author: Dupont, C. J.

text:
    State of Connecticut v. H. Earl Waterman, Jr.
    (3267)
    Dupont, C. J., Borden and Bieluch, Js.

      Argued January 10 —
    decision released May 13, 1986

      James A. Wade, with whom were Sylvia Kemp-Orino and Stephen Richards, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom were Kevin T. Kane, assistant state’s attorney, and on the brief, Austin J. McGuigan, former chief state’s attorney, Paul E. Murray, assistant state’s attorney, and Peter Timmons scad Paul A. Audley, legal interns, for the appellee (state).
   Dupont, C. J.

The defendant was found guilty by a jury of the crime of larceny in the first degree, by defrauding a public community, in violation of General Statutes §§ 53a-122 (a) (4) and 53a-119 (6) (3). He was fined $10,000 and sentenced to a five year prison term, execution suspended, with five years probation. A special condition of the defendant’s probation was payment of $38,500 in restitution to the town of Suffield.

In appealing from that judgment of conviction, the defendant’s basic claims of error are that the trial court erred: (1) in denying his motions to dismiss based on the state’s failure to charge him with a criminal offense; (2) in denying his motions for a new trial and in arrest of judgment because the statutes under which he was charged were applied ex post facto and were unconstitutionally vague; (3) in denying his motion for judgment of acquittal because the evidence was insufficient to support the jury’s verdict; (4) in admitting evidence of a business entry in the absence of proof that it was accurate; (5) in denying his motion for a new trial because of the state’s use of information obtained from a grand jury proceeding; (6) in admitting testimony to show his consciousness of guilt; (7) in requiring him to make restitution to the town in the amount of $38,500; and (8) in charging the jury regarding the defendant’s interest in the outcome of the proceeding.

From 1977 to January, 1983, the defendant was the first selectman for the town of Suffield, and he also served as the town’s superintendent of highways. As superintendent of highways, he was responsible for winter sanding and summer oiling and sanding of town roads. The fraud with which the defendant was charged involved the purchase and delivery of sand in connection with maintaining the roads during the period of time commencing in August, 1982, and continuing to January 18,1983. The jury could reasonably have found certain facts.

The Dale Trucking Company was a business which the defendant formed with a partner, Dale Adams, in the winter of 1982. The company was formed for the purpose of hauling sand for the town of Suffield from the Westfield Sand and Gravel Company located in Westfield, Massachusetts, to Suffield. It did not engage in any other activity. Dale Adams, who worked on the defendant’s farm, had an eighth grade education and could not read or write very well. The defendant handled all of the company’s business. Dale Trucking had no office, no secretary and no bank account. The defendant deposited checks made out to the company in his personal bank accounts.

In the summer of 1982, without the requisite approval of Suffield’s board of finance, the defendant began buying sand from Westfield Sand and Gravel and hauling it to the town in a truck owned by Dale Trucking. Subsequently, the defendant told the board of finance that Dale Trucking had agreed to lease its truck to the town for the purpose of hauling sand, and the board agreed to furnish a driver and insurance for the truck and to pay for the truck’s maintenance. No records were kept to monitor the town’s receipt of the sand other than “trip tickets” received from Westfield Sand and Gravel. These tickets measured the amount of sand taken by-noting the difference between the weight of the truck before and after loading. The tickets were received by the driver of the truck who would turn them in to either the town highway department foreman or the defendant after every trip. The Westfield Sand and Gravel tickets were never presented to any other town officials. The defendant did not present them either but, instead, prepared fictitious tickets and received requisition forms from the town for payment to Dale Trucking on the basis of these fictitious tickets. All trip tickets and bills presented to the town for payment were prepared by the defendant who cashed the town’s checks payable to Dale Trucking and put the money into his personal accounts.

Between August and December of 1982, the trip tickets of Westfield Sand and Gravel showed that 3765.8 cubic yards of sand were sold to the town of Suffield, and that Westfield Sand and Gravel was paid $11,284.30 by Dale Trucking at $3 per cubic yard. The town’s records, which were based on the tickets the defendant prepared, showed, however, that Dale Trucking was paid $58,410 for the delivery of 10,622 cubic yards of sand at $5.50 per cubic yard. The trip tickets prepared by the defendant included dates on which no deliveries were made to the town. There were twenty-six more tickets presented to the town by the defendant than there were deliveries.

At trial, the state claimed that the defendant created Dale Trucking as a sham company to enrich himself at the town’s expense. Although the defendant denied that the company was a sham, he admitted that he had created false trip tickets, but asserted that no harm was done since the tickets he prepared corresponded to the amount of sand the town actually received. The defendant did not attempt to justify his unorthodox manner of bookkeeping, but contended throughout the trial that the town received exactly what it paid for.

I

The defendant’s first two claims of error, regarding the adequacy of the information to charge him with a crime, and the validity of the statutes with which he was charged, are interrelated. The defendant was arrested by warrant and charged in a short form information with larceny in the first degree under General Statutes § 53a-122. In accordance with Practice Book § 833, the state filed a substitute information encompassing the specifications of a bill of particulars requested by the defendant. The substitute information, dated January 10,1983, charged that the defendant, “as an officer and agent of a public community, with intent to prejudice it, [did] present and aid in procuring to be allowed fraudulent claims against the Town of Suffield on behalf of Dale Trucking, totalling in excess of $38,500, in violation of General Statutes §§ 53a-122 (a) (4) and 53a-119 (6).” On March 14,1984, the day on which the trial was scheduled to begin, the state moved for and was granted permission to file another substitute information which charged the defendant with presenting and aiding in procuring to be allowed fraudulent claims against the town totalling in excess of $2000 in violation of General Statutes (Rev. to 1981) §§ 53a-122 (a) (2) and 53a-119 (6). The defendant moved to dismiss this substitute information on the ground that it did not state an offense on which he could stand trial. The trial court denied this motion. On March 19, 1984, the state was granted permission to file yet another substitute information charging the defendant with violating General Statutes (Rev. to 1981) §§ 53a-122 (a) (2), as amended by Public Acts 1981, No. 81-248, § 1, and 53a-119 (6) (3), as amended by Public Acts 1981, No. 81-263, § 1, and General Statutes (Rev. to 1983) §§ 53a-122 (a) (4) and 53*119 (6) (3). This information referred to all of the public acts leading to the 1983 revision of General Statutes § 53a-122. The trial court denied the defendant’s oral motion to dismiss that information.

The defendant claims that the trial court erred in denying his motion to dismiss the March 14,1984 information because the statutes under which he was charged therein, General Statutes (Rev. to 1981) §§ 53a-122 (a) (2) and 53a-119 (6), did not encompass the crime of defrauding a public community. General Statutes (Rev. to 1981) § 53a-122 provided in part: “(a) A person is guilty of larceny in the first degree when ... (2) the value of the property or service exceeds two thousand dollars.” General Statutes (Rev. to 1981) § 53a-119 provided in part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . . . (6) Defrauding of public community. Any officer or agent of any public community is guilty of defrauding of public community who, with intent to prejudice it, appropriates its property to the use of any person or draws any order upon its treasury or presents or aids in procuring to be allowed any fraudulent claim against such community. For purposes of this section such order or claim shall be deemed to be property.”

The defendant argues that notwithstanding the fact that General Statutes (Rev. to 1981) § 53a-119 (6) defined the crime of defrauding a public community as a form of larceny, the act of defrauding a public community did not become a crime until the passage of Public Acts 1982, No. 82-271, § 1, which took effect on October 1, 1982, and added language to § 53a-122 (a) which specifically referred to defrauding a public community. As amended, the statute provided in part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and . . . (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.” Public Acts 1982, No. 82-271, § l.

The defendant maintains that because he was charged in the March 14, 1984 information under the law which existed in 1981, his motion to dismiss should have been granted because it failed to charge him with a crime.

“If the information apprises the accused of the charges against him with such particularity and certainty to enable him to prepare his defense and avoid prejudicial surprise, and to enable him to plead his conviction or acquittal in bar of any future prosecution for the same offense, it is constitutionally sufficient.” State v. Ramos, 176 Conn. 275, 277-78, 407 A.2d 952 (1978). The substitute information of March 14,1984, charged the defendant not only with the violation of General Statutes (Rev. to 1981) § 53a-122 (a) (2), but also with the violation of § 53a-119 (6). The specific charge of violating § 53a-119 (6) sufficiently apprised the defendant of the state’s intention to proceed upon the offense of larceny as described in § 53a-119 (6). See State v. Balias, 180 Conn. 662, 664-65, 433 A.2d 989 (1980).

There is no merit in the defendant’s argument that the specific mention of defrauding a public community in the 1982 amendment to General Statutes § 53a-122 implicitly rendered the crime excluded from the 1981 version. This position would require a conclusion that the legislature had no purpose at all when, in the 1981 statute, it defined larceny as encompassing the crime of defrauding a public community in General Statutes § 53a-119.

While it is axiomatic that penal statutes must be strictly construed to protect the fundamental constitutional right to liberty, they must also be construed so that they carry out the intent of the legislature. State v. Belton, 190 Conn. 496, 505-506, 461 A.2d 973 (1983). This intent is presumed to be that of creating a consistent body of law. Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984). The construction of statutes requires that “ ‘the application of common sense to the language of a penal law is not to be excluded in a way which would involve absurdity or frustrate the evident design of the lawgiver.’ State v. Pastet, 169 Conn. 13, 21-22, 363 A.2d 41, cert. denied, 423 U.S. 937, 96 S. Ct. 297, 46 L. Ed. 2d 270 (1975).” State v. Belton, supra, 505-506. When General Statutes § 53a-122, as amended in 1982, is read together with § 53a-119 (6), it is clear that the 1982 amendment to § 53a-122 was not intended to alter existing law as to defrauding a public community, but was merely declaratory of it. See State v. One 1977 Buick Automobile, 196 Conn 471, 478-79, 493 A.2d 874 (1985). The defendant could not have been misled as to the offense with which he was charged. State v. Ball1as, supra, 664-65.

The defendant also claims that he was prejudiced because the March 14,1984 information was not filed until jury selection had already begun and consequently he was barred from adequately preparing his defense. This argument, which is essentially one of denial of due process, is not supported by the record. “The defendant must provide -a specific showing of prejudice in order to establish that he was denied the right of due process of law as a result of the state’s delay in modifying . . . the information.” State v. Ramos, supra, 279-80. A bare assertion of prejudice is not enough to establish a denial of due process. Id., 280. The defendant, moreover, did not seek a continuance to prepare his defense following the filing of the state’s substitute information. See id., 279.

The defendant further contends that by filing the March 19, 1984 information, the state “sub silentio” admitted that the March 14, 1984 information was inadequate. He argues that because the earlier information was inadequate, the trial court did not have jurisdiction over him on March 19,1984. Since the trial court did not err in denying the defendant’s motion to dismiss the March 14,1984 information, the trial court clearly had jurisdiction over the defendant on March 19, 1984.

“It is an established rule of procedure that, prior to trial, nonsubstantive changes maybe made in an [information].” State v. Secore, 194 Conn. 692, 699, 485 A.2d 1280 (1984); Practice Book § 622. In this case, the substitute information of March 19, 1984, did not add an additional or different offense, nor did it alter a material element of the crime charged. The filing of it did not deprive the defendant of an opportunity to prepare his defense. See State v. Ramos, supra, 277. The information did nothing more than update the citations to the statutes under which the defendant was charged. This was a purely technical amendment. In the absence of anything more than a technical difference between the two substitute informations and with no showing of prejudice to the defendant, the court did not err in permitting the state to file the substitute information of March 19, 1984.

The defendant’s claim that he was charged with and convicted of an ex post facto law must likewise fail because it rests upon the faulty premise that defrauding a public community did not become a crime until October 1,1982. The crime of defrauding a public community was first enacted as a part of the original penal code, effective October 1,1971. Public Acts 1969, No. 828, §§ 121 (f) and 215. Its degree of severity for classification as felony or misdemeanor and for permissible punishment was determined by the value of the property or services involved in the larceny. General Statutes §§ 53a-121 through 53a-125. That was the scheme or design created by the penal code for the various forms of larceny defined and prohibited by § 53a-119. The 1982 amendments to § 53a-122 by Public Acts 1982, No. 82-271, § 1, did not create for the first time the crime of defrauding a public community, but merely excluded that crime from the increase in value necessary for the offense of larceny in the first degree.

As we have already noted, the 1982 amendment to General Statutes § 53a-122 was declaratory of existing law. It boggles the mind to conclude that the defendant was unaware that defrauding a public community in an amount in excess of $2000 would subject him to punishment under § 53a-122. See State v. Eason, 192 Conn. 37, 45-46, 470 A.2d 688 (1984).

The defendant argues additionally that the March 19, 1984 information should have been dismissed, and that his later motion for a new trial and in arrest of judgment should have been granted, because General Statutes § 53a-119 (6) (3) is unconstitutionally vague. He argues that the statute is ambiguous because it could permit a conviction on the basis of a public official’s mere presentation of a fraudulent claim when, in fact, the legislature intended that actual prejudice to the community must be proven as a prerequisite for a conviction of the crime of defrauding a public community.

In construing statutes, we look first to the statutory language in ascertaining the intent of the legislature. State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985). Unless that language is unclear or ambiguous, we are bound by the plain and ordinary meaning of that language and do not search the history of an enactment for any supposed intention. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980).

Nothing in the plain language of § 53a-119 (6) (3) supports the defendant’s position that the legislature intended that actual prejudice be proven as a prerequisite for a conviction of the crime of defrauding a public community. General Statutes § 53a-119 (6) (3) sets forth three elements of the offense of defrauding a public community: (1) the defendant must be an officer or agent of a public community; (2) he must appropriate its property to the use of any person or draw any order upon its treasury or present or aid in procuring or allowing a fraudulent claim against such community; and (3) he must do so with intent to prejudice the community. The specificity with which the three elements of defrauding a public community are set forth “connotes the legislative intent to exclude that which is not specifically stated.” State v. Kish, 186 Conn. 757, 765, 443 A.2d 1274 (1982). Under that part of the statute involving the presentation or aiding in procuring or allowing a fraudulent claim, no actual loss by or prejudice to the town is required. The gravamen of the offense in such a case is the presentation of, or the aiding in the procuring or allowance of, a fraudulent claim. If the legislature had intended that prejudice to the community was a prerequisite to conviction, it would have said so. “It is a general rule of statutory construction that penal statutes are not to be extended by inference or implication.” 73 Am. Jur. 2d, Statutes § 297.

The court, furthermore, did not err, as the defendant claims, in failing to instruct the jury that it must find that the town failed to receive any of the sand for which it paid. The information charged the defendant with presenting and aiding in procuring “to be allowed fraudulent claims against the town,” with the intent to prejudice it. As we have noted, actual prejudice is not an element of the crime of defrauding a public community as set forth in General Statutes § 53a-119 (6) (3).

II

The defendant next claims that the evidence did not support the verdict and, therefore, that his motion for judgment of acquittal should have been granted. “Appellate review of such a claim requires us to undertake a two step analysis. ‘We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984).” State v. Brown, 198 Conn. 348, 352, 503 A.2d 566 (1986). The relevant question as to the second step of the analysis is whether the essential elements of the crime could have been found beyond a reasonable doubt by any rational trier of fact. State v. Amarillo, 198 Conn. 285, 289, 503 A.2d 146 (1986).

At trial, the defendant admitted that the Dale Trucking Company delivery tickets he created had no relation to actual sand deliveries. He also admitted that he deposited checks in his personal bank accounts which the town paid to Dale Trucking. The actual tickets which Westfield Sand and Gravel supplied disclosed that only 3765.8 cubic yards of sand were sold on the town’s account and that Dale Trucking paid $11,284.30 for that sand. The town’s records, however, showed that Dale Trucking was paid $58,410 for 10,622 cubic yards of sand. Peter Seidler, who drove the truck which delivered the sand to the town, testified that he delivered only 3765.8 cubic yards of sand to the town. The trip tickets from Westfield Sand and Gravel supported Seidler’s testimony.

The defendant presented testimony by a consulting engineer that the town could not possibly have completed the road work which in fact was done between the fall of 1982 and March, 1984, if Dale Trucking had delivered only 3765.8 cubic yards of sand. By the engineer’s calculations, during this period the sand used by the town totalled 11,524 cubic yards. On this basis, the defendant argues that the jury could not have found beyond a reasonable doubt that the town received only 3765.8 cubic yards of sand. The engineer conceded that his measurement of sand usage occurred a year after the crime was alleged to have taken place, that his calculations were based on statewide consumption figures, as opposed to Suffield’s particular consumption, and that he had no direct knowledge of how much sand was deposited or taken from the Suffield sand pile during the time period involved.

The defendant’s argument is fatally flawed because it hinges upon his erroneous perception of the elements of the offense of defrauding a public community, that is, that the state must prove that the public community was, in fact, prejudiced by the defendant’s scheme. General Statutes § 53a-119 (6) (3), as we have already noted, does not require that actual prejudice be proven. Even if we assume that prejudice had to be shown, the jury could reasonably have credited the testimony presented by the state and rejected that presented by the defendant. It is the jury’s role, not ours, to evaluate conflicting evidence. State v. Spencer, 198 Conn. 506, 510, 503 A.2d 1165 (1986). We conclude that the jury could reasonably have inferred from the evidence that the defendant presented or aided in procuring or allowing a fraudulent claim against the town and that he did so with intent to prejudice the community. Under the standard of review applied to sufficiency of the evidence claims, we conclude that the evidence in this case “was sufficient to permit the jury to find the essential elements” of the crime charged proved beyond a reasonable doubt. State v. Fernandez, 198 Conn. 1, 23, 501 A.2d 1195 (1985).

Ill

The defendant additionally claims that the trial court erred in admitting into evidence the Westfield Sand and Gravel tickets to show the weights of the trucks entering and leaving its premises. The defendant argues that the tickets should not have been admitted in the absence of a foundation as to the accuracy of Westfield’s scale. He does not dispute their admissibility as business records per se, but he contends that the weights recorded on the tickets were not shown to be reliable. He argues that since the figures on the trip tickets would be meaningless if the scale were inaccurate, the state had the burden of demonstrating that the weight notations were accurate before the tickets were admitted into evidence. He maintains that in the absence of proof of accuracy, the tickets had no probative value.

General Statutes § 52-180 requires that evidence proffered under the business records exception to the hearsay rule satisfy three requirements: “(1) that the record was made in the regular course of business; (2) that it was the regular course of the business to make the writing; and (3) that the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter. General Statutes § 52-180; Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 383-84, 461 A.2d 422 (1983).” LaFaive v. DiLoreto, 2 Conn. App. 58, 62-63, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).

In this case, the trial court was presented with evidence that: (1) the scales were tested for accuracy periodically and without prior notice by both the department of weights and measures for the city of Westfield, Massachusetts, and by the Commonwealth of Massachusetts; (2) such testing occurred, and adjustments were made in November, 1978, July, 1978, May, 1979, and July, 1981; (3) Westfield Sand and Gravel, which had been in business since 1973, relied on the readings of the scale in the ordinary course of its business; (4) Westfield’s customers relied upon its readings and would have complained of any inaccuracy if there had been any; and (5) there are legitimate explanations for differences in the tire weight of a truck weighed at separate times during the course of a day.

Conformity with the statutory conditions which permit the admission of business records is deemed to provide reasonable indicia of reliability. American Oil Co. v. Valenti, 179 Conn. 349, 358, 426 A.2d 305 (1979). “Even when properly admitted, [however,] such records carry no presumption of accuracy, their credibility remaining a question for the trier of fact. State v. Ward, 172 Conn. 163, 170, 374 A.2d 168 (1976).” Id. While the circumstances of the making of the trip tickets may be shown to affect the weight of that evidence; see General Statutes § 52-180; Burkert v. Petrol Plus of Naugatuck, Inc., 5 Conn. App. 296, 300, 497 A.2d 1027 (1985); there is no requirement that the accuracy of a business record be proved as a prerequisite to its admission.

IV

The defendant took the stand in his own defense. During direct examination he testified, in support of his claim that he performed his duties as first selectman in an unorthodox manner, that he had caused a collapsed bridge to be rebuilt at a low cost by using his own design. On cross-examination he was asked who had bid on the bridge project. The defendant responded by naming two contractors who had jointly submitted the lowest bid. He was then asked if he had told one of them that their bid would be accepted if they submitted a new bid, increased by $15,000, and would give $10,000 to him. The defendant denied that he had done so. The two contractors subsequently were allowed to testify, during rebuttal by the state, that the defendant had sought a $10,000 “kickback” from them. The contractors had previously testified about the same incident before an investigative grand jury which was inquiring into matters not directly involved in this case. The testimony of the contractors was introduced to impeach the credibility of the defendant. After their direct examination, the defendant was given a transcript of their grand jury testimony in accordance with Practice Book § 752.

The defendant argues that the trial court improperly permitted the state to use this information, because its use gave the state an unfair advantage over him and tainted the fairness of his trial, since his counsel would not have pursued this line of questioning on direct examination had he been aware of the grand jury testimony.

The defendant also claims that the state improperly used the information because transcripts of testimony before an investigative grand jury were used without the proper authorization required by General Statutes § 54-47 (g), and because the transcripts should have been turned over to his counsel prior to the introduction of any such information. The state argues that these claims should not be reviewed because they were not distinctly raised below, because the trial court never actually ruled upon the defendant’s requests that the state disclose when such evidence would be used and whether authorization had been obtained, and because the defendant lacks standing to raise the claim that the transcripts were improperly disclosed. The state also argues that this claim cannot be reviewed because the defendant never established that the evidence presented at trial actually derived from such grand jury testimony.

Although the trial court never ruled upon the defendant’s request, counsel for the defendant did tell the court that it was his position that absent permission from the judge presiding over the grand jury investigation, the use of the evidence in the present proceeding was improper. Pursuant to Practice Book § 3063, we need not consider claims not distinctly raised at trial and not arising subsequent thereto. State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982). Here, however, counsel for the defendant did raise the claim that the grand jury evidence had been improperly obtained and did so with sufficient distinctness to permit our review. The requirement that a claim be properly raised and decided at trial is intended to alert the trial court to the claim “while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” State v. Packard, 184 Conn. 258, 281, 439 A.2d 983 (1981). The trial judge was clearly apprised of the issue of the propriety of the release of the information.

Lack of standing, moreover, does not bar the defendant from raising this claim. The interest in the secrecy of grand jury proceedings is more than a public one and is intended to do more than protect the interest of the witnesses who testify. One of the goals advanced by the secrecy which surrounds grand jury proceedings is the protection of an innocent accused from unfounded accusations, and accusations which did not lead to an indictment. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218 n.8, 99 S. Ct. 1667, 60 L. Ed. 2d 156 (1979). “The implementation of this principle renders it essential that one threatened with stigmatization by unwarranted disclosure be accorded an opportunity to enforce the confidentiality it is designed to secure (see Douglas Oil Co. v. Petrol Stops Northwest, [supra, 218 n.8]; cf. Matter of Hynes v. Karassik, 47 N.Y.2d 659, [393 N.E.2d 1015, 419 N.Y.S.2d 942 (1979)].” Matter of District Attorney, 58 N.Y.2d 436, 442-43, 448 N.E.2d 440, 461 N.Y.S.2d 773 (1983). The rule of secrecy, therefore, applies equally to those who give evidence and to those concerning whom the evidence is given. Id. The testimony of the contractors before the investigative grand jury related to an accusation against the defendant for which no arrest was made, and the defendant has standing to attack the revelation of that testimony.

General Statutes § 54-47 (g) provides that “[a]t the conclusion of [an investigative grand jury inquiry] the judge, referee or judges conducting the inquiry shall file with the court a report and the court shall direct whether, and to what extent, the report shall be made available to the public or to interested parties. Any transcript of testimony taken at the inquiry shall likewise be filed with the court and it shall have the same powers with reference to it as it has with reference to the report; provided any person accused of crime as a result of the inquiry shall have access at all reasonable times to the transcript of his own testimony given by him in such inquiry.”

A grand juror, pursuant to General Statutes § 54-47 (g), must file a report with the court, and that court, not the grand juror conducting the investigation, must decide whether the report or any transcript of testimony should be made available to the public or interested parties. The defendant argued that the transcript should not be released because the judge presiding at the grand jury investigation did not authorize release. It does not appear in this case, whether any court, other than the trial court, released, at any time, portions of the report or transcript. It is clear that the trial court released the transcripts of the contractors’ testimony after they had testified. It is not known whether the contractors, in testifying before the grand jury, were ordered to keep their testimony secret. The transcript in this case does reveal, however, that one of the contractors gave the same information about the bridge project to an investigator from the state’s attorney’s office.

A defendant has no absolute right to inspect investigative grand jury testimony for the purpose of assisting him in preparation of a defense. In re Investigation of the Grand Juror, 4 Conn. App. 544, 553, 495 A.2d 1098, cert. granted, 197 Conn. 812, 499 A.2d 59 (1985). The state may use facts elicited in the course of an investigative grand jury in order to formulate an information against a defendant, and may use those facts in the trial arising from the charges contained in the information, as long as the trial is otherwise independent of the grand jury proceeding, and is fair and impartial. State v. Hayes, 127 Conn. 543, 578, 18 A.2d 895 (1941). Thus, the trial court did not err in allowing the use of information gathered during the grand jury investigation of matters not directly related to this case in order to impeach the defendant’s credibility when the defendant’s objection was that the information was obtained without authorization by the grand juror. The secrecy of an investigative grand jury proceeding is inviolate except if a court has ordered otherwise. A court may order otherwise if a particularized need has been shown, such as that the testimony before the grand jury is necessary to impeach a witness, to refresh recollection, to test credibility, or for use in prosecutions for perjury. State v. Hayes, supra, 580; In re Investigation of the Grand Juror, supra. The defendant, of course, has access to his own testimony before an investigative grand jury. General Statutes § 54-47 (g).

Here, authorization was granted by the trial court, the testimony was used to impeach the defendant’s credibility, and there is no indication that the witnesses had been sworn to secrecy as to their testimony when they appeared before the investigative grand jury. As far as appears from this record, their testimony at this trial was “fresh” testimony.

The defendant’s alternative claim of error concerning the use of the grand jury material is that, if the transcripts were going to come into the trial at all, he should have been provided with them at whatever time the state determined they would be used. The state could not have determined to use them until after the defendant testified on direct examination.

Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.” Our rules of practice governing the disclosure of statements in criminal proceedings substantially track the Jencks Act, 18 U.S.C. § 3500 et seq. That act is looked to by our courts in interpreting our rules governing the disclosure of statements. State v. Hinton, 196 Conn. 289, 300, 493 A.2d 836 (1985).

“The Jencks Act generally requires the government, on motion of a defendant, to produce statements in its possession of witnesses who testify at a trial. The defendant is only entitled to the statement after the witness has testified.” (Emphasis added.) United States v. Short, 671 F.2d 178, 185 (6th Cir.), cert. denied, 457 U.S. 1119, 102 S. Ct. 2932, 73 L. Ed. 2d 1332 (1982). When the federal act was amended in 1970 specifically to include transcript of grand jury testimony within the class of statements which may be disclosed, this “amendment did not affect a trial court’s discretion to order pretrial disclosure of grand jury testimony. . . . The amendment merely made clear that after a government witness has testified, that witness’s grand jury testimony, if any, is included among the ‘statements’ which the defendant is entitled to have produced. The Jencks Act does not apply to a motion for pretrial disclosure of a grand jury transcript. United States v. Glassman, 562 F.2d 954, 957 (5th Cir. 1977); United States v. Budzanoski, 462 F.2d 443, 454 (3d Cir.), cert. denied, 409 U.S. 949, 93 S. Ct. 271, 34 L. Ed. 2d 220 (1972); see 8 Moore’s Federal Practice ¶ 6.05 [3] at 6-113(1981). . . . The discretion of the trial judge and the requirement of a showing of ‘particularized need’ still govern motions for pretrial disclosure of grand jury transcripts.” United States v. Short, supra, 186.

The defendant filed a pretrial motion for an order of disclosure and production which included a request for “copies of any written or recorded statements obtained from any witness concerning the allegations made against the defendant whether or not the prosecuting authority intends to call the person making such statement as a witness in its case-in-chief.” This request was deferred by the trial judge, Klaczak, J., to “time of trial per P.B.” As we have already noted, Practice Book § 752 authorizes the trial judge to order the state to produce a statement by a witness after that witness has testified. The defendant made no specific request prior to trial for the grand jury transcripts nor did he make any showing of particularized need which would have justified his access to the materials. In re Investigation of the Grand Juror, supra, 555. The defendant was aware early in the trial that the state had transcripts from an investigative grand jury, but never requested them, and the court never had an opportunity to rule upon such a request. See Practice Book § 3063. The broad assertion that earlier disclosure would have assisted the defense is not enough. See United States v. Bruton, 647 F.2d 818, 824 (8th Cir.), cert. denied, 454 U.S. 868, 102 S. Ct. 333, 70 L. Ed. 2d 170 (1981). The statements about the alleged demand for a “kickback” did not relate to the allegations against the defendant contained in the information and were not used in the state’s case-in-chief. They were generated by the defendant’s testimony and related to his credibility.

The defendant had no absolute right to obtain investigative grand jury material which would assist him in his defense. In re Investigation of the Grand Juror, supra, 553. The statements of the witnesses were not relevant to proof of any element of the crimes with which the defendant was charged. They became material only when the defendant testified on direct examination, and then were relevant only as to his credibility. The transcript of their prior testimony provided the defendant with an opportunity to check their trial testimony against that prior testimony. He was entitled to it after they had testified, and he received it.

V

The defendant also claims that the trial court erred in admitting testimony to show his consciousness of guilt. The court permitted James and William Wzorek, the owners of Westfield Sand and Gravel, to testify about several discussions they had had, both before and after the arrest of the defendant, with the defendant and Lucian Arrington, a friend of the defendant. The town had purchased sand through Arrington prior to its arrangement with Dale Trucking. William Wzorek testified that Arrington had said, in the defendant’s presence, that they were going to be “hung” by the investigation of the Suffield transactions and that they should get their stories straight. Wzorek stated that the defendant said, at the conclusion of the first meeting, that “we get our stories together, we’ll take care of you later.” James Wzorek testified that at the second meeting the defendant said that “if we get the stories straight you will be taken care of.” Both Arrington and the defendant denied that these conversations took place.

The decision to admit the testimony of the Wzorek brothers was made after a voir dire examination of both witnesses, and the court determined that their testimony was entitled to some credibility. The defendant maintains that their testimony was more prejudicial than probative and that William Wzorek’s testimony was inconsistent with his prior testimony before the investigative grand jury. The defendant also argues that the court erred because it refused to allow voir dire examination of Arrington who, the defendant claims, would have testified that it was his idea to bring the defendant to the meeting with the Wzoreks.

The inherent difficulties of the balancing of the probative value of evidence against its prejudicial effect have led our courts to entrust the “resolution of this determination to the sound discretion of the trial court judge.” State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). This determination need only be reversed where there is a manifest abuse of discretion or where injustice appears to have been done. Id. “There are situations where the potential prejudicial effect of relevant evidence would suggest its exclusion. These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it. McCormick, Evidence (2d Ed.) § 185, pp. 439-40.” State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982).

Evidence which may be prejudicial is not to be confused with that which is merely damaging to the defendant’s case. State v. Wilson, 180 Conn. 481, 490, 429 A.2d 931 (1980). Prejudicial evidence is that evidence which may unduly arouse the jury’s emotions of prejudice, hostility or sympathy. Id. There can be no doubt that William Wzorek’s testimony was damaging. His testimony, however, was not such that it would unduly prejudice the jury against the defendant. The balancing of the probative value against the prejudicial effect of this evidence fell within the bounds of the trial court’s discretion.

The defendant also argues that the court erred in refusing to permit a voir dire examination of Arrington. The main thrust of his argument is that Arrington’s testimony would have been critical because Arrington would have testified that he invited the defendant to attend the meetings with the Wzoreks. The defendant contends that the inference of consciousness of guilt can exist only if the defendant initiated the contact with the Wzoreks, because only then would there be a manifestation of bad faith.

Undue pressure upon a witness, by bribery or intimidation, falls within the hearsay exception for admissions of a party by conduct. The conduct “must be connected to the party himself ... by showing that he did the act or authorized it by words or other conduct. Moreover, the circumstances of the act must manifest bad faith.” McCormick, Evidence (3d Ed.) § 273, p. 809.

Evidence of undue pressure upon a witness, in the form of intimidation, “is admissible either on the theory that such conduct of the accused is inconsistent with claims of innocence ... or, on the theory that such conduct exhibits a consciousness of guilt. . . . Where, however, there is no evidence to connect the defendant with such [conduct] ... [it is] not admissible against him.” (Citations omitted.) State v. Sorbo, 174 Conn. 253, 256, 386 A.2d 221 (1978). If the question of attempted bribery rather than intimidation is raised, evidence connecting the defendant to the conduct is similarly a prerequisite to its admission. This connection was established in the present case. The testimony adduced at trial was that the defendant himself stated that the Wzoreks would be “taken care of” later. There is no requirement, in order to show a manifestation of bad faith, that the defendant initiate the contact with those to whom he uttered the statements.

VI

The defendant’s claim that the trial court erred in ordering that he pay restitution to the town of Suffield was not properly preserved. The defendant made no objection at the time of sentencing nor did he move to correct the sentence at a later time. See Practice Book § 935. “This court reaches the merits of issues not raised below only where the trial court has committed plain error; Practice Book § 3063; where ‘a new constitutional right not readily forseeable has arisen between the time of trial and appeal’; State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); or where ‘the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial.’ Id.; see State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985).” State v. Vinal, 198 Conn. 644, 653, 504 A.2d 1364 (1986). The defendant has not alleged or shown any basis for our review of this claim under the Evans bypass rule and we invoke the power to notice plain error under Practice Book § 3063 “only in extraordinary circumstances ‘where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).” State v. Vinal, supra, 654. On the basis of the record before us, we cannot find that the trial court’s order of restitution was plain error.

VII

The defendant’s final claim of error is that the trial court improperly instructed the jury that they should consider the interest of the defendant in the outcome of the case in weighing the credibility of his testimony, and that the rules of law were made to protect the innocent and not to protect the guilty. The defendant has framed this issue as the court’s failure “to charge the jury as requested.” Although the defendant’s requested instructions appear in the certified trial court file, the defendant has not printed in his brief either the relevant portions of the charge as requested and as given by the court, or any relevant exceptions to the charge as given. See Practice Book § 3060F (d) (1). Even if the issue is read as one in which the trial court simply erred in its instructions, the defendant was still required to include in his brief “a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge.” Practice Book § 3060F (d) (2). This was not done. A review of the transcript, moreover, reveals that the defendant never took exception to the charge as given. As a consequence, “[i]n the absence of plain error or error falling within the constitutional ambit of State v. Evans, supra, [this challenge is] unreviewable. See Practice Book § 3063.” State v. Harman, 198 Conn. 124, 137, 502 A.2d 381 (1985). Furthermore, it is well settled that a claim of error based on an instruction that the jury should consider the defendant’s interest in the outcome of the case when weighing his credibility is “utterly without merit.” State v. Roos, 188 Conn. 644, 645, 452 A.2d 1163 (1982).

There is no error.

In this opinion the other judges concurred.

       This information should have been dated January 10,1984, the date on which it was filed.

       General Statutes § 53a-119 (6) now provides: “Defrauding of public community. A person is guilty of defrauding a public community who (1) authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency which he knows is false; or (2) knowingly accepts the benefits from a claim he knows is false; or (3) as an officer or agent of any public community, with intent to prejudice it, appropriates its property to the use of any person or draws any order upon its treasury or presents or aids in procuring to be allowed any fraudulent claim against such community. For purposes of this section such order or claim shall be deemed to be property.”

       This statute has undergone no further amendment since 1982.

       Practice Book § 622 provides: “The judicial authority may order at any time such relief as is required to remedy any defect, imperfection or omission in the indictment, information, or complaint, including the following: (1) Any matter of form; (2) Any miswriting, misspelling, or improper English; (3) Any misuse of a sign, symbol, figure, or abbreviation; or (4) Any omission of the true name or any misspelling of the name of the defendant.”

       Public Acts 1982, No. 82-271, § 1, increased the value of the property or service from $2000 to $10,000.

       A limited review of this claim, undertaken to assure that no injustice was done to the defendant, indicates that the trial court had a reasonable basis upon which to order restitution in the amount of $38,500. It could have concluded from the evidence that the loss to the town exceeded that amount. See General Statutes § 53a-30 (a) (4).


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    State of Connecticut v. Robert Garcia, Jr.
    (3405)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 8 —
    decision released May 13, 1986

      Judy Ann Stevens, for the appellant (defendant).

      Donald A. Browne, state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant appeals from his conviction of unlawful possession of cocaine with intent to sell in violation of General Statutes (Rev. to 1981) § 19-480 (a). The defendant pleaded nolo contendere to the charge after the trial court denied his motion to suppress evidence seized pursuant to a search warrant. On appeal, the defendant claims: (1) that whether probable cause existed for the issuance of the search warrant should have been measured by a stricter standard than that applied under the fourth amendment totality of the circumstances test; and (2) that the information contained in the warrant was “stale.” We find no error.

On July 16, 1981, Troopers Donald A. Taylor and Edwin J. Grohe of the state police department applied for a search and seizure warrant to search the person of the defendant, also known as “Bobby,” and the bar and restaurant premises at 1865 Barnum Avenue in Bridgeport, known as “Bobby’s.” The troopers’ supporting affidavit for the warrant included information provided by a confidential informant, known as CI-581 in order to protect his safety and the security of an ongoing investigation. Paragraph three of the affidavit recited the confidential information obtained from the informant, stating that CI-581 had frequented “Bobby’s” on numerous occasions since its opening four to six weeks earlier; that the defendant managed “Bobby’s”; that CI-581 had known the defendant for a long period of time; that CI-581 had personal knowledge of the defendant’s active involvement in the sale of cocaine; that he had observed the defendant at the business establishment “constantly” in possession of cocaine in varying amounts of up to one ounce; that he observed cocaine being “cut” there by the defendant before being distributed; that CI-581 had observed the defendant selling cocaine to persons on the premises as late as the weekend of July 11, 1981; and that the defendant “always” carried a revolver on his person. In addition, the affidavit provided by Taylor and Grohe recited that their commanding officer, Sergeant Manfred Brideau, on July 15, 1981, contacted a reliable, creditable person who is an established business man within the community, who stated that he has known the defendant for a long period of time and “that he has personal knowledge that Garcia is currently and on a continuous basis selling cocaine within his business establishment, ‘Bobby’s.’ ” The affidavit also stated that Brideau, on July 15, 1981, had been informed by federal drug enforcement agent Paul Salute that Salute had received information from a confidential informant that the defendant “has been and is currently, heavily involved in the sale of cocaine in the Bridgeport area.”

On the basis of the underlying affidavit, the search and seizure warrant was issued on July 16, 1981, and the defendant was arrested after a search of “Bobby’s,” and of his person, revealed, among other items, a weapon, ammunition, and thirteen paper packets, each containing what was described in the inventory of items seized as “white powder.” In addition, there were seven “baggies” containing “plant-like material.”

On March 11,1983, the defendant moved to suppress the evidence obtained pursuant to the warrant on the ground that “[s]aid warrant was issued on [stale] information; and failed to establish probable cause to believe that the specified evidence was then probably present in the locus of the search.” That motion was denied. The court’s memorandum of decision briefly concluded: “Read in a common sense manner there are sufficient facts set forth in the affidavit to show continuing criminal activity related to narcotics. The totality of the circumstances set forth in the affidavit furnished the issuing magistrate with probable cause to issue the search warrant in question.”

The defendant subsequently withdrew his not guilty plea and entered a conditional plea of nolo contendere under the provisions of General Statutes § 54-94a. The court accepted the plea and, after a finding of guilty, sentenced the defendant to imprisonment for two years.

The first issue raised by the defendant is that the finding of probable cause for the issuance of the warrant for the search of the defendant and his place of business should have been determined by a stricter standard than the fourth amendment totality of the circumstances test, and that its review by the trial court should have been made by the same measurement. The standard expressed by the trial court in determining whether probable cause existed for the issuance of the search warrant was the so-called “totality of the circumstances” test enunciated earlier that year by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). Our state Supreme Court has recently concluded, however, that the protections afforded under article first, § 7, of the Connecticut constitution are not sufficiently guaranteed by the application of the Gates test. State v. Kimbro, 197 Conn. 219, 236, 496 A.2d 498 (1985). Rather, the court there held that our state constitution requires us to apply the pre-Gates standard established by Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). We hold, therefore, as claimed by the defendant, that it is the test enunciated by Aguilar-Spinelli and their progeny by which we must measure whether probable cause existed for the issuance of the search warrant. Kimhro, therefore, having resurrected Aguilar-Spinelli from the ashes of oblivion like a phoenix, is our guide in testing the defendant’s ultimate claim of error.

It is the defendant’s contention that under AguilarSpinelli, the search warrant was- not issued on sufficient probable cause because the information contained in the application was stale, and, therefore, did not justify the belief that narcotics related evidence would be found on the person and at the place to be searched when the warrant was issued. We disagree.

The Aguilar-Spinelli test for reviewing probable cause is based on an analysis of two key factors: “(1) the basis of the informant’s knowledge — the means by which he acquired his information, and (2) the underlying facts establishing either his general veracity or his reliability in the particular case.” State v. Martin, 2 Conn. App. 605, 610, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, Connecticut v. Martin, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). The defendant’s attack upon the warrant in this case is based upon the second prong of the Aguilar-Spinelli test, the reliability of the information upon which the warrant was issued. See State v. Rose, 168 Conn. 623, 631-32, 362 A.2d 813 (1975). “While there is no fixed test for finding the existence of probable cause, proof of its existence must include facts so closely related to the time of the issuance of the warrant as to justify a finding of the existence of probable cause at that time.” Id., 631. “The basic criterion as to the duration of probable cause is the inherent nature of the crime.” Id., 631-32.

In the present case, confidential informant CI-581, whose reliability had been established by past information which had led to at least ten arrests with four convictions and pending court dispositions on narcotics related charges, told the two affiants, on the day before their application for and the issuance of the search warrant, that “Garcia has been actively involved in the sale of cocaine and [that he] has observed Garcia constantly in possession of cocaine at the business establishment, ‘Bobby’s.’ ” (Emphasis added.) Further, he told them that “[a]s late as the weekend of July 11,1981, [he had observed] Garcia selling cocaine to persons within ‘Bobby’s.’ ” This observation was made five days or less before the warrant was issued. Additionally, he described how he had seen the cocaine “cut,” packaged and sold.

Recited in the affidavit was a corroborating statement by an unnamed, but reliable and creditable businessman, given to a state police officer on July 15, 1981, asserting that, from his personal knowledge, the defendant was “currently and on a continuous basis selling cocaine within his business establishment, ‘Bobby’s.’ ” Further corroboration was received from a confidential informant and relayed to the superior officer by a federal narcotics agent also on July 15, 1981, that “Garcia has been and is currently, heavily involved in the sale of cocaine in the Bridgeport area.”

The information collected by the affiants from informants and relied upon by the magistrate, except for the corroboration from the federal agent, was expressly in the time frame of the preceding one to five days. In the police vernacular, one might even categorize such information as “hot” or “fresh.” Of particular importance is the conclusion that these statements do not suggest short-term narcotics violations, but rather, a continuing or long durational scheme of narcotics sales at the business location which was not likely to cease between the weekend of July 11, and the issuance of the search warrant on July 16, 1981.

While the law does not fix a precise time within which proof of probable cause must be taken by the judge or magistrate, “it is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case.” Sgro v. United States, 287 U.S. 206, 210-11, 53 S. Ct. 138, 77 L. Ed. 260 (1932). “The proof supplied must . . . speak as of the time of the issue of that warrant.” Id., 211. Our Supreme Court has emphatically followed the Sgro rule: “The recital must be of facts so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time.” State v. DeNegris, 153 Conn. 5, 8-9, 212 A.2d 894 (1965).

Where an affidavit recites a mere isolated violation, it is not unreasonable to believe that probable cause will dwindle with the passage of time. On the other hand, if an affidavit recites activity indicating protracted or continuous criminal conduct, time is of less significance. State v. Rose, supra, 632. The informants’ statements in the affidavit before us, singly and in totality, indicate a continuum of illegal activity from the very recent past to the time when the warrant was issued. The defendant was observed by CI-581 at his business constantly in possession of cocaine in varying amounts of up to one ounce. The informant saw the cocaine being “cut,” a process that dilutes the strength but also expands the volume of the narcotic substance. The cocaine was packaged in glassine envelopes and generally sold in gram quantities. The defendant was personally seen selling a five gram package of cocaine for $300 cash. The corroborating information also received on July 15,1981, was that the informant had “personal knowledge that Garcia is currently and on a continuous basis selling cocaine within his business establishment, ‘Bobby’s.’ ” From such a detailed portrayal of ongoing criminal activity, presented to the officers by two different informants, one five days before the warrant was issued and the other only the day preceding, and corroborated by federal sources also the day before the application, the issuing magistrate could reasonably conclude that probable cause existed at the time the warrant was issued. The court’s ruling on the motion to suppress the evidence obtained pursuant to the search warrant was correct under the standard of Aguilar-Spinelli which continues to be the rule in this state by virtue of State v. Kimbro, supra.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1981) § 19-480 (a) was subsequently transferred to General Statutes § 21a-277 (a).

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

       We note that, by avoirdupois measure, an ounce contains 28.349 grams.


author: Per Curiam.

text:
    Joan G. Warwick v. Joseph E. Warwick
    (3936)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 13 —
    decision released May 13, 1986

      Roland F. Moots, Jr., with whom was Theresa B. D Alton, for the appellant (defendant).

      Robert V. Cimmino, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from an order of the trial court which decreased rather than terminated his alimony payments pursuant to General Statutes § 46b-86 (b).

Section 46b-86 (b) grants to the Superior Court the discretion to “suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.” Upon a finding that a party receiving periodic alimony is living with another person resulting in a change of financial circumstances, the issue of whether such payments should be suspended, reduced or terminated is a matter of trial court discretion. See Duhl v. Duhl, 7 Conn. App. 92, 94, 507 A.2d 523 (1986). A trial court’s exercise of discretion may be disturbed on appeal only where such discretion has been abused. See Pickman v. Pickman, 6 Conn. App. 271, 276-77, 505 A.2d 4 (1986). “For us to conclude that the trial court abused its discretion we must find that the court ‘either incorrectly applied the law or could not reasonably conclude as it did.’ Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983) . . . .” Dunn v. Dunn, 6 Conn. App. 381, 382, 505 A.2d 740 (1986). Every reasonable presumption shall be made in favor of the trial court’s action. Dunn v. Dunn, supra.

The defendant’s motion for modification of judgment requested that his alimony obligation be terminated. The trial court did not grant the requested termination, but concluded that the plaintiff’s living arrangements caused a sufficient change in financial circumstances to warrant a reduction of her alimony to $200 per month.

The trial court made the following factual findings. On July 13, 1976, judgment was rendered dissolving the marriage of the parties and the defendant was ordered to pay $400 per month as periodic alimony. In 1979, the plaintiff began living with another person who pays to the plaintiff $100 per week, or approximately $400 per month, for his food and other living expenses. He also performs handyman chores which included the construction of a deck on the outside of the plaintiffs house.

The defendant argues that the trial court found facts which require termination of his obligation to pay alimony. He argues that the weekly contributions by the plaintiff’s live-in companion to the plaintiff are a “complete and total duplication” of his alimony payments. While there was a finding effectively demonstrating that the man with whom the plaintiff was living contributed to her a monthly sum and services which equalled or exceeded that of the monthly periodic alimony paid by the defendant, there is no finding that this money was only for the plaintiff’s use. The trial court found that an undetermined portion of that weekly cash payment was used for “his food and other living expenses.” In the absence of a finding that the plaintiff was receiving some portion or all of such funds solely for her personal consumption, the defendant’s argument that the payments were a duplication of the defendant’s obligation loses its force. We cannot find, therefore, that the trial court could not have reasonably concluded as it did.

There is no error.


author: Spallone, J.

text:
    Blessings Corporation v. Carolton Chronic and Convalescent Hospital, Inc.
    (4335)
    Hull, Spallone and Bieluch, Js.
    Argued April 2 —
    decision released May 13, 1986

      John F. Fallon, for the appellant (defendant).

      Frank H. Cathcart, for the appellee (plaintiff).
   Spallone, J.

The defendant is appealing from the judgment of the trial court rendered in favor of the plaintiff upon the court’s acceptance of the report of the attorney referee.

The plaintiff, Blessings Corporation, doing business as General Diaper Service, delivered its diaper goods and services to the defendant, Carolton Chronic and Convalescent Hospital, Inc., over a period of years. Beginning in June, 1978, the plaintiff delivered diapers to the defendant each weekday. Upon delivery, the plaintiff would present the defendant with a three part delivery slip which indicated the quantity delivered and the payment due. The defendant’s employee customarily signed the delivery slip and retained one copy. At the close of each working day, the plaintiff’s driver returned the two remaining copies of the delivery slip to the plaintiff’s office. The plaintiff’s office manager or its general manager compiled the slips on a weekly basis, and transferred the information from the slips onto ledger cards. The ledger cards contained columns for the insertion of the date of delivery, amount of delivery, charges, credits and debits. The delivery slip did not show credits or debits. The plaintiff’s customers, including the defendant, were billed on the basis of the information contained on the ledger cards.

The plaintiff brought suit claiming that the defendant owed a large balance, which the defendant disputed. The case was referred to an attorney referee who, after a hearing, decided the issues in favor of the plaintiff and awarded it $13,662.44, plus costs. The court accepted the referee’s report and rendered judgment in favor of the plaintiff in accordance with that report.

On appeal, the defendant challenges a ruling by the referee admitting certain evidence pursuant to General Statutes § 52-180 (a), the business entry statute, and claims that the evidence submitted was insufficient to support the judgment in favor of the plaintiff.

Proceedings before attorney trial referees are governed by procedures set forth in Practice Book §§ 434 through 444. The rules of practice provide specific procedures to be followed by a party who disputes the ultimate findings and rulings of the referee, including rulings upon the evidence.

“If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the committee, or by setting forth rulings upon evidence or other rulings of the committee, he shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions desired by him. He shall accompany the motion with a brief statement of the grounds of each correction asked, with suitable references to the testimony. ...” Practice Book § 438. Thereafter, if the moving party is not satisfied with the action taken by the referee, he must file exceptions to the report seeking corrections by the court in the report or finding. Practice Book § 439.

Here, the defendant completely ignored the procedural path set out in the rules of practice. He did not file the motion to correct called for in § 438. On appeal, he challenges the judgment of the superior court without having first made the appropriate challenge to the attorney referee’s report. The motion to correct affords the referee the opportunity to make corrections if warranted, and filing exceptions seeking corrections by the court preserves the excepting party’s rights in this regard. In order to facilitate a decision on the motion to correct, the moving party is required to set forth the changes and additions desired. A party’s failure to conform to this procedure limits the reviewing court to determining whether the subordinate facts found by the attorney referee were sufficient to support the referee’s ultimate factual conclusions. Harbor Construction Corporation v. D. V. Frione & Co., 158 Conn. 14, 20-21, 255 A.2d 823 (1970); Kowalsky Properties, Inc. v. Sherwin-Williams Company, 7 Conn. App. 136, 140, 508 A.2d 43 (1986); Ruhl v. Fairfield, 5 Conn. App. 104, 106, 496 A.2d 994 (1985). The referee, in his memorandum of decision, makes findings of fact to support his ruling that the requirements of the business entry statute were met, and we conclude that these facts were sufficient to support his ultimate conclusion.

The defendant’s second claim of error is without merit.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”

       Practice Book § 439 provides: “If a committee fails to correct a report or finding in compliance with a motion to correct, the moving party may, within ten days after the decision on the motion to correct, file exceptions seeking corrections by the court in the report or finding. The court will not consider an exception unless its subject matter has been submitted to the committee in a motion to correct, provided that this requirement shall not apply to exceptions taken to corrections in the report or finding made after it was filed; nor will the court correct a finding of fact unless a material fact has been found without evidence or the committee has failed to find an admitted or undisputed fact, or has found a fact in such doubtful language that its real meaning does not appear. A party excepting on these grounds must file with his exceptions a transcript of the evidence taken before the committee, except such portions as the parties may stipulate to omit.”


text:
    State of Connecticut v. Roberto Garcia
    (3127)
    Spallone, Daly and Bieluch, Js.

      Submitted on briefs March 21 —
    decision released May 13, 1986

      James J. Ruane, special public defender, filed a brief for the appellant (defendant).

      Donald A. Browne, state’s attorney, and Frederick W. Fawcett and Edward J. Caldwell, assistant state’s attorneys, filed a brief for the appellee (state).
   Spallone, J.

The defendant is appealing from a judgment rendered after conviction by a jury of the crimes of carrying a pistol without a permit in violation of General Statutes § 29-35 and of violating the state’s dependency producing drug law, General Statutes (Rev. to 1979) § 19-481 (a).

The jury could reasonably have found the following facts. On September 12, 1980, Bridgeport police officers Earl Mellow and Alonzo Johnson responded to the report of a shooting. Upon their arrival at the scene, a woman directed them to the downstairs area of the building and stated that a shooting was occurring there. The officers then proceeded to the rear of the building and walked down a stairwell where they looked through a window that was partially covered with tape. The officers pounded on the door and announced to the occupants that they were the police. Mellow observed a man, who was holding a gun in his hand, standing between a bar and a wall and looking in the direction of the officers. The gun was described by the officer as “being shiny.” At that point, Mellow went to the side of the building and looked through a window which contained a fan. Johnson remained at the door. From Mellow’s viewpoint, he again saw the same man peering towards the door where Johnson had been positioned. Mellow put his gun through an opening in the window and ordered the man inside to drop his gun. The individual turned and fired in the direction of Mellow who returned the fire and ducked back. The man fired a second shot and Mellow returned a second shot. Following this exchange, Mellow again looked through the window but could not see the man. He then ran back to the rear of the building where he pushed open the door, which was then partially opened, and ordered all in the premises to come out. The defendant, later identified as Roberto Garcia, exited from the building bleeding from wounds to his leg and wrist. Mellow identified the defendant as the man who shot at him and immediately arrested him. An individual named Ramirez exited with the defendant from the building and, like the defendant, was wearing a gun holster. The defendant was taken to the hospital.

The two officers, Mellow and Johnson, then went into the basement area where they discovered three handguns. Mellow identified one of the handguns as the “shiny” weapon he had seen in the defendant’s hand. This weapon, when found by the officers, was covered with blood. The basement area where the incident occurred was being used as an “after hours” club.

The defendant was tried before a jury on a five count information. Counts one and two charged the defendant with attempted murder, in violation of General Statutes §§ 53a-49 and 53a-54a (a). Count three charged the defendant with carrying a pistol without a permit, in violation of General Statutes § 29-35. Count four charged the defendant with possession of a stolen firearm, in violation of General Statutes § 53a-212 (a), and count five charged him with a violation of the state’s dependency producing drug law, General Statutes (Rev. to 1979) § 19-481 (a).

A jury trial was conducted and, on September 9, 1983, in response to the defendant’s motion for acquittal on all counts, the court, Stodolink, J., granted the motion as to counts two and four and denied it as to the remaining counts. The jury returned a verdict of not guilty as to the first count of attempted murder and found the defendant guilty of the remaining counts of carrying a pistol on the person without a permit and of violating the state’s dependency producing drug law.

On September 29, 1983, the court sentenced the defendant to a period of incarceration of one year on the weapon charge and a period of not less than two nor more than four years on the drug charge, the two sentences to run consecutively, for a total effective sentence of not less than three nor more than five years, to be consecutive to a sentence to be imposed by the United States District Court on a federal charge. On October 18,1983, the defendant filed a motion to correct the sentence, claiming that the total effective sentence was illegal. This motion was heard and denied on June 5,1984. The defendant has served his federal sentence and now remains at liberty pending the outcome of this appeal.

The defendant claims the trial court erred (1) in denying his motion in limine relating to a prior conviction, (2) in denying his motion for a mistrial, (3) in admitting into evidence the cocaine allegedly seized from him, (4) in denying his motion for acquittal of the weapon charge, and (5) in pronouncing the total effective sentence imposed on him. We find nothing in the record of the trial court that supports these claims of error.

The trial court, after giving due consideration to the defendant’s motion in limine, barred the state from introducing evidence of two of the defendant’s prior felony convictions: A1969 conviction for possession of a dangerous drug because of its remoteness in time and because it did not serve as a test of veracity; and a conviction for the possession of a firearm by a convicted felon because it closely tracked and was, therefore, prejudicial with regard to the weapon charges for which the defendant was on trial. The court, however, did allow, for impeachment purposes, evidence of the defendant’s conviction of a federal charge of conspiracy to make an extortionate extension of credit. This crime essentially consists of an extension of credit with the threat to do violence if the debt remained unpaid.

Our Supreme Court has, on numerous occasions, spoken to the issue of the admissibility of prior felony convictions as impeachment evidence. See, e.g., State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984); State v. Carter, 189 Conn. 631, 642, 458 A.2d 379 (1983); State v. Hamele, 188 Conn. 372, 383, 449 A.2d 1020 (1982); State v. Nardini, 187 Conn. 513, 521, 447 A.2d 396 (1982); State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970). We agree with the defendant’s position that the three pronged test utilized in State v. Geyer, supra, requires the court, when ruling on a motion in limine, to consider the prejudicial effect, the remoteness in time and the measure of truthfulness illustrated by the proffered prior criminal felony convictions. State v. Geyer, supra, 11. We also agree with the Geyer holding that prior convictions that are admissible for impeachment purposes fall into two categories depending upon the probative value of intrinsic credibility criteria. Id., 12. “First are those crimes that by their very nature indicate dishonesty or tendency to make false statement .... The second category involves convictions for crimes that do not reflect directly on the credibility of one who has been convicted of them.” Id. We disagree with the defendant that the felony for which the defendant was convicted by the federal court did not, by its very nature, indicate dishonesty. We hold that the defendant’s prior conviction fell within the first category discussed in Geyer, supra, 12-13.

The defendant’s categorization of his federal conviction as one not demonstrating dishonesty is unpersuasive. An extension of credit coupled with the threat of violence if the debt remained unpaid is a form of larceny. Our General Statutes § 53a-119 (5) defines extortion as a form of larceny. Extortion is larceny with the threat of violence. Because of its familiarity with the matter before it, the trial court is in the best position to weigh the merits and dangers of any proffered testimony. State v. Geyer, supra, 13; State v. Carter, supra, 642. In this case, the trial court carefully weighed each prior conviction as it related to the particular facts and charges against the defendant to determine whether its prejudicial tendency outweighed its probative value. State v. Marquez, supra, 52. Under the facts and circumstances in this case, we find no reason to disturb the court’s decision to admit the defendant’s federal conviction as a crime involving dishonesty and bearing on his veracity. The court’s decision not to designate the conviction as an unnamed felony is also sustainable for the reasons stated above.

The defendant’s next claim, that the court erred in denying his motion for a mistrial, is likewise misplaced. During the state’s cross-examination of the defendant, the prosecutor asked him if he was under the influence of cocaine at the time of the shooting. Before the defendant answered the question, his counsel objected. The jury was excused and the defendant moved for a mistrial. The motion was denied and the state was allowed to ask the defendant if he was under the influence of any chemical substance. To this question the defendant responded, “[n]o.” The defendant’s counsel did not object to the court’s procedure.

Although we agree that a prosecutor is not an ordinary advocate, and that it is his duty to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury; State v. Falcone, 191 Conn. 12, 22, 463 A.2d 558 (1983); State v. Ubaldi, 190 Conn. 559, 574, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); prosecutorial misconduct must rise to a greater level of impropriety than that manifest in this case to warrant the extraordinary relief of a mistrial. The prosecutor merely asked a question which was subject to objection by defense counsel. The objection was sustained and the question was then rephrased in acceptable form. There were no attempts by the prosecutor to “hammer” home his point to the jury, nor did he make repeated efforts to introduce inadmissible evidence. The nature of the question was not improper, only the mention of the specific substance was ináppropriate. The question was quickly corrected and the trial continued. Often, during the course of a trial, objectionable questions are asked, objections are sustained, and the trial goes on. The due administration of justice would be ill served if every time an objectionable question were asked the case would be subject to a mistrial. The burden is on the defendant to show that the prosecutor’s remarks were prejudicial in light of the whole proceeding. State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982). The decision of the trial court as to the fairness of the trial is to be accorded great weight. State v. McCall, 187 Conn. 73, 77, 444 A.2d 896 (1982). The record here fails to disclose that the trial court abused its discretion in denying the motion for a mistrial.

The defendant also claims as error the admission into evidence of a ten dollar bill and the white powder substance contained thereon. Evidence adduced at trial reasonably supports a finding of the following facts. Upon the defendant’s admission into the hospital, a nurse took from his person a ten dollar bill which was folded and contained a quantity of white powder later identified as cocaine. She turned the bill containing the substance over to the police who processed it through the regular procedures employed for the identification and preservation of evidence. The evidence adduced at trial supports a finding that the procedures employed by the police sufficiently tracked the course of the evidence through the various parties whose responsibility it was to identify, preserve and maintain the identity of the evidence, and were adequate to allow the admission of the evidence. Although there were some discrepancies in the testimony of the parties involved, they were reasonably resolved by the trial court in favor of the admissibility of the evidence. The ruling of the trial judge as to the admissibility of evidence cannot be disturbed on appeal except upon a showing of a clear abuse of judicial discretion. United States v. Von Roeder, 535 F.2d 1004, 1008 (10th Cir. 1979); State v. Piskorski, 177 Conn. 677, 697, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). A fair reading of the evidence fails to show a reasonable probability that the evidence had been changed in any important respect from its original condition. United States v. Albert, 595 F.2d 283, 290 (5th Cir. 1979); State v. Bruno, 1 Conn. App. 384, 388, 473 A.2d 311 (1984), aff'd, 197 Conn. 326, 497 A.2d 758 (1985).

The defendant’s next claim, that the trial court erred when it denied his motion for acquittal on the weapons charge, is not sustainable. General Statutes § 29-35 prohibits the carrying of a pistol without a permit. General Statutes § 29-27 defines a pistol as a firearm having a barrel of less than twelve inches in length. We agree with the defendant that the state carries the burden of proving that the pistol, attributed to him, meets the statutory definition. State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977). The state must prove each element of the offense beyond a reasonable doubt. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984); State v. DelVecchio, 191 Conn. 412, 419, 464 A.2d 813 (1984). We agree with the trial court that there was sufficient evidence before the jury to support their finding that the weapon involved was a pistol. The definition was read to the jury, they had the actual weapon before them as a full exhibit, and they had the opportunity to examine it during their deliberation. The defendant’s reliance an State v. Brown, supra, is unwarranted. In Brown, the gun in question was not in evidence. Such is not the case here. In this case, the jury had the exhibit and the applicable law to reach a conclusion. Although the state did not hold the gun in one hand and a ruler against it as proof of the length of the barrel, the weapon itself was sufficient evidence from which the jury could draw its own conclusion as to the length of the barrel. “ ‘When a verdict is challenged because of insufficiency of the evidence, the issue is whether the [trier] could reasonably have concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). “ ‘Jurors are not “expected to lay aside matters of common knowledge or their own observation and experience or the affairs of life, but on the contrary, are to apply them to the evidence of facts in hand, to the end that their action may be intelligent and their conclusions correct.” ’ ” State v. Scielzo, 190 Conn. 191, 198 n.ll, 460 A.2d 951 (1983). The jury is not an empty vessel that must be programmed with every aspect and nuance of the issues it is called upon to resolve. It is an entity composed of thinking, feeling individuals endowed with varying degrees of intelligence, experience, insight, perceptiveness, analytical skills and common sense who are called upon to apply these attributes to the evidence adduced in court and come to a collective conclusion as to disputed issues. Under the facts and circumstances in this case, we can find nothing to support the defendant’s contention that there was insufficient evidence to support the verdict.

The defendant’s final claim of error, that the court committed reversible error in its pronouncement of a total effective sentence for the defendant, is wholly without merit. The court sentenced the defendant to one year on the weapons count and to not less than two nor more than four years on the drug count, the second sentence to run consecutive to the weapons count, for a total effective sentence of not less than three nor more than five years. Mathematically, that is the exact sentence which the defendant is to serve. General Statutes § 53a-37 gives the trial court authority to pronounce consecutive sentences. Green v. Warden, 178 Conn. 634, 639, 425 A.2d 128 (1979). The court deemed consecutive sentencing to be an appropriate disposition in this case and stated it in clear and unambiguous terms. Counsel attempts to read problems which have no existence in fact into the sentence as pronounced. An objective analysis of the sentence informs the impartial observer clearly that the defendant is to serve one year of incarceration on one count, and, upon termination of that sentence, he is to begin serving a sentence of not less than two nor more than four years on the other count. When the first sentence ends, the second one begins. The two sentences, added together as consecutive sentences, come to not less than three nor more than five years. The court’s pronouncement of sentence was proper.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1979) § 19-481 (a) is now § 21a-279 (a).

       General Statutes § 53a-119 defines various types of larceny. Subsection (5) defines “extortion” and in pertinent part provides: “A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future . . . . ”