source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Dexter Lee
    (10836)
    (10837)
    Foti, Lavery and Heiman, Js.

      Argued May 3
    decision released July 20, 1993

      Christine Perra, special public defender, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Bernadette Conway, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from judgments of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 2 la-278 (b) and improper use of a motor vehicle registration in violation of General Statutes § 14-147 (c) under one information, and of risk of injury to a child in violation of General Statutes § 53-21 and reckless endangerment in the first degree in violation of General Statutes § 53a-63 under a separate information. The jury acquitted him of criminal attempt to commit assault in the first degree and the lesser included offenses thereof.

On appeal, the defendant asserts that (1) the search of his car violated his state and federal constitutional rights to be free from unreasonable searches because (a) the actions of the Middletown police department constituted a search for fourth amendment purposes and (b) the search of his car did not fall within any of the recognized exceptions to the warrant requirement, (2) the narcotics that were found should have been excluded because the state failed to establish that the evidence was in an unchanged condition, (3) the state produced insufficient evidence to convict him under General Statutes § 21a-278 (b), (4) the trial court’s denial of his request to remove counsel and for a continuance denied him his due process rights, (5) the trial court’s charge improperly highlighted the admission of a witness’ inconsistent statement thereby prejudicing the defendant, and (6) the trial court improperly consolidated for trial two informations filed against him and the resulting prejudice was beyond the curative power of the court’s instructions. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On May 5, 1989, at approximately noon, Aleta Renee Jenkins, who lived at 12 Roosevelt Drive in Mid-dletown, was walking home from her girl friend’s house. She saw her nine year old daughter across the street, waited until the daughter crossed the street and the two proceeded to their front door. At that moment, the defendant came out of the residence at 6 Roosevelt Drive. As Jenkins turned the doorknob to enter her house, she heard the defendant call her name. She turned and saw the defendant squatting. She saw a gun in his hand and realized that he was aiming it at her. She also noticed that the defendant’s cousin, Curtis Flood, was standing next to him. Jenkins grabbed her daughter who was standing behind her and ran into the house to hide. As she did this, she heard a gun shot. She testified that the defendant then got into his red Alfa Romeo Milano and drove away. Her daughter testified that she heard the defendant call her mother’s name and saw the defendant holding a gun. Scott Jenkins, Aleta Jenkins’ brother, who was inside the house at the time of the incident, also testified that he heard a shot and something hit the house.

During an investigation, Sergeant George Dingwell of the Middletown police found a copper coated lead bullet that was fired from a .38 caliber weapon lodged in the southwest corner of Jenkins’ house.

On May 10, 1989, Glen Partridge, a self-employed automobile recovery agent at Coastal Auto Recovery, received an assignment from his client, Ford Motor Company (Ford), to repossess the defendant’s 1988 silver four door Subaru GL. Ford supplied Partridge with the defendant’s two known addresses in Middletown, 226 Ridgefield Drive and 54 Roosevelt Drive.

At 5 a.m., Partridge and an assistant went to Mid-dletown to repossess the vehicle. As part of their normal course of business and out of courtesy, they notified the police of their intentions and showed the desk sergeant at the Middletown police department their order to repossess the vehicle. Partridge and his assistant then proceeded to the defendant’s Roosevelt Drive address because Ford had informed them that the defendant was living there. Donald Anderson, a Mid-dletown police officer, met Partridge and his assistant at the Roosevelt Drive address, where Partridge found the defendant’s car. Partridge observed identifying characteristics including the vehicle identification number using the information that Ford provided him. Partridge hooked up the vehicle to a wrecker and towed the car away from Roosevelt Drive.

As they left Roosevelt Drive, Anderson stopped Partridge. Anderson checked the license plate numbers with the department of motor vehicles and discovered that the plate number did not match the registration for that vehicle. He removed the plate and Partridge replaced it with a transport plate. Partridge then towed the vehicle to the Middletown police department to inventory its contents and to fill out a report describing the condition of the vehicle and its mileage. Partridge testified that his company and Ford require that he inventory repossessed vehicles to ensure that the consumer’s property is returned and that the vehicle does not contain any contraband or firearms. He also testified that he inventories the vehicle away from the location where he repossesses it to avoid breach of the peace. He further testified that he conducts an inventory of all of the vehicles he repossesses and that half of the time he conducts this inventory at the local police station.

While Partridge and his assistant gained entry to the locked passenger compartment of the vehicle and inventoried it, Anderson stood nearby. Anderson testified that he observed the inventory to ensure that if contraband were found he could preserve the chain of custody. He did not, participate, however, in the inventory process. Inside the Subaru, Partridge and his assistant found personal effects such as clothes, papers, a hard hat, a child’s toy and safety glasses. Partridge also opened and inventoried the trunk. He then picked the lock to the locked glove compartment. Inside that compartment, he found personal papers, papers dealing with the vehicle, pens, pencils, and a partially opened tinfoil package that he thought might be a brownie. He handed the package to Anderson who opened it. Anderson discovered that the package contained a white substance in rock form. On the basis of his training and experience, Anderson thought that the package contained narcotics.

During the trial, Flood testified that the defendant had the only key to the automobile. This key opened the car’s door, trunk and glove compartment, and started the ignition. While Flood testified that he often used the car for work and on weekends, he stated that he did so only with the defendant’s permission and had to obtain the key from the defendant. He further testified that the narcotics found in the glove compartment were not his.

After a five day trial, in which two informations were consolidated, the jury found the defendant guilty of possession of narcotics with intent to sell, improper use of a motor vehicle registration, risk of injury to a child, and reckless endangerment. This appeal ensued.

I

The defendant first asserts that the trial court improperly denied his motion to suppress. He argues that the search of his automobile violated his federal and state constitutional rights to be free from unreasonable searches. In making this claim, the defendant argues that the actions of the Middletown police department constituted a search for fourth amendment purposes and that that warrantless search did not fall within any of the recognized exceptions to the warrant requirement. We are not persuaded that the trial court improperly denied the motion to suppress.

At the suppression hearing, the court was presented with the following testimony. The defendant owned a 1988 Subaru that he purchased in New Hampshire and financed through the Ford Credit Company. He possessed the only key to the automobile. Because the defendant was delinquent in his payments for the car, Ford sought to repossess it.

On May 10,1989, Partridge received a call and subsequently a facsimile from Ford instructing him to repossess the defendant’s car. Following his usual practice, Partridge went to the local police station to inform the police that he would be repossessing an automobile. Dave Nicosia, an agent at Ford, had informed him that the owner of the car was dangerous and had previously been involved in a shooting. To avoid breaching the peace and for his own protection, Partridge occasionally requests that police accompany him to repossess a car. Partridge spoke with the desk sergeant and, at Partridge’s request, an officer was sent to accompany him to repossess the defendant’s automobile.

Partridge went to 54 Roosevelt Drive in Middletown, the defendant’s girl friend’s address. He located the vehicle by its vanity license plate and vehicle identification number. Partridge then hooked up the vehicle to the wrecker and towed it to the Middletown police department.

Partridge testified that he normally tows an automobile to the local police station as he did here. There he fills out paperwork and inventories the repossessed automobile. Most of the companies that request his services require that Partridge inventory the contents of the car to determine the presence of firearms, narcotics, or other contraband. These companies also require that if firearms, narcotics, or other contraband are discovered during inventory that Partridge turn the items over to the police.

Partridge gained entry to the locked automobile and inventoried the passenger compartment, the trunk, and the locked glove compartment. Inside the glove compartment, he found a tinfoil package. At first, Partridge thought it might be a brownie or someone’s lunch. As he unwrapped the tinfoil, he became suspicious and handed the package to Anderson, who was standing nearby. Anderson continued to unfold the tinfoil and discovered a large rock substance. Partridge testified that Anderson in no way assisted him in conducting the inventory.

After hearing the evidence and reviewing exhibits, the court denied the defendant’s motion to suppress. The court found that there was no action on the part of the police, the role of the police was merely incidental, and this was an action by a third party following his usual practice and procedures.

The fourth and fourteenth amendments proscribe unlawful searches by governmental officials. Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). In order to exclude the evidence, the defendant must demonstrate that the police acted in some unconstitutional way. Id. It is “no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.” Id. “[A] wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and . . . such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully.” Walter v. United States, 447 U.S. 649, 656, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980).

The acts of private citizens, however, can become state action when they act as agents or instruments of the state. Coolidge v. New Hampshire, supra, 487 (wife’s voluntary action in turning over to police her husband’s guns and clothing did not constitute a search and seizure by the government). The test of whether a private citizen is acting as a governmental agent is “whether [the private citizen] in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the state . . . .’’Id. In applying this test, we consider whether private citizens are performing a function akin to a governmental function such as criminal investigation and whether they are acting on the order, instruction, or request of a government officer. See id., 489.

Partridge was privately employed. In inventorying the car, he was not performing a function akin to a governmental function such as investigation of a crime. Rather, he was attempting to protect the defendant’s property. Even if we assume that he was performing a function akin to a governmental function in inventorying the contents of the defendant’s car and turning over contraband, firearms and narcotics found, there was no state action because Partridge was not acting as an agent or instrument of the state. Partridge testified that Anderson did not participate or assist him in any way during the inventorying of the defendant’s automobile. Anderson stood nearby merely to protect the chain of custody should any contraband be found. There was no evidence that Anderson ordered, requested, or instructed Partridge to search the automobile or the glove compartment for evidence of a possible crime. When Partridge presented the police officer with the tinfoil package, the officer was not required to stop Partridge or to avert his eyes. See id.

The trial court properly denied the defendant’s motion to suppress.

II

The defendant next claims that the trial court should have excluded the narcotics because the state failed to establish that the evidence was in an unchanged condition. He asserts that since no witness could testify to the weight of the narcotics seized from the car on May 10,1989, or explain why a discrepancy in weights existed, the court had no reasonable basis for finding that the evidence had not been altered. He also asserts that the chain of custody was not established. The defendant therefore argues that the evidence of the narcotics should have been excluded. We do not agree.

Additional facts are necessary to resolve this issue. After Partridge handed Anderson the package, Anderson showed it to his field supervisor, Sergeant Christopher Barrow. Barrow helped Anderson perform field tests on the substance found in the package. The field tests revealed that the package contained cocaine. In Barrow’s presence, Anderson weighed the tinfoil package and its contents together because he feared losing some of the evidence. Anderson tagged the package and inadvertently wrote on the tag that the package weighed .86 grams. Barrows and Anderson each testified that Anderson must have misplaced the decimal point when recording the weight on the tag because the scale weighed items only to tenths of a gram. Barrow testified that he specifically remembered that there was a substantial amount. During the trial, Anderson weighed the package and found that it weighed 8.1 grams.

Anderson placed the package in an envelope, which he sealed, tagged with the date and the accused’s name, and initialled. Anderson and Barrow then placed the envelope in a lockbox to which Officer Rich Augeri had the only key.

On May 11,1989, Augeri gave the envelope to a courier, Buzz Nielson, to take to the state laboratory. At the laboratory, the evidence was assigned a laboratory number. The substance was weighed without the tinfoil packaging and was found to weigh 5.48 grams. The toxicologist also confirmed the presence of cocaine that was 86.46 percent pure. The toxicologist placed the package in the envelope. He signed and dated the tape on the back of the envelope. Augeri picked up the envelope from the state laboratory.

The court overruled the defendant’s objection that the state had failed to establish the chain of custody over the narcotics in the tinfoil package. The defendant excepted to this ruling.

We afford a trial court’s rulings on the admissibility of evidence great deference. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. Johnson, 162 Conn. 215, 233, 292 A.2d 903 (1972); State v. Barnes, 27 Conn. App. 713, 717, 610 A.2d 689, cert. denied, 223 Conn. 914, 614 A.2d 826 (1992); State v. Burns, 23 Conn. App. 602, 614, 583 A.2d 1296 (1990). We will not disturb such rulings absent a showing of a clear abuse of the trial court’s discretion. See State v. Moye, 214 Conn. 89, 96, 570 A.2d 209 (1990); State v. Barnes, supra.

Our review of the record leads us to conclude that the trial court did not abuse its discretion in finding that the state had sufficiently laid a proper foundation for the admission of the exhibit. On the basis of the facts before it, the trial court could properly credit the officers’ testimony that there was a writing error after they weighed the narcotics in its packaging. The trial court also observed Anderson reweigh the package. It heard testimony that the scale used by the officers in Middletown weighs evidence only to the nearest tenth and not hundredth. The court reasonably could find that the chain of custody was established.

The trial court did not abuse its discretion and the defendant’s claim to the contrary is without merit.

Ill

The defendant further asserts that the state introduced insufficient evidence from which to convict him under General Statutes § 21a-278 (b). He asserts that the state failed to present evidence demonstrating that he had exclusive possession of the car and that as a result, the court should have granted his motion for judgment of acquittal on the charge of possession with intent to sell as a matter of law. We disagree.

“To determine the sufficiency of the evidence to sustain a conviction, we apply a twofold test. ... We first construe the evidence in the light most favorable to sustaining the verdict. ... We then determine whether, from that evidence and all the reasonable inferences which it yields, [the jury] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . In this examination, we consider whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Maxwell, 29 Conn. App. 704, 708, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993).

“When applying the sufficiency of the evidence test, the court must ensure that [e]ach essential element of the crime charged . . . be established by proof beyond a reasonable doubt, and although it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. . . . Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot constitutionally stand, as it is violative of due process under the fourteenth amendment. . . . [T]he burden rested upon the prosecution to prove the guilt of the accused, i.e., to prove each material element of the offense charged beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) Id., 708-709; State v. Cruz, 28 Conn. App. 575, 579, 611 A.2d 457 (1992).

To prove possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence and exercised dominion and control over it. State v. Delossantos, 211 Conn. 258, 277-78, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Cruz, supra.

The evidence here was sufficient for the jury to have found that the state had established beyond a reasonable doubt that the defendant possessed the narcotics found in the locked glove compartment of his automobile. Unlike the defendant in State v. Cruz, supra, the defendant here was in exclusive possession of the automobile and had exclusive access to the glove compartment. The defendant owned the 1988 four door silver Subaru GL in which the narcotics were found. He possessed the only key to the automobile and its glove compartment. While others may have used the automobile, they did so with the defendant’s permission. The automobile was found outside of the defendant’s residence at 54 Roosevelt Drive in Middletown. The drugs were found in a locked glove compartment with the defendant’s personal papers. On the basis of the evidence before it, the jury could reasonably infer that because the defendant had the only key to the glove compartment, he had control over it and knew of its contents.

The defendant’s claim that the state produced insufficient evidence to convict him under General Statutes § 21a-278 (b) is without merit. The trial court properly denied the defendant’s motion for acquittal.

IV

The defendant next asserts that the trial court’s denial of his request to remove counsel and for a continuance denied him his due process rights. He argues that the trial court could not have reasonably concluded that the breakdown of communication between him and his attorney was not genuine. He posits that the trial court should have granted his motion to dismiss counsel and allowed him a reasonable continuance to hire a new attorney. We are unpersuaded.

Additional facts are necessary to a resolution of this claim. After the jurors had been selected, but before they were sworn, the defendant informed the court that he did not want his counsel to represent him because there were no African-Americans on the jury. The defendant’s counsel also expressed some concern about continuing as trial counsel. He stated that he was concerned about how cooperative the defendant would be toward him and how much the defendant would assist him in the defense. The trial court denied both the motion to dismiss counsel and for a continuance.

The trial court has discretion to decide whether the circumstances that occur during a particular trial warrant the appointment of a new counsel. Sekou v. Warden, 216 Conn. 678, 686, 583 A.2d 1277 (1990); State v. Gonzalez, 205 Conn. 673, 683, 535 A.2d 345 (1987); State v. Bethea, 24 Conn. App. 13, 22, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991). If supported by a substantial reason the request for substitution of counsel should be granted. State v. Gonzalez, supra; State v. Drakeford, 202 Conn. 75, 83, 519 A.2d 1194 (1987); State v. Bethea, supra, 23. Although under some circumstances a complete breakdown in communication between a defendant and his counsel may warrant appointment of new counsel; State v. Gonzalez, supra, 684; State v. Gethers, 193 Conn. 526, 543, 480 A.2d 435 (1984), it may not be used to achieve delay. State v. Gonzalez, supra, 683-84. We must distinguish between a substantial and timely request for new counsel pursued in good faith, and one made for insufficient cause on the eve of or in the middle of trial. State v. Drakeford, supra. “While a criminal defendant’s right to be represented by counsel implies a degree of freedom to be represented by counsel of defendant’s choice . . . this guarantee does not grant a defendant an unlimited opportunity to obtain alternate counsel on the eve of trial.” (Citations omitted; internal quotation marks omitted.) State v. Gonzalez, supra, 683; State v. Drakeford, supra. It is within the trial court’s discretion to determine whether a factual basis exists for appointing new counsel. State v. Drakeford, supra. “[Ajbsent a factual record revealing an abuse of [the court’s] discretion, the court’s failure to allow new counsel is not reversible error.” Id.; see State v. Crenshaw, 210 Conn. 304, 314, 554 A.2d 1074 (1989).

In State v. Drakeford, supra, the defendant chose his own lawyer who was given special public defender status. The attorney represented the defendant for approximately one year and took part in a hearing on probable cause and filed a considerable number of pretrial motions. The record in Drakeford disclosed no evidence of difficulty between counsel and client until the trial started. While jurors were being selected, the defendant claimed a difference of opinion with his lawyer over jury selection. In that case, our Supreme Court noted that differences of opinion over trial strategy are not unknown and do not necessarily compel the appointment of new counsel.

The defendant here claimed at trial that his attorney selected a jury without African-American representation. He asserted that he had a difference of opinion with his lawyer about who should be selected for the jury. The court noted that the defendant’s counsel had in fact selected an African-American, but the defendant encouraged him to have that juror excused. As in State v. Drakeford, supra, there was no evidence in this case that the defendant and his counsel had difficulty dealing with each other prior to jury selection. Furthermore, as in Drakeford, counsel had represented the defendant for over one year and had competently conducted himself in prior stages of the prosecution. Moreover, the trial court noted that the defendant was not entitled to a continuance minutes before the jury was to be sworn. The trial court did not abuse its discretion in determining that differences in opinion over trial strategy do not compel the appointment of new counsel.

We conclude that the defendant has not met the substantial burden of showing that the court abused its discretion in failing to relieve counsel or grant a continuance for purposes of replacement of counsel.

V

The defendant argues that the trial court’s charge that improperly highlighted the admission of a witness’ prior inconsistent statement prejudiced his defense. The defendant claims that because this improper charge prejudiced the jury against the testimony of his lone corroborating witness, he was convicted of risk of injury to a child and reckless endangerment. We do not agree.

During its charge to the jury, the court discussed impeachment by way of inconsistent statements. The defendant excepted to the charge concerning the referral to inconsistent statements made by Flood.

The trial court has not only the right but also the duty to comment on the evidence. State v. Marra, 222 Conn. 506, 538, 610 A.2d 1113 (1992); State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991); State v. James, 211 Conn. 555, 571, 560 A.2d 426 (1989); State v. Rumore, 28 Conn. App. 402, 411, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). “In marshaling the evidence, the court must be careful not to imply any favor or criticism of either side.” State v. Rumore, supra; State v. Hernandez, supra, 463. To avoid the danger of improper influence on the jury, a recitation of the evidence “should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” (Internal quotation marks omitted.) State v. Hernandez, supra, 462.

“The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . and therefore, we have stated that a charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” (Citation omitted; internal quotation marks omitted.) Id.; State v. Wolff, 29 Conn. App. 524, 531, 616 A.2d 1143 (1992). When reviewing the court’s instruction, our role is to determine “whether, taken as a whole, [it] fairly and adequately presents] the case to a jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) State v. Tatum, 219 Conn. 721, 734, 595 A.2d 322 (1991); State v. Plude, 30 Conn. App. 527, 537-38, 621 A.2d 1342, cert. denied, 225 Conn. 923, 625 A.2d 824 (1993); State v. Andrews, 29 Conn. App. 533, 540, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993); State v. Wolff, supra. If injustice was done, “[t]he defendant is entitled to a new trial in such circumstances . . . where he can show that prejudice resulted from the court’s actions.” (Internal quotation marks omitted.) State v. Hernandez, supra, 465.

We cannot say that the charge as given did any injustice or caused any prejudice to the defendant. Here, the trial court stated that its instruction concerning inconsistent statements applied to any inconsistent statements made by any of the witnesses. It instructed the jury that “[it] may consider this instruction whenever either party offered the matter of a witness making prior statements that were inconsistent with the in-court testimony. I think there were a lot of witnesses that were questioned along those lines.”

The trial court did not abuse its discretion and, thus, the defendant’s claim is without merit.

YI

The defendant’s final assertion is that the trial court improperly granted the state’s pretrial motion to consolidate two informations filed against him and denied his motion to sever. He asserts that the resulting prejudice was beyond the curative power of the trial court’s instructions. We are unpersuaded.

Prior to trial, in January, 1990, the state filed a motion to consolidate for trial the two informations filed against the defendant and the defendant filed a motion to sever the trials. In the interest of judicial economy, the court granted the state’s motion to consolidate and denied the defendant’s motion to sever, finding that the defendant had failed to establish that he would be prejudiced by the joinder of the information. The court also noted that the jury could easily distinguish the cases and any prejudice that might occur to the defendant could be cured by its charge to the jury.

The trial court has broad discretion on whether to join or sever separate charges for trial. Practice Book § 829; State v. Boscarino, 204 Conn. 714, 720, 529 A.2d 1260 (1987); State v. Rose, 29 Conn. App. 421, 429-30, 615 A.2d 1058, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992); State v. Carpenter, 19 Conn. App. 48, 62, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). “The court enjoys broad discretion which, absent manifest abuse, an appellate court may not disturb.” State v. Owens, 25 Conn. App. 181, 193, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991); State v. King, 187 Conn. 292, 299, 445 A.2d 901 (1982). To demonstrate that the trial court abused its discretion, the defendant bears the heavy burden of showing that a denial of severance resulted in substantial injustice beyond the curative power of jury instructions. State v. Herring, 210 Conn. 78, 95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); State v. Rose, supra, 430. Whether a joint trial will be substantially prejudicial to the defendant’s rights means something more than that it will be less advantageous to the defendant. State v. Rose, supra; State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982).

Our Supreme Court has held that a trial court should consider several factors in determining whether severance is required. “These factors include: (1) whether the charges involved discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. ... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Citations omitted; internal quotation marks omitted.) State v. Jennings, 216 Conn. 647, 658, 583 A.2d 915 (1990); State v. Rose, supra.

Our review of the record leads us to conclude that joinder did not result in substantial injustice. Here, the charges involved discrete, easily distinguishable factual scenarios. The defendant was charged in one information with criminal attempt to commit assault in the first degree, risk of injury to a child and reckless endangerment. In the second information, he was charged with possession with intent to sell of a narcotic substance and improper use of registration. See State v. Jennings, supra (the charge of assault in the first degree and kidnapping in the first degree in one information and of criminal attempt to commit assault in the first degree against the same victim and criminal trespass in the first degree in another information were distinct and distinguishable factual scenarios); State v. King, supra, 302 (evidence offered for charges of burglary in the third degree and larceny in the third degree in one information and of possession of heroin and cocaine in a separate information are “simple, separable and straightforward”); State v. Owens, supra, 194 (charges of larceny in the first degree and carrying a weapon in a motor vehicle are not similar and easily distinguishable factual scenarios); compare State v. Boscarino, supra, 722-23 (four cases all of which involved sexual assaults by knife wielding assailant whose victims described him as having similar features did not involve discrete, easily distinguishable factual scenarios).

The crimes were also not of a violent nature and did not involve brutal or shocking conduct on the defendant’s part. See State v. Rose, supra, 431 (two separate charges of robbery in the first degree were not of a violent nature, nor did they involve brutal or shocking conduct by the defendant); State v. Owens, supra (charges of larceny in the first degree and carrying a weapon in a motor vehicle were not of a shocking or violent nature).

Furthermore, the trial was neither complex nor long; it was completed after the jury heard nineteen witnesses during five days of trial. See State v. Jennings, supra, 659 (trial not unduly complex or long where fourteen witnesses testified during five days of trial); State v. Herring, supra, 97 (trial not unduly complex or long where twenty-three witnesses testified during eight days of trial); State v. Rose, supra (trial not unduly complex or long where six witness testified and twenty-three exhibits were offered during two days of trial); State v. Owens, supra (trial not complex and evidence was presented in orderly manner); compare State v. Boscarino, supra, 723-24 (duration and complexity of trial that lasted ten weeks during which the jury heard fifty-five witnesses testify and examined sixty-six exhibits enhanced likelihood that jury would weigh the evidence against the defendant cumulatively).

We conclude that the trial court’s decision to consolidate the charges for trial did not result in substantial injustice. The trial court did not abuse its discretion in denying the defendant’s motion to sever.

The judgments are affirmed.

In this opinion the other judges concurred.

       The night before, the defendant and another individual were involved in a fight on Roosevelt Drive. Aleta Renee Jenkins testified that she was peripherally involved in the incident.

       The defendant and Curtis Flood both testified that while the defendant yelled to Aleta Renee Jenkins, the defendant neither possessed a gun nor fired one at her and her daughter.

       Additional facts will be set forth where they are relevant to each issue.

       The fourth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment in Wolf v. Colorado, 338 U.S. 25, 28, 69 S. Ct. 1359, 93 L. Ed. 2d 1782 (1949), provides in pertinent part: “ ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....’” State v. Cofield, 220 Conn. 38, 46 n.7, 595 A.2d 1349 (1991); State v. Leonard, 31 Conn. App. 178, 185 n.8, 623 A.2d 1052 (1993).
      Article first, § 7, of the Connecticut constitution provides: “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.”

       Other than a citation to article first, § 7, of the state constitution, the defendant has failed to provide us with a separate state constitutional analysis to support his claim. Accordingly, we choose to limit our analysis to federal constitutional law. State v. Reddick, 224 Conn. 445, 463 n.22, 619 A.2d 453 (1993); State v. Velez, 30 Conn. App. 9, 22 n.7, 618 A.2d 1362, cert. denied, 225 Conn. 907, 621 A.2d 289 (1993).

       At trial, Prank Violissi, a Middletown police sergeant with extensive training in narcotics investigations, testified that dealers would not usually sell 86.46 percent pure cocaine on the street. Rather, they would cut the purity of the cocaine to anywhere between 3 and 50 percent. The usual purity to which dealers cut the cocaine is 20 percent. By cutting the purity of the cocaine, dealers increase the amount that they could sell. He testified that the value of one gram of cocaine varies between $80 and $120. The value of eight grams would be between $800 and $1200.

       The court overruled the defendant’s objection and found that “based on the weighing process and current weight and given the fact that the testimony seems clear, whatever the substance was that was in the foil and that some has been consumed in the process of testing, I’m satisfied that what occurred was a writing error in writing down the tenths versus hundredths.
      “So, I think — the chain of custody also seems clear, and really the issue is whether it was less than an ounce or substantially more than one gram rather, and I’m satisfied what happened was a — weighing to paper error, and it [weighed], in fact, 8.6 [grams],
      “It is a full exhibit. I think the chain of custody has been satisfied.”

       General Statutes § 21a-278 (b) provides in pertinent part: “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       The defendant does not claim that the jury was not permitted to draw an inference of possession with intent to sell based on the amount of narcotics found in the car.

       In State v. Cruz, 28 Conn. App. 575, 611 A.2d 457 (1992), the defendant was charged with possession of less than four ounces of marijuana. In an automobile driven by the defendant, police officers found a marihuana seed in the pleat of the rear seat cushion. The defendant was not in exclusive possession of the automobile. At the time of his arrest, he had a passenger with him. The state also failed to demonstrate that the defendant owned the vehicle in which the drugs were found. The evidence in Cruz led us to conclude that the state failed to establish that the defendant had actual or constructive possession of the seed. The evidence fell short of proof beyond a reasonable doubt. See also State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989) (while the defendant owned the car, he was not in exclusive possession because another occupant was in the vehicle).

       The following exchange occurred between the court and the defendant prior to the jury being sworn:
      “[The Defendant]: . . . Couple of problems. There was no blacks on the jury, and I don’t think [counsel] should represent me in this case. I’d like to have more time to get another attorney.
      “[The Court]: What’s the reason for that?
      “[The Defendant]: A couple of people w[ere] picked that I didn’t agree. I just feel that he’s not doing his job.
      “[The Court]: Well, regarding the first issue you raised, there was one black person on the jury . . . and it was your motion — your initiation through your attorney to have that person excused and it sounded like for a very good reason. However the jury is selected. It was properly selected. There’s nothing unlawful about the jury. You might have a preference to have this or that on the jury but there is no right to that so that it is not a reason not to proceed with the case. . . . The second issue, [counsel] has represented you for a year now, and, as far as I can determine from looking at the trial and hearing comments, he’s doing a perfectly fine job. One reason why you pay an attorney is to use his expertise. Obviously, he consults with you at all critical stages. I was not here during jury selection [a different judge presided over jury selection], but I’m sure he consulted with you. There may have been a time he thought you should rely on his experience and expertise in selecting one juror or another, but I don’t see that as any basis not to proceed with the case. The case is now about to begin, and we must begin this morning.
      “[The Defendant]: Yes, sir.
      “[The Court]: . . . I’ll be happy to give you all the time you need to [confer] so your wishes can be taken into account. I will not grant a continuance at this point.
      “[The Defendant]: I don’t want him as my lawyer. . . .
      “[The Court]: That’s unfortunate. You hired him; he’s been with you for a long time. I’ll not grant a motion for continuance at this point. You selected [counsel]. He’s doing a perfectly fine job, and you don’t have a right on the day when [the] trial [is] about to begin, the jury ready to be sworn in, to decide you don’t want to go forward with the case. So the motion is denied.”

       During the course of the trial, Flood testified under oath that on March 5, 1989, at the time of the alleged shooting, he was standing near the defendant. He said the defendant neither possessed a gun nor fired it at the victims. On cross-examination, Flood testified that he had given the police two written statements, one on March 5,1989, and another on March 8; 1989. The state offered the March 8, 1989 statement as a full exhibit. No where in his written statements did the witness state that the victim, Jenkins, was involved in a fight that took place the night before the shooting. The state also questioned the witness about alleged inconsistencies between his statements and testimony on direct examination concerning his whereabouts before and after the shooting, where the defendant’s car was parked, whether he and the defendant were ever in the car together on the day of the shooting. The state also cross-examined the witness about his testimony at trial concerning events that were absent from his written statements to the police such as whether the defendant called Jenkins a “bitch,” and whether the defendant had a gun.

       The court stated that impeachment by way of inconsistent statements “arose, I think, just one time that I recall, that was this morning with Mr. Flood’s testimony. In specific terms, where I told you that there was actually admitted a prior inconsistent statement, however, you may consider this instruction whenever either party offered the matter of a witness making prior statements that were inconsistent with the in-court testimony. I think there were a lot of witnesses that were questioned along those lines. A witness may be discredited or impeached by contradictory evidence or by evidence at some other time the witness said or did something, or failed to say or do something which is inconsistent with the witness’ present testimony. If you believe that any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness or testimony and you may reject all or any part of the testimony of that witness or give it such weight as you think it deserves. An act or omission is knowingly done if done voluntarily and intentionally and not because of mistake or accident or other innocent reasons. I’ll just remind you that that document, you have a prior statement in writing by Mr. Flood, was offered not to prove the truth of what was said in the statement but as evidence offered by the state that he said something inconsistent with his in-court testimony and you must limit your consideration of it to that.”

       In responding to this exception outside of the juror’s presence, the court noted that it referred to Flood’s inconsistent testimony because “of the offer of a written document, I wanted to be sure [the jury] did not consider [the written document] for the truth, but I believe I did go on to say that there were a number of inconsistent statements offered by other witnesses.”
      During the trial, the court also cautioned the jury that the “statement by Mr. Flood on a prior occasion is offered by the state just because it is claimed that it contains statements inconsistent with his in-court testimony. So it comes in on the issue of credibility of the in-court testimony. So what is said here — It’s not offered for the truth of what was said on this prior occasion but to show that there may have been inconsistent statements with the in-court testimony.”

       Practice Book § 829 provides: “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.” (Emphasis added.)

       Moreover, even if the defendant were able to meet his heavy burden of demonstrating prejudice, this prejudice was cured by the trial court’s instructions. Here, the trial court carefully explained to the jury that in this case, the defendant was charged in two informations with separate and distinct offenses. He cautioned the jury that it was to consider each of the informations separately, that evidence of guilt in one offense may not be considered as evidence of guilt in another offense, that if the defendant was guilty beyond a reasonable doubt of one offense they could not necessarily infer that he was guilty beyond a reasonable doubt of the offenses in the other information. The court also cautioned the jury about the defendant’s right to testify. The court charged that although the defendant chose to testify in the ease involving risk of injury, reckless endangerment, and attempted assault, he was not required to testify in the possession with intent to sell case. It stated that the jurors may not draw any unfavorable inferences from the fact that the defendant chose not to testify in the possession with the intent to sell case, that the state must prove him guilty beyond a reasonable doubt, and that the defendant has no burden to prove his innocence.


author:
Freedman, J.
      Landau, J., concurring.

text:
    Richard S. Pollio v. Conservation Commission of the Town of Somers et al. Richard S. Pollio v. Planning Commission of the Town of Somers et al.
    (11586)
    (11762)
    Landau, Freedman and Schaller, Js.
    Argued April 27
    decision released July 20, 1993

      David B. Losee, with whom were Ronald P. Sherlock and, on the brief, Holly Jean Bray, for the appellant (plaintiff).

      Michael A. Zizka, with whom, on the brief, was Diane W. Whitney, for the appellees (defendant conservation commission of the town of Somers et al.).

      Thomas W. Fahey, Jr., with whom was Carl T. Lan-dolina, for the appellees (defendant planning commission of the town of Somers et al.).
   Freedman, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeals from a decision by the Somers planning commission denying his application for subdivision approval with respect to a parcel of land in Somers and a decision by the Somers conservation commission denying his application for a wetlands permit with respect to that land. The issues on appeal to this court in both cases are (1) whether the trial court improperly concluded that the plaintiff was not an aggrieved party and therefore lacked standing to maintain the appeals and (2) whether the trial court improperly denied the plaintiffs “motion to reopen judgment and to reargue the issue of aggrievement.” We affirm the judgment of the trial court.

On April 18, 1990, the conservation commission denied the plaintiffs application for a wetlands permit for the subject property. On October 11, 1990, the planning commission denied the plaintiff’s subdivision application. The plaintiff timely appealed to the Superior Court from each decision. In the interests of judicial economy, both appeals were heard by the trial court on March 6, 1992.

At trial, the plaintiff testified and submitted copies of various documents to support his claim of aggrievement. The documentary evidence showed that, on April 28,1988, the plaintiff and Howard Whitaker, Jr., entered into a written option with respect to 281 acres of land in Somers. The agreement identified Whitaker as the owner of the property and the plaintiff as the purchaser. This option ran through April 30,1990. The evidence further showed that the plaintiff entered into a series of extensions of the option contract. The first extension, dated April 26,1990, extended the plaintiff’s option to purchase the property until June 30, 1990. The second extension states that the “original agreement is extended to December] 30, [19]91 with all subsequent understandings.” This writing is not dated. The plaintiff testified that it was executed in December, 1990, but he was not sure of the specific date. Thereafter, in a writing dated April 18, 1991, the plaintiff and Whitaker restated the terms of their option agreement, extending the plaintiff’s option to purchase the land until April 30,1992. The plaintiff testified that at all times relevant to his appeals and until the date of the hearing before the trial court, he had an option to purchase the subject property. At one point during cross-examination, however, the plaintiff referred to the option as having “expired.”

The trial court found that the plaintiff was not continuously aggrieved during the pendency of the appeals. The trial court found that the plaintiff’s option had lapsed from June 30,1990, until some time in December, 1990, when the next extension was executed, a period of at least five months. Additionally, in rendering its decision on May 12, 1992, the trial court further found that the plaintiff’s interest in the subject property had lapsed because the last option agreement presented to the court had terminated on April 30, 1992.

On June 1,1992, the plaintiff filed a motion to open the judgment and to reargue the issue of aggrievement in both cases. In that motion, the plaintiff sought to open the judgment to introduce evidence that the option continued during the entire course of the appeal and into the future and that the plaintiff had other interests with respect to the land that would establish aggrievement.

Several documents were attached to the motion. The first was an “amendment” to the April 28,1988 option agreement extending the terms of the option “to the earlier to occur of (i) the date of Purchaser’s receipt of, and the expiration of all applicable appeal periods with respect to, all required permits and approvals from the Town of Somers for the subdivision of the Premises ... or (ii) April 30, 1993.” The amendment recites that it is made as of April 30, 1992, but indicates that it was sworn to and signed before a notary public on May 20, 1992. The next document attached to the motion was a May 20,1992 affidavit of Howard Whitaker, Jr., stating that the option agreement between the plaintiff and Whitaker “has continued in full force and effect, without interruption, since April 28, 1988.” The final document attached to the motion was a May 28, 1992 affidavit of the plaintiff. The affidavit states that the option agreement has continued, without interruption, since 1988. The affidavit also states that the plaintiff has expended $351,530 in pursuit of all permits and approvals required by the town with respect to the subject property. Attached to the plaintiffs affidavit was a 1988 power of attorney from Whitaker giving the plaintiff the power to do all acts in Whitaker’s behalf in establishing a subdivision of the subject property and a memorandum agreement signed by Whitaker and the plaintiff making the plaintiff responsible for all costs incurred in connection with the exercise of the power of attorney.

The trial court denied the plaintiff’s motion to open the judgment, concluding that the plaintiff had failed to show that the proffered evidence was not available at the March 6, 1992 evidentiary hearing. These appeals followed.

Before addressing the merits of the present appeals, we must determine whether we have jurisdiction. As a general role, we lack jurisdiction to consider an appeal where no practical relief can flow to the appellant from our decision. Delevieleuse v. Manson, 184 Conn. 434, 436, 439 A.2d 1055 (1981). The proposition that “in order to retain standing as an aggrieved person, a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the [administrative] appeal”; Primerica v. Planning & Zoning Commission, 211 Conn. 85, 94, 558 A.2d 646 (1989); applies to proceedings before this court as well. See Nader v. Altermatt, 166 Conn. 43, 56, 347 A.2d 89 (1974); Groesbeck v. Sotire, 1 Conn. App. 66, 68-69, 467 A.2d 1245 (1983); see also State v. One 1981 BMW Automobile, 15 Conn. 589, 603, 546 A.2d 879 (1988) (Borden, J., concurring). Here, the last option agreement made a part of the record before the trial court indicates that it would terminate, at the latest, on April 30,1993. That date has passed. The trial court record, then, strongly suggests that this appeal may be moot. If, in fact, the plaintiff no longer holds an option to purchase the subject property, then his appeal is clearly moot. Nader v. Alter-matt, supra; Goldfeld v. Planning & Zoning Commission, 3 Conn. App. 172, 486 A.2d 646 (1985).

At oral argument before this court, however, the plaintiff submitted a writing signed on April 23,1993, by Whitaker and the plaintiff that extends their option agreement to October 31,1993. The parties stipulated that the record could be amended to include this latest extension of the option agreement. We permitted the filing of the document in this court on April 27, 1993, reserving any determination of its ultimate effect on the question of our jurisdiction.

While our rules do not ordinarily permit us to consider information that is not contained in the trial record, we may do so when a question of mootness is raised. See Nader v. Altermatt, supra; Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 56 n.1, 539 A.2d 614 (1988). The defendants do not dispute the existence of a written agreement extending the May 20, 1992 option agreement between Whitaker and the plaintiff to October 31,1993. We, therefore, conclude that the plaintiff has successfully rebutted the suggestion of mootness presented to us by the trial court record. Neumann v. Zoning Board of Appeals, supra. Accordingly, we may address the substantive issues raised by the plaintiffs appeals.

On the basis of Goldfeld v. Planning & Zoning Commission, supra, the trial court dismissed the plaintiffs appeals after determining that the plaintiff had failed to establish aggrievement. In Goldfeld, we recognized that “[t]he plaintiff’s option rights [with respect to the subject property], viewed without regard to their interruption and eventual termination, gave him an interest in the [property] sufficient to demonstrate a specific, personal and legal interest in the commission’s decision, and to demonstrate that his interest was specially and injuriously affected by that decision.” Id., 176. Yet, we concluded that the plaintiff failed to sustain his burden of proving aggrievement throughout the course of his appeal because the option had lapsed during the pen-dency of the appeal and had terminated by the time the trial court rendered its judgment. Id., 177.

The trial court properly recognized that Goldfeld is on all fours with the present case. Here, the trial court found, in accordance with the documentary evidence submitted at trial, that the plaintiff’s option to purchase the Whitaker property had expired on June 30, 1990, and was not revived until some time in December, 1990. In addition to this lapse of the option, the trial court found that the option agreement had terminated by the time it rendered its judgment.

The plaintiff’s challenge to these factual findings of the trial court is unavailing. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... We cannot retry the facts or pass on the credibility of the witnesses. A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Groton v. Yankee Gas Services Co., 224 Conn. 675, 691, 620 A.2d 771 (1993); Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).

The plaintiff claims that his trial testimony showed that he continuously held an option to buy the Whitaker property. Yet, our review of the record shows that the trial court was presented with conflicting evidence on the question of whether the plaintiff’s option agreement had lapsed for a period of more than five months in 1990. The court was entitled to resolve that conflict against the plaintiff. See State v. Bond 201 Conn. 34, 37, 513 A.2d 95 (1986); State v. Sherbacow, 21 Conn. App. 474, 480, 574 A.2d 817 (1990). Similarly, the court was entitled to reject the plaintiff’s claim that his option was continuous and therefore extended to the date of judgment. Each option agreement presented to the court terminated on a date certain. In each instance, the plaintiff and Whitaker deemed those dates to be sufficiently important to require further extension by way of a subsequent written agreement. On appeal, “[w]e decide, not whether we would have drawn the same inferences or found the same facts, but whether the trial court could have reasonably done so.” Schofield v. Schofield, 12 Conn. App. 521, 523-24, 532 A.2d 587 (1987). Under the circumstances of this case, we conclude that the trial court could have reasonably concluded that the plaintiff’s option agreement had lapsed during the pendency of his appeal to the Superior Court and that the option had terminated prior to the rendition of judgment. In light of these findings supported by the record, the trial court properly concluded that the plaintiff was not aggrieved. Goldfeld v. Planning & Zoning Commission, supra, 177.

The plaintiff’s reliance on our decision in DiBonaven-tura v. Zoning Board of Appeals, 24 Conn. App. 369, 588 A.2d 244 (1991), is misplaced. In that case, this court found that the plaintiffs had sufficiently proved their aggrievement to pursue the appeal, notwithstanding the absence of a legally enforceable agreement conferring on them an ownership interest in the property, because other factors established that they had a specific interest in the zoning application that was “readily distinguished from a general interest, such as is the concern of all members of the community as a whole.” Id., 376-77. The present case is readily distinguishable in that the plaintiff here introduced no evidence during the course of the trial concerning his relationship to the property or his relationship to the subdivision application other than the documentary and testimonial evidence regarding his contractual interest as the holder of an option. All evidence regarding the plaintiffs expenditures with respect to the development of the property and the existence of a power of attorney signed by Whitaker was subsequently submitted to the trial court at the time of the filing of the motion to open. The plaintiff, therefore, rested his claim of aggrievement at trial solely on his status as the holder of an option. Having failed to meet the requirements of Gold-feld in this regard, he can derive no assistance from DiBonaventura.

The plaintiff next challenges the trial court’s denial of his motion to open the judgment. Through this motion, the plaintiff sought to present evidence of matters not previously presented to the trial court in order to fill the gaps in his proof. Because the proffered evidence was available to the plaintiff at the time of trial, however, the trial court properly denied his motion to open. “The evidence offered, obviously, was just as much within the power of the defendant to produce before judgment as after. If a party, upon the filing of a decision unfavorable to him on an issue which has been litigated at the trial, has a right to have the judgment opened to enable him to offer further testimony upon that issue, which might equally well have been offered at the trial, litigation would be prolonged beyond the requirements of a sound public policy.” Damico v. Dalton, 1 Conn. App. 186, 187-88, 469 A.2d 795 (1984).

The judgment is affirmed.

In this opinion Schaller, J., concurred.

Landau, J., concurring.

I concur but write separately because I disagree with the majority’s implicit approval of the existence of a motion to reargue. “Our continued recognition, albeit implied, of a procedure that does not exist by virtue of any rule or statute and, thus, has no checks or limitations, and that continues to clog our short calendar dockets and consume the valuable time of our trial bench, makes little sense to me.” Connecticut National Bank v. Investors Capital Corporation, 29 Conn. App. 48, 58-59, 613 A.2d 1370, cert. denied, 224 Conn. 902, 615 A.2d 1044 (1992) (Landau J., concurring).

Accordingly, I concur in the result.

       Since the judgment had not been opened previously, we treat the motion as a motion to open. National Iron Bank v. Gelormino, 28 Conn. App. 7, 8 n.l, 609 A.2d 66 (1992).

       In its memorandum of decision, the trial court discussed the statute of frauds but did not resolve its applicability to the facts of the case and explicitly did not rest its decision on that doctrine in any way. Although the plaintiff challenges the court’s analysis of the statute of frauds, we do not address the issue as it played no role in the court’s decision.


author: Dupont, C. J.

text:
    Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., et al.
    (11139)
    Dupont, C. J., Landau and Freedman, Js.
    Argued March 31
    decision released July 20, 1993

      William H. Clendenen, Jr., for the appellant (plaintiff).

      Allan J. Kleban, with whom, on the brief, was Daniels. Blinn, for the appellee (defendant Aetna Insurance Company).
   Dupont, C. J.

The primary issue presented by this appeal is whether a prejudgment attachment may be obtained by a subcontractor against property owned by the issuer of a construction performance bond pursuant to General Statutes § 49-42 (a). The trial court denied the plaintiff subcontractor’s application for a prejudgment attachment because no evidence had been presented that the surety was in financial difficulty, and, consequently, the plaintiff’s ability to obtain payment for its work was adequately protected by the bond. We conclude that because a subcontractor has a direct right of action under General Statutes § 49-42 (a) against a surety upon a contractor’s refusal to pay a subcontractor, a subcontractor may obtain a prejudgment attachment against property owned by a surety if two conditions are present. First, the subcontractor must make the requisite showing that there is probable cause to sustain the validity of the subcontractor’s claim, and, second, the subcontractor must demonstrate that it does not have adequate security in the bond for the ultimate judgment that will likely be obtained. In this case, the court failed to consider evidence relevant to the issue of whether probable cause existed to uphold the validity of the plaintiff’s claim because it determined that the subcontractor had adequate security in the bond. We, therefore, affirm the denial of the plaintiff’s application for a prejudgment remedy on the particular facts of this case.

The relevant facts are not in dispute. In January, 1983, the defendant El Constructors, Inc., entered into a contract with the defendant city of Waterbury to construct a water treatment plant. As required by General Statutes § 49-41, El furnished Waterbury with a bond, issued by the defendant Aetna Insurance Company in the amount of $21 million to ensure that subcontractors supplying labor and materials for the project would be paid by EL

The plaintiff, Blakeslee Arpaia Chapman, Inc., subsequently entered into a subcontract with El to perform part of the work on the treatment plant. Pursuant to the terms of the preprinted subcontract, the plaintiff was to bill El and be paid monthly. The subcontract also stated that El’s payments to the plaintiff were “conditioned on” payment from Waterbury to EI. Additionally, the subcontract contained a rider stating that El promised to pay the plaintiff within three business days after receiving payment from the city.

The plaintiff commenced work on the project sometime in the spring, 1984, but on September 14, 1984, the city terminated its contract with El, and El ordered the plaintiff to cease all work on the project. Meanwhile, the plaintiff had sent invoices to El requesting payment in accord with the terms of the subcontract, but El refused to pay the invoices. The plaintiff then gave notice to Aetna of its claims, but Aetna similarly refused to pay.

The plaintiff commenced this action against El, Aetna and the city on November 30,1984, seeking payment of its invoices, incidental expenses caused by the alleged breach of the subcontract and interest costs. In its answer, Aetna claimed as a special defense that the plaintiff had no right to immediate payment against it because payment to the plaintiff was conditioned on El’s receipt of payment from Waterbury, which has never occurred. Aetna also claimed that some of the plaintiff’s claims are not covered by the terms of the bond. Subsequently, this action was informally stayed pending the outcome of concurrent litigation in federal court that had been commenced on November 19,1984, by El against the city for wrongful termination of the prime contract.

On December 5,1991, seven years after the proceedings had been stayed, the plaintiff applied for a prejudgment attachment in the amount of $1.8 million against Aetna to secure payment of the judgment that the plaintiff expected to recover. Aetna moved to dismiss the plaintiffs application, arguing that a prejudgment attachment was improper because the plaintiffs claim for payment is already secured by the performance bond, and that the plaintiffs right to collect on its claim is conditioned upon the receipt of payment by El from the city, a condition that has not yet occurred. Aetna amplified its position and alleged additional facts in an offer of proof filed simultaneously with its motion to dismiss. Aetna alleged that the plaintiff had received partial payment for its work, and that any claims by the plaintiff for payment for extra work performed had been denied by the city, thereby precluding recovery for those claims. The parties also submitted a joint stipulation of facts stating that Aetna had received a financial rating of Aa3 from Moody’s Investors Rating Report of January 1, 1992, and that the amount of the bond issued by Aetna is $21,274,000. The plaintiff does not assert that the amount of the bond is insufficient to pay its claim because the total amount of all potential claims that may be made against the bond by all of the protected subcontractors would not exceed the face amount of the bond.

The court held a hearing on the plaintiff’s application on February 18, 1992. At the hearing, the court indicated that it would not grant an attachment against Aetna unless there was some evidence that its bond could not be honored, and it denied the application without comment on the same day. The court did not receive evidence on any of the issues raised by either the plaintiff in its application, or by Aetna in its objection and offer of proof.

Upon the request of the plaintiff, the court subsequently issued an articulation of its decision, wherein it stated: “No evidence was offered that Aetna . . . is or was in financial difficulty, so as to afford a basis for the plaintiff’s fears that Aetna is in danger of financial collapse. At the present time, the plaintiff is more than adequately protected. Accordingly, the court denied the request for a prejudgment remedy.”

The plaintiff argues that pursuant to General Statutes § 52-278b, a prejudgment remedy is generally available in any action at law or in equity, and that the specific prejudgment remedy of attachment is generally available in any action where the applicant seeks money damages. General Statutes § 52-279. The plaintiff contends that nothing in either statute prohibits a subcontractor from obtaining a prejudgment attachment against property of a surety in a suit brought pursuant to General Statutes § 49-42. The plaintiff further argues that had the legislature intended to prohibit the use of prejudgment attachments against performance bond sureties, it would have done so expressly, citing People’s Bank v. Bilmor Building Corporation, 28 Conn. App. 809, 818, 614 A.2d 456 (1992). The plaintiff concludes that it is entitled to a prejudgment remedy of attachment against Aetna upon a showing that there is probable cause that judgment will be rendered in its favor.

The plaintiff also posits that it is entitled to a prejudgment attachment upon a showing that there is probable cause to sustain the validity of its claim, and that it is not required to show that Aetna would not have sufficient assets to satisfy the judgment. Finally, the plaintiff claims that the trial court committed clear error by improperly failing to consider and resolve the issue of whether the “pay when paid” clause in the subcontract was valid because that issue is central to whether the plaintiff has sustained its burden of demonstrating probable cause.

In response, Aetna maintains that our review of the trial court’s decision to deny the plaintiff’s application is limited to determining whether that decision constituted “clear error,” citing Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985). Aetna claims that the trial court’s determination that the plaintiff’s claim was adequately secured is not clearly erroneous because Aetna, as surety to El, issued a payment bond for the benefit of El’s subcontractors in the amount of $21 million. This argument is premised on Aetna’s assertion that the plaintiff’s claim arises from its contract with El, and that Aetna’s liability to the plaintiff, if any, arises solely by virtue of Aetna’s status as surety for EL

Aetna also argues that the scope of the prejudgment remedy statutes is not as broad as the plaintiff contends. Aetna claims that Connecticut case law does not permit a party to seek additional security for a claim that is already adequately secured, and that General Statutes § 52-304 et seq. codifies a policy that surety bonds are adequate security, thereby facilitating the free alienation of property. Lastly, Aetna argues that it was unnecessary for the court to conduct a probable cause hearing or to resolve the “pay when paid” issue once it properly determined that the plaintiff was not entitled to a prejudgment attachment because its claim was adequately secured by Aetna’s bond.

The remedy of a plaintiff’s attaching and securing a defendant’s property to satisfy any potential judgment in the plaintiff’s favor was unknown to the common law and has its genesis in our statutory law. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 582, 376 A.2d 60 (1977). Additionally, because such a remedy can be harsh in its operation, its application has been confined to the limits set by statute. Id., 584-85.

Under General Statutes § 52-278c, any person desiring to secure a prejudgment remedy must make application to the court and include, inter alia, “[a]n affidavit sworn to by the plaintiff or any competent affiant setting forth a statement of facts sufficient to show that there is probable cause that judgment will be rendered in the matter in favor of the plaintiff.” After service of the application1 and supporting papers, the defendant has the right to appear and be heard at a hearing on the application. General Statutes § 52-278d (a). Section 52-278d (a) specifically provides that this “hearing shall be limited to a determination of whether or not there is probable cause to sustain the validity of the plaintiffs claim.” Id.

“Pursuant to our prejudgment remedy statutes . . . the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . . The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff’s claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . . The court’s role in such a hearing is to determine probable success by weighing probabilities. . . . Moreover, this weighing process applies to both legal and factual issues. . . . It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim.” (Citations omitted; internal quotation marks omitted.) Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 156-57, 595 A.2d 872 (1991).

On appeal, our review of a trial court’s denial of an application for a prejudgment remedy is limited to “whether the determination of the trial court constituted clear error.” Id., 157. Aetna argues that we should sustain the trial court’s determination that the plaintiff is not entitled to an attachment as a matter of law and because the performance bond provides adequate security for its claim.

Before reaching the issue of whether the plaintiff in this case has sustained its burden of demonstrating that there is probable cause to sustain the validity of its claim, we first consider the more general proposition of whether a subcontractor may properly obtain a prejudgment attachment against property of a performance bond issuer.

Under General Statutes § 49-42, any subcontractor who has not been paid by the general contractor within ninety days after a claim for payment is made, “may enforce his right to payment under the [performance] bond by serving a notice of claim ... on the surety that issued the bond .... Within ninety days after service of the notice of claim, the surety shall make payment under the bond and satisfy the claim, or any portion of the claim which is not subject to a good faith dispute, and shall serve a notice on the claimant denying liability for any unpaid portion of the claim. . . . If the surety denies liability on the claim, or any portion thereof, the claimant may bring action upon the payment bond in the superior court for such sums and prosecute the action to final execution and judgment. . . .’’The statute thus gives a subcontractor a direct right of action against the surety for payment if the enumerated conditions are met.

Upon refusal of a contractor to pay a subcontractor for work and material furnished to a municipal project, the subcontractor has two options. The subcontractor may either bring suit against the general contractor in accord with the provisions of General Statutes § 49-41a or, alternatively, may bring an action directly against the surety pursuant to General Statutes § 49-42. Although both of these remedies may be pursued jointly in a single action against both the general contractor and the surety, these two statutory rights are separate and distinct, designed by the legislature to accomplish separate and distinct ends. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 477, 542 A.2d 692 (1988).

The subcontractor has a right to sue the surety directly upon fulfillment of the stated prerequisites. There is nothing in the statutes or case law to suggest that a subcontractor may not also obtain a prejudgment remedy against the surety. As the plaintiff points out, prejudgment remedies “shall be available to a person in any action at law or equity . . . [who] has complied with the provisions of sections 52-278a to 52-278g, inclusive . . . .” See also England v. England, 184 Conn. 85, 89, 440 A.2d 790 (1981). Moreover, attachments “may be granted upon all complaints containing a money demand against the estate of the defendant, both real and personal,” except that such a remedy may not be pursued against any of the defendants specifically enumerated in the statute. General Statutes § 52-279.

Our decision in People’s Bank v. Bilmor Building Corporation, supra, illuminates this point. In People’s Bank, the defendant corporation executed a promissory note in favor of the plaintiff. The note was secured by a mortgage on property of the corporation and by an individual guarantee signed by the corporation’s president. Upon default under the terms of the note, the plaintiff brought suit against the corporation and guarantor. The plaintiff’s complaint sought a foreclosure of the mortgage and a deficiency judgment against the corporation and the individual guarantor. The plaintiff also sought a prejudgment attachment against other property of the corporation to secure payment of the anticipated deficiency judgment.

In concluding that the plaintiff in People’s Bank was entitled to a prejudgment attachment, we noted: “The first sentence of General Statutes § 52-279 authorizes the granting of attachments ‘upon all complaints containing a money demand against the estate of the defendant, both real and personal.’ The statute then details specific instances when such attachments are not permitted. None of the enumerated exceptions proscribes the use of attachments in foreclosure actions. It is a well established maxim of statutory construction that when a statute enumerates exceptions to a stated general proposition, anything not excepted is conclusively included. State v. Kish, 186 Conn. 757, 443 A.2d 1274 (1982).

“There is also no exception for foreclosure actions in the general prejudgment remedy statute. General Statutes § 52-278a through § 52-278h. General Statutes § 52-278b provides for prejudgment remedies in ‘any action at law or equity.’ Thus, neither the attachment statute nor the prejudgment remedy statute specifically prohibits the granting of a prejudgment attachment in a foreclosure action.

“Similarly, there is nothing in those statutes that specifically prohibits the granting of a prejudgment attachment to secure the payment of a deficiency judgment. If the legislature intended to prevent the use of prejudgment attachments to secure the payment of deficiency judgments in foreclosure cases, then presumably it would have done so. It has not.” People's Bank v. Bil-mor Building Corporation, supra, 818.

The reasoning of People's Bank is equally applicable here. As in People’s Bank, the plaintiff is “simply attempting] to avail itself of a commonly used procedural device in order to improve its chances to receive full recovery of a debt owed to it.” Id., 822. Had the legislature intended to prevent or limit the use of prejudgment remedies in suits brought under General Statutes § 49-42 it presumably would have done so. We thus conclude that, as a general proposition, a subcontractor who has brought suit against a surety pursuant to General Statutes § 49-42 may also obtain a prejudgment remedy if it can demonstrate the requisite probable cause and the need for the remedy.

In this case, the trial court determined that the plaintiff was not entitled to a prejudgment attachment because no evidence was offered by the plaintiff that Aetna was financially unstable or that the plaintiff was not adequately secured. Attachments prior to judgment are a procedural device designed to improve a plaintiffs chances for a full recovery after prevailing at a trial on the merits, and are premised on the contingency that a defendant may not be able to satisfy the eventual award of damages to a plaintiff. In the usual case, where one party sues another and no security has been posted to ensure payment of the probable ultimate judgment, a trial court need determine only whether there is probable cause to sustain the validity of a plaintiff’s claim, and, if so, set a dollar amount for the attachment that will provide the security.

In cases where some security exists for the payment of the debt, however, as in mortgage foreclosure actions, the question for a trial court is enlarged. In such cases, the court not only must determine what the amount of the judgment will probably be, but what additional security, beyond the security the plaintiff has already, will be necessary to equal that probable judgment. See People’s Bank v. Bilmor Building Corporation, supra. A plaintiff is not required to exhaust the collateral securing a debt before it attempts to reach other assets of a defendant by way of attachment, but the collateral must be taken into account in establishing the amount of the attachment necessary as a supplement. Bank of Boston Connecticut v. Schlesinger, supra. Thus, a plaintiff may be entitled to a prejudgment remedy because it has demonstrated the requisite probable cause, but it may still be denied the remedy if its interest is already adequately secured. The plaintiff in this case does not argue that the amount of the bond was insufficient to cover his claim or that his claim is inadequately secured by the bond because other subcontractors had already exhausted or could exhaust the amount of the bond, so that he needs additional security as in People’s Bank or Schlesinger. His argument is, rather, that he needs the simultaneous security of a prejudgment remedy because the bond may not be paid because of the possible precarious financial condition of Aetna.

The trial court did not consider whether the plaintiff had established probable cause to sustain the validity of the claim; it merely determined that the plaintiff was adequately protected by the performance bond, and thus denied the application for prejudgment attachment. We hold, as a matter of law, that a subcontractor protected by § 49-42 (a) is entitled, pursuant to General Statutes §§ 52-278c and 52-278d, to a probable cause hearing during which it may prove that there is probable cause to sustain the validity of its claim and probable cause to prove entitlement to security in addition to the bond provided by General Statutes § 49-42 (a).

In this case, however, even if the plaintiff could sustain the validity of its claim because it was owed sums by El that were secured by the bond and because the “pay when paid” clause did not exonerate Aetna from paying the plaintiff, the plaintiff did not show or make an offer of proof that it needed additional security to safeguard its probable judgment. Because that is so, it would make no difference if the plaintiff could have sustained the validity of the debt owed to it by El and the right to collect that amount from Aetna on the bond.

The judgment denying the application for a prejudgment remedy is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-42 (a) provides in relevant part: “Every person who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under the provisions of section 49-41 and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which the claim is made, may enforce his right to payment under the bond by serving a notice of claim within one hundred eighty days after the date on which he performed the last of the labor or furnished the last of the material for which the claim is made, on the surety that issued the bond and a copy of the notice on the contractor named as principal in the bond. . . .Within ninety days after service of the notice of claim, the surety shall make payment under the bond and satisfy the claim, or any portion of the claim which is not subject to a good faith dispute, and shall serve a notice on the claimant denying liability for any unpaid portion of the claim. ... If the surety denies liability on the claim, or any portion thereof, the claimant may bring action upon the payment bond in the superior court for such sums and prosecute the action to final execution and judgment. . . .”

       Under the express terms of the bond, a subcontractor cannot recover more than the amount of the bond. We need not decide, however, whether a subcontractor would be entitled to more than the amount of the bond pursuant to other statutes. See footnote 7, infra.

       General Statutes § 49-41 provides: “(a) Before any contract exceeding twenty-five thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, except a design professional, as defined in section 4b-55, that person shall furnish to the state or the subdivision a bond in the amount of the contract which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person, provided no such bond shall be required to be furnished in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than twenty-five thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars. Any such bond furnished shall have as principal the name of the person awarded the contract.
      “(b) Nothing in this section or sections 49-41a to 49-43, inclusive, shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to the bond herein referred to, except that no such officer shall require a performance bond in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than twenty-five thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars.”

       The defendant Aetna Insurance Company is now part of the CIGNA Property and Casualty Insurance Company. We will refer to it in this opinion as Aetna.

       This clause is sometimes referred to as a “pay when paid” clause.

       A federal trial on El’s complaint against the city began on June 13,1989. After 116 days of trial, the district court granted the city’s motion for involuntary dismissal as to the allegation of wrongful termination on May 21, 1991. The court had previously granted summary judgment against El and in favor of the city on two other counts on March 14,1989. According to the memorandum of decision of the trial court, the litigation has now been concluded.

       The plaintiff alleged in an offer of proof that was attached to its application for a prejudgment remedy that it originally sought recovery in the amount of $415,250 plus prejudgment interest. Approximately three weeks after the complaint was fded, the plaintiff made an offer of judgment to Aetna, pursuant to General Statutes § 52-192a, in the amount of $300,000. Aetna failed to respond to this offer, and, thus, under § 52-192a, the plaintiff will be entitled to prejudgment interest on the entire amount of the judgment from the date the action was commenced if it recovers an amount in excess of $300,000 after trial. See Lutynski v. B.B. & J. Trucking, Inc., 31 Conn. App. 806, 628 A.2d 1 (1993). The plaintiff therefore claims that since there is probable cause to believe that it will ultimately recover an amount in excess of its offer of judgment it is entitled to a prejudgment attachment in the amount of $1.8 million.

       General Statutes § 52-304 provides in relevant part: “When any estate is attached . . . the defendant may apply in writing to the court in which such action may be pending, or any judge thereof, to dissolve the attachment lien upon the substitution of (a) a bond with surety or (b) a lien on any other property of the defendant which has an equal or greater net equity value than the amount secured by such attachment.”

       General Statutes § 49-41a provides in relevant part: “(b) If payment is not made by the general contractor . . . the subcontractor shall set forth his claim against the general contractor . . . through notice by registered or certified mail. Ten days after the receipt of that notice, the general contractor shall be liable to its subcontractor ... for interest on the amount due and owing at the rate of one per cent per month. In addition, the general contractor, upon written demand of its subcontractor . . . shall be required to place funds in the amount of the claim, plus interest of one per cent, in an interest-bearing escrow account in a bank in this state, provided the general contractor . . . may refuse to place the funds in escrow on the grounds that the subcontractor has not substantially performed the work according to the terms of his or its employment. In the event that such general contractor . . . refuses to place such funds in escrow, and the party making a claim against it under this section is found to have substantially performed its work in accordance with the terms of its employment in any arbitration or litigation to determine the validity of such claim, then such general contractor or subcontractor shall pay the attorney’s fees of such party.
      “(c) No payment may be withheld from a subcontractor for work performed because of a dispute between the general contractor and another contractor or subcontractor. ...”

       Under General Statutes § 52-278a (c), a “person” for the purposes of General Statutes § 52-278b, “means and includes individuals, partnerships, associations and corporations.”

       General Statutes § 52-279 provides that an attachment may not be obtained, except upon court order, in actions for slander, libel or invasion of privacy, and may not be obtained against municipal officials and police officers, teachers and school board members, and canine control officers. None of the exceptions enumerated in the statute are applicable in this case.