular juror what it was or asking the foreperson of the jury to write a question as to what the problem was. In that way, Your Honor would have a chance to cure any potential juror misconduct.” The state also claimed that neither it nor the defense would have any redress unless the court acted at that time.

Following the jury’s verdict the court, sua sponte, polled the jury. Each individual juror agreed to the verdict, and the six jurors were thereafter excused.

It is fundamental under both our federal and state constitutions that any person charged with a criminal offense is entitled to be tried by a jury of his peers. Such a right implicates “a fair trial by a panel of impartial, indifferent jurors.” State v. Sims, 12 Conn. App. 239, 245, 530 A.2d 1069, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987). Although not every instance of juror misconduct requires a new trial; Williams v. Salamone, 192 Conn. 116, 122, 470 A.2d 694 (1984); if “an accused makes a plausible claim that his constitutional right to a fair trial may be violated because the jury is not impartial, the burden is upon the state to rebut the presumption of prejudice that denies a fair trial.” State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989).

The trial court is allowed wide discretion in deciding mistrial motions; Speed v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990); a denial of such a motion will be reversed only where it can fairly be said that the court abused its discretion; State v. Rodriguez, supra, 326. “A trial judge is generally in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure to improper matter has prejudiced a defendant.” Id.

Although it is true that “[t]he trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome”; State v. Bausman, 162 Conn. 308, 312, 294 A.2d 312 (1972); the trial court must have some factual basis upon which it may exercise that discretion. See State v. Asherman, 193 Conn. 695, 736, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). In order to determine whether the defendant has been deprived of his right to an impartial jury, the trial court must first determine what, if anything, was said, and if necessary, how the jury interpreted and reacted to the communication made. State v. Weinberg, 215 Conn. 231, 249, 575 A.2d 1003, cert. denied, U.S. , 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

Here, we have one juror’s allegation of possible misconduct by a second juror. The record is too barren, however, to determine what misconduct, if any, took place and whether it was prejudicial. We cannot speculate whether there was some extraneous influence involved, or intimidation or harassment that may have affected the jury’s verdict. Nor may we speculate that there was no misconduct, or if such did exist that it probably was not prejudicial, or fanciful or frivolous. A basic factual inquiry into the substantive content of the alleged misconduct was required before the trial court could exercise its discretion in determining the scope or extent of any investigation needed.

We, must, therefore, remand this case to the trial court for a hearing to determine (1) what comment has been made, (2) which juror or jurors had been exposed to it, (3) whether the comment was improper, and (4) whether the defendant had been prejudiced by it. If the trial court determines either that juror misconduct did not occur, or that any misconduct that did occur did not prejudice the defendant by depriving him of his right to a fair trial, the judgment is affirmed. If, on the other hand, juror misconduct is found that impinged on the defendant’s right to an impartial jury, then the judgment is set aside and a new trial ordered.

II

The defendant’s second claim is that the trial court improperly instructed the jury on a statutory theory of attempt liability for which there was no evidentiary support. The trial court originally instructed the jury on the two forms of criminal attempt provided in General Statutes § 53a-49 (a) (1) and (a) (2), but subsequently removed subdivision (a) (2) from consideration in a supplemental instruction. The defendant claims that by instructing the jury on only subdivision (a) (1), the trial court limited its charge to a statutory alternative for which there was no evidentiary support.

The long form information did not cite either subdivision of § 53a-49 for the first count of attempted murder. The court instructed on the application of both subdivisions indicating that no distinction had been made. During jury deliberations, the jury requested to be reinstructed on the definition of attempted murder. The court began its supplemental instructions on attempted murder by giving the statutory definition of murder and by explaining the element of intent. The court then discussed the specific element of attempt liability as set forth in § 53a-49 (a) (1). When the court began its discussion of subdivision (a) (2) of § 53a-49, the following colloquy took place: “The Court: This second part of the attempt statute provides that a person is guilty of attempting to commit a crime if, acting with the kind of mental state required for the commission of the crime, he intentionally does or omits to do anything which, under the circumstances as he believed them to be, is an act or omission constituting a substantial step in the course of conduct planned to culminate in his commission of the crime.

“It’s charged that way. But I don’t think that section applies very well. It has to do with a plan, carrying out, steps.
“Assistant State’s Attorney: I’m satisfied.
“The Court: I think if you just limit your consideration to the first part as I’ve given it to you, you’ll have to determine whether the state has met its obligation there. The distinction is that, in this section, it’s talking about an act or omission in carrying out a plan to culminate in the commission of the crime of murder. This has more to do with those individual, itemized factors which I have given to you previously. And I think if you look at them, you would disregard them as being in this case. That’s lying in wait, enticing. That’s not in this case.
“The question here is whether—if this gentleman was at the scene and was involved in the conflict, your question is whether or not he, at that moment, was armed. Knowing that he was and that he knowingly and intentionally pulled out a gun and shot the victim with the intent to take the victim’s life, the fact that it wasn’t accomplished is the basis of the attempt to commit murder. Okay? You may resume.”

& Although the defendant did not object to the supplemental charge that eliminated subdivision (a) (2) from the jury deliberations, he claims on appeal that his rights were violated by the court’s charge on an offense for which there was no evidentiary foundation. Essentially, he argues that there was insufficient evidence to sustain a conviction on attempt as limited by subdivision (a) (1) of § 53a-49. He does not claim that the charge as given was deficient, but rather that subdivision (a) (1) deals with a theory of culpability wherein the conduct that would have constituted the crime of murder did not occur because of the mistake of fact, and that there was absolutely no evidence to prove a violation of this subdivision. The defendant argues that the only relevant subdivision was (a) (2) which the jury was told to disregard. We do not agree.

The evidence was sufficient for the jury to find that the defendant pulled a gun and shot the victim in the neck with the intent to take the victim’s life, and that the defendant believed that shooting the victim in the neck would result in his death. We conclude that the cumulative effect of the evidence was sufficient to establish guilt beyond a reasonable doubt under the count charged, and that the jury was properly charged under § 53a-49 (a) (1).

Ill

The defendant’s last claim is that the evidence was insufficient to establish his guilt of the crimes charged.

A claim of insufficiency of the evidence requires us to determine, viewing the evidence presented in the light most favorable to sustaining the verdict, whether the jury here could reasonably have concluded, on the basis of the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990); State v. Ober, 24 Conn. App. 347, 351, 588 A.2d 1080 (1991).

There is no merit to the defendant’s claim as to the insufficiency of evidence to establish the defendant’s guilt of the crime of attempted murder pursuant to General Statutes §§ 53a-49 (a) (1) and 53a-54a, as previously discussed in part II.

The defendant claims that the evidence was insufficient to establish his guilt of the charge of carrying a pistol without a permit because the state could not establish the barrel length of the pistol to be less than twelve inches, no weapon having been seized or even seen. We do not agree.

General Statutes § 29-35 prohibits the carrying of a pistol or revolver on one’s person without a permit, except in one’s dwelling house or place of business. For purposes of this section, the term pistol and the term revolver mean any firearm having a barrel less than twelve inches in length. General Statutes § 29-27.

Although the victim did not see the gun, a bullet was taken from his neck and a bullet shell casing was found at the scene on the evening of the shooting. The bullet was .25 caliber and could have been loaded into the cartridge that was found at the scene. An eyewitness saw the defendant reach into his back pocket, pull out a pistol and lunge at the victim. Although he could not see the weapon, he did see an object that was covered by the defendant’s hand and that he concluded was a smaller caliber gun. A .25 caliber weapon is a small handgun, capable of being covered by a person’s hand, that does not have a barrel length greater than twelve inches. The inferences reasonably drawn from those facts are sufficient to have allowed the jury reasonably to have concluded that the defendant was in possession of a firearm with a barrel of less than twelve inches in length.

The defendant also claims that the evidence was insufficient to establish that he was guilty of the crime of having a weapon in a motor vehicle in that the state failed to prove that the defendant knowingly possessed a firearm with a barrel of less than twelve inches in a vehicle, or that no one in the vehicle had a proper permit to possess or carry such a weapon.

We have previously discussed the issue of the firearm’s barrel length and, obviously, if the jury concluded that the defendant possessed that weapon, then he possessed it in the vehicle as well as outside of the vehicle.

General Statutes § 29-38 prohibits a person from knowingly having in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided for in §§ 29-38 or 53-206, or has not registered such weapon as required by § 53-202. Included as a weapon is any pistol or revolver as defined by General Statutes § 29-27.

The defendant concedes that the state presented evidence that neither the defendant nor his wife had a permit, but that the state failed to establish that neither of the other two occupants of the vehicle possessed a valid permit. The other two occupants were the minor children ages ten and thirteen. The defendant argues that the statutes, §§ 29-28 and 29-28a, speak of “any person” and presumably covers both adults and minors.

Although we do not set aside our common sense in reviewing this claim, we find it unnecessary to distinguish “minor” and “any person” because the evidence clearly showed that it was the defendant who possessed the gun when he emerged from the car. He, therefore, possessed the gun inside and outside of the vehicle. There was no evidence that anyone other than the defendant possessed the weapon within the car. Therefore, whether the other two “occupants” possessed a permit is immaterial.

The case is remanded to the trial court to determine whether jury misconduct has occurred. If the trial court finds that jury misconduct has occurred and that such misconduct was prejudicial to the rights of the defendant then the judgment is set aside and the matter is remanded for a new trial. If the court finds that no jury misconduct has occurred, or, that any such misconduct was not prejudicial to the defendant’s rights, then the judgment is affirmed. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant was acquitted of a fourth count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1).

       The defendant alleges deprivation of his right to a fair and impartial jury trial, and the right to due process and equal protection of the law pursuant to the fifth, sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 20 of the Connecticut constitution.

       There were neither objections taken, nor exceptions noted.

       Although the defendant neither filed a request to charge nor took exception to the charge or supplemental charge, we will review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the claim is one which goes to the improper instruction of an element of the crime, and the record is sufficient for such a review. State v. Allen, 216 Conn. 367, 376, 529 A.2d 1066 (1990); State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987).

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       The defendant does not raise on appeal a claim of lack of evidence sufficient for the jury to have concluded that the defendant did not possess the requisite intent.


text:
    Madrid Corporation v. Inland Wetlands Agency of the Town of Mansfield et al.
    (9759)
    Dupont, C. J., Foti and Landau, Js.
    Argued May 31
    decision released August 13, 1991

      Leonard Jacobs, for the appellant (plaintiff).

      Daniel K. Lamont, for the appellees (defendants).
   Foti, J.

The plaintiff appeals from the judgment denying its appeal from the decision of the defendant inland wetlands agency of the town of Mansfield (agency) denying the plaintiff’s application for a permit to conduct regulated activities within 150 feet of an inland wetlands.

The defendant agency regulates the wetlands and watercourses, as well as adjoining buffer areas of 150 feet, in the town of Mansfield. On May 17, 1989, the plaintiff filed an application with the defendant to deposit fill material on land that slopes down to a wetlands. The parcel is approximately four acres and is owned by the plaintiff, which sought to subdivide it into two lots. On each of these lots, the plaintiff planned to build a three bedroom house with a driveway, well and septic system.

Following a public hearing, the agency met on September 6,1989, and subsequently denied the plaintiffs application and set forth its reasons in a letter dated September 11, 1989. The plaintiff appealed from the denial of its application to the Superior Court, which affirmed the agency’s decision. In response to the plaintiff’s motion for articulation, the trial court cited the plaintiff’s failure to “fully address feasible alternatives as required by [General Statutes] § 22a-41 (b)” as the basis of its denial of the plaintiff’s appeal. The plaintiff was granted certification and now appeals to this court.

The plaintiff claims that the trial court improperly denied its appeal because (1) the reasons stated by the agency for denying the plaintiff’s application were not supported by the record and (2) the trial court’s finding that the plaintiff did not adequately address feasible alternatives was not a proper basis for denying its appeal. We affirm the trial court’s judgment.

The agency set forth five reasons for denying the plaintiff’s application. Despite the plaintiff’s challenge, “[t]he agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987). “The evidence, however, to support any such reason must be substantial.” Id., 540. If none of the reasons given is properly supported by substantial evidence, then the defendant’s denial must be overturned. Substantial evidence will be found to exist, however, if the record affords a substantial basis from which the fact in issue can be reasonably inferred. Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 640, 583 A.2d 906 (1990).

“A reviewing court is required to search the record for reasons; it is not required to articulate them.” Kaeser v. Conservation Commission, 20 Conn. App. 309, 312, 567 A.2d 383 (1989). Here, the trial court as the reviewing court did articulate the reason. The trial court reviewed the record before dismissing the appeal and concluded that the plaintiff had not fully addressed the feasible alternatives as required by General Statutes § 22a-41 (b).

The plaintiff argues that because the permit applied for is not for an activity on “wetlands” but rather on land within 150 feet of wetlands, some distinction should be made. We are not persuaded that this is warranted. The decision to grant or deny a permit for activity in a regulated area is controlled by statute and regulation, without distinction as to where the regulated area is situated. The purpose of the wetlands statutes is to protect and preserve inland wetlands and watercourses “by providing an orderly process to balance the need for the economic growth of the state and the use of its land with the need to protect its environment and ecology . . . .” General Statutes § 22a-36. “An agency empowered to implement the wetlands act must therefore be vested with a certain amount of discretion in order to carry out its function.” Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 722, 563 A.2d 1339 (1989).

Although the agency did not specifically find that the construction of a single dwelling would be a feasible alternative or that prohibiting any development constituted such an alternative, it did find “that feasible and prudent alternatives may exist.” The plaintiffs burden, in challenging the action of the agency in denying the application, is to show that the agency acted arbitrarily, illegally or that the decision is not reasonably supported by the evidence. Lovejoy v. Water Resources Commission, 165 Conn. 224, 228-29, 332 A.2d 108 (1973). The plaintiff argues that there was no substantial evidence that there would be any environmental impact as a result of its proposed action, so there was, therefore, no need for the agency to consider whether alternatives existed.

Although it is true that General Statutes § 22a-41 (a) (1) through (6) contains factors to be considered, § 22a-41 (b) restricts the issuance of a permit in the case of an application that received a public hearing unless it is found that a feasible and prudent alternative does not exist, and, in arriving at that finding, the facts and circumstances set forth in subsection (a) should be considered. The plaintiffs claim need not be addressed, however, because we conclude that the record shows substantial evidence of a significant impact that could result to the wetlands if the plaintiff’s application were granted. Our review of the record discloses that the plaintiff’s own soil scientist recognized that prior residential construction to the north had already-encroached on the wetlands, although the damage did not seriously affect the wetlands’ overall function. He also admitted that the construction would destroy wildlife habitat, and that a shift in wildlife populations was likely if the plaintiff’s application were granted. The testimony of several neighbors stressed the value of the land as wildlife habitat and concerns about fertilizer runoff and contaminants from the septic systems flowing down into the wetlands. Finally, members of the agency personally inspected the site. On the basis of all of the evidence presented at the public hearing on July 17,1989, which was continued to August 7,1989, the agency could have reasonably concluded that a significant environmental impact may have resulted if it had granted the plaintiffs petition. “In conducting its review, a court must defer to the agency’s assessment of the credibility of the witnesses and to its right to believe or disbelieve the evidence presented by any witness, even an expert, in whole or in part.” Connecticut Light & Power Co. v. Department of Public Utility Control, supra.

The plaintiff also argues that the agency’s reasons for denying this application are merely speculative as evidenced by the agency’s use of the words “may” and “might.” Even if that were so, the reviewing court must search the record for reasons to support the agency’s decision; see Gagnon v. Inland Wetlands & Watercourses Commission, 213 Conn. 604, 609, 569 A.2d 1094 (1990); and, upon finding such, uphold that decision regardless of the language used by the agency in stating its reasons for the denial.

Because the defendant reasonably concluded that an environmental impact could result from the plaintiff’s actions, a denial of the application was justified for this reason.

The agency gave its reasons for denying the plaintiffs application and we find, in our review of the record, that one reason was supported by substantial evidence. Having so concluded, we need not review the record further to determine whether the other reasons were also supported by substantial evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       A second defendant, Leslie Carothers, former commissioner of environmental protection, is not a party to this appeal.

       Section 3.6 of the Inland Wetlands Regulations of the town of Mansfield allows the agency to regulate certain activities relating to inland wetlands and watercourses and “areas up to a distance of 150 feet from wetlands and watercourses as they may affect adjacent wetlands and watercourses, as determined by the agency.”

       The letter from the Inland Wetlands Agency of the town of Mansfield stated as reasons for the denial: “[B]ecause the agency finds that feasible and prudent alternatives may exist. This was not adequately addressed by the applicant. The agency further finds, in accordance with Art. 4, that there may be a significant impact from the proposal due to its proximity to the wetlands; the nature of the land adjacent to the wetlands and the surrounding area and the amount of fill required. The wetlands may provide a habitat for red-tailed hawks. In addition, the Conservation Commission did not approve the proposal. It is further noted that the applicant has already had use of his land with an earlier subdivision.”

       The trial court erroneously held that “the agency specifically found that a feasible alternative does exist, i.e., the development of the parcel by the construction of one, rather than two dwellings, or the restriction of any development at all.”

       General Statutes § 22a-41 (a) provides: “In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action;
      “(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity.
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      “(6) The suitability or unsuitability of such activity to the area for which it is proposed.”

       General Statutes § 22a-41 (b) provides: “In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”

       “The questions in Huck [v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 547, 525 A.2d 940 (1987),] covered as here, the septic system, the nature of the lot, the soils and the proposed fill. . . . The commission members in the present case viewed the site, a factor the Supreme Court considered important. ‘Knowledge obtained through personal observations of the locus may properly be considered by the agency in arriving at reasons given for its denial.’ ” Kaeser v. Conservation Commission, 20 Conn. App. 309, 316, 567 A.2d 383 (1989).


text:
    Robert W. Hill, Jr. v. Cheryl Lynn Hill
    (9527)
    Norcott, Foti and Landau, Js.
    Argued June 4
    decision released August 13, 1991

      Susan M. Cormier, with whom were Wesley W. Horton and, on the brief, Lawrence Kendzior, for the appellant (plaintiff).

      William F. Gallagher, with whom, on the brief, were Cynthia C. Bott, Phoebe B. Boyer and Helen S. Ciresi, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s motion to open and modify the judgment of dissolution. The opening and modification of the judgment affected all of the orders, but did not affect the decree of dissolution. The plaintiff contends that the trial court lacked jurisdiction to grant the defendant’s motion, filed more than four months after judgment, because there was insufficient evidence of fraud.

The parties’ nine and one-half year marriage was dissolved on January 6, 1989, following a hearing on the parties’ separation agreement. The plaintiff was represented by counsel and the defendant appeared pro se. The court, after reviewing a property settlement agreement executed by the parties, incorporated it into the judgment. Among other things, the judgment provided that the defendant quitclaim her interest in the marital residence to the plaintiff in return for his agreeing to discharge her from liability regarding the house and various joint debts. As part of the order, the plaintiff was to share the net proceeds with the defendant, after all closing costs, taxes and repair expenses, if the house was sold for more than $220,000. No alimony was awarded. The parties were awarded joint custody of their three minor children, with the defendant as the primary caretaker. The plaintiff was granted visitation rights. The trial court ordered the plaintiff to pay child support in the amount of $232.56 per week for the three children and to maintain $50,000 of life insurance, as well as medical coverage, for their benefit. The parties were to share equally all uncovered or unreimbursed medical expenses.

In December, 1989, the defendant moved to open the judgment, alleging that the plaintiff had committed fraud. The court, after a hearing, filed a sixteen page memorandum that concluded that the defendant had demonstrated by clear and convincing evidence that the plaintiff had committed a fraud upon the defendant and upon the court. The court thereupon granted the motion to open, except as to the issuance of the decree of dissolution. It further declared the separation agreement null and void and ordered the parties through their respective counsel to expeditiously adjudicate issues of alimony, property division, custody, visitation and support. The current orders of custody, visitation and support were to remain in effect pending further order of the court.

Before reaching the merits of this appeal, we must first determine whether the plaintiff may appeal to the court at this stage of the proceedings.

Appellate jurisdiction is limited to appeals from judgments that are final. Solomon v. Keiser, 212 Conn. 741, 745, 562 A.2d 524 (1989). An order opening a judgment is ordinarily not a final judgment for purposes of appeal except where the issue raised is the power of the court to open. Id., 746-48. The judgment rendered in an action for dissolution of a marriage is final and may not be opened or set aside unless a motion to do so is filed, pursuant to Practice Book § 326, within four months from the date of its rendition. Daly v. Daly, 19 Conn. App. 65, 67, 561 A.2d 951 (1989). After that period, absent waiver, consent or other submission to jurisdiction, a court lacks the power to modify or correct a judgment other than for clerical reasons. Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983). A judgment rendered may be opened after the four month limitation if it is shown that the judgment was obtained by fraud, in the absence of actual consent, or because of mutual mistake. See Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981); Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); see also Sparaco v. Tenney, 175 Conn. 436, 437-38, 399 A.2d 1261 (1978).

The plaintiff maintains that the appeal is an attack on the trial court’s power to act. Claiming that there was insufficient evidence of fraud, the plaintiff argues that the court lacked jurisdiction to open the judgment. Conversely, the defendant argues that the court in fact had jurisdiction to open because it found fraud. The defendant asserts that once that factual determination had been made any attack on the sufficiency of the evidence is one on the factual findings of the court. Such an attack is tested by the standard of whether those findings are clearly erroneous, which does not involve the court’s jurisdiction to make such findings. We agree with the defendant’s position.

A court does not lack jurisdiction if it has competence to entertain the action before it. Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). If the court misapplied the law or erroneously made findings of fact in concluding that fraud had been perpetrated upon the defendant and upon the court, a party may, at the appropriate time, attack the manner in which the court exercised its jurisdiction in granting the motion to open. The court had the power to hear the motion and the power to open the judgment upon a finding of fraud. “If it applied any wrong rule of law to the situation, it was not acting without jurisdiction but in the erroneous exercise of its jurisdiction.” Artman v. Artman, 111 Conn. 124, 130, 149 A. 246 (1930). Furthermore, if the court made a determination of fraud based on insufficient evidence, and on that basis granted the motion to open, it again was not acting without jurisdiction but in the erroneous exercise of its jurisdiction.

We must therefore conclude that the granting of the motion to open is not a final judgment for purposes of appeal because the defendant’s challenge is not truly an attack on that court’s power to act. Accordingly, this court lacks jurisdiction to entertain the present appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendant originally raised this issue in a motion to dismiss filed October 2, 1990. We denied this motion. After a review of the case upon full briefing and oral argument, however, we have concluded that it is necessary to reconsider this question. Cf. Governors Grove Condominium Assn., Inc. v. Hill Development Corporation, 187 Conn. 509, 511 n.6, 446 A.2d 1082 (1982).


author: Dupont, C. J.

text:
    State of Connecticut v. Finley Williams
    (8225)
    Dupont, C. J., Norcott and Heiman, Js.

      Argued June 11
    decision released August 13, 1991

      Erskine D. McIntosh, assistant public defender, with whom, on the brief, were William Holden, public defender, and Christopher McKeon, certified legal intern, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky III, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (2) applicable to acts that do not constitute murder because of a defendant’s extreme emotional disturbance. The defendant raises several challenges to various instructions given to the jury by the trial court. We affirm the judgment of the trial court.

The jury could have reasonably found certain facts. On the evening of February 15, 1988, the defendant and the victim were occupying the same apartment. That evening, the defendant consumed alcohol and, throughout the evening, the defendant and the victim had several arguments. These arguments led to two separate physical altercations before the defendant and victim were separated by others occupying the apartment. Later, the defendant and the victim were again involved in a fight in the room occupied by the victim. Early in the morning of February 16, the victim was found dead as a result of numerous blows to the head and body by a blunt instrument.

The defendant first challenges the trial court’s instruction concerning circumstantial evidence as violative of his federal and state constitutional rights to a fair trial and to present a defense. The defendant concedes that this claim was not properly preserved at trial but seeks review under the Evans-Golding doctrine. State v. Golding, 213 Conn. 232, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Because the jury instruction here is the same as that reviewed by our Supreme Court in State v. Ortiz, 217 Conn. 648, 665-70, 588 A.2d 127 (1991), and because our review of the record shows that there was no reasonable possibility that the jury was misled by the trial court’s instruction, the defendant cannot prevail on this claim. State v. Tinsley, 24 Conn. App. 685, 689, 591 A.2d 448 (1991); State v. Willis, 24 Conn. App. 678, 682, 591 A.2d 445 (1991).

The defendant next contends that the trial court improperly instructed the jury with respect to the law on intoxication. The trial court instructed the jury that, if it decided that the defendant was intoxicated at the time of the alleged crime, it must then determine “whether his mind was so obscured that it was incapable of possessing an intent to commit the acts constituting the crime of murder. Any intoxication, not merely a total intoxication, may be considered in determining whether the defendant possessed the requisite intent.” The defendant argues that this instruction had the effect of removing from the state the burden of proving beyond a reasonable doubt that, despite the defendant’s intoxication, he had the capacity to and did form the intent to kill the victim. We disagree.

“A charge to the jury is not to be clinically dissected nor are portions of the charge to be read in isolation from the entire instruction. State v. Foreshaw, 214 Conn. 540, 548, 572 A.2d 1006 (1990). Rather the charge is to be read as a whole with a view towards its probable effect in guiding a jury to a correct verdict. . . . The test to be applied to any part of the charge is whether the charge, when taken as a whole, presents the case to the jury fairly and accurately, such that no injustice will be done.” (Citations omitted.) State v. Toczko, 23 Conn. App. 502, 507, 582 A.2d 769 (1990). Where as here, the allegedly improper instruction is of constitutional magnitude, because the defendant is claiming that the instruction shifted the burden of proof, we must determine whether it is reasonably possible that the jury was misled. State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989).

Our review of the entire charge that was given to the jury reveals no reasonable possibility that the jury was misled. The trial court instructed the jury in the language of General Statutes § hZa-l, informing the jury that intoxication is not a defense but is relevant to negate the element of intent. Furthermore, the trial court carefully and repeatedly instructed the jury that the burden of proof beyond a reasonable doubt on the element of intent rested with the state; State v. Toczko, supra; noting that, in order to find the defendant guilty of the specific intent crimes on which the jury was instructed, it “ha[d] to find that he was not in such a state of intoxication as to be unable to form the required specific intent.” Under these circumstances, we reject the defendant’s claim.

The defendant’s third claim is that the trial court’s jury instruction on the affirmative defense of extreme emotional disturbance (1) impermissibly directed the jury to find him guilty of manslaughter in the first degree upon a finding of a valid defense of extreme emotional disturbance and (2) precluded from the jury’s consideration the lesser included offense of manslaughter in the second degree. We do not agree.

The trial court instructed the jury that “if you also find that the state has proved beyond a reasonable doubt that the defendant intended to cause the death of the decedent, and that he did cause the death of the decedent, but under circumstances which do not constitute murder because he was acting under the influence of extreme emotional disturbance, you must find the defendant guilty of manslaughter in the first degree [in violation of General Statutes § 53a-55 (a) (2)].” The defendant’s argument that the instruction “misle[d] the jury to find the defendant guilty of manslaughter in the first degree if he committed the act while under the influence of an extreme emotional disturbance, regardless of the intent of the defendant,” misinterprets the charge as given.

The challenged instruction requires the jury first to decide if the elements of murder have been proven beyond a reasonable doubt. Only after the jury has first found the intent required to convict the defendant of murder does the charge direct the jury to consider the claim of extreme emotional disturbance. The challenged instruction, by its very terms, has not made the defendant’s intent irrelevant, but rather has made a finding regarding his intent a necessary prerequisite to a finding of guilt under General Statutes § 53a-55 (a) (2). When §§ 53a-54a and 53a-55 (a) (2) are read together, it is clear that the jury was, in fact, required to return a guilty verdict under § 53a-55 (a) (2) if it found beyond a reasonable doubt that the defendant intended to cause the death of the decedent and did cause the death of the decedent, but under circumstances that do not constitute murder because he was acting under the influence of extreme emotional disturbance. State v. Asherman, 193 Conn. 695, 729-33, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

The defendant’s related claim, namely, that the challenged instruction on extreme emotional disturbance precluded jury consideration of the lesser included offense of manslaughter in the second degree, must also fail. As we have noted, the challenged instruction required the jury first to determine whether the elements of murder had been proven before it determined whether the mitigating circumstances of extreme emotional disturbance required a guilty verdict under § 53a-55 (a) (2). The trial court thereafter reviewed all of the other possible verdicts in the order that the jury was to consider them if it did not find the defendant guilty of murder or manslaughter in the first degree by reason of extreme emotional disturbance.

The court appropriately instructed the jury on the lesser included offense of manslaughter in the second degree. The trial court instructed the jury that if it did not find that the state had proved the elements of the murder charge, then the instruction on extreme emotional disturbance was inapplicable to the case, and the jury was required to consider each of the remaining lesser included offenses, including manslaughter in the second degree.

The defendant’s next claim is that, in instructing the jury on self-defense, pursuant to General Statutes § 53a-19, the trial court improperly stated that the “reasonable force” to be evaluated by the jury “is the amount of force that would be used by an average person of ordinary intelligence, acting under the same circumstances.” (Emphasis added.) Evidence adduced at trial showed that the defendant’s intelligence was less than average, that the defendant had previously been the victim of a violent attack by an acquaintance, and that the defendant was aware of the victim’s propensity for violence. The defendant argues that the court’s definition of reasonable physical force impermissibly replaced the subjective-objective standard contemplated by § 53a-19 with a simple objective standard and, therefore, “took the jury too far away from the ‘subjective-objective’ standard in determining the degree of force.”

The defendant has not properly preserved this claim for appellate review, but seeks review under State v. Golding, supra, and State v. Evans, supra. His fundamental right to present a defense includes a proper instruction on the elements of self-defense. State v. Gilchrist, 24 Conn. App. 624, 632-33, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). Although the court’s charge to the jury on self-defense contained an incorrect statement of law, we conclude that the improper instruction was harmless beyond a reasonable doubt. State v. Golding, supra.

The defendant’s claim on appeal with regard to the jury instruction on self-defense focuses on only one part of that defense as set forth in § 53a-19. We begin our analysis by reviewing separately the significant parts of a self-defense claim in light of the defendant’s claim of instructional error. Basically, the statute provides that a person may be justified in “using reasonable physical force,” and if there is justification within the terms of the statute, “he may use such degree of force which reasonably believes to be necessary for such purpose . . . .”

In evaluating a claim of self-defense, a trier of fact must first examine the danger that a defendant claims he faced. It is clear that here “[t]he statute focuses on the [defendant’s] claiming self-defense. It focuses on what he reasonably believes under the circumstances . . . .” (Emphasis in original.) State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982).

Our case law interpreting General Statutes § 53a-19 requires, as well, that the “ ‘test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. . . . [H]owever. . . the defendant’s belief ultimately must be found to be reasonable.’ ” (Emphasis in original.) State v. Hall, 213 Conn. 579, 586 n.7, 569 A.2d 534 (1990), quoting State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984). The starting point of the jury’s inquiry into whether “reasonable force” was used by a defendant is whether the defendant believed that deadly force was necessary to repel the attack. State v. DeJesus, supra. Next, the jury’s inquiry should focus on the question of whether that belief was reasonable. Id. “This statutory emphasis on the defendant . . . demonstrates the function of the jury in their evaluation of the self-defense claim.” State v. Corchado, supra.

The trial court, however, replaced this subjective-objective inquiry into the degree of force with one that focused exclusively on the question of whether a reasonable person (“an average person of ordinary intelligence”) would have used deadly force in this situation. The trial court’s formulation of the inquiry did not properly explain to the jury its need to examine and evaluate the defendant’s subjective belief as to the amount of force necessary. Id.

We must determine, however, whether the improper instruction when subjected to a harmless error analysis is harmless beyond a reasonable doubt. State v. Golding, supra, 239-40; State v. Gilchrist, supra, 633. Where, as here, the improper instruction is of constitutional dimension, the test is whether it is reasonably possible that the jury was misled. State v. Gilchrist, 634. We conclude that it is not reasonably possible that the jury was misled.

First, we note that the principal factual issues did not turn on the subtleties of the law of self-defense for their proof. See State v. Quintana, 209 Conn. 34, 47-48, 547 A.2d 534 (1988). The degree of force used by the defendant was not the central focus of the disputed testimony. Rather, the case presented to the jury concerned the question of determining what exactly happened leading up to the point that the defendant used force against the deceased.

We are further guided by the commonly repeated general rule that “[a] charge to the jury is not to be clinically dissected nor are portions of the charge to be read in isolation from the entire instruction.” State v. Toczko, supra. This proposition is worthy of special consideration when examining portions of a charge on the same legal principle. Although the defendant’s perception of the danger he faced and his use of force in response to that danger may be two distinct legal concepts for purposes of analyzing the trial court’s instruction, they are so inextricably intertwined that they cannot be analyzed in a vacuum, one separated from the other. The degree of force used by a defendant must necessarily be evaluated in relationship to something. That something is the danger that was perceived by the defendant.

In its charge, the trial court made abundantly clear that the danger against which the defendant used force was “to be determined from his standpoint at the time of the attack, and under all the existing circumstances.” Thus, the jury was properly instructed to “view the situation from the defendant’s perspective” (a subjective test) in assessing the risk which the defendant perceived he was facing. State v. Brown, 22 Conn. App. 521, 529, 577 A.2d 1120 (1990). This part of the instruction enabled the jury properly to carry out its duty to examine the evidence both subjectively and objectively, while keeping in mind that the defendant’s conduct must “be judged ultimately against that of a reasonably prudent person.” Id.

Taken as a whole the charge sufficiently apprised the jury that the test for self-defense is both subjective and objective. Notwithstanding the trial court’s improper definition of the degree of force that may be used by a defendant claiming self-defense, the entire charge on self-defense adequately informed the jury that “[t]he use of deadly force must ultimately be reasonable in the circumstances.” State v. Tyson, 23 Conn. App. 28, 37, 579 A.2d 1083, cert. denied, 216 Conn. 829, 582 A.2d 207 (1990).

The defendant’s final claim is that the trial court failed to instruct the jury on self-defense as it applied to the lesser included offenses. The defendant requested that the trial court instruct the jury that his claim of self-defense “applies to the murder charge and all lesser homicides” on which the jury was to be instructed. (Emphasis added.) The trial court, however, instructed the jury that self-defense was applicable to the charge of murder but failed to do so specifically with respect to the lesser included offenses of manslaughter in the first degree in violation of General Statutes §§ 53a-55 (a) (1) and (a) (3) and manslaughter in the second degree in violation of General Statutes § 53a-56 (a).

A claim of self-defense applies to these lesser included offenses. State v. Hall, supra; State v. King, 24 Conn. App. 586, 590 A.2d 490 (1991). The failure to discuss self-defense specifically in connection with each lesser included offense, however, was harmless.

Here, as in State v. Hall, supra, 589, “[t]he trial court instructed the jury on the charged offense of murder as well as the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree. The trial court’s instruction on self-defense, while limiting the applicability of that defense, did not eliminate the jury’s consideration of it. Rather, the jury was fully instructed on the law of self-defense with respect to murder and manslaughter in the first degree [by reason of extreme emotional disturbance] . . . .” Just as the jury in Hall was told that self-defense would be a “complete justification” of that defendant’s conduct, the jury here was instructed on the elements of murder and was repeatedly told: “If you find that the defendant acted in self-defense, you will find him not guilty by reason of self-defense, and that will be the end of your inquiry.” Thus, our Supreme Court’s conclusion inHallis equally applicable here. “[T]he jury’s verdict of guilty on the offense of manslaughter in the first degree was necessarily a rejection of the defense of self-defense. . . . [T]he defendant would not have benefited by an instruction that the defense was applicable” to the lesser included offenses. Id. It is not reasonably possible, therefore, that the jury was misled by the trial court’s failure to instruct the jurors properly.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-7 provides: “Intoxication shall not be a defense to a criminal charge, but in any prosecution for an offense evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negate an element of the crime charged, provided when recklessness or criminal negligence is an element of the crime charged, if the actor, due to self-induced intoxication, is unaware of or disregards or fails to perceive a risk which he would have been aware of had he not been intoxicated, such unawareness, disregard or failure to perceive shall be immaterial. As used in this section, ‘intoxication’ means a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.”

       General Statutes § 53a-54a provides in pertinent part that in any prosecution for murder “it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-55 (a) (2) provides in pertinent part: “A person is guilty of manslaughter in the first degree when . . . with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection . . . .”

       General Statutes § 53a-19 (a) provides in pertinent part: “[A] person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

       At some length, the trial court emphasized the subjective nature of the jury’s inquiry in this regard: “The danger or apparent danger claimed by the defendant is to be determined from his standpoint at the time of the attack, and under all the existing circumstances. The action leading to the defendant’s claim of self-defense need not be an actual threat or assault. The test is not what the other person actually intended, but what the aggressor’s act caused the defendant reasonably to believe was his intention. In other words, the danger need not have been actual, if the defendant reasonably believed that the danger was actual, real, imminent or unavoidable.
      “In judging the danger to himself, however, the defendant is not required to act with infallible judgment. On the other hand, one exercising the right of self-defense is required to act instantly, and without time to deliberate and investigate. Under such circumstances it is often possible to mistake an actual threat when none, in fact, existed, but the law does not require the same coolness in judgment in estimating his danger that you can exercise in reviewing the facts of this case.”

       We note that, although the trial court did not instruct the jury on self-defense when it separately discussed the lesser included offenses, it did make clear several times in its jury instructions that the defendant was “not guilty of anything” if the jury found that he acted in self-defense.


author: O’Connell, J.

text:
    Rudra Tamm, Trustee v. J. William Burns, Commissioner of Transportation, et al.
    (9288)
    O’Connell, Norcott and Lavery, Js.
    Argued April 23
    decision released August 13, 1991

      Rudra Tamm, pro se, the appellant (plaintiff).

      Kenneth N. Tedford, assistant attorney general, with whom were Cornelius F. Tuohy, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellees (defendants).
   O’Connell, J.

The plaintiff appeals from the dismissal of this action arising out of the construction of a truck inspection and weigh station on state owned property adjacent to the plaintiffs property in the town of Greenwich. The defendant named in the first count is J. William Burns, commissioner of the state department of transportation when the action was commenced, and the defendant named in the fourth count is William A. O’Neill, governor of Connecticut at the commencement of this action. The plaintiff has not challenged the dismissal of the second and third counts. The relief sought by the plaintiff included money damages, compensation for a partial or a total taking of his property, temporary and permanent injunctions and punitive damages for fraud and misrepresentation. The defendants moved to dismiss the action on the ground that the court lacked subject matter jurisdiction by reason of the doctrine of sovereign immunity. The trial court granted the motion and dismissed the case. The plaintiff appealed.

The complaint alleges that the plaintiff owns real estate on the south side of Interstate 95 in Greenwich adjacent to state owned property. At this location, which was formerly the site of a toll station, the state began constructing a truck inspection and weigh station. As part of this construction, the state cut down a substantial number of trees on its land and commenced other activities necessary to the construction of the weigh station. The plaintiff alleged that these activities caused the following damage to his property: (1) exposure to increased noise, unsightliness, fumes, and toxic emissions from 1-95; (2) the alteration of preexisting drainage; (3) the placement of a dangerous toxic substance holding pond immediately adjacent to his property and (4) increased noise, unsightliness and toxic emissions caused by the operation of the completed inspection and weigh station.

A motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity bars the action. Wiley v. Lloyd, 4 Conn. App. 447, 449, 495 A.2d 1082 (1985). Because a state can act only through its officers and agents, sovereign immunity may be raised by state officers with the same effect as if the state were the named defendant. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990).

The construction and operation of a truck inspection and weigh station is within the statutory mandate to the commissioner of transportation to provide a safe and efficient highway system. General Statutes § 13b-4. All construction activity was performed on state property and therefore the doctrine of sovereign immunity bars this action unless it qualifies under one of three exceptions to the doctrine. These exceptions are (1) statutory waiver of sovereign immunity and legislative consent to suit; White v. Burns, supra; (2) actions based on a substantial claim that the state has violated a constitutional right of the plaintiff; Horton v. Meskill, 172 Conn. 615, 623-25, 376 A.2d 359 (1977); and (3) actions based on a substantial claim that a state official has violated the plaintiffs rights by acting in excess of his statutory authority. Id. In the present case, the plaintiff relies on the second exception. The plaintiff invokes the specific constitutional right that “[n]o person shall ... be deprived of . . . property, without due process of law, nor shall private property be taken for public use without just compensation.” U.S. Const., amend. V; Conn. Const., art. I, § 11.

The plaintiff can benefit from this exception only if the complaint clearly alleges facts showing that the exception is applicable. Barde v. Board of Trustees, 207 Conn. 59, 539 A.2d 1000 (1988). “The complaint, [in order] to survive the defense of sovereign immunity, must allege sufficient facts to support a finding of a taking of land in a constitutional sense . . . .” Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976). The plaintiffs first count is based on the theory of inverse condemnation which is the taking of property in fact even though no formal exercise of the power of eminent domain has occurred. See Levine v. New Haven, 30 Conn. Sup. 13, 294 A.2d 644 (1972). An actual physical appropriation of the property is not required for the state’s action to constitute inverse condemnation. Wright v. Shugrue, 178 Conn. 710, 713, 425 A.2d 549 (1979). “[W]hen property cannot be utilized for any reasonable and proper purpose, as where the economic utility of the property has, for all practical purposes, been destroyed, a confiscation or taking in the constitutional sense has occurred.” Id.

In the present case, the plaintiff has alleged several specific acts that form the basis of his claim that his property was diminished in value and that part of his property as a result cannot now be utilized for any reasonable and proper purposes. The complaint fails to support the trial court’s finding that the complaint is merely conclusory and does not allege sufficient facts to support a finding of inverse condemnation. The complaint adequately alleges a taking of the plaintiffs property rights by the commission of specific acts and the corresponding injury to the plaintiffs property. Because the plaintiff is entitled to his day in court to prove his allegations, the first count should not have been dismissed.

The plaintiff cannot, however, prevail on his challenge to the dismissal of the fourth count. That count is founded on allegations that the governor, in his official capacity, misrepresented the state’s plan to build this weighing station. Because this count does not come within any recognized exception to the sovereign immunity doctrine, it was properly dismissed.

The judgment is reversed as to the dismissal of the first count only and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Count two was based on malicious erection of a structure and count three was based on private nuisance.