author: O’Connell, J.

text:
    William Jenks v. Jane Jenks
    (12017)
    O’Connell, Heiman and Spear, Js.
    Argued December 6, 1993
    decision released May 24, 1994

      Charles F. Brower, for the appellant (plaintiff).

      Steven H. Levy, for the appellee (defendant).
   O’Connell, J.

The plaintiff appeals challenging the opening of the judgment in this dissolution of marriage action, as well as the postjudgment allowance of attorney’s fees to the defendant to defend this appeal and a finding that he was in contempt of court.

Initially, the plaintiff claims that (1) there was no legal basis for opening the judgment and (2) the trial court improperly allowed an expert to give an opinion. In two amended appeals, the plaintiff claims additionally that the trial court improperly (1) evaluated the respective financial positions of the parties in granting the allowance to the defendant to defend the appeal, (2) considered whether the plaintiff was justified in taking the appeal in granting the allowance to defend, and (3) found the plaintiff in contempt of court for failure to commence alimony payments on a specific date. We affirm in part and reverse in part.

On February 13, 1991, the plaintiff commenced this action seeking a dissolution of the parties’ marriage. In August, 1991, the parties participated in a mediation session and in September, 1991, they participated in a pretrial conference, which resulted in an agreement that was never consummated. On November 27, 1991, the parties again appeared for a pretrial conference, and continued negotiations that culminated in a signed written stipulation. The same day, the stipulation was submitted to and approved by the trial court, Dranginis, J., which ordered the stipulation incorporated into the dissolution decree.

On December 10,1991, the defendant wrote to Judge Dranginis expressing dissatisfaction with the judgment and stating, inter alia, that “I should have gone for the battered woman angle, it might have worked more in my favor.”

On January 9, 1992, the defendant, through new counsel, filed a motion to open the judgment alleging that she was a “long term emotionally battered spouse who was on medication for stress and anxiety,” that she had “entered into the Stipulation under extreme emotional duress caused by both the long term emotional abuse by the plaintiff as well as the circumstances of negotiations in the courthouse,” and that the stipulation was entered into as a result of “undue influence and the defendant was unable to make a meaningful decision.” Following an evidentiary hearing, the trial court, Susco, J., granted the motion and, in a memorandum of decision filed April 24, 1992, stated that “[gjiven the history of ultimatums without explanation which preceded the pretrial and the plaintiffs own behavior as it relates to the defendant, the court finds that the agreement was the product of duress. The court does find that the claim of undue influence is not supported by the evidence in that the plaintiff himself did not attempt to exert influence over the defendant during the months preceding November, 1991.” After the opening, the case was reheard before the trial court, Pickett, J., which modified the orders of the stipulated judgment. Thereafter, Judge Pickett granted the defendant’s motion for attorney’s fees to defend the appeal and subsequently granted her motion for contempt. Those latter orders are the subject of part II of this opinion.

Additional facts necessary for disposition of the appeal are set forth in the course of our analysis.

I

Original Appeal

The plaintiff first claims that the trial court, Susco, J., abused its discretion in opening the original dissolution judgment. We commence our analysis with the observation that this judgment was rendered as a result of a written stipulation. Although such a judgment is in effect a contract between the parties rather than an adjudication on the merits, it is just as conclusive as if it had been rendered after a full trial on controverted facts. Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990); Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980); Brian v. Reynolds, 143 Conn. 456, 460-61, 123 A.2d 192 (1956). It is firmly established in Connecticut, however, that opening a contractually based judgment is different from opening a judgment following a fully litigated case. A contractually based judgment may be opened only if the trial court finds fraud, duress, accident or mistake. Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 558, 468 A.2d 1230 (1983); Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466, 440 A.2d 159 (1981).

Of these four possible grounds for opening a contractual judgment, the trial court relied on duress in the present case. The classical or common law definition of duress is “any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition.” 25 Am. Jur. 2d, Duress and Undue Influence § 1 (1966). Inherent in the term is an implication of feebleness on one side and overpowering strength on the other. United States v. Bethlehem Steel Corp., 315 U.S. 289, 300, 62 S. Ct. 581, 86 L. Ed. 853 (1941). The duress must be imposed on the defendant at or about the time the defendant enters into the contract. 25 Am. Jur. 2d, Duress and Undue Influence § 14 (1966); see Shlensky v. Shlensky, 369 Ill. 179, 183, 15 N.E.2d 694 (1938).

Common law or classical duress was narrowly construed and required acts that were sufficient to overcome the mind and will of a person of ordinary firmness. “However, there has been a gradual relaxation of these rules and under the modern doctrine of duress, the pressure applied does not have to be such as to overcome the will . . . of a [person] of ordinary firmness but is sufficient if it in fact overcomes the will of the person against whom it is applied. In other words, any wrongful act or threat which actually compels the victim to act against his will constitutes duress.” 25 Am. Jur. 2d, Duress and Undue Influence § 3 (1966). Under the modern rule we look to the effect of the wrongful acts on a particular person rather than to the hypothetical effect on a person of ordinary firmness.

The evidence in the present case showed that there was little or no contact between the parties for more than a month prior to the dissolution. On November 27, 1991, the parties arrived at court separately and remained in different areas of the courthouse while their attorneys acted as intermediaries. Only when the agreement was ready for final review and execution did the parties come together. This meeting was in the presence of both attorneys in the jury assembly room where each placidly reviewed the agreement. There is no evidence of any duress remotely contemporaneous with the execution of the agreement.

The defendant contends that the law no longer requires that the defendant’s acts be approximately contemporaneous with the execution of the agreement. She contends that no nexus is required between the plaintiff’s acts of misconduct and the execution of a contract. The defendant relies on McCarthy v. Taniska, 84 Conn. 377, 80 A. 84 (1911), for this proposition. We agree that McCarthy describes duress as being the effect on the mind of a party that makes it impossible for him or her to exercise his or her own free will. We find nothing in McCarthy, however, that supports the defendant’s position that a nexus to the contract’s execution is not required. To the contrary, the alleged bad acts in McCarthy were directly related in time to the contract’s execution. In fact, the plaintiff cites and quotes McCarthy as part of his definition of duress.

Underlying the defendant’s argument is her claim that she suffered from battered spouse syndrome, which is a recently recognized diagnosis of the condition that results from a person’s living in a situation in which he or she is constantly abused verbally, criticized, abused sexually and beaten. Such conditions promote great anxiety and usually dependence. As such, the defendant argues that duress at any time during the marriage that affected her power to exercise her free will would be sufficient to warrant opening the judgment. This argument, if accepted, would drastically discourage the settlement of dissolution cases by agreement. Under this theory, it would be possible for either party to come back to court and demand the opening of a judgment for the reason that at any time prior to the dissolution there had been duress so that when the agreement was signed, the complaining party was still acting under the influence of that duress. Such a situation would be untenable. We must rely on the wisdom and skill of family session judges to canvass the parties to determine voluntariness. We are not willing to destroy our policy of encouraging negotiated settlements.

The memorandum of the trial court, Susco, J., is somewhat internally contradictory because after the finding that the agreement was the product of duress, the court also found that “the claim of undue influence is not supported by the evidence in that Mr. Jenks himself did not attempt to exert influence over Ms. Jenks during the months preceding November, 1991. See Pickman v. Pickman, 6 Conn. App. 271, 275, 505 A.2d 4 (1986).” The trial court was apparently drawing a distinction between duress and undue influence.

Because of their similarities, the concepts of duress and undue influence are often discussed in conjunction with each other. See 25 Am. Jur. 2d, Duress and Undue Influence §§ 1 through 49 (1966). Although distinctions exist between the two concepts, contracts obtained by duress or undue influence are deemed invalid because in both circumstances the free assent of one of the parties in making the contract is lacking. McCarthy v. Taniska, supra, 84 Conn. 381; Pickman v. Pickman, supra, 6 Conn. App. 275. Moreover, acts of compulsion or influence by one party on another giving rise to a claim of duress or a claim of undue influence must be operative at the time the contract is entered into. Shlensky v. Shlensky, supra, 369 Ill. 186; 17 C.J.S., Contracts § 180 (c) (1963); 25 Am. Jur. 2d, Duress and Undue Influence § 13 (1966). Because both must be operative at the time the contract is entered into, it is not necessary for purposes of this case that we distinguish between duress and undue influence.

“Under our statutes, a court has an affirmative obligation, in [dissolution] proceedings, to determine whether a settlement is ‘fair and equitable under all the circumstances.’ General Statutes § 46b-66. The presiding judge has the obligation to conduct a searching inquiry to make sure that the settlement agreement is substantively fair and has been knowingly negotiated. . . . With such judicial supervision, private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine.” (Citations omitted.) Hayes v. Beresford, 184 Conn. 558, 567-68, 440 A.2d 224 (1981).

In performing her duties in connection with the dissolution proceeding, Judge Dranginis examined the agreement, found it fair and reasonable and canvassed the defendant concerning whether she had executed it voluntarily. Absent strong evidence to the contrary, the law presumes that a judge properly performed her duties. Brash v. Brash, 20 Conn. App. 609, 612, 569 A.2d 44 (1990). Although Judge Susco found that the defendant was not happy with the agreement, the record does not give any indication that this unhappiness was manifested in any way to Judge Dranginis, an experienced family court jurist. The test is, would a reasonable person conclude from the canvass that the defendant entered into the agreement voluntarily? Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990). We note that neither subsequent court, Susco, J. or Pickett, J., found that the agreement was not fair and reasonable.

A trial court’s findings are entitled to deference on appeal; Dalia v. Lawrence, 226 Conn. 51, 627 A.2d 392 (1993); but only if there is a factual basis for those findings. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22,435 A.2d 24 (1980). Here, there was no factual predicate to support the trial court’s conclusion that the defendant’s agreement was the product of duress. The fact that the defendant was represented by counsel during the negotiations that ripened into the agreement and was present at its execution militates against a conclusion that the defendant was acting under duress and not exercising her own free will. Second New Haven Bank v. Quinn, 1 Conn. App. 78, 82, 467 A.2d 1252 (1983).

In family relations cases, it is common that the parties come to the tribunal with a history of emotional turbulence. Stress and anxiety are frequent companions of predissolution negotiations. The plaintiff’s conduct, of which the defendant now complains, took place during the course of the marriage and undoubtedly contributed materially to the breakdown of the marriage. The law encourages private settlement of the financial affairs of the litigants. Hayes v. Beresford, supra, 184 Conn. 568.

If we sanction the opening of a judgment for predissolution conduct, without evidence of a nexus between that conduct and the dissolution agreement, we cast doubt on all contractually based dissolution judgments. All judgments rendered on settlement agreements would be subject to undoing by a party seeking a second bite of the apple. This is contrary to the law’s interest in finality of judgments. Simons v. Simons, 172 Conn. 341, 346, 374 A.2d 1040 (1977).

The trial court, Susco, J., lacked an adequate basis for opening the November 27,1991 judgment. In view of this conclusion, we do not reach the issue concerning the expert witness testimony.

II

Amended Appeals

Following the opening of the judgment, the trial court, Pickett, J., held a full hearing and, on December 15, 1992, rendered an amended judgment involving the payment of periodic alimony. On February 22, 1993, the court held the plaintiff in contempt of court because of a three week arrearage in payment under this order. The parties concur that, if we sustain the plaintiffs appeal, the contempt finding based on the November 15, 1992 judgment must fall.

On February 1, 1993, the trial court, Pickett, J., awarded the defendant $7500 in counsel fees to defend against the appeal. On February 17, 1993, the plaintiff requested an articulation of the award of counsel fees. In an articulation dated March 10,1993, the trial court set forth the reasons for its decision. The plaintiff claims that the trial court acted improperly in setting the amount of counsel fees. In support of this claim, the plaintiff asserts that the defendant’s financial situation was markedly superior to his at the time of the award.

General Statutes § 46b-62 provides that “the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.” “Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. ... In determining whether to allow counsel fees, the court must consider the statutory criteria set out in §§ 46b-62 and 46b-82 and the parties’ respective financial abilities. . . . An abuse of discretion in granting the counsel fees will be found only if this court determines that the trial court could not reasonably have concluded as it did.” (Citations omitted.) Cook v. Bieluch, 32 Conn. App. 537, 544, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993).

The record discloses that the trial court specifically considered the statutory criteria and the parties’ financial abilities in determining whether to award attorney’s fees. In its articulation, the trial court noted that “the defendant’s affidavit discloses that she has had to borrow $26,500 for a car, attorney’s fees and living expenses. To require her to seek additional funds from her family, if available, is unreasonable.” In light of this finding and on the basis of the whole record, we cannot conclude that the trial court abused its discretion or acted unreasonably in awarding the defendant attorney fees to defend this appeal.

In addition, the plaintiff asserts that during the hearing on attorney’s fees and in its subsequent articulation the trial judge made repeated references to his appeal’s being frivolous, thereby manifesting an improper bias against him and tainting the court’s analysis of the relevant statutory factors in making the award. The plaintiff’s claim rests on pure speculation. He points to no specific evidence demonstrating that the trial court was predisposed to an improper award of attorney’s fees for the defendant. Notwithstanding its statement that the appeal was without merit, the trial court explicitly stated that it had “considered the statutory criteria set out in General Statutes §§ 46b-62 and 46b-82 and the parties’ respective financial abilities.” Accordingly, the plaintiff’s claim fails.

The judgment modifying the stipulated judgment is reversed and the case is remanded with direction to reinstate the November 27, 1991 judgment; the contempt finding is reversed and the award of counsel fees is affirmed.

In this opinion the other judges concurred.

       Our disposition of this appeal does not require that we express an opinion on the validity of the battered spouse syndrome as a theory of action or defense.

       General Statutes § 46b-66 provides in pertinent part: “In any case under this chapter where the parties have submitted to the court an agreement concerning . . . alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses . . . in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. . . .”

       General Statutes § 46b-82 provides in pertinent part: “In determining whether [attorney’s fees] shall be awarded . . . and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Bruce Harrison
    (10980)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued February 22
    decision released May 24, 1994

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Reidy, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a and two counts of injury or risk of injury to, or impairing the morals of, a child in violation of General Statutes § 53-21. On appeal, the defendant asserts that the trial court improperly (1) refused to admit evidence of prior sexual conduct by the victim under an exception to the rape shield law, General Statutes § 54-86f, (2) denied him a continuance to prepare his defense after the state filed a substitute information against him substantially changing the allegations against him, (3) permitted state witnesses to testify as to the ultimate issue of fact presented by the case, (4) denied him access to certain records of the department of children and youth services (DCYS), and (5) failed to dismiss one count of the information that was barred by the statute of limitations. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant first sexually assaulted the victim when she was about three years old. The defendant would come into the bathroom while the victim was bathing, and would “feel her all over” and try to get on top of her. The defendant in later years reminded the victim that he had been “doing it to [her] since [she was] three.” When the victim was between five and eight years old, the defendant would come into her bedroom, touch her and try to get on top of her. He also pulled down her clothing and tried to touch her with his penis.

After the family moved, the victim began to share a room with her younger sister. At that time, the defendant would wait until everyone was asleep, come into the victim’s bedroom, remove her clothing and get on top of her. He began attempting to insert his penis into the victim’s vagina, but he was unable to do so even though he exerted force. Some of these events occurred during the day when the victim’s mother was at work. The defendant would place the victim’s two younger sisters in the bathtub to occupy them while he committed these acts on the victim. These assaults occurred three or four times a week.

When the victim was about ten years of age, the family moved again. At that time, the victim’s mother worked from 3:30 until 9 p.m. and the victim was responsible for overseeing her sisters. Although the defendant had his own apartment at the time, he also had a key to the apartment occupied by the victim and her family, and usually stayed at that apartment. The defendant followed the practice of putting the younger girls in the bathtub, forcing them to take a nap or sending them outside while he molested the victim. In 1987, the victim told her father’s girlfriend that she was being sexually molested by the defendant. At that time, the victim also spoke with a member of the New Haven police department and stated that she was being sexually abused. About a week later, after being assured by her mother that the defendant would not bother her again, the victim recanted her prior complaint. At the time that she recanted, the defendant had moved out of the apartment occupied by the victim and her family. Shortly after she recanted, the defendant moved back in with the victim and her family and resumed his abuse of the victim.

On April 7, 1989, the victim confided in a school friend that she was being sexually assaulted by her mother’s boyfriend. The victim also told this to several adults at school including Gail Guy, a guidance counselor, and Delores Dinnean, a school nurse. Although this misconduct had occurred over a period of years, she spoke out at this time because she was afraid to go home from school. On the previous evening, a male friend, in whom she had also confided, telephoned the victim’s mother and advised her that the defendant had been sexually abusing the victim. When the victim’s mother learned of the misconduct, she appeared to be angry, not only with the defendant, but with the victim as well. The victim’s fear was that her mother would not believe that the sexual abuse had occurred. The defendant had told the victim not to tell her mother because the mother would believe his denials and that the victim would be placed in a home. In addition to telling Guy and Dinnean, the victim also described the defendant’s misconduct to Gloria Jetter, a DCYS investigator, Detective Peter Marone of the New Haven police department, Diane Pelazza, a pediatric social worker at the Yale-New Haven Hospital Sexual Abuse Clinic, and John Leventhal, an associate professor of pediatrics at Yale-New Haven Hospital and the medical director of the Sexual Abuse Clinic and of the Child Abuse Program. Each of these witnesses testified as constancy of accusation witnesses.

The defendant testified in his own behalf denying the charges made against him. He offered testimony concerning his rigorous work schedule over the period of time at issue. His former employer also testified as to his work schedule. The defendant offered character evidence concerning his honesty, reliability and trustworthiness. Finally, the defendant offered the testimony of Stephen Herman, a psychiatrist, who had not examined or interviewed the victim, but who testified that some children distort and lie about sexual abuse claims. The jury found the defendant guilty.

I

The defendant claims that the trial court improperly prohibited him from pursuing certain lines of inquiry when the evidence sought to be adduced was admissible under an exception to General Statutes § 54-86f thereby denying him his constitutional rights to confrontation and to present a defense. We disagree.

Certain additional facts are necessary for a proper resolution of this issue. Prior to the commencement of the evidence, the state filed a motion in limine seeking, inter alia, to preclude the defendant from introducing any evidence of and from cross-examining the complainant as to her sexual conduct unrelated to conduct with the defendant. In support of the motion, the state invoked the protection of the provisions of General Statutes § 54-86f contending that any such evidence would not meet any of the exceptions under the statute by which such evidence would be rendered admissible. At the time the motion was argued, the defendant asserted that he did not intend to cross-examine the victim with respect to any prior sexual conduct, but that he might call other witnesses as to that issue. The motion in limine was granted.

The victim testified as to acts of sexual misconduct committed against her by the defendant over a period of years. She also testified that, although the defendant had attempted to effect penile penetration, he had not been successful. She was never asked on cross-examination any questions relating to any sexual experience that she may have had other than with the defendant, nor did the defendant attempt to make any offer of proof during the cross-examination as to any other conduct on the part of the victim.

The state called Guy and Dinnean as witnesses in its case-in-chief. At the completion of the testimony of each of these witnesses, the state turned over to the defendant the statements given to the police by each witness. The statements contained evidence that the victim had disclosed concern that she may have been pregnant and had engaged in sexual intercourse with her boyfriend. The state also called Leventhal who testified to the victim’s physical manifestations of sexual abuse. Leventhal testified that the victim’s physical appearance upon examination was consistent with the victim’s statements that the defendant had attempted penetration and had failed.

After the completion of the state’s case-in-chief, the defendant requested permission to cross-examine Guy and Dinnean as to the statement by the victim that she expressed concern about being pregnant. The defendant asserted that this evidence was admissible under the exception to the rape shield statute as evidence against Leventhal’s opinion that the physical findings of the victim were consistent with no penetration and as an inconsistent statement by the victim. On appeal, the defendant claims that the evidence was admissible, under General Statutes § 54-86f (2) and (4), as evidence to counter Leventhal’s opinion and to show that the victim had an independent basis to describe sexual acts. The defendant also asserts that the trial court improperly ruled on the admissibility of the evidence because it failed to hold a hearing on the matter.

“Statutes such as General Statutes § 54-86f, commonly known as rape shield statutes, have been enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material.” State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). The statute "excludes evidence of prior sexual conduct of the victim of a sexual assault, unless one of the statutory exceptions is satisfied.” State v. Christiano, 228 Conn. 456, 469, 637 A.2d 382 (1994). "Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim’s sexual privacy and shielding her from undue harassment, encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment .... Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters. . . . State v. Cassidy, [supra, 379].” (Citations omitted; internal quotation marks omitted.) State v. Christiano, supra, 469-70.

“The determination of whether the state’s interests in excluding evidence must yield to those interests of the defendant is determined by the facts and circumstances of the particular case.” Id., 470. In the case of sexual assault, § 54-86f provides the factors to be considered in determining the admissibility of evidence of sexual conduct by the victim. See id., 469-70.

A

The defendant’s claim that the evidence relating to the victim’s fear of pregnancy was admissible under § 54-86f (2) is unpersuasive. Section 54-86f (2) allows the admission of such evidence when the defendant offers it “on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct . . . .” The defendant cannot meet either requirement. The evidence was offered on the issue of Leventhal’s credibility, not the victim’s, and the victim was never asked about and did not testify as to her sexual conduct other than the assaults by the defendant.

Further, the evidence was not admissible under General Statutes § 54-86f (4). “Such evidence is admissible under this statute only if it fulfills the requirements of the statute that its probative value outweighs its prejudicial effect, within the context of the facts and circumstances of the case in which it arises.” (Internal quotation marks omitted.) State v. Kindrick, 30 Conn. App. 56, 59-60, 619 A.2d 1 (1993). “Evidence should be excluded as unduly prejudicial: (1) where it may unnecessarily arouse the jury’s emotions, hostility or sympathy; (2) where it may create distracting side issues; (3) where the evidence and counterproof will consume an inordinate amount of time; and (4) where one party is unfairly surprised and unprepared to meet it.” (Internal quotation marks omitted.) State v. Santiago, 224 Conn. 325, 340, 618 A.2d 32 (1992); State v. Rinaldi, 220 Conn. 345, 356, 599 A.2d 1 (1991); State v. Clinkscales, 21 Conn. App. 411, 416, 574 A.2d 243, cert. denied, 215 Conn. 815, 576 A.2d 545 (1990); State v. Butler, 11 Conn. App. 673, 683, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 938 (1987). The evidence here would create distracting side issues of (1) whether Leventhal could determine that no penetration had occurred even though the victim may have had sexual relations and (2) whether the victim had actually had sexual relations with another male. These issues, once brought into the trial, would exhaust an inordinate amount of the jury’s time in collateral issues. Thus, the evidence was properly excluded.

B

The defendant’s claim that the evidence was admissible to show that the victim had a separate, independent font of knowledge from which to describe sexual acts was not properly preserved. At trial, the defendant asserted that the evidence was admissible because it was relevant to show a prior inconsistent statement about the occurrence of penetration. Thus, the claim at trial was not consistent with the claim now asserted. “Appellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel. See State v. Rothenberg, 195 Conn. 253, 263, 487 A.2d 545 (1985). The purpose of requiring trial counsel to object properly is not merely formal: it serves to alert the trial court to purported error while there is time to correct it without ordering a retrial. Id. By failing to object on [this ground], the defendant has failed to preserve this claim. State v. Couture, 194 Conn. 530, 553-54, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); see also Practice Book §§ 288 and 4185.” State v. Christiano, supra, 228 Conn. 464; State v. Dukes, 29 Conn. App. 409, 416-17, 616 A.2d 800 (1992), cert. denied, 224 Conn. 928, 619 A.2d 851 (1993). “We have not yet reached a jurisprudential stage where we require trial judges to be mentally telepathic. Thus, we have consistently declined to review claims based on a ground different from that raised in the trial court.” State v. Ulen, 31 Conn. App. 20, 29, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). Therefore, we will not review this unpreserved claim.

C

The defendant’s claim that the trial court improperly excluded the evidence without a hearing was also not properly preserved. The defendant did not request a hearing before the trial court. “This court will not review issues of law that are raised for the first time on appeal.” State v. Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). We will not afford review of this unpreserved claim.

II

The defendant next claims that the trial court improperly denied him a continuance to prepare his defense after the state filed a substitute information against him substantially changing the allegations against him. We are unpersuaded.

Certain additional facts are necessary for a proper resolution of this issue. The state filed a long form information on October 30, 1989. The information stated that the defendant was accused of one count of sexual assault in the fourth degree and one count of risk of injury to or impairing the morals of a child for events that occurred in “early April 1989.” The information also stated that the defendant was accused of one count of sexual assault in the fourth degree and one count of risk of injury to or impairing the morals of a child for events that occurred “on or about April 26,1989.” On November 15,1990, the defendant filed a notice of intention to offer a defense of alibi that stated he “was in the Town of Ansonia with Keith Hawkins of 420 Dix-well Avenue, New Haven, CT at about 7:00.” See Practice Book § 763. The defendant also filed a notice that he would rely on a 1989 desk calendar, on which appointments were noted.

On December 13, 1990, the state filed an amended information. The amended information alleged that one count of sexual assault in the fourth degree and one count of risk of injury to a child occurred “between August 7, 1984 and November 1986.” The amended information also set forth that the other count of sexual assault in the fourth degree and the other count of risk of injury to a child occurred “between November 1986 and April 7, 1989.” On January 3, 1991, the first day of jury selection, the defendant requested a continuance based on the filing of the amended information. The trial court denied the continuance and jury selection commenced. On January 9,1991, the defendant again requested a continuance on the same ground, which the trial court denied. The presentation of evidence began on January 11, 1991. On appeal, the defendant claims that the denial of a continuance denied him due process by failing to give him adequate notice of the contents of the amended information before trial.

“The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921, reh. denied, 377 U.S. 925, 84 S. Ct. 1218, 12 L. Ed. 2d 217 (1964); State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986); State v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985). State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987). It must be shown that the trial [court] acted arbitrarily and substantially impaired [the] defendant’s ability to defend himself, before an appellate court will conclude that the trial [court] abused [its] discretion. The test is a stringent one. United States v. Ellenbogen, 365 F.2d 982, 985 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S. Ct. 892, 17 L. Ed. 2d 795 (1967). State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Ungar v. Sarafite, supra, 589. [State v. Beckenbach, supra,] 47-48. The right of a defendant to have a continuance is not . . . absolute; State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974); and [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980).” (Internal quotation marks omitted.) State v. Walker, 215 Conn. 1, 9-10, 574 A.2d 188 (1990); see State v. Krijger, 33 Conn. App. 49, 55, 633 A.2d 310 (1993), cert. denied, 228 Conn. 917, 636 A.2d 849 (1994).

“ ‘[F]or purposes of Practice Book §§ 623 and 624, a criminal trial begins with the voir dire of the prospective jurors.’ State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 752 (1986). Before the commencement of a criminal trial, § 623 controls the alteration of charges brought against a criminal defendant. This section provides that ‘[i]f the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in [its] discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.’ (Emphasis added.) Practice Book § 623.” State v. Nixon, 32 Conn. App. 224, 229, 630 A.2d 74, cert. granted on other grounds, 228 Conn. 910, 635 A.2d 1229 (1993); State v. Huff, 10 Conn. App. 330, 344-47, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). “The critical question therefore is whether the substitute information prejudiced the defendant’s rights to the extent that the trial court abused its discretion when it chose not . . . to grant the defendant a continuance.” State v. Nixon, supra, 230.

Here, the defendant received the amended information prior to voir dire, thereby giving him an opportunity to question the potential jurors on the basis of the amended information. See State v. DesLaurier, 32 Conn. App. 553, 559, 630 A.2d 119, cert. granted on other grounds, 227 Conn. 930, 632 A.2d 705 (1993); State v. Nixon, supra, 32 Conn. App. 231. Second, the defendant had notice of the added dates a full week prior to the commencement of the evidence, which convinces us that the defendant had ample opportunity to prepare for trial. State v. Nixon, supra, 230-31; State v. Huff, supra, 10 Conn. App. 344-47. The trial court acted within its discretion, and we will not substitute our judgment for that of the trial court. See State v. Nixon, supra, 232.

Ill

The defendant next claims that the trial court improperly permitted the state’s witnesses to testify as to the ultimate issue of fact presented by the case. We are unpersuaded.

Certain additional facts are necessary for a proper resolution of this appeal. On January 10, 1991, the defendant filed a motion in limine requesting that the trial court bar any witness from testifying “as to the truthfulness of any witness or party to this matter or to the truthfulness of any class of persons, especially persons alleging sexual abuse, as determining the veracity of witnesses is wholly within the province of the jury.” The defendant claimed in the trial court that the purpose of the motion was to prevent expert witnesses from testifying to the veracity of sexual abuse victims. The trial court denied the motion as premature on the basis of its belief that such a question was evidentiary in nature and should be addressed only when a specific question was asked and objected to. At trial, Leventhal testified, without objection, that the victim had been sexually abused for several years by the defendant. On cross-examination, the defendant elicited from Leventhal that he had not corroborated the victim’s account in any way. On further cross-examination, Leventhal testified in response to a question that he did not corroborate the victim’s account because he believed that the victim was truthful.

Pelazza, the social worker, testified that she recommended that the victim continue counseling “because she was concerned about the extent of abuse that had occurred.” The defendant objected and claimed that whether the abuse had occurred is a matter for the jury. The trial court overruled the objection because Pelazza was addressing her recommendation. Further, Guy testified that she decided to call DCYS because she believed the victim’s story. The defendant objected on the ground that the testimony was an opinion of a nonexpert. Dinnean then testified, without objection, that she felt that the victim was abused.

The defendant failed to interpose an objection to the testimony of Leventhal and Dinnean. A full examination of the record fails to disclose any objection to the testimony or any motion to strike the testimony. The defendant does not seek review of these claims pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), nor does he seek review under the plain error doctrine. Practice Book § 4185. Thus, we decline to afford review of these unpreserved claims. See State v. Robinson, 227 Conn. 711, 741, 631 A.2d 288 (1993).

The defendant failed to preserve his claim as to the testimony of Guy by objecting on a ground that was different from the claim of error. “Review of evidentiaryrulings is made on the specific legal ground asserted at the time of trial. State v. Velez, 17 Conn. App. 186, 192, 551 A.2d 421 (1988), cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906, 109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989). This court is not in any way bound to consider claims of law not properly raised at trial. State v. Robinson, [supra, 227 Conn. 741]; State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982).” State v. Carter, 34 Conn. App. 58, 73, 640 A.2d 610 (1994). Because the reason now asserted on appeal is different from that asserted before the trial court, we will not afford review of this unpreserved new claim.

The testimony by Leventhal on cross-examination is invited error. “Action induced by an appellant cannot ordinarily be a ground of error. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Kish, 186 Conn. 757, 769, 443 A.2d 1274 (1982); State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973).” State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987); State v. Hall, 28 Conn. App. 771, 776, 612 A.2d 135, cert. denied, 224 Conn. 904, 615 A.2d 1045 (1992). The defendant can claim relief from an induced error only upon a showing that the error violated his constitutional rights. State v. Scognamiglio, supra, 25. When the claimed error is the result of a question posed by the defendant on cross-examination, “ ‘[s]o long as the answer is clearly responsive to the question asked, the questioner may not later secure a reversal on the basis of any invited error.’ ” State v. Smith, 212 Conn. 593, 611, 563 A.2d 671 (1989); State v. Brokaw, 183 Conn. 29, 33, 438 A.2d 815 (1981); State v. Polanco, 26 Conn. App. 33, 37, 597 A.2d 830, cert. denied, 220 Conn. 926, 598 A.2d 367 (1991). Therefore, the defendant cannot claim error on the basis of the witnesses’ response to his question.

The testimony by Pelazza was not testimony of the ultimate issue of fact. One of the ultimate issues of fact in this case was the truthfulness of the victim. In re Noel M., 23 Conn. App. 410, 422, 580 A.2d 996 (1990). The witness’ testimony did not address the truthfulness of the victim. She testified that she recommended continued counseling because of her concern about the extent of abuse that had occurred. This does not reflect her opinion about the victim’s truthfulness, but reflects her reason for recommending counseling. It did not give any indication to the jury as to whether abuse had in fact occurred because the purpose of the counseling was to determine the extent of any abuse. Therefore, the witness did not testify to the ultimate issue of fact.

Even if this evidence can be characterized as relating to the ultimate issue of fact, the testimony was not improper. The trial court has discretion to allow nonexperts to give opinions as to the truthfulness of the victim as long as the witnesses are “those who have been shown to have had an opportunity to form, and who have formed, an opinion as to the character of the . . . [individual] with respect to the trait or traits in issue.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 374, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 10 L. Ed. 2d 312 (1989). The evidence is then admissible as long as the jury needs assistance on the question. Id. Here, the trial court could reasonably have determined that the witness’ opinion was necessary and that she had an opportunity to form an opinion through counseling sessions. Therefore, the trial court did not abuse its discretion in admitting the testimony.

IV

The defendant next claims that the trial court improperly denied him access to certain DCYS records. The defendant posits that the trial court’s refusal denied him his rights under the confrontation clause of the United States constitution as stated in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985).

Certain additional facts are necessary for a proper resolution of this issue. The defendant cross-examined Jetter and asked her whether she retained a record of her conversation with the victim. The witness stated that she kept a record and that she had the record at the trial. The defendant asked the witness to produce the record. The state objected and the trial court sustained the objection. The defendant never marked the record for identification. Therefore, we do not have the record before us.

“ ‘The purpose of marking an exhibit for identification is to preserve it as part of the record and to provide an appellate court with a basis for review.’ Kraus v. Newtown, 211 Conn. 191, 194-95, 558 A.2d 240 (1989).” Esaw v. Friedman, 217 Conn. 553, 566, 586 A.2d 1164 (1991). Thus, the exhibits are not part of the record before us and we are unable to review the claim properly.

V

The defendant next claims that the trial court improperly failed to dismiss one count of the information that was barred by the statute of limitations. The defendant asserts that the acts underlying the allegations of the first count of sexual assault in the fourth degree had occurred more than one year prior to the issuance of the warrant of arrest, thereby violating General Statutes § 54-193.

Certain additional facts are necessary for a proper resolution of this issue. On December 13, 1990, the state filed an amended information. The amended information stated that the first count of sexual assault in the fourth degree occurred “between August 7,1984 and November 1986.” On January 10,1991, the defendant filed a motion to dismiss this claim based on a violation of the statute of limitations. The court deferred ruling on the motion until after the state completed its case. The state rested its case on January 17,1991. On January 18,1991, the trial court again deferred its decision until all of the evidence was presented. The presentation of evidence was complete on January 29, 1991. At that time, the trial court deferred ruling on the motion until after the verdict. The defendant did not request a jury charge on the statute of limitations and did not object to the jury charge. After the verdict, the trial court failed to rule on the motion.

The statute of limitations is not a jurisdictional bar to prosecution. State v. Parsons, 28 Conn. App. 91, 96, 612 A.2d 73, cert. denied, 223 Conn. 920, 614 A.2d 829 (1992). “The statute of limitations is . . . an affirmative defense. State v. Coleman, [202 Conn 86, 90, 519 A.2d 1201 (1987)]; State v. Littlejohn, 199 Conn. 631, 640, 508 A.2d 1376 (1986). Consequently, the burden was on the defendant to prove the elements of that defense by a preponderance of the evidence. State v. Coleman, supra [90]; State v. Littlejohn, supra [640]; see General Statutes § 53a-12 (b); United States v. Karlin, 785 F.2d 90, 92 (3d Cir. 1986).” State v. Crawford, 202 Conn. 443, 451, 521 A.2d 1034 (1987). “An affirmative defense is presented in the orderly course of a criminal trial after the prosecution has presented its case-in-chief.” State v. Coleman, supra, 91; State v. Parsons, supra, 96. Although the defendant raised the defense during the trial, he failed to submit a request to charge thereon. Thus, he failed to preserve the defense. See State v. Parsons, supra, 96-97. Further, the trial court never ruled on the motion. Therefore, we do not have an adequate record to review this claim. See State v. Reddick, 33 Conn. App. 311, 338, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-73a (a) provides: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, or (B) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual contact, or (C) physically helpless, or (D) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (E) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or (2) such person subjects another person to sexual contact without such other person’s consent, or (3) such person engages in sexual contact with an animal or dead body.”

       General Statutes § 53-21 provides: “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 [punished].”

       General Statutes § 54-86f provides: “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.”

       The department of children and youth services was renamed the department of children and families. Public Acts 1993, No. 93-91, § 1.

       See footnote 3.

       Practice Book § 763 provides: “Upon written demand filed by the prosecuting authority stating the time, date, and place at which the alleged offense was committed, the defendant shall file within ten days, or at such other time as the judicial authority may direct, a written notice of his intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.”

       The defendant claims that he did not receive notice of the amended information prior to January 3, 1991.

       General Statutes § 54-193 provides: “(a) There shall be no limitation of time within which a person may be prosecuted for a capital felony, a class A felony or a violation of section 53a-54d.
      “(b) No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d, except within one year next after the offense has been committed.
      “(c) If the person against whom an indictment, information or complaint for any of said offenses is brought has fled from and resided out of this state during the period so limited, it may be brought against him at any time within such period, during which he resides in this state, after the commission of the offense.
      “(d) When any suit, indictment, information or complaint for any crime may be brought within any other time than is limited by this section, it shall be brought within such time.”

       See footnote 7.


author: Freedman, J.

text:
    State of Connecticut v. Jose Vargas
    (11628)
    O’Connell, Foti and Freedman, Js.

      Argued March 21
    decision released May 24, 1994

      KentDrager, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Paul E. Murray, assistant state’s attorney, and James Somers, law student intern, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a plea of nolo contendere made pursuant to General Statutes § 54-94a of a charge of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant filed a motion to suppress evidence. After an evidentiary hearing, the trial court denied the defendant’s motion to suppress. Thereafter, the defendant elected to enter a plea of nolo contendere, conditioned on his right to appeal the denial of his motion. The defendant was sentenced to a term of imprisonment of eleven and one-half years. This appeal followed.

The defendant claims that the trial court improperly (1) found that the defendant had consented to undercover Detective Anthony Battistone’s entry into the apartment, (2) applied the doctrine of inevitable discovery, and (3) failed to resolve the factual dispute as to whether Battistone signaled the undercover team before or after he saw the narcotics. We affirm the judgment of the trial court.

The trial court found the following facts. On January 31,1991, Battistone received information from an informant that persons were selling heroin to anyone who came to the door of apartment 203 at 101-103 Wyllys Street, Hartford. Battistone and three other undercover police officers, Detective Arvid Leftwich, Detective James Mullen and Detective Richard Perotta, went to the apartment with the intent of conducting a “buy-bust.” Upon arrival at the apartment, Battistone knocked on the door while the other officers positioned themselves out of view, standing against the outside wall. The defendant opened the door, but left the screen door latched, and asked, “What do you need?” Battistone replied, “I need a bag of dope.” The defendant then unlatched the screen door and motioned to Battistone to follow him. Battistone opened the screen door and followed the defendant into the kitchen. The other officers remained outside. Leftwich positioned himself so that he could see into the apartment in order to keep Battistone in view at all times.

After Battistone entered the apartment he observed several people seated at the kitchen table. The codefendant, Mable Mercado, was facing Battistone while holding a black purse on the table in front of her. Battistone immediately observed glassine bags of heroin, magazine paper wrappings, and what appeared to be bundles of heroin in the black purse. Having been involved in more than 100 drug sales and buys, Battistone possessed expert knowledge of heroin and its packaging. Battistone gave a prearranged signal to Leftwich. At that point, the other officers ran into the apartment yelling “police” and displaying their badges. Subsequently, they arrested the defendant.

On the basis of those factual findings, the trial court determined that the officer’s warrantless entry into the defendant’s apartment was justified because the defendant consented when he unlatched the door and motioned to Battistone to follow him into the apartment.

I

The defendant first claims that the trial court improperly found that the defendant had consented to Battistone’s entry into the apartment. We do not agree.

The fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution prohibit unreasonable searches and seizures. A warrantless search and seizure inside a home is “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Geisler, 222 Conn. 672, 682, 610 A.2d 1225 (1992); State v. MacNeil, 28 Conn. App. 508, 513, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). Under such circumstances, the state bears the burden of proving that an exception to the warrant requirement exists. Payton v. New York, supra, 586 n.25; State v. Geisler, supra, 682; State v. Zindros, 189 Conn. 228, 237, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). Consent and exigent circumstances are exceptions to the rule excluding evidence obtained as a direct result of a warrantless search and seizure. State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980).

The parties do not dispute that the police conducted a warrantless search of the defendant’s apartment. The parties also agree that there were no exigent circumstances and that the validity of the search and seizure depends entirely on whether the defendant consented to the warrantless entry.

The question of whether a defendant has given voluntary consent to enter or search his or her premises is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the entry or search. State v. Ortiz, 17 Conn. App. 102, 103, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988). “It is to be decided by the trial court on the basis of the evidence before it that it finds credible, along with the reasonable inferences that may be drawn from that evidence. State v. Reagan, [209 Conn. 1, 8, 546 A.2d 839 (1988)]; Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978). The ultimate question ‘is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.’ State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986).” State v. MacNeil, supra, 28 Conn. App. 514.

Here, the trial court made the specific finding that the defendant had consented to Battistone’s entry into the apartment. “ ‘On appeal, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous in view of the evidence . . . in the whole record. . . . It is the province of the trial court to pass upon the credibility of the witnesses and the weight to be accorded the evidence. . . . This court cannot find facts or draw conclusions from primary facts found, but can only review such findings to determine whether they could legally, logically and reasonably be found, thereby establishing that the trial court could reasonably conclude as it did.’ . . . Lynch v. Lynch, 13 Conn. App. 433, 436-37, 537 A.2d 503 (1988). ‘[A] finding of fact by the trial court will not be overturned unless it is clearly erroneous. ... We will, however, carefully review the record to ascertain whether the trial court’s finding is supported by substantial evidence.’ . . . State v. Williams, 227 Conn. 101, 113, 629 A.2d 402 (1993).” (Citations omitted.) State v. Andrews, 33 Conn. App. 590, 599, 637 A.2d 787, cert. denied, 229 Conn. 908, 640 A.2d 121 (1994).

The defendant claims that the trial judge erroneously stated that it was Battistone who testified that the defendant unlatched the screen door and motioned to Battistone to enter. In fact it was Leftwich who so testified. The defendant claims that this is significant because Leftwich testified that the defendant had opened the screen door while Battistone testified that he himself had opened the screen door. Thus, the defendant argues that because the trial court specifically found that Battistone opened the screen door, it had rejected Leftwich’s testimony that the defendant had opened the screen door, but it had accepted Leftwich’s testimony that the defendant had unlatched the door and motioned to Battistone to enter. The defendant claims that such findings are irrational and internally inconsistent and, thus, clearly erroneous. “[W]e are mindful . . . where there is conflicting testimony, it is uniquely the function of the trier of facts to weigh the evidence and assess the credibility of the witnesses. State v. Blevins, 13 Conn. App. 413, 417, 536 A.2d 1002 (1988).” State v. MacNeil, supra, 28 Conn. App. 514. The trier of fact is free to accept part of a witness’ testimony and reject another part. In addition, the state points out that Battistone was never asked who unlatched the door and, therefore, his testimony was not contrary to that of Leftwich.

After a careful review of the record, we cannot conclude that it was clearly erroneous for the trial court to conclude that the defendant consented to Battistone’s entry to his apartment.

II

The defendant next claims that the trial court improperly applied the doctrine of inevitable discovery. The defendant argues that the entry into the apartment by the three other officers, after the prearranged signal by Battistone, was a warrantless entry not provided for by an exception and, therefore, the evidence seized must be suppressed. We do not agree.

The trial court found that even if the entry into the apartment by the three other officers exceeded the consent given by the defendant to Battistone, the evidence would have been discovered inevitably by Battistone because the heroin was in plain view on the kitchen table.

“Under the inevitable discovery rule, evidence illegally secured in violation of the defendant’s constitutional rights need not be suppressed if the state demonstrates by a preponderance of the evidence that the evidence would have been ultimately discovered by lawful means. [Nix v. Williams, 467 U.S. 431, 444,104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984).] To qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the constitutional violation. United States v. Cherry, 759 F.2d 1196, 1205 (5th Cir. 1985); United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1985). In Nix v. Williams, supra, 443, the United States Supreme Court observed that the operation of the exclusionary rule in situations where the police would have inevitably discovered the evidence by legal means already initiated would put the state in a worse position than it would have been in if no police misconduct had transpired. ‘Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place.’ Id., 447.” State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

The defendant raises a myriad of claims as to why the doctrine of inevitable discovery should not apply in this case and, thus, why the evidence should be suppressed. He claims that Battistone’s signaling to the other officers, “inviting them in,” exceeded the scope of consent, if any, destroying any legal basis for Battistone’s presence in the apartment, and, therefore, the discovery of the evidence could not have occurred by legal means already in process. It is curious that the defendant claims, in essence, that because the other officers’ actions were either in bad faith or illegal, the doctrine should not apply. It is precisely in this type of situation that the doctrine is intended to apply. The application of the doctrine anticipates a lawful entry, a subsequent constitutional violation, and an inevitable discovery. It then provides for the admission of the evidence obtained, in spite of the constitutional violation.

We previously held that the trial court properly found that Battistone was in the apartment pursuant to the defendant’s consent. The trial court also found that the heroin was in plain view in the purse on the kitchen table. Thus, prior to the time the other officers entered the apartment, Battistone was actively pursuing his investigation by lawful means that made the discovery of the heroin inevitable. Had the other officers not entered the apartment, Battistone would have inevitably discovered the heroin, even if he had not discovered it prior to giving the signal.

As in the first issue, the resolution of this issue turns on a question of fact. Thus, the function of this court is limited solely to the determination of whether the factual findings of the trial court are clearly erroneous in view of the evidence in the whole record. See also State v. Roseboro, 221 Conn. 430, 446, 604 A.2d 1286 (1992). We conclude, considering the totality of the evidence and the inferences reasonably to be drawn therefrom, that the trial court reasonably could have concluded that the state had met its burden of proving inevitable discovery by a preponderance of the evidence.

III

The defendant’s final claim is that the trial court improperly failed to resolve the factual dispute as to whether Battistone signaled the undercover team before or after he saw the narcotics. Because we conclude that the doctrine of inevitable discovery does apply, it is irrelevant for our purposes whether Battistone saw the heroin before or after he signaled the other officers to enter the apartment. We, therefore, need not address this issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The hearing was a joint evidentiary hearing, involving the defendant and Mable Mercado, a codefendant.

       A “buy-bust” occurs when a police officer attempts to purchase illegal drugs and then arrests the person who offers to sell the drugs to the officer.

       The trial court found that the defendant was the occupant and lessee of the apartment.

       The witnesses testified that “a bag of dope” is $20 worth of heroin.

       The trial court found that, in accordance with the trade and custom of heroin sellers, magazine paper is used to wrap heroin into “bundles” and “bricks.”

       The fourth amendment to the Unites States constitution was made applicable to the states through the fourteenth amendment’s due process clause. Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949).

       In its oral decision, the trial court stated that there was no precedent in Connecticut for the standard of proof by which the state must prove consent by the defendant, either by a fair preponderance of the evidence or by clear and convincing evidence. The trial court used the higher standard of clear and convincing evidence in making its determination that the defendant had consented to Battistone’s entry. Because the trial court used the higher standard and because this question was not raised before this court, we do not address it.


author: Per Curiam.

text:
    State of Connecticut v. Mable Mercado
    (11592)
    O’Connell, Foti and Freedman, Js.
    Argued March 21
    decision released May 24, 1994

      Kent Drager, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Paul E. Murray, assistant state’s attorney, and James Somers, law student intern, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction of a charge of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant filed a motion to suppress evidence. After an evidentiary hearing, the trial court, in an oral decision from the bench, denied the defendant’s motion to suppress. The defendant elected to waive her right to a jury trial. After the bench trial, the trial court found the defendant guilty. The defendant was sentenced to a term of imprisonment of ten years, suspended after five years, with five years probation with special conditions. This appeal followed.

The defendant claims that the trial court improperly (1) found that the defendant did not have standing to contest the legality of the police actions, (2) found that the defendant had consented to undercover Detective Anthony Battistone’s entry into the apartment, (3) applied the doctrine of inevitable discovery, and (4) failed to resolve the factual dispute as to whether Battistone signaled the undercover team before or after he saw the narcotics. We affirm the judgment of the trial court.

The facts are set forth in the companion case of State v. Vargas, 34 Conn. App. 492, 642 A.2d 47 (1994). Because we held in State v. Vargas, supra, 492, that the trial court’s denial of the motion to suppress evidence was not improper, we need not address the defendant’s claim that the trial court improperly found that she did not have standing to challenge the search and seizure.

The judgment is affirmed.

       The hearing was a joint evidentiary hearing, involving the defendant and Jose Vargas, a eodefendant.

       Issues two, three and four are the identical issues addressed in State v. Vargas, 34 Conn. App. 492, 642 A.2d 47 (1994). See that decision for our resolution of those issues.


author: Lavery, J.

text:
    Joseph Wilson v. Warden, State Prison
    (12740)
    Lavery, Freedman and Spear, Js.
    Argued February 24
    decision released May 24, 1994

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (respondent).

      Paula Mangini Montonye, assistant public defender, for the appellee (petitioner).
   Lavery, J.

The respondent state prison warden appeals from the trial court’s judgment granting a writ of habeas corpus to the petitioner, Joseph Wilson. The trial court ruled that the respondent had incorrectly calculated good time credit by failing to aggregate concurrent sentences. On appeal, the respondent asserts that concurrent sentences should not be aggregated for the purpose of calculating good time credit and, therefore, the trial court improperly awarded the petitioner additional good time credit. We affirm the decision of the trial court.

The facts of this case are undisputed. The petitioner was convicted of burglary in 1970 and sentenced to serve not less than six nor more than fifteen years in prison. Seven years later, while still serving this first sentence, the petitioner was convicted of first degree assault and conspiracy for which he received a sentence of fifteen to thirty years. In 1978, while serving the first two sentences, the petitioner was convicted of first degree robbery and sentenced to be incarcerated for ten to twenty years. The first two sentences were concurrent; the third sentence was consecutive.

Connecticut inmates serving sentences imposed prior to October 1,1976, receive statutory good time credit that shortens their sentences by five days for each month of the sentence. General Statutes § 18-7. Inmates also receive enhanced good conduct credit of two and one-half additional days per month that the sentence exceeds five years. General Statutes § 18-7. Inmates serving sentences imposed after October 1,1976, receive statutory good time credit of ten days for each month of their sentences. General Statutes § 18-7a (a). They also receive enhanced good time credit of five additional days for every month that the sentence exceeds five years. General Statutes § 18-7a (a).

The respondent awarded the petitioner enhanced good conduct credit from the five year anniversary of his first sentence until he commenced serving his concurrent second sentence. At that time, the respondent treated the petitioner as a newly confined prisoner and awarded him only standard good conduct credit. The respondent based this calculation on the theory that concurrent sentences are not aggregated like consecutive sentences. See McCarthy v. Commissioner of Correction, 217 Conn. 568, 581, 587 A.2d 116 (1991) (holding that consecutive sentences must be aggregated). Thus, when the petitioner began serving his second sentence, he had not yet served five years on that sentence and had not yet earned the right to any enhanced good conduct credit.

The petitioner argues that concurrent sentences should not be treated differently from consecutive sentences. Under his theory, because he had served five years, he was entitled to enhanced good time credit for the remainder of his incarceration. He seeks to have this court affirm the trial court’s award of 300 additional days of good conduct credit.

General Statutes § 18-7 provides in pertinent part that ‘ ‘[w]hen any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section.” (Emphasis added.) The respondent argues that this provision applies solely to consecutive sentences. We conclude, however, that this language requires that concurrent sentences be construed as one term.

First, the plain language of the statute makes clear that it is intended to control all prisoners serving more than one conviction. It does not distinguish between concurrent and consecutive sentences. The distinction between concurrent and consecutive sentences has existed for more than a century. See General Statutes (1888 Rev.) § 1496. Had the legislature intended to limit the language of § 18-7 to consecutive sentences, it could have done so.

Second, our Supreme Court’s recent treatment of this language demonstrates that § 18-7 requires aggregation. In McCarthy v. Commissioner of Correction, supra, 217 Conn. 570-81, the court determined that sentences imposed under § 18-7a should be aggregated in accordance with the language of § 18-7 even though § 18-7a lacks the aggregation language. The court never addressed whether consecutive sentences imposed under § 18-7 should be aggregated; it accepted as a given that § 18-7 required aggregation. See id., 574.

Third, McCarthy did not limit the aggregation language of § 18-7 to consecutive sentences alone. The court considered the aggregation issue in the context of consecutive sentences because that was the nature of the multiple sentences the appellant was serving. Id., 570. Thus, the court’s ruling that § 18-7 requires aggregation of consecutive sentences imposed under § 18-7a cannot be read to imply that only consecutive sentences are to be aggregated.

Fourth, other existing statutes manifest the legislature’s intent that all multiple sentences be construed as one continuous term. Id., 576. “For example, General Statutes § 18-98b requires that '[wjhen any prisoner is held under more than one conviction the several terms of imprisonment imposed thereunder shall be construed as one continuous term for purposes of determining eligibility for any outstandingly meritorious performance award ....’” Id., 576-77. General Statutes § 53a-37 essentially requires a sentencing court to aggregate both consecutive and concurrent sentences by requiring the court to state the total “effective” sentence imposed.

Fifth, the respondent argues that General Statutes § 53a-38 (b) (1) demonstrates that the aggregation language of General Statutes § 18-7 does not apply to concurrent sentences. Section 53a-38 (b) (1) provides that concurrent sentences “merge in and are satisfied by discharge of the term which has the longest term to run.” Section 53a-38 (b) (2) provides, however, that consecutive sentences aggregate. The respondent contrasts the merging of concurrent sentences with the aggregation of consecutive sentences and concludes that § 53a-38 (b) restricts aggregation to consecutive sentences.

The respondent obviously interprets “merge” to mean replace. Thus, an inmate serving a subsequent concurrent term is treated as if he had never served any prior sentence; the earlier term becomes irrelevant. Our Supreme Court, however, has twice rejected such an interpretation. S ee Payton v. Albert, 209 Conn. 23, 32, 547 A.2d 1 (1988) (suggesting that multiple merged terms coexist but are intermingled and satisfied by discharge of the longer); State v. Clemons, 168 Conn. 395, 409, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80 (1975) (rejecting argument that subsequent concurrent sentences replace earlier sentences). Concurrent sentences remain “separate terms of imprisonment which the legislature has permitted to be served at one time.” State v. Clemons, supra, 409.

Sixth, the respondent further contrasts the merging of concurrent sentences with the aggregation of consecutive sentences and concludes that § 53a-38 (b) limits the broad language of § 18-7 to consecutive sentences. We do not agree. The respondent's conclusion would render § 18-7 superfluous: consecutive sentences would be aggregated under § 53a-38 (b) (2) making § 18-7 unnecessary. Statutes should not be construed so that words, phrases or clauses are rendered meaningless. Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982).

Seventh, the respondent’s interpretation of § 18-7 would yield bizarre results. For example, a five year sentence followed by a five year concurrent sentence imposed on the last day of the prior term would result in an inmate’s serving ten years in jail without receiving enhanced good time credit. Conversely, the same inmate sentenced to two, five year consecutive sentences would receive enhanced good time credit. Statutes should be construed to avoid absurd consequences and bizarre results. Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 667, 560 A.2d 975 (1989).

In sum, the plain language of § 18-7 requires that all multiple sentences be aggregated for purposes of calculating good time credit. We must now apply this conclusion to this case: the petitioner’s two concurrent terms are to be considered one continuous term of imprisonment. Thus, he earned enhanced good time credit from the date of the five year anniversary of his first conviction. The remaining question is at what rate should the enhanced good time credit be calculated?

If § 18-7 applies, the petitioner should have received seven and one-half days per month. If, however, § 18-7a applies, the trial court properly awarded fifteen days per month. The petitioner meets the requirements for application of both statutes. Application of § 18-7 alone would violate the provisions of § 18-7a because an inmate, as here, sentenced after October 1, 1976, and before July 1,1981, would not be granted fifteen days per month. Conversely, application of § 18-7a alone would satisfy both statutes: the fifteen days per month would include the seven and one-half days required by § 18-7. Therefore, we conclude that the trial court correctly awarded the petitioner enhanced good time under § 18-7a.

The judgment is affirmed.

In this opinion the other judges concurred.

       “ ‘ “[Good] time” is a commutation of a sentence, affecting an inmate’s parole and discharge dates, thereby serving an important rehabilitative function by allowing an inmate the opportunity to earn an earlier release for himself. See McGinnis v. Royster, 410 U.S. 263, 271, 93 S. Ct. 1055, 35 L. Ed. 2d 282 [1973].’ Holmquist v. Manson, 168 Conn. 389, 394, 362 A.2d 971 (1975).” McCarthy v. Commissioner of Correction, 217 Conn. 568, 569 n.1, 587 A.2d 116 (1991).

       The petitioner had been paroled on March 27,1975, and July 28,1976. Both times he violated the terms of his parole within five months and was returned to custody.

       General Statutes § 18-7 provides in pertinent part: “Any prisoner sentenced to a term of imprisonment prior to October 1,1976, may, by good conduct and obedience to the rules of said institution, earn a commutation or diminution of his sentence, as follows: Sixty days for each year, and pro rata for a part of a year, of a sentence which is not for more than five years; and ninety days for the sixth and each subsequent year, and pro rata for a part of a year, and, in addition thereto, five days for each month as a meritorious time service award which may be granted in the discretion of the warden and the commissioner for exemplary conduct and meritorious achievement; provided any serious act of misconduct or insubordination or persistent refusal to conform to institution regulations occurring at any time during Ms confinement in said prison shall subject the prisoner, at the discretion of the warden and the commissioner, to the loss of all or any portion of the time earned. . . . When any prisoner is held under more than one conviction, the several terms of imprisonment imposed thereunder shall be construed as one continuous term for the purpose of estimating the amount of commutation which he may earn under the provisions of this section. . . .”

       General Statutes § 18-7a (a) provides: “Except as provided in subsections (b) and (c) any person sentenced to a term of imprisonment, on and after October 1, 1976, and while still serving such sentence whether such sentence is for a definite, indefinite or indeterminate term, and regardless of the institution wherein the prisoner is confined may, by good conduct and obedience to the rules which have been established for the service of Ms sentence, earn a commutation or diminution of his sentence in the amount of ten days for each month, and pro rata for a part of a month, of a sentence which is for not more than five years, and fifteen days for each month, and pro rata for a part of a month, for the sixth and each subsequent year of a sentence of more than five years. In the case of an indeterminate sentence, such credit shall apply to both the minimum and maximum term. In the case of an indefinite sentence, such credit shall apply to the maximum term only. Any act of misconduct or refusal to obey the rules which have been established for the service of Ms sentence shall subject the prisoner to the loss of all or any portion of such credit by the commissioner or his designee.”

       Inmates imprisoned for offenses committed on or after July 1, 1981, receive different good time credit. See General Statutes § 18-7a (b) and (c).

       Because the petitioner’s concurrent second sentence was imposed after October 1, 1976, the standard good time credit was ten days per month.

       The period in dispute lasted sixty months. Thus, the 300 day award resulted from multiplication of five days per month by sixty months.

       Such an interpretation explains why the respondent treated the petitioner as a first year inmate when he began serving his second concurrent sentence. The respondent believed that the second concurrent sentence replaced the first sentence and became the sole sentence that he was serving.