author: Lavery, J.

text:
    Gary A. Duve v. Gail S. Duve
    (9057)
    (9734)
    O’Connell, Lavery and Landau, Js.
    Argued December 7, 1990
    decision released July 3, 1991

      Gary A. Duve, pro se, the appellant (plaintiff).

      David P. Ball, for the appellee (defendant).
   Lavery, J.

This is a consolidated appeal by the pro se plaintiff father, from a judgment on a motion to modify custody awarding sole custody to the defendant mother of the two minor children (appeal 9057) and from a finding of contempt (appeal 9734). The father claims that (1) the trial court, Stodolink, J., improperly issued a permanent custody change in violation of General Statutes § 46b-7 (2) the psychiatrist’s report was unscientific in nature and should not have been admitted as evidence, (3) the mother’s counsel acted in an unethical manner, (4) the trial judge acted in an unethical manner.

In his second appeal, the father claims that the trial court, Pickett, J., was incorrect in finding him in contempt for his failure to pay child care expenses because (1) there was no prior order to pay any specific sum of money to the mother for child care and, therefore, there was no violation on which to base a finding of contempt, (2) there was no sworn testimony, and (3) no evidence was proffered or marked.

I

(9057)

Two of the four issues the father raises involve his assertion that the mother’s counsel behaved unethically and unduly influenced the court and the unethical conduct of the trial judge.

After a careful review of the transcripts of all of the proceedings, we conclude that the father’s assertions that the behavior of the mother’s counsel and the trial judge was improper are unfounded and completely without merit.

The father’s challenge to the report of psychiatrist Stephen P. Herman was neither sufficiently articulated nor briefed. The father has failed to state any legal issue or provide us with any legal authority on which to base his challenge of the trial court’s acceptance of this evidence. Although we allow pro se litigants some latitude, “the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” Galland v. Bronson, 204 Conn. 330, 334-35, 527 A.2d 1192 (1987). Because the father’s claim was neither factually developed, nor supported by case citations in his brief, it is deemed abandoned and we will not review it. State v. Jones, 205 Conn. 723, 740 n.2, 535 A.2d 808 (1988).

The sole issue remaining on the father’s first appeal is the assertion that the trial judge violated General Statutes § 46b-7 by proceeding with the custody modification hearing before the family relations officer had filed a final written report, thereby denying him an opportunity to prepare his defense to that report.

The facts pertinent to the resolution of this claim are as follows. The parties were married August 27,1977, and have two minor children, a daughter and a son. In June, 1988, the marriage was dissolved. An agreement providing for joint custody of the minor children was incorporated by reference into the dissolution decree. Under that agreement, the parties’ son would reside with the mother and their daughter would reside with the father.

Despite their agreement, the father and the mother have been embroiled in a custody dispute involving both children since May, 1989. By August 7,1989, both parties had moved for modification of the custody order and the matter was referred to family relations for a custody and visitation study.

In late January 1990, the family relations officer met with the parties to relate the findings of her study. At that time she provided both parties with a two page written statement disclosing the names of the people she had interviewed in compiling her report. On the basis of her investigation, the family relations officer recommended that the mother receive sole custody of both children and that the father be granted liberal visitation. The father disagreed with these findings and the family relations officer indicated that she would provide the court with a full written report.

Between May, 1989, and July, 1990, the parties were in court on eighteen separate occasions. On March 19, 1990, the motions for modification were heard. Although the family relations study was completed by that date, it was not yet written. At the hearing, the father objected to going forward without the written report. The court ordered that the case go forward and advised both parties that they would have another opportunity to be heard after the written report was filed. The family relations officer testified extensively from her report. After six days of testimony, relative to the various motions for custody modification, the court awarded sole custody of the children to the mother with liberal visitation to the father. Thereafter, the father filed a motion for a mistrial alleging that the trial court had violated General Statutes § 46b-7 because the parties did not have the written family relations report prior to, or at the time of, the hearing on the motion for modification of custody.

On May 11,1990, the family relations officer filed her written report. On June 4, 1990, the trial court held a hearing on the father’s motion for mistrial and subsequently denied that motion. In its memorandum of decision, the court stated that it had reviewed the custody study and found it to be a summation of all the material facts contained in the testimony of the family relations officer and that that testimony had been subject to cross-examination by the father who had been given a full opportunity to refute the testimony and produce his own rebuttal witnesses. The court concluded that there was nothing contained in the written report that was more favorable to the father than the evidence adduced during the hearings on modification. The court also found that any adverse information contained in the study was also contained in the family relations officer’s oral testimony during the modification hearings allowing ample opportunity for the father to rebut that testimony had he chosen to do so.

On appeal, our review of a trial court’s custody order is very narrow in scope. We will not reverse a trial court’s ruling on custody unless the court has incorrectly applied the law or could not reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985). General Statutes § 46b-7, on which the plaintiff relies, provides in relevant part that “[wjhenever, in any family relations matter ... an investigation has been ordered, the case shall not be disposed of until the report has been filed as hereinafter provided, and counsel and the parties have had a reasonable opportunity to examine it prior to the time the case is to be heard.”

This statute has been further clarified, however, by Practice Book § 479, which provides in pertinent part that “[wjhenever, in any family relations matter, a case study has been ordered, the case shall not be disposed of until the report has been filed as hereinafter provided, and counsel and the parties have had a reasonable opportunity to examine it prior to the time the case is to be heard, unless the court shall order that the case be heard before the report is filed, subject to modification on the filing of the report.” (Emphasis added.)

In State v. King, 187 Conn. 292, 297, 445 A.2d 901 (1982), our Supreme Court made it clear that the Superior Court has the power to adopt and promulgate rules regulating pleading, practice and procedure for any judicial proceedings in courts for which it has the constitutional authority to make rules. This authority is granted for the purpose of simplifying proceedings in the courts and promoting the speedy and efficient determination of litigation on the merits. Id. Although the Superior Court is granted broad authority to promulgate rules, such rules shall not abridge, enlarge or modify any substantive right. Conn. Const., art. V, § 1; General Statutes § 51-14 (a); Mitchell v. Mitchell, 194 Conn. 312, 324, 481 A.2d 31 (1984). In addition, such rules are expressly limited in scope to practice and procedure in the Superior Court itself and do not reach beyond those limits. Steadwell v. Warden, 186 Conn. 153, 162-63, 439 A.2d 1078 (1982); see also Practice Book § 1.

Practice Book § 479 does not expand, abridge or modify any substantive rights or remedies encompassed by General Statutes § 46b-7. The procedures set forth in Practice Book § 479 implement the statute while eliminating any unnecessary delay of the proceedings.

We conclude, therefore, that there is no conflict between General Statutes § 46b-7 and Practice Book § 479. The court followed the rules set forth in Practice Book § 479 and proceeded with the hearing only after advising the father that he would be given time to rebut the report. The family relations officer gave extensive testimony on direct examination and was then extensively cross-examined by the father. The father again called the family relations officer as a witness in the presentation of his case. On May 11, the detailed written report of the family relations officer was filed and the parties received copies.

In addition, the father’s motion for a mistrial was argued on June 4,1987. During that hearing, the father argued that there should be a new trial because he did not have the final written report prior to the hearing. He did not, however, demonstrate to the trial court that he was entitled to a modification of the judgment. He failed to offer the trial court any evidence or testimony showing a disparity between the information contained in the formal written report and the information contained in the family relations officer’s custody and visitation evaluation worksheet explanation or her extensive testimony on trial. Accordingly, the court denied the motion for a mistrial.

It is not always necessary to have a written study on file prior to the hearing provided there is good reason to proceed and the directives of the statute and the rules of practice have been followed. Perez v. Perez, 212 Conn. 63, 76-77, 561 A.2d 907 (1989). The father makes no claim that there were inconsistencies in either the January 31 report, the trial testimony, or the May 11 written report. The June 4 hearing was held almost a month after the report was filed and the father had ample opportunity to seek modification.

The trial court gave a full, fair and patient hearing to the father and made its decision on the basis of substantial evidence and in accordance with the law. We will not disturb it. The judgment of the trial court on the motion to modify is affirmed.

II

(9734)

The transcript of the father’s second appeal discloses that on November 13, 1990, a contempt hearing was held at which the father was found to be in civil contempt of court for failing to pay $3200 in child care expenses. The father was not present at the hearing. The court’s finding of contempt was based solely on representations made by the mother’s counsel and no sworn testimony was presented to the court to support those representations. We are dealing here with a civil and not a criminal contempt.

“Contempts of court may be classified as either direct or indirect, ‘ “the test being whether the contempt is offered within or outside the presence of the court.” ’ Cologne v. Westfarms Associates, 197 Conn. 141, 150, 496 A.2d 476 (1985).” Sgarellino v. Hightower, 13 Conn. App. 591, 595, 538 A.2d 1065 (1988). The defendant’s failure to comply with the support order is, therefore, an indirect contempt because it occurred outside the presence of the trial court.

“[A] finding of indirect civil contempt must be established by ‘sufficient proof’ that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure ‘as in ordinary cases.’ Potter v. Board of Selectmen, [174 Conn. 195, 197, 384 A.2d 369 (1978)], quoting Huntington v. McMahon, [48 Conn. 174, 196 (1880)].” Cologne v. Westfarms Associates, supra, 155. This includes the requirement that a finding of indirect contempt be based upon sworn testimony. Cologne v. Westfarms Associates, supra.

The trial court’s finding of contempt based on the unsworn representations by the mother’s counsel was incorrect.

The judgment in appeal 9057 is affirmed. The judgment of contempt in appeal 9734 is reversed and the case is remanded with direction to deny the contempt motion.

In this opinion the other judges concurred.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. James R. Welch, Sr.
    (9130)
    O’Connell, Noecott and Laveey, Js.
    Argued April 23
    decision released July 16, 1991

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

      Mitchell S. Brody, assistant state’s attorney, with whom were Roger Caridad, deputy assistant state’s attorney, and, on the brief, Mark S. Solak, state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction on two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 and one count of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims (1) that his right to a fair trial was violated by the prosecutor’s misconduct during the cross-examination of the defendant and during closing argument, (2) that his rights were violated when the court allowed the state to amend the information, after the commencement of trial, by adding an additional offense involving an additional victim, and (3) that the court should have given the missing witness charge requested by the defendant. We conclude that the trial court was incorrect in allowing the state to amend its information by adding an additional offense involving an additional victim after the jury was selected. The defendant’s second claim is, therefore, dispositive of this appeal.

The facts pertinent to this issue are set forth below. The defendant was arrested by warrant on April 7, 1989, and charged in a short form information with risk of injury to a child on divers days from September, 1987, to November 24, 1988, in violation of General Statutes § 53-21, with sexual assault in the fourth degree on divers days over that same period in violation of General Statutes § 53a-73a, and sexual assault in the second degree on divers dates over the same period in violation of General Statutes § 53a-71. No long form information was ever filed and a bill of particulars was neither requested by the defendant nor filed by the state.

The voir dire of the jury commenced on November 30, 1989. During voir dire, the defendant understood that the charges in the information concerned only one victim, the defendant’s daughter C. The jury selection was completed on December 1,1989. On December 5,1989, when the court was to begin taking evidence, the state announced that it was filing a substitute information and adding an additional count of sexual assault in the second degree on divers days from April, 1983, to November 24, 1988, in violation of General Statutes § 53a-71. The defendant pleaded not guilty to the additional count and the court read the substitute information to the jury which also changed the dates of the original three charges to divers days from April, 1983, to November 24, 1988. The defendant inquired about the change of dates after a conference with the court in chambers. The state then sought to withdraw the substitute information and file a new information changing the dates again to divers dates from February, 1987, to November 24, 1988.

The defendant objected to the changes in the information on two grounds. First, the defendant asserted that the jury had heard the April, 1983 dates and could speculate that there was prior misconduct. Second, the defendant complained that the addition of the second count of sexual assault in the second degree added the defendant’s other daughter, S, as an additional victim and that, until the day testimony was to begin, he had been led to believe that there would be only one victim involved, not two. Over the defendant’s objections, the court allowed the amendment and the defendant took an exception. The defendant moved to sever the additional count adding the second victim. That motion was denied.

The court proceeded by instructing the jury in the following manner: “The charges are the very same charges that I read to you this morning. The only difference is that the state now alleges that the risk of injury charge took place on divers dates from February, 1987, to November 24, 1988, that the sexual assault in the fourth degree charge took place on divers dates from May, 1987, to November 24, 1988, that the first sexual assault charge took place on divers dates from February, 1987, to November 24, 1988, and that the second sexual assault charge took place on divers dates from February, 1987, to November 24, 1988.”

The state has broad authority under Practice Book § 623 to amend an information prior to trial. Once the trial commences, however, the state is limited by Practice Book § 624 in amending the information. The rules of practice provide: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information ... at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced . . . .” (Emphasis added.) Practice Book § 624; State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981); State v. Ignatowski, 10 Conn. App. 709, 714, 525 A.2d 542, cert. denied, 204 Conn. 812, 528 A.2d 1157 (1987); State v. Cole, 8 Conn. App. 545, 550, 513 A.2d 752 (1986). “The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself.” State v. Jacobowitz, supra. The law is firmly established that for purposes of Practice Book § 624, criminal trials begin with the voir dire of the prospective jurors. State v. Ignatowski, supra; State v. Cole, supra, 551-52.

The jury selection in this case had been completed prior to the amendment of the information. This case is, therefore, controlled by the restrictions of Practice Book § 624. The trial court, in allowing the amendment of the information adding another offense after the jury was chosen, violated Practice Book § 624. Although the state acknowledges that the amendment violated the § 624 proscriptions against charging an additional offense following the commencement of the trial, it claims that the error is not reviewable because the defendant did not distinctly raise the issue at trial, and did not preserve his claim that the lack of notice of the additional charge impaired his ability to conduct an effective voir dire of the veniremen. In addition, the state claims that the defendant did not meet the standards for review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine. We do not agree.

It is not necessary for us to embark into either a Golding or plain error analysis because the issue was properly preserved for appeal by the defendant’s timely objection and exception at trial. The defendant objected and excepted to the late amendment on the ground of lack of notice when the issue was first raised. The impaired voir dire claim is not an essential component or specification of the objection to an on-trial amendment that violates Practice Book § 624 but rather constitutes the type of prejudice or harm to the defendant that results from the lack of notice. The defendant cannot undertake an effective voir dire without first being apprised of the particular offenses with which he is charged as well as the penalty for such offenses. The more severe the offenses, and the greater the penalty, the greater the need to conduct an intensive voir dire. Unless the defendant has proper notice of the precise charges against him, he is hampered in his ability to question the veniremen effectively to uncover and analyze any bias or prejudice that they may harbor as to the particular crime or crimes involved. State v. Cole, supra, 551. In this case, the defendant was highly prejudiced because the additional count not only violated his notice rights but also added another victim.

Because the added count of the information charging sexual assault in the second degree is invalid, the judgment of conviction as to it must be set aside and a judgment of not guilty directed. State v. Jacobowitz, supra, 593; State v. Cole, supra, 552. Because the improper amendment impaired the voir dire process, it could have contributed to the defendant’s convictions on the original counts. The defendant makes no jeopardy claim that the evidence to support the guilty verdicts on those counts was insufficient; therefore, the judgments of conviction of risk of injury to a child and sexual assault in the second degree involving C are also set aside, and the case is remanded for a new trial. State v. Ignatowski supra, 717.

We need not review the other two claims raised by the defendant because the issue discussed above is dis-positive of the appeal.

The judgment is reversed and the case is remanded with direction to render a judgment of not guilty on the added count of sexual assault in the second degree, and for a new trial on the original counts.

In this opinion the other judges concurred.

       This count was subsequently withdrawn.


author: Foti, J.

text:
    State of Connecticut v. Katrina Woods
    (9062)
    Daly, Foti and Landau, Js.
    Argued April 30
    decision released July 16, 1991

      Denise Dishongh, with whom was Louis Avitabile, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were John Connolly, state’s attorney, and Corinne Klatt, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction of assault in the first degree in violation of General Statutes § 53a-59 (a) (2) that was rendered after a jury trial. She claims that the judgment of conviction must be reversed because (1) there was insufficient evidence to support her conviction, and (2) the trial court improperly denied her request for a specific unanimity instruction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On June 6,1989, the victim, Kendra Fields, age 17, and her infant daughter, were living in a Waterbury apartment with her aunt, her aunt’s daughter, the defendant, and three other adults. On that date, Fields and the defendant argued for two hours about food stamps. Fields left with her daughter and returned about 11 p.m. to find herself and three others locked out of the apartment. She called the police, who arranged to have the project’s maintenance department open the door. The police briefly entered the apartment and found it empty. After the police left, the defendant emerged from a closet where she had been hiding. At about 6 a.m., Fields went to sleep in a room with three other persons. At about 8 a.m., she felt a burning sensation on her face, ear, neck, the back of her neck, hand and shoulder. She jumped up and ran to a mirror. As she wiped her face, pieces of her skin came off. While screaming in pain, she observed that there were grits on the floor next to the bed, and that they had burned the rug. She then ran downstairs and out of the house. As she passed the kitchen, she noticed there was a pot of grits on the stove and a bowl and pitcher lying on the floor by the back door.

Fields was taken to a hospital by ambulance. She returned to the apartment later that day to make arrangements for the care of her daughter. Before returning to the hospital, she gave the police a written statement and had photographs taken. She returned to the hospital where she remained for about two weeks.

As a result of her injuries, Fields underwent therapy twice a day for two weeks. She also received electric shock treatment to prevent the loss of one of her ears. She sustained lasting marks on her left arm, right arm, right hand, right side of her neck and right shoulder, and she still complains of poor hearing in one ear.

After Fields was released from the hospital, she returned to the apartment. The defendant, however, no longer lived there. Sometime during July and August, 1989, the defendant telephoned Fields and asked her if she was going to press charges. Fields replied affirmatively and asked the defendant why she had burned her. The defendant replied that she had been angry because Fields had called the police the night before and that she had gotten the idea about the grits from a magazine. The defendant also said that she was “high” when she burned Fields, and that she would not have done it if Fields’ daughter had been in the bed at the time. During this period of time, the defendant called Fields approximately eight times to apologize and to say that she had not meant to do it. Each time, the defendant asked Fields to drop the charges.

The defendant first claims that there was insufficient evidence of either of the two forms of mayhem as articulated in the assault statute, General Statutes § 53a-59 (a) (2), to support a conviction, and that, therefore, an acquittal on that offense is required. The defendant argues in the alternative that there was insufficient evidence of at least one of the two forms of mayhem, and that she is entitled to a new trial on the remaining form.

The defendant’s first argument on appeal is founded on the proposition that § 53a-59 (a) (2) contains two separate and distinct offenses. She argues that, as developed at common law and restated in § 53a-59 (a) (2), mayhem involves two conceptually distinct forms, namely, (1) acting with the specific intent permanently to destroy, amputate or disable a member or organ of the body, the actor causes the specific and intended injury, or (2) acting with the specific intent to disfigure, seriously and permanently, the actor causes the specific and intended injury. She claims that there was insufficient evidence under either of these two forms and that the trial court improperly allowed the jury to mix and match intents and results. The defendant essentially argues that it would be improper for the jury to convict the defendant if she committed an act that resulted in one form of first degree assault, while intending to commit the other.

Although there were two common law forms of mayhem, General Statutes § 53a-59 (a) (2) is a compilation of several previous statutes to form one grade of assault, and not a ratification of the common law of mayhem. The common law offenses of mayhem and malicious disfigurement were distinct and separate: mayhem required a general intent to commit the act, and malicious disfigurement required a specific intent. Section 53a-59 (a) (2) requires a specific intent, and also protects the organs of the body, which were not covered by the common law definitions of either mayhem or malicious disfigurement. Thus, the two separate forms of crime as they were distinguished under the common law are neither controlling nor relevant in construing our statute.

The defendant argues that our statute by its own terms can be seen clearly to prohibit two different types of mayhem. We disagree. Our legislature, in enacting § 53a-59 (a) (2), intended to punish any act on a person intended either to disfigure that person seriously and permanently or to destroy, amputate or disable a member or organ of that person’s body, which causes such injury to that person or a third person. This statute defines a single crime consisting of a single act that is intended to and does cause a permanent disfigurement or a destruction, amputation or disabling of an organ or member of another person’s body. The statute requires a specific intent to cause an injury of either nature; the words “such injury” do not require that the actor cause the specific injury intended. One who acts, therefore, with the intent to cause the injuries as listed and causes an injury of either quality may be found guilty under this statute. Although this statute describes two types of specific intent, i.e., to disfigure seriously and permanently, or to destroy, amputate or disable permanently a member or an organ of the body, it is a single crime that is completed by causing an injury consistent with either listed intent.

The defendant also claims that the evidence was insufficient both as to intent and as to resulting injury to sustain the conviction. Again, we disagree.

“In reviewing a sufficiency of evidence claim on appeal the question presented is whether, viewing the evidence favorably to sustaining the verdict, the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985). When we apply this standard, there is no question that the evidence established such proof beyond a reasonable doubt.

The jury could reasonably have found that the defendant poured a pot of extremely hot grits on the victim’s face and upper body as she lay sleeping, resulting in permanent injury to her ear and skin. Given Fields’ testimony, the medical evidence and the jury’s observations of the marks on the victim’s skin, there was sufficient evidence of serious and permanent disfigurement.

The defendant concedes that the skin is an organ for purposes of the statute. She questions whether the ear is a member of the body but admits that the ear is an organ. There was abundant evidence of permanent destruction or disabling of the ear and the skin of the victim. There was medical testimony that the burns had caused permanent damage to Fields’ skin, and testimony, if found credible by the jury, that she could not hear well with her injured ear, is sufficient evidence of permanent injury.

Finally, the defendant argues that there was insufficient evidence of the specific intent to cause serious and permanent disfigurement and insufficient evidence of specific intent to cause permanent destruction or permanent disability of any member or any organ of the body. Intent may be inferred from the conduct of the accused. State v. Carpenter, 214 Conn. 77, 82, 570 A.2d 203 (1990); State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 (1972). Ordinarily, the intent of the actor is a question for the trier of fact. State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980). In this case, the evidence strongly pointed to the likelihood that the defendant intended permanently to destroy or disable an organ or member of the victim by pouring hot grits on Fields’ face while she slept. The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. State v. Carpenter, supra, 83.

The defendant’s final claim is that the trial court improperly denied her request for a specific unanimity instruction. Because we have concluded that there are not two conceptually distinct forms of mayhem with each form requiring a concurrence between the specific mental state and the intended result, a specific unanimity instruction is not required.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides: “A person is guilty of assault in the first degree when ... (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person . . . .”

       The defendant does not contest that her included conviction of second degree assault pursuant to General Statutes § 53a-60 (a) (1), which the jury must have found as part of its verdict, is proper and may be affirmed by this court. Because the jury resolved the identity dispute against her, the defendant concedes that she cannot on appeal contest this aspect of her conviction.

       Although the charging document used the conjunctive word “and” in describing the offense, the court clearly explained that the statutory definition, which uses the disjunctive word “or,” controlled.


author: Dupont, C. J.

text:
    State of Connecticut v. Martin Geisler
    (6934)
    Dupont, C. J., Sfallone, Daly, O’Connell, Norcott, Foti, La very, Landau and Heiman, Js.
    Argued April 17
    decision released June 24, 1991

      Richard Emanuel, assistant public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom were Steven M. Sellers, assistant state’s attorney, and, on the brief, John J. Kelly, chief state’s attorney, for the appellee (state).
   Dupont, C. J.

The dispositive issue in this appeal is whether evidence derived from a warrantless entry and arrest in the defendant’s home should have been suppressed by virtue of the right to be free from unreasonable searches or seizures guaranteed by article first, § 7, of the Connecticut constitution.

In our original decision in this case, State v. Geisler, 22 Conn. App. 142, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated, U.S. , 111 S. Ct. 663, 112 L. Ed. 2d 657 (1991) (Geisler I), we concluded that the warrantless entry into the defendant’s home violated the fourth amendment to the United States constitution because there were no exigent circumstances present to justify such entry. We held that evidence derived from the illegal arrest was a tainted product of that arrest and, thus, should have been suppressed. State v. Geisler, supra, 158-59.

The defendant claimed in Geisler I that the failure of the trial court to suppress the evidence violated his rights under both the federal and state constitutions. Although the defendant had preserved his state constitutional claim at trial, we considered the defendant’s claim under only federal law. The United States Supreme Court vacated our judgment and remanded the case to us for further consideration in light of New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990).

The Harris court, in a five to four decision, held that “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton [v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)].” New York v. Harris, supra, 21.

The facts of this case were set forth fully in Geisler I and only certain ones need be recited here. At a hearing on a motion to suppress, the parties stipulated that “ ‘(1) probable cause existed for the defendant’s arrest at the time of the warrantless entry and (2) the defendant was arrested inside his home by police who entered without a warrant.’ ” State v. Geisler, supra, 148. After arresting the defendant, the police placed him in a patrol car, advised him of his Miranda rights, and proceeded to police headquarters. Once at the police station, the police again advised the defendant of his rights. They then asked the defendant to answer a series of questions and to perform an agility test, both of which were videotaped. The police also administered two intoximeter tests and photographed the defendant. The defendant moved to have his statements, the video tape, the intoximeter results and the photograph suppressed on the ground that they were obtained by exploiting his illegal arrest. The trial court ruled that this evidence was not the fruit of an illegal arrest, and thus admitted it.

Following the remand of the case by the United States Supreme Court, the defendant has set forth a separate argument claiming that he is entitled to relief under our state constitution. Specifically, the defendant argues that excluding only evidence found or statements taken inside a defendant’s home after an illegal, warrantless arrest therein is incompatible with article first, § 7, of our state constitution. That section provides in its entirety: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” This language is very similar to the protections afforded by the fourth amendment to the United States constitution.

In the context of a specific case, we have the inherent authority to interpret the Connecticut constitution. State v. Dukes, 209 Conn. 98, 109, 547 A.2d 10 (1988); State v. Barrett, 205 Conn. 437, 442, 534 A.2d 219 (1987); State v. Kimbro, 197 Conn. 219, 234, 496 A.2d 498 (1985). “We have frequently relied upon decisions of the United States Supreme Court interpreting the fourth amendment, as well as other amendments to the United States constitution, to define the contours of the protections provided in the various sections of the declaration of rights contained in our state constitution.” State v. Marsala, 216 Conn. 150, 159-60, 579 A.2d 58 (1990). Although federal interpretations of consonant provisions of the federal constitution are persuasive authority, we are not bound to follow a federal interpretation in interpreting our state constitution. State v. Dukes, supra, 113. The United States Supreme Court has specifically noted that each state has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitition.” Pruneyard Shopping Cen ter v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980). On several occasions, the Connecticut Supreme Court has looked to our state constitution, when appropriate, to afford our citizens greater protection of certain personal rights than provided for by similar provisions of the federal constitution. See, e.g., State v. Marsala, supra, 160; State v. Dukes, supra, 112; State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988); State v. Kimbro, supra, 235. One of the benefits of federalism is that the citizens of a particular state will enjoy all the rights and protections guaranteed by the federal government as well as such greater rights and protections as may be accorded them by the state government.

We must interpret state constitutional provisions within the context of the times. State v. Dukes, supra, 114. “The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.” Id., 115.

In the present case, we must determine whether the exclusionary rule of this state, protecting those rights afforded by article first, § 7, of the Connecticut constitution, is broader than the federal exclusionary rule as defined in New York v. Harris, supra.

The court in Harris began its analysis by noting that, in light of Payton v. New York, supra, the defendant’s warrantless arrest in his home violated the fourth amendment to the United States constitution. The court, nevertheless, declined to apply the exclusionary rule to statements that were made by the defendant outside of his home following the Payton violation because the court reasoned that “the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime.” New York v. Harris, supra, 17. The court further reasoned that even though Payton drew a line at the entrance to a home, nothing in Payton suggested that “an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house.” Id. The court, therefore, concluded that because the police had probable cause to arrest the defendant, the defendant was lawfully in custody once he was removed from his home. Id.

Having reached this conclusion, the court proceeded to distinguish such cases as Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d (1982); Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); and Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). These cases hold that evidence derived from an unlawful warrant-less entry and arrest should be suppressed if it is not sufficiently attenuated from the initial unlawfulness. Taylor v. Alabama, supra, 693; Dunaway v. New York, supra, 217; Brown v. Illinois, supra, 602. The Harris court first reasoned that an “attenuation analysis is only appropriate where, as a threshold matter, courts determine that ‘the challenged evidence is in some sense the product of illegal government activity.’ ” New York v. Harris, supra, quoting United States v. Crews, 445 U.S. 463, 471, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980). According to the Harris court, in Brown and its progeny, the challenged evidence was the product of illegal government activity because in those cases the challenged evidence was obtained while the defendants were being wrongfully detained. The Harris majority, however, reasoned that once the defendant was removed from his home, he was not unlawfully detained because the police had probable cause to arrest him. The court, therefore, held that an attenuation analysis was not warranted because the challenged evidence, namely a postarrest statement made to the police while the defendant was at the police station, could not possibly be the product of illegal government activity because the defendant was lawfully detained.

The court found justification for its conclusion by reasoning that the deterrent purpose of the Payton rule was sufficiently vindicated in the suppression of any evidence obtained inside the home. The court stated that suppressing evidence acquired outside of the home following a Payton violation would lead to only a minimal increment in deterrence and would have little effect on police officers’ actions.

Article first, § 7, of the Connecticut constitution provides in part that our citizens “shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . .” (Emphasis added.) In order for this provision to have contemporary effectiveness for all of our citizens by ensuring that they will be protected against unreasonable searches or seizures, there must be an effective remedy for failure to safeguard those rights. “[T]he exclusionary rule is now widely recognized as an effective remedy for enforcement of the constitutional protection against unconstitutional searches and seizures.” State v. Dukes, supra, 110. Our state Supreme Court and this court have explicitly recognized that the purpose of the exclusionary rule is to deter illegal police conduct. State v. Zindros, 189 Conn. 228, 253, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984); State v. Brown, 14 Conn. App. 605, 622, 543 A.2d 750, cert. denied, 208 Conn. 816, 546 A.2d 283 (1988); State v. Cooper, 9 Conn. App. 15, 27, 514 A.2d 758 (1986); see State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988), aff’d, 212 Conn. 6, 562 A.2d 470 (1989).

By requiring that only evidence acquired inside a home following a Payton violation be suppressed, the per se rule in Harris does not grant to Connecticut citizens the scope of the exclusion that we believe is necessary to deter police from entering a home without a warrant. This deterrence cannot be achieved if the evidence acquired immediately thereafter outside a home cannot be suppressed under any circumstances, unless it resulted from illegal government activity.

The Harris court undertakes no attenuation analysis at all, whereas, it is our view that such an analysis is appropriate in order to determine whether there is a temporal and causal connection between the entry into the home and the particular evidence later obtained outside the home. Here, the state has conceded that the time between the defendant’s arrest in the home and the defendant’s station house statements and consent to take the intoximeter tests was minimal. State v. Geisler, supra, 156. Furthermore, there were no intervening circumstances to break the causal connection between the warrantless entry into the home and the evidence in question. Id., 157.

In Harris, the court concluded that if a Payton violation would require a suppression of evidence obtained outside a home, there would be a minimal increment in deterring the police from entering a home without a warrant. In our view, even a minimal deterrence is an important gain, to make certain that “[t]he people [of this state] shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures . . . .”

As pointed out by the dissent in Harris, “[a]n invasion into the home is . . . the worst kind of invasion of privacy. An intrusion into that sanctum is an assault on the individual’s solitude and on the family’s communal bonds” and the effects of that intrusion “extend far beyond the moment the physical occupation of the home ends.” New York v. Harris, supra, 27, 28 (Marshall, J., dissenting).

We view the question to be answered, as did the Harris dissent, to be “whether the invasion of privacy [of the home] occasioned by the illegal arrest taints a statement made after the violation has ended”; (emphasis in original) id., 29; and not “whether the illegality itself was continuing at the time the evidence was secured.” Id., 30. If the latter were the question, then the first two factors of the Brown attenuation analysis, namely temporality and intervening circumstances, would be irrelevant because time would never pass and circumstances would never intervene between the time the unlawfulness occurred and the time the evidence was acquired. Id.

In People v. Harris, 77 N.Y.2d 434, 570 N.E.2d 1051, 568 N.Y.S.2d 702 (1991), the Court of Appeals of New York considered the precise question we consider in this opinion. After its original decision that a defendant’s statement should be suppressed and a new trial ordered, the case was remanded for further consideration in view of New York v. Harris, supra. The language of the New York and United States constitutions on searches and seizures is identical and, therefore, the New York Court of Appeals recognized that it could not rely on statutory differences for its analysis or conclusion that the New York constitution affords greater protection to its citizens than the United States constitution. The court, instead, relied on “ ‘any preexisting State statutory or common law defining the scope of the individual right in question; the history and traditions of the State in its protection of the individual right; any identification of the right in the State Constitution as being one of peculiar State or local concern; and any distinctive attitudes of the State citizenry toward the definition, scope or protection of the individual right.’ ” People v. Harris, supra, 438. The court concluded that the reasoning of the United States Supreme Court should be rejected because New York has “established a protective body of law in this area resting on concerns of due process . . . which is substantially greater than that recognized by other State jurisdictions and ‘far more expansive than the Federal counterpart ....’” (Citations omitted.) Id., 439.

To ensure the security guaranteed by article first, § 7, of our state constitution, we must ask “[wjhether the evidence derived from an unlawful warrantless entry and arrest is attenuated from the initial unlawfulness” based on the facts of each case. State v. Geisler, supra, 155. We, therefore, reject a per se inclusion of evidence obtained outside a home following a Pay-ton violation, regardless of temporality and intervening circumstances. The facts of this case are such that the unlawful entry into the home was not diluted or lessened in effect by the passage of time or intervening circumstances when the evidence in question was obtained.

We conclude that the federal exclusionary rule, as narrowed by New York v. Harris, supra, does not ensure that Connecticut citizens’ rights, as guaranteed by our state constitution, will be adequately protected. We hold, therefore, that our state exclusionary rule, as derived from article first, § 7, bars the state from using evidence acquired outside a defendant’s home following a Payton violation, unless the taint resulting from the violation is sufficiently attenuated from the initial entry into the home.

The judgment of State v. Geisler, 22 Conn. App. 142, 576 A.2d 1283 (1990), is affirmed and the case is again remanded for a new trial on the charge of assault in the second degree with a motor vehicle under General Statutes § 53a-60d.

In this opinion O’Connell, Norcott, Foti, Lavery, Landau and Heiman, Js., concurred.

Spallone, J., with whom Daly, J., joins, dissenting. The majority opinion is predicated on its prior determination in State v. Geisler, 22 Conn. App. 142, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated, U.S. , 111 S. Ct. 663, 112 L. Ed. 2d 657 (1991) (Geisler I), that the police illegally entered the defendant’s house. For the reasons stated in Geisler I, I would not disturb the trial court’s conclusion that the police permissively entered the defendant’s premises under exigent circumstances. Accordingly, I dissent.

       Specifically, the defendant had claimed that his rights under the fourth amendment to the United States constitution and article first, §§ 7, 8 and 9 of the Connecticut constitution had been violated.

       Our Supreme Court and this court have declined to review a defendant’s state constitutional claim, deeming it to have been abandoned, when the defendant has not separately briefed and analyzed that claim. See, e.g., State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v.
        Redente, 19 Conn. App. 521, 531 n.5, 563 A.2d 1365 (1989); State v. Thompson, 17 Conn. App. 490, 498 n.5, 554 A.2d 297, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989). That declination, however, does not mean that we are not able to review such a claim if we choose to do so. Furthermore, it is noteworthy that nowhere in State v. Geisler, 22 Conn. App. 142, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated, U.S. , 111 S. Ct. 663, 112 L. Ed. 2d 657 (1991), did we state that the defendant had abandoned his state constitutional claim. Given the unique procedural posture of this case and because we have not yet addressed the precise state constitutional question that is before us, we have decided to review the defendant’s state constitutional claim, which is now fully briefed and is of great importance to Connecticut citizens. See State v. Barrett, 205 Conn. 437, 442-43, 534 A.2d 219 (1987); see also People v. Harris, 77 N.Y.2d 434, 437 n.2, 570 N.E.2d 1051, 568 N.Y.S.2d 702 (1991).
      Even if we assume that the defendant abandoned his state constitutional claim on appeal but preserved it at the trial level, our decision to review it on remand from the United States Supreme Court is consistent with our case law. In State v. Barrett, supra, our Supreme Court reviewed an unpreserved state constitutional claim, raised for the first time on remand from the United States Supreme Court, under the exceptional circumstances doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), which was later refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). It would be illogical to afford Evans-Golding review to a defendant, as the one in Barrett, who completely failed to preserve his state constitutional claim at the trial court but to deny review to a defendant, such as the one in this case, who preserved it at trial but failed to set forth a separate argument for it in his initial brief to this court.

       The state’s petition for a writ of certiorari to the United States Supreme Court was limited to the issue of whether we had properly determined that the derivative evidence should have been suppressed. That issue relates only to our disposition of the count of assault in the second degree with a motor vehicle, General Statutes § 53a-60d, and does not affect our judgment on the offense of operating a motor vehicle while under the influence of intoxicating liquor, General Statutes § 14-227a (a) (2).

       In Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980), the court held that “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.”

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

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       Because of the similarity of language in the Connecticut constitution and the United States constitution, we do not analyze the slight differences of language but rely on the general principles as considered by the New York court.


author: Landau, J.

text:
    Henry D. Marcus v. Irene DuPerry
    (8871)
    Spallone, Lavery and Landau, Js.
    Argued March 19
    decision released July 23, 1991

      Henry D. Marcus, pro se, the appellant (plaintiff), with whom, on the brief, was Theodore A. Lubinsky.

      Irene Marie DuPerry, pro se, the appellee (defendant).
   Landau, J.

The plaintiff, an attorney seeking collection of legal fees from the pro se defendant, a former client, appeals from the trial court’s judgment for the defendant. The plaintiff claims that the trial court improperly (1) considered issues regarding liability at a hearing in damages, (2) failed to award damages to the plaintiff under the retainer agreement or on the theory of quantum meruit, (3) found that the modified retainer agreement was void and unenforceable, and (4) ignored additional claims in quantum meruit for other matters that the plaintiff had handled for the defendant.

The defendant retained the plaintiff to represent her in a personal injury action on or about September 20, 1985. The parties executed a retainer agreement on September 21,1985, that provided for a contingent fee of 33 Vs percent. The parties’ relationship deteriorated and the defendant discharged the plaintiff in August, 1986. On October 29, 1986, the plaintiff agreed, once again, to represent the defendant.

The parties proceeded to trial on the personal injury action, which resulted in a jury verdict in DuPerry’s favor. Three weeks after the judgment was rendered, the defendant again discharged the plaintiff. The plaintiff then instituted this action for legal fees.

A default was entered against the defendant for failure to plead and the action proceeded to a hearing in damages. At the hearing in damages, the plaintiff entered a retainer agreement into evidence. This agreement provides that the plaintiff would be paid either $100 per hour for office time and $125 per hour court time for his past and future services, or 33 Vs percent of the recovery, whichever was greater. The third and last page of this agreement contained the defendant’s signature. Next to her signature, the date September 21, 1985, was crossed out and the date October 29, 1986, was added. At the hearing in damages, the plaintiff testified that the defendant orally agreed to the terms of the modified retainer agreement and directed him to attach the signature page from the original agreement to this modified agreement. The defendant testified to the contrary.

At no time did the defendant give written notice to the plaintiff of her intention to contradict the allegations of the complaint or of her intention to provide a defense. The trial court, after hearing evidence on damages, found that because the document that the plaintiff sought to enforce against the defendant was void for lack of consideration, the plaintiff was unable to sustain his burden of proof as to the amount of damages he should receive. The trial court also denied the plaintiff’s claims in quantum meruit because the underlying fee agreement “might govern the course of action pursued by the plaintiff” in such a way that it could have interfered with the proper and unbiased discharge of the plaintiff’s duties.

“ ‘A default in an action for legal and equitable relief admits the material facts constituting a cause of action’ . . . (citations omitted); Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 445, 551 A.2d 1220 (1988); and, when appropriately made, conclusively determines the liability of a defendant and forever bars a judgment in his favor. Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987). A plaintiff, however, must still prove, at a hearing in damages, the amount of the judgment prayed for in the complaint that he is entitled to receive but, at the very least, he is entitled to nominal damages. DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 401, 441 A.2d 838 (1982). Although a defendant may not contest liability if he has failed to notify the plaintiff of his intention to do so; Practice Book § 367; a defendant may contest the amount of damages. Practice Book § 374; Kloter v. Carabetta Enterprises, Inc., 186 Conn. 460, 464, 442 A.2d 63 (1982).

The trial court’s memorandum of decision thoroughly discusses the original retainer agreement and the modified retainer agreement. The trial court focused on that part of the agreement that stated that the plaintiff was being retained “[a]t fees based on time, effort, and services rendered and appropriate surcharge for excellent results at minimum hourly rates as follows: $100 per hour office time [and] $125 per hour court time” and noted that the plaintiff had added, in ink, “or 33 xk% of recovery, whichever is greater.” The court also discussed the fiduciary relationship that exists between an attorney and his client.

Although this is not a disciplinary action and the trial court was not sanctioning the plaintiff, the Superior Court has inherent and statutory authority to regulate the conduct of attorneys, who are officers of the court. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 523, 461 A.2d 938 (1983); State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980). In denying the relief requested, the trial court determined that the plaintiffs claims failed because the fee agreement might have governed the course of action pursued by the plaintiff in such a way that it could have interfered with the proper and unbiased discharge of his duties. See Rules of Professional Conduct, Rules 1.3 and 1.5. In this situation, we conclude that, as a matter of public policy, it was within the court’s discretion not to award the plaintiff substantial damages.

To reach misconduct occurring outside the presence of the court, however, the disciplinary power has to some extent been delegated to local grievance committees. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra, 525 n.15; Grievance Committee v. Goldfarb, 9 Conn. App. 464, 473, 519 A.2d 624, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987). Therefore, whether the manner in which the modified retainer agreement was executed, the terms of the agreement, or both violate the Rules of Professional Conduct is not within the province of this court; State v. One 1981 BMW Automobile, 15 Conn. App. 589, 601, 546 A.2d 879 (1988); and can be determined only by the statewide grievance committee pursuant to a complaint filed with the statewide bar counsel. Practice Book §§ 27F, 27G. Notwithstanding this limitation, it was within the province of the trial court to consider matters of professional conduct in evaluating the evidence on the issue of damages in this case.

The trial court did, however, improperly render judgment for the defendant. The liability of the defendant having been established with the rendering of the default, the plaintiff was entitled to at least nominal damages. DeBlasio v. Aetna Life & Casualty Co., supra; Ratner v. Willametz, supra.

The judgment is reversed and the case is remanded with direction to render judgment awarding $1 to the plaintiff.

In this opinion the other judges concurred.

       The plaintiff also claims that the trial court improperly denied his motion for articulation. This issue is not properly raised. If the plaintiff was dissatisfied with the trial court’s response, he should have moved for review in this court pursuant to Practice Book § 4054. Stamford Apartments Co. v. Stamford, 203 Conn. 586, 590 n.1, 525 A.2d 1327 (1987). Although the plaintiff filed numerous motions, he failed to file a motion for review, and his claim is, therefore, not reviewable on appeal.

       Practice Book § 367 provides: “—notice of defenses
      “In any hearing in damages upon default suffered or after a denial of a motion to strike, the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiff’s complaint, except such as relate to the amount of damages, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict, nor shall the defendant be permitted to deny the right of the plaintiff to maintain such action, nor shall he be permitted to prove any matter of defense, unless he has given written notice to the plaintiff of his intention to deny such right or to prove such matter of defense.”

       Practice Book § 374 provides: “—evidence to reduce damages
      “The defendant may, without notice, offer evidence to reduce the amount of damages claimed.”

       We note that “[t]he power to discipline an officer of the court ‘ “is a summary one inherent in the courts, and exists not to mete out punishment to an offender, but that the administration of justice may be safeguarded and the courts and the public protected from the misconduct or unfitness of those who are licensed to perform the important functions of the legal profession.” ’ . . .” (Citations omitted.) Grievance Committee v. Goldfarb, 9 Conn. App. 464, 470, 519 A.2d 624, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987).


text:
    State of Connecticut v. Joanne Rochette
    (9106)
    O’Connell, Laveey and Landau, Js.

      Argued December 7, 1990
    decision released July 23, 1991

      Jeremiah Donovan, special public defender, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney for the appellee (state).
   Landau, J.

The defendant appeals from her conviction, after a jury trial, of larceny in the fifth degree in violation of General Statutes § 53a-125a, and attempted larceny in the third degree in violation of General Statutes §§ 53a-49 and 53a-124 (a) (2). On appeal, the defendant claims (1) that the trial court improperly admitted a written telephone message under the business record exception to the hearsay rule, (2) that there was insufficient evidence to support her conviction of larceny in the fifth degree, and (3) that there was insufficient evidence to support her conviction of attempted larceny in the third degree. We affirm the trial court’s judgment in part and reverse it in part.

The jury could reasonably have found the following facts. In the early morning hours of October 2, 1988, the defendant telephoned radio station WQGN-WSUB, spoke to the night disc jockey, Julie Johnson, and inquired if someone would be available later that night so that she could call back. After Johnson told the defendant that she would be there all night, the defendant called back approximately one-half hour later. During this second call, the defendant told Johnson that her daughter recently had been diagnosed as having a brain tumor and was dying and that she was seeking tickets to a sold out Michael Jackson concert for her daughter. The defendant was highly emotional during the conversation and cried frequently. Johnson told the defendant that she would speak to her superiors to see what could be done about the tickets. That morning, Johnson discussed the telephone call with her superiors.

In an attempt to verify the situation, the radio station’s promotions director telephoned the defendant and received the name of a physician. After two unsuccessful attempts at finding the physician’s telephone number using various spellings, he again telephoned the defendant’s house. This time he was given the proper spelling of the physician’s name and his telephone number. The promotions director called the physician’s office and was told that the child was a patient but because of physician-patient confidentiality, no details could be disclosed. In fact, this physician had never treated the child but the defendant was employed in that office and one of her duties was to answer the telephone. The promotions director also contacted the John Dempsey Hospital and was told that the child was scheduled for treatment. There is no dispute that the child was scheduled for treatment. The child, however, did not have a brain tumor but was susceptible to petit mal seizures as a result of a head injury and was scheduled for treatment for pain management. After receiving verification that the child was under medical care, the promotions director acquired four tickets to the concert at the Meadowlands in New Jersey. He also arranged for a limousine to take the child to the concert. He and the defendant then arranged the best means of giving the tickets to the child because the defendant told the radio station personnel that her daughter did not know the severity of her medical condition.

The promotions director, Johnson, the defendant and her daughter attended the concert. During the ride to the concert, the defendant was distraught and teary eyed especially when her daughter discussed the future. She also gave her daughter medicine, and her daughter would occasionally seem disoriented, a condition corresponding to petit mal seizures.

After the concert, the defendant remained in contact with the personnel at the radio station and especially with Johnson. She would call Johnson three to six times a week and discuss her daughter’s physical health. The defendant, when speaking with Johnson, often referred to chemotherapy and other types of treatment. The defendant also discussed her financial difficulties and her unsuccessful attempts at acquiring a mortgage or loan. She then revealed that there was a drug not approved by the Federal Drug Administration that might shrink the size of her daughter’s tumor but that the treatments were very expensive.

Early in December, 1988, the defendant contacted the general manager of the radio station and asked if she could meet with him. During this meeting, the defendant discussed her financial difficulties and the unapproved treatment. She told him that she would need $5000 within two weeks for the first of three drug treatments. The defendant then requested the general manager’s help in obtaining the money. As a result, the general manager began organizing a station sponsored fund raiser. The defendant stressed, however, that she did not want her name or her daughter’s name publicly disclosed. While making arrangements for this event, the general manager discovered that the defendant had a past history of fraudulent schemes and he then began making further inquiries. As a result of these inquiries, the radio station filed a complaint against the defendant.

I

On cross-examination, the defendant denied telephoning the radio station on October 3, 1988, and leaving a message for Johnson referring to chemotherapy. The state, during rebuttal, had Johnson introduce a written telephone message dated October 3 at 8:30 a.m. The message is to Johnson from the defendant and states: “Will not be able to call you until after 1:00 p.m. Dr. Armine has scheduled [her daughter] for chemotherapy this morning. If you were not successful - it’s o.k., she will understand. Wants to know if you could find out for the children the local telephone # for the children’s ‘make a wish’ foundation. Will call you at 1:30 p.m. today?” The message includes the defendant’s unlisted telephone number and is signed “Nia.”

The defendant claims that the trial court improperly admitted this message under the business record exception to the hearsay rule, General Statutes § 52-180. Because this message was not admitted for the truth of its contents but for purposes of impeaching the defendant’s credibility, it was not hearsay and, therefore, we are not required to determine if the message falls under an exception to the hearsay rule.

Hearsay is an out-of-court statement offered to establish the truth of the matters contained therein. State v. Sharpe, 195 Conn. 651, 661, 491 A.2d 345 (1985); State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981). The telephone message was not offered to establish the truth of the child’s medical condition but rather, was offered to contradict the defendant’s statement that she had not called Johnson on October 3 and referred to chemotherapy. Testimony that refutes evidence or impeaches a witness’ credibility is proper during rebuttal, and the message, therefore, was properly admissible for this purpose. State v. Peary, 176 Conn. 170, 174-75, 405 A.2d 626 (1978); Vazzano v. Slater, 6 Conn. App. 1, 5, 502 A.2d 440 (1986).

II

The defendant next challenges whether there was sufficient evidence to establish that her acceptance of the limousine ride to the concert in New Jersey constitutes larceny in the fifth degree.

In reviewing a sufficiency of the evidence claim, this court undertakes a two part inquiry. “ ‘ “We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . .” ’ ” State v. Plourde, 208 Conn. 455, 458, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1989).

The defendant was charged with larceny in the fifth degree pursuant to General Statutes § 53a-125a. Larceny occurs when, “with intent to deprive another of property or to appropriate the same to himself or a third person, [a person] wrongfully takes, obtains or withholds such property from an owner.” General Statutes § 53a-119; State v. Marra, 174 Conn. 338, 342, 387 A.2d 550 (1978); State v. Banet, 140 Conn. 118, 122, 98 A.2d 530 (1953). Larceny specifically includes theft of services. General Statutes § 53a-119 (7). The defendant, therefore, must wrongfully have had the intent to obtain the services provided by the limousine ride to the concert.

Even construing the evidence in the light most favorable to sustaining the jury’s verdict, we agree that the jury could not reasonably have concluded that the cumulative effect of evidence established the defendant’s guilt beyond a reasonable doubt. The evidence presented at trial revealed that the defendant contacted the radio station to obtain tickets to the Michael Jackson concert. She made no mention of transportation to the concert. Rather, the promotions director, on his own initiative, arranged for the limousine to take them to the concert. The evidence, therefore, does not sufficiently support a finding that the defendant had the requisite intent to acquire the services of a limousine in addition to the concert tickets.

Ill

The defendant also challenges the jury’s finding that she was guilty of attempted larceny in the third degree. Specifically, she asserts that the evidence was not sufficient to establish attempted larceny and was not sufficient to establish that the value of the property at issue exceeded one thousand dollars.

“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 . . . 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.” General Statutes § 53a-49 (a). An attempt is complete and punishable, regardless of its failure due to interruption, other extrinsic causes or its likelihood of success, if “ ‘ “an act is done with intent to commit the crime, which is adapted to the perpetration of it . . . . ” State v. Green, 194 Conn. 258, 276, 480 A.2d 526 (1984); State v. Mazzadra, 141 Conn. 731, 736, 109 A.2d 873 (1954). The act or acts must constitute more than mere preparation but at least must be “ ‘the start of a line of conduct which will lead naturally to the commission of a crime which appears to [a defendant] at least to be possible of commission by the means adopted.” State v. Green, supra; State v. Mazzadra, supra. A defendant, therefore, is criminally culpable because the conduct “causes a sufficient risk of harm to be treated as a crime in and of itself.” State v. Green, supra, 272.

Our initial determination must be whether the defendant had the intent to commit larceny. The requisite intent is the intent permanently to deprive the owner of the property without color of right or excuse for the act. State v. Banet, supra; see also State v. Marra, supra. A person’s intent is to be inferred from his conduct and the surrounding circumstances and is an issue for the jury to decide. State v. Green, supra, 273.

A review of the evidence in the light most favorable to sustaining the verdict reveals that there was sufficient evidence for the jury reasonably to conclude, beyond a reasonable doubt, that the defendant had the intent to commit larceny and took substantial steps in furthering the commission of this crime. See State v. Plourde, supra.

A person obtains property by false pretenses when, “by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person.” General Statutes § 53a-119 (2). To be found guilty of this crime, a person, therefore, must knowingly make a false representation with the intent to defraud, and that false representation must induce action that effectively causes the accused to receive something of value without compensation. See State v. Farrah, 161 Conn. 43, 47, 282 A.2d 879 (1971); see also State v. Brown, 198 Conn. 348, 352-53, 503 A.2d 566 (1986).

The evidence established that the defendant initiated contact with the radio station and cultivated a continuing relationship after the concert. From the course of conduct pursued by the defendant, it was reasonable for the jury to infer that the defendant intentionally misrepresented her daughter’s health, thus appealing to the sympathies of the personnel at the radio station, and stressed her financial difficulties so that the radio station would respond to her appeal for help. As a result, the radio station began organizing a fund raising event, the proceeds of which would be given to the defendant for her daughter. It was also reasonable for the jury to conclude that this course of conduct, culminating in a meeting with the general manager and the organization of a benefit, constituted a substantial step in furtherance of a plan to obtain the proceeds from the fund raiser.

The defendant maintains, however, that there was insufficient evidence to establish that the value of the property exceeded $1000. See General Statutes § 53a-124. In general, the value of property or services is determined by the market value of the property at the time or place of the crime, or, "if such cannot be satisfactorily ascertained, the cost of replacement of the property . . . within a reasonable time after the crime.” General Statutes § 53a-121.

The market value of property can be established by various methods such as the testimony of an owner; see, e.g., State v. McCarthy, 197 Conn. 166, 172, 496 A.2d 190 (1985); or the testimony of an individual employed in a business that deals with the property to be valued. See, e.g., State v. Cochran, 191 Conn. 180, 189, 463 A.2d 618 (1983) (sales manager at a stereo store); State v. Frilando, 182 Conn. 397, 399, 438 A.2d 413 (1980) (jeweler). It is within the province of the jury to assess the credibility and the weight of the evidence presented. State v. Cochran, supra, 190.

The value at issue involves the amount of money that could be raised at a benefit sponsored by the radio station. The general manager testified that the radio station would be able to organize a fund raising event within two weeks that could attract between 500 and 1000 people. The benefit envisioned sought to meet the defendant’s stated goal. Whether such an event would have raised $5000 is irrelevant. By stating her need for $5000, the defendant evinced an intention to obtain property valued at over $1000 and evidence was presented that the defendant’s immediate goal of $5000 could be reached. The jury, therefore, could have reasonably concluded that the defendant intended to obtain property valued at over $1000.

The judgment is reversed as to the conviction of larceny in the fifth degree and the case is remanded with direction to render a judgment of not guilty of that crime; the judgment is affirmed as to the conviction of attempted larceny in the third degree.

In this opinion the other judges concurred.

       General Statutes § 53a-125a provides: “(a) A person is guilty of larceny in the fifth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds two hundred fifty dollars.
      “(b) Larceny in the fifth degree is a class B misdemeanor.”

       Theft of services occurs when “with intent to obtain the use of equipment, including a motor vehicle, without payment of the lawful charge therefor, or to avoid payment of the lawful charge for such use which has been permitted him, [a person] obtains such use or avoids such payment therefor by means of any false or fraudulent representation, fraudulent concealment, false pretense or personation, trick, artifice or device, including, but not limited to, a false representation as to his name, residence, employment, or driver’s license . . . .” General Statutes § 53a-119 (7).

       General Statutes § 53a-124 provides in pertinent part: “(a) A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-l 19 and . . . (2) the value of the property or services exceeds one thousand dollars . . .


author: Norcott, J.

text:
    Four D’s, Inc. v. Salvatore Mattera et al.
    (9530)
    Dupont, C. J., Daly and Norcott, Js.

      Argued April 22
    decision released July 23, 1991

      Robert M. Davidson, with whom, on the brief, were Howard B. Naylor and Jo,mes F. Wojeck, for the appellants (defendants).

      Paul J. Pacifico, for the appellee (plaintiff).
   Norcott, J.

The principal issue in this appeal is whether, under the terms of an agreement to convey certain real estate located in Norwalk, the proposed corporate purchaser met its contractual obligations. The defendants also claim that the trial court improperly (1) accepted the trial referee’s recommended award of damages, (2) failed to render a decision on their motion for a mistrial and (3) refused to correct the referee’s findings of fact. We affirm the judgment of the trial court.

The following facts are necessary to our discussion of these issues. In a written agreement signed by the defendants, Salvatore and Mary Ann Mattera, on December 28,1985, and by the plaintiff on January 3, 1986, the defendants agreed to sell certain real estate that they owned in Norwalk to the plaintiff. Pursuant to the agreement, which stated a base price of $231,000, the plaintiff was to use due diligence to secure, on or before May 1, 1986, zoning approval to construct at least seven housing units on the property. If the plaintiff was unable to secure such zoning approval, the contract provided that the defendants were to be so notified before the deadline, in which case the agreement would become null and void and all moneys paid as a deposit, less a $150 fee for the preparation of the agreement, would be refunded to the plaintiff. The agreement also provided that if the plaintiff was able to secure zoning approval for any additional units the defendants were to receive $33,000 for each such unit, even if the approval was obtained after the closing of title.

After March 1, 1986, the parties met regarding the plaintiffs ability to obtain zoning approval for more than seven units. The defendants claimed that the plaintiff was not trying to maximize the development capabilities of the property. The plaintiff contended that it had been led to believe from discussions with Norwalk zoning officials that a variance would be needed to construct more than the seven base units and that approval for such a variance was unlikely. Despite these discussions, the plaintiff demanded to close title on May 1, 1986, and stood ready to pay the $231,000 contract price. The defendants refused to close title and retained certain moneys as provided for in the agreement.

The plaintiff instituted this action against the defendants on June 17, 1986, seeking specific performance of the agreement, damages for the defendants’ breach of the agreement and attorney’s fees. The case was referred to a state trial referee appointed pursuant to General Statutes § 52-434 (a) (4). After a full hearing held in June and July of 1986, the referee reported her findings of fact in a memorandum of decision dated December 13, 1988. The referee concluded that the plaintiff had performed its obligations but that the defendants had breached the contract by refusing to convey title. She recommended that the plaintiff be awarded specific performance of the contract and $56,000 in damages plus statutory interest from May 1, 1986, the date that the closing was scheduled to have taken place.

The defendants filed a motion to correct the referee’s findings on May 31, 1989. Because the referee failed to render a decision on that motion, the defendants moved for a mistrial on April 12, 1990. Shortly thereafter, the referee denied the defendants’ motion to correct. On August 28,1990, the trial court accepted all of the referee’s recommendations, except for the award of statutory interest, and rendered judgment accordingly. The defendants filed objections and exceptions to the trial court’s actions, and this appeal ensued.

Finally, during the pendency of the action at the trial court, the city of Norwalk rezoned the property so that it can now contain only four units.

I

The essence of the defendants’ first claim lies in the interpretation of the agreement regarding the plaintiff’s obligation to secure zoning approval. The defendants contend that the plaintiff did not satisfy the agreement’s due diligence requirement because (1) the agreement mandated that the plaintiff use due diligence to secure zoning approval for more than the seven base units and (2) the plaintiff failed to secure zoning approval for even the seven base units.

It is axiomatic that “a reviewing authority may not substitute its findings for those of the trier of the facts.” Wilcox Trucking, Inc. v. Mansour Builders, Inc., 20 Conn. App. 420, 423, 567 A.2d 1250 (1989), cert. denied, 204 Conn. 804, 573 A.2d 318 (1990). “In a contract action, findings of fact should be overturned only when they are clearly erroneous. Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 112, 497 A.2d 70, cert. denied, 197 Conn. 816, 499 A.2d 1336 (1985).” Wilcox Trucking, Inc. v. Mansour Builders, Inc., supra, 425. What the parties intended to include in their contract is a question of fact. Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983); Crowther v. Gerber Garment Technology, Inc., 8 Conn. App. 254, 263, 513 A.2d 144 (1986). Although attorney trial referees are bona fide factfinders in this state, a referee’s determinations of law are not binding on the court. See Dills v. Enfield, 210 Conn. 705, 713, 557 A.2d 517 (1989).

In this case, the attorney trial referee found that, pursuant to paragraph twenty of the agreement, the plaintiff was obligated to use due diligence to secure zoning approval for the construction of seven units only. The referee further found that the parties agreed that approval of the seven units was obtainable and that, prior to the closing date, the plaintiff had clearly notified the defendants that it was “ready, willing and able to close.” The referee concluded that the defendants had refused to convey title because the plaintiff had not succeeded in obtaining permission from the Nor-walk zoning authorities to build more than seven units. The trial court reviewed the record, fully agreed with the referee’s conclusions of law and implicitly found that her findings of fact were not clearly erroneous. Our review of the record does not lead us to a different conclusion.

The defendants’ argument that the agreement required the plaintiff to exercise due diligence to obtain zoning approval for more than seven units is unsupported by the record. As duly noted by both the referee and the trial court, although paragraph twenty, which deals with the seven base units, contains a due diligence requirement, paragraph twenty-one, which refers to additional units, does not. The plain, clear language of the contract must be accorded its logical effect. Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 599, 424 A.2d 277 (1979). Thus, the referee and the trial court properly concluded that there was no need to use due diligence with respect to the securing of zoning approval for any additional units.

In any case, it is clear from the referee’s report and from the court’s memorandum of decision that, notwithstanding the lack of such a due diligence requirement, the plaintiff actively and diligently pursued zoning approval for additional units by contacting zoning authorities, discussing the problems of zoning approval with the defendants, asking the defendants to sign documents necessary to initiate the variance process and offering to pay for all costs incurred by the defendants if they could obtain zoning approval despite the plaintiff’s efforts.

The defendants’ claim that the referee improperly failed to find that the plaintiff had not used due diligence in securing zoning approval for the seven base units is equally without merit. The trial court accepted the referee’s finding that “[tjhere was and is no dispute among the parties that approval for seven units was in fact obtainable.” This finding was in accord with the referee’s further determination that, although the plaintiff had never obtained zoning approval for the seven unit proposal, the defendants had asserted early in the negotiations that, the agreement notwithstanding, they would not close title on only seven units. The referee specifically found that the defendants’ insistence on maximizing the development possibilities of the property manifested itself in their refusal to sign certain documents that would have initiated the approval process for the seven base units. On the basis of these findings, the referee concluded, and the trial court agreed, that the plaintiff had fulfilled its obligation under the contract. Absent clear error, we will not disturb the trier’s factual findings. Wilcox Trucking, Inc. v. Mansour Builders, Inc., supra; Pomarico v. Gary Construction, Inc., supra. We find no such error in this case.

II

The defendants next claim that the trial court improperly accepted the referee’s recommended award of damages. Specifically, they claim that there was insufficient evidence from which the court could have based an award of damages because the plaintiff’s expert used no acceptable method of valuing the property.

Both parties acknowledge that in an action for specific performance the trial court maintains the discretion to award damages. Allen v. Nissley, 184 Conn. 539, 440 A.2d 231 (1981). The court must exercise its discretion “depending upon the equities in the case and based on reason and sound judgment.” Schneidau v. Manley, 131 Conn. 285, 289, 39 A.2d 885 (1944). In actions requiring the valuation of property, the trial court has a duty to make an independent determination of the value of the property involved. Ratner v. Willametz, 9 Conn. App. 565, 584, 520 A.2d 621 (1987). “There are three accepted methods of valuation which may be used for the assessment of real property. They are the comparable sales approach, the income approach or the reproduction cost or cost approach.” Whitney Center, Inc. v. Hamden, 4 Conn. App. 426, 427-28, 494 A.2d 624 (1985).

Here, the trial court accepted the referee’s finding that the plaintiff had suffered damages in the amount of $56,000. That amount was to be subtracted from the contract price of $231,000 for a resulting purchase price of $175,000 to be paid to the defendants when they tendered the deed in accordance with the court’s decree of specific performance. The referee reached this assessment of damages after hearing the testimony of Dominic Montana, a real estate broker offered by the plaintiff as an expert witness on the subject of the valuation of the property at issue. The defendants called Montana as their own witness, but offered no rebuttal evidence of damages.

At trial, Montana, an experienced broker, testified that he was very familiar with the subject property. He stated that he had determined the value of the property after the zone change by comparing sales of other properties in the nearby area. The defendants argue that the referee should have discounted Montana’s testimony as pure speculation. They further contend that the court was powerless to consider Montana’s opinion because he could not give the names of the properties he studied, the dates on which they were sold, or the amounts for which they were sold. We do not agree.

Our Supreme Court has stated that the valuation of real property is not an exact science. “It is a matter of opinion based on all the evidence and, at best, is one of approximation.” Crowther v. Guidone, 183 Conn. 464, 470, 441 A.2d 11 (1981). The trial court has both the responsibility to assess the credibility of the witnesses and the weight to be given their testimony; Riccio v. Abate, 176 Conn. 415, 418, 407 A.2d 1005 (1979); and the discretion to accept or reject the expert’s opinion of value. Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982).

In this case, the trial court correctly concluded that the referee carefully considered Montana’s opinion and the other evidence before her, rejected as “speculative” the overgenerous profit calculation given by the plaintiff and found that the land at the time of trial was worth $175,000. Again, we cannot retry the facts. Wilcox Trucking, Inc. v. Mansour Builders, Inc., supra; Pomarico v. Gary Construction, Inc., supra. Therefore, the defendants’ claim must fail.

Ill

The defendants next claim that the trial court improperly failed to rule on their motion for a mistrial. The short answer to this claim is provided in our recently decided case of State v. Ober, 24 Conn. App. 347, 588 A.2d 1080 (1991). There, the trial court failed to address a motion for judgment of acquittal based on the insufficiency of the evidence made after the state rested its case. We held that in accepting the verdict and sentencing the defendant, the trial court implicitly found no merit in the defendant’s motion. Id., 351 n.l. Although State v. Ober, supra, was a criminal case, there is no logical reason why the same analysis should not apply here. While there is no evidence of a ruling on the defendants’ motion for a mistrial, the trial court accepted the referee’s recommendation, rendered judgment accordingly and, thus, implicitly denied the defendants’ motion.

IV

The defendants’ final claim is that the trial court wrongfully withheld its power to correct the referee’s findings of fact. This claim is yet another attack on the referee’s findings of fact and, as such, requires little discussion. We have repeatedly asserted in both this case and a host of other cases that we will not retry the facts. Wilcox Trucking, Inc. v. Mansour Builders, Inc., supra; Pomarico v. Gary Construction, Inc., supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original agreement set a deadline of March 1,1986. That deadline was changed to May 1,1986, by a second undated agreement between the parties.

       Paragraph twenty of the agreement states: “This Agreement is contingent upon the Purchaser’s ability to obtain, at its own expense, zoning approval, on or before May 1,1986, to build at least seven (7) housing units on the property provided however that the Purchaser uses due diligence in obtaining such zoning approval and notifies the Seller’s attorney, Robert J. DeSantis, 7 Huckleberry Drive North, Norwalk, Ct. 06850, (203) 847-6160, on or before May 1,1986 that it has been unable to obtain such approval, in which event this Agreement shall become null and void and all sums paid hereunder shall be refunded to the Purchaser less the sum of $150.00 for the Seller’s expense for the preparation of this Agreement.”

       Paragraph twenty-one of the agreement states: “In the event that after the closing of title and prior to the development of the property, the Purchaser or any subsequent transferee of the property obtains zoning approval to build a number of housing units in excess of the number of housing units on which the closing purchase price of this Agreement is based, the Purchaser agrees to immediately pay the Seller an additional THIRTY THREE THOUSAND ($33,000) Dollars for each such approved housing unit. It is agreed that this paragraph shall survive the closing of title. For purposes of this paragraph ‘development’ is defined as the commencement of construction of housing units.”

       The trial court’s refusal to accept the referee’s recommendation of the imposition of statutory interest is not involved in this appeal.