author: Dupont, C. J. Foti, J.,

text:
    State of Connecticut v. Timothy James Durkin
    (8675)
    Dupont, C. J., Foti and Lavery, Js.

      Argued September 25
    decision released December 18, 1990

      Sigmund L. Miller, with whom, on the brief, was George P. D’Amico, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard Palombo, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

This appeal arises from a judgment of revocation of probation after a hearing held pursuant to General Statutes § 53a-32. The basic issue to be resolved is whether the defendant’s rights to due process were violated when the court, after the presentation of the state’s case in his presence, revoked his probation and sentenced him in his absence. We conclude that, on the facts of this case, his rights were violated.

The facts are not in dispute. The defendant was originally sentenced on January 5, 1989, to a term of five years, execution suspended, with three years probation, following a conviction for possession of narcotics. The special terms of his probation required the defendant to remain drug free, receive drug evaluation and treatment, and to hold a full-time job. He was also bound by the standard conditions of probation which, among other things, required him to keep his probation officer notified of his whereabouts and to request permission before leaving the state. The defendant signed a form indicating that he understood the terms and conditions of his probation.

In order to demonstrate his compliance with the condition of probation that he remain drug free, the defendant had to undergo drug testing at random intervals. On three occasions in the spring and early summer of 1989, the defendant’s tests were positive. The defendant was terminated from his required treatment program because of another positive test and his subsequent failure to attend a scheduled appointment at the treatment agency. As a result of these alleged violations of the special conditions of his probation, the defendant’s probation officer obtained a warrant for his arrest, pursuant to General Statutes § 53a-32. After his arrest, the defendant was released on a written promise to appear.

The state presented its case at a violation of probation hearing held on the morning of September 20, 1989. At the close of the state’s case, the court continued the hearing until October 11, 1989, at the request of the defendant’s counsel so that the counsel could take care of other business. The defendant indicated that he intended to present mitigating evidence at the continued hearing.

The defendant failed to appear at the October 11, 1989 hearing. His counsel stated that between the dates of the first and second hearing the defendant had been sentenced and incarcerated in either North or South Carolina on an unrelated matter. The defendant’s counsel also informed the court that his client had another criminal matter pending in Connecticut, and that he believed that the defendant would seek to return to Connecticut under the Interstate Agreement on Detainers (IAD), General Statutes § 54-186.

Following these representations, the state requested that the hearing proceed in the defendant’s absence because the defendant had voluntarily left the jurisdiction. The court, however, continued the proceedings for one week to give the parties an opportunity to research applicable law.

At the October 18, 1989 hearing, the defendant’s counsel, in the absence of the defendant and without written proof of the defendant’s whereabouts for the record, moved to withdraw his representation. He claimed to be unable to present mitigating evidence or otherwise to assist the defendant. According to counsel, the defendant had planned to testify. The court denied the motion to withdraw. The defendant’s counsel then repeated his representation that the defendant was involuntarily absent because he was serving a five year sentence in South Carolina, although he still claimed no knowledge of the exact circumstances surrounding the defendant’s presence in South Carolina or his incarceration. The trial court, while not doubting counsel’s veracity, noted that “the only thing I have before me of record is that [the defendant is] not here two weeks running.”

The state then moved again to proceed in the defendant’s absence, noting that it is well settled that criminal trials may proceed without a defendant when the defendant absconds after the trial has begun. The court agreed that it was proper to proceed because it concluded that the defendant’s South Carolina arrest and conviction were a result of the defendant’s “own conduct and behavior,” and that the defendant, by his absence, had elected not to present any evidence. Over defense counsel’s objections, the court ordered the defendant’s rearrest, terminated his probation and imposed a sentence of five years, to run consecutive to the term imposed by South Carolina.

Following imposition of the sentence, the court continued the matter again to give the defendant’s counsel an opportunity to obtain a certified copy of the South Carolina conviction. A final hearing was held on November 20,1989, during which the certified copy of the South Carolina conviction, dated September 26, 1989, was produced for the record. The Connecticut court reiterated its belief that the defendant left this jurisdiction deliberately and wilfully. The court pointed to a notation on the South Carolina conviction, which read “I request drug counseling if possible. I would like this sentence to be concurrent with any revocation in Connecticut if possible,” as an indication that the defendant was well aware of the ramifications of his actions in leaving Connecticut. The defendant’s counsel then moved orally to have the judgment opened and a mistrial declared. The trial court refused to rule on these motions.

It is well settled that a probationer has a liberty interest in his conditional freedom that is entitled to the protections of due process. Black v. Romano, 471 U.S. 606, 611-12,105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985); Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973); State v. Smith, 207 Conn. 152, 166, 540 A.2d 679 (1988); State v. Baxter, 19 Conn. App. 304, 310-12, 563 A.2d 721 (1989). At a minimum, due process requirements for revocation of probation include written notice of the claimed violation of probation, disclosure to the probationer of the evidence against him, the opportunity to be heard in person and to present witnesses and documentary evidence, the right to cross-examine adverse witnesses in most instances, a neutral hearing body and a written statement as to the evidence and reasons for probation revocation. State v. Baxter, supra.

It is clear that “a revocation of probation and an order for execution of sentence may be ordered only after a full hearing at which the defendant is afforded his rights to counsel, to cross-examine witnesses and to present evidence in his own behalf. General Statutes § 53a-32; see Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 [1967].” State v. Roberson, 165 Conn. 73, 81-82, 327 A.2d 556 (1973). Furthermore, Practice Book § 943, which governs the procedure of revocation hearings, instructs that such proceedings shall be held pursuant to Practice Book §§ 634 and 660. In turn, these latter sections relate to arraignment and the conditions of release of defendants. Thus, under § 943 probationers upon their arrests are given “all of the rights accorded other persons initially charged with a crime”; State v. Baxter, supra, 311 n.7; including the right to be present at all critical stages of trial and sentencing. See State v. Gonzalez, 205 Conn. 673, 689, 535 A.2d 345 (1987); State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987).

The right to be present is especially critical where, as here, the defendant’s presence bears a substantial relationship to his opportunity to defend. State v. Simino, 200 Conn. 113,125-26, 509 A.2d 1039 (1986). Like other personal rights of constitutional dimension, however, the right to be present is subject to waiver. Diaz v. United States, 223 U.S. 442, 455-58, 32 S. Ct. 250, 56 L. Ed. 500 (1912); United States v. Fontanez, 878 F.2d 33, 35 (2d Cir. 1989); Taiton v. Warden, 171 Conn. 378, 384, 370 A.2d 965 (1976). Thus, the controlling issue in this case is whether the defendant knowingly and voluntarily waived his right to be present.

Waiver of the right to be present need not be express, but rather may be inferred from the totality of the defendant’s acts and conduct. State v. Gonzalez, supra. Conduct held to imply waiver includes a defendant’s ant’s disruptive behavior at trial; Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); State v. Gonzalez, supra; jumping bail; Taylor v. United States, 414 U.S. 17, 19-20, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973); failure to appear for trial; United States v. Tortora, 464 F.2d 1202,1208 (2d Cir.), cert. denied sub nom. Santora v. United States, 409 U.S. 1063, 93 S. Ct. 554, 34 L. Ed. 2d 516 (1972); deliberate absence from trial once it has begun in his presence; State v. Simino, supra, 131-32; State v. Parham, 174 Conn. 500, 505, 391 A.2d 148 (1978); and deliberate absence from a sentencing hearing. Tyler v. Bronson, 12 Conn. App. 621, 622, 533 A.2d 570 (1987), cert. denied, 207 Conn. 802, 540 A.2d 75 (1988).

The question in this case is whether a defendant in custody in another state can be deemed to have waived his right to be present. The question has been answered in dictum in the negative. See Diaz v. United States, supra, 455. “[A]n accused who is in custody . . . [is] incapable of waiving the right . . . .” Id. While refusing to fashion this dictum into a per se rule, the Second Circuit Court of Appeals has applied the principle. in several more recent cases to hold that the trial court incorrectly inferred voluntary waiver when a defendant was absent due to a subsequent arrest on an unrelated matter. United States v. Fontanez, supra, 36; United States v. Crutcher, 405 F.2d 239, 243 (2d Cir. 1968). We find the reasoning of the Second Circuit persuasive on this issue.

Crutcher is particularly instructive. In that case, the defendant was arrested in New Jersey on unrelated charges two days before his trial was to begin in New Haven. The defendant gave a false name to the New Jersey authorities, which caused a delay in his return to Connecticut. The jury was impaneled in his absence. Although the government argued on appeal that the defendant voluntarily waived his right to be present by using a false name, the Second Circuit held that the defendant’s actions “under the circumstances, could hardly constitute either a knowing or a voluntary waiver” of his right to be present at a critical stage of his trial. United States v. Crutcher, supra.

The facts in this case present a stronger basis for the conclusion that the defendant was absent involuntarily from the hearing. There is nothing in the record to indicate that the defendant engaged in the sort of deception practiced by the defendant in Crutcher to avoid his legal responsibilities. The defendant “bears the burden of justifying his absence from a known proceeding against him.” United States v. Sanchez, 790 F.2d 245, 249 (2d Cir. 1986). Here, the defendant’s counsel offered the fact that his client was incarcerated in another state. While the trial court also correctly noted that there was no evidence to explain whether the defendant’s absence was intentional or unintentional, in the absence of such evidence to the contrary, the court was not justified in finding waiver. “[A] waiver of a fundamental constitutional right is not to be presumed from a silent record.” State v. Shockley, 188 Conn. 697, 707, 453 A.2d 441 (1982); see also State v. Smith, 18 Conn. App. 368, 373-74, 558 A.2d 257 (1989). Under these circumstances, we conclude that the trial court was incorrect in finding that the defendant voluntarily waived his right to be present at the violation of probation hearing.

This court may also consider whether the trial court correctly balanced the interest of the state in obtaining an efficient resolution of criminal matters against the defendant’s right to due process. The federal courts use a balancing test first enunciated by the Second Circuit Court of Appeals in United States v. Tortora, supra, 1210. This test requires that the trial court weigh the likelihood that the trial could soon take place with the defendant present against the difficulty of rescheduling, particularly in multiple defendant trials, and other burdens on the prosecution and its witnesses. Id. In State v. Drakeford, supra, 80, the Connecticut Supreme Court declined to adopt this test verbatim. It did, however, consider the defendant’s ability “unilaterally to prevent his case from going forward” within the entire context of the trial. We use the same approach here.

Under these circumstances, the state was in no danger of losing the defendant. He was not only securely in custody in another state, but, according to his attorney, was ready to exercise his rights under Article III of the IAD to return to Connecticut to face other pending criminal charges in the same judicial district in which the revocation hearing was held.

The state was also in little danger of losing its evidence against the defendant, and could have resumed the violation of probation hearing on the defendant’s return. The defendant could not move on his own behalf, however, for a speedy resolution of the violation of probation hearing under the IAD because pending violation of probation hearings are not considered “untried indictments, informations, or complaints” for the purposes of Article III. Carchman v. Nash, 473 U.S. 716, 725, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985). He could so move for a resolution of the pending criminal matter, however, and presumably both matters could have been heard upon his return to Connecticut. In addition, the state could have lodged a detainer against the defendant on the violation of probation charges, pursuant to Article IV of the IAD, which is not affected by the holding in Carchman. Id., 727; see Wheway v. Warden, 215 Conn. 418, 576 A.2d 494 (1990). Thus, the state was, at worst, inconvenienced by the defendant’s absence, whereas the defendant lost all opportunity to be heard and present a defense when the court decided to proceed in his absence. On these facts, we hold that the trial court abused its discretion in holding the hearing and sentencing the defendant without the defendant’s presence.

Having decided that the trial court should not have continued the hearing in the defendant’s absence, our final task is to decide whether this action was harmless. United States v. Fontanez, supra. The ultimate question thus becomes whether the trial court’s erroneous action affected the result of the hearing. Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982). The state had substantial evidence that the defendant had violated his probation by using drugs. No matter how.substantial the state’s evidence, however, the defendant had the right to offer evidence that could result in the revocation or continuance of probation, with enlarged or modified conditions of probation, or the imposition of a lesser sentence than that originally imposed. General Statutes § 53a-32 (b); State v. Roberson, supra. Where the only evidence in mitigation was to be put forth through the mouth of the defendant, we must conclude that his absence affected the outcome, and that the state has not met its burden of demonstrating that the court’s action was “harmless beyond a reasonable doubt.” State v. McIver, 201 Conn. 559, 564, 518 A.2d 1368 (1986).

The judgment of violation of probation and the imposition of the sentence is reversed and the case is remanded for a new hearing.

In this opinion Lavery, J., concurred.

Foti, J.,

dissenting. I must respectfully disagree with the view of the majority. Although I agree that the controlling issue in this case is whether the defendant effectively waived his right to be present at his probation hearing, the facts in this case compel me to conclude that the defendant waived that right by voluntarily leaving Connecticut.

An effective waiver presupposes full knowledge of the right or privilege waived and a knowing or purposeful act done to relinquish it. State v. Ramos, 201 Conn. 598, 603, 519 A.2d 9 (1986). The question of waiver must be determined by the particular facts and circumstances that surround the case. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). There is no question that the defendant had full knowledge of his right to be present at the revocation of probation hearing. The only question is whether the court abused its discretion in proceeding to complete the hearing absent the defendant, having found a waiver of that presence by his voluntarily leaving the state.

As the majority has stated, waiver of the right to be present need not be express, but rather may be inferred from the totality of the defendant’s acts and conduct. The issue of determining whether a waiver took place is ultimately factual; State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); but a reviewing court must scrupulously examine the record to ascertain whether such a factual finding of a waiver is supported by substantial evidence. State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089,103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983). In considering the validity of a waiver, we must look to the totality of the circumstances surrounding the claimed waiver. State v. Whitaker, 215 Conn. 739, 760, 578 A.2d 1031 (1990).

Although most individuals have the right to leave Connecticut as they please, the defendant had no such right because he was on probation in this state. The defendant was charged with violating a special condition of his probation — to remain drug free. In addition to that and other special conditions, the defendant, like all others placed on probation, also received general conditions of probation in writing. The defendant indicated to his probation officer that he understood the conditions of his probation, both special and general, and he signed the written conditions of probation. Those written conditions of probation were before the court as a state’s exhibit. One of the general conditions prohibited the defendant from leaving the state of Connecticut without permission. The court was also aware that the defendant did not' have permission from the probation department to leave the state of Connecticut.

Because the state did not charge the defendant with a violation of that general condition of probation, it was under no burden to prove that the defendant had left the state voluntarily. Conversely, it was the defendant who would have to carry this burden. Because of the defendant’s admission that he left Connecticut, he would have to show that his departure was involuntary, such as that effected by a bail bondsman, in order to succeed on a motion for mistrial or continuance. The defendant never claimed that he was forced to leave Connecticut. The trial court, therefore, could have reasonably inferred, as the defendant conceded at oral argument, that he voluntarily left the state.

Under the particular circumstances of this case, his voluntary departure constituted a waiver of his right to be present for the completion of his hearing. The defendant was afforded written notice of the alleged probation violation and a hearing in which he participated. He heard the state’s evidence and was given the opportunity to present evidence on his own behalf including his own testimony. He was aware that he was not free to leave the state without his probation officer’s approval. He was also aware that his probation revocation hearing was being continued at his request until October 11, 1989, so that he might present his defense. He knew that by entering a plea in South Carolina he would be sentenced and not be able to return to Connecticut to complete his hearing on October 11, 1989. He was not in custody either in Connecticut or in South Carolina prior to the plea.

Although it may be true that the defendant intended to return to Connecticut to complete his hearing when he left, the court was correct in finding that the defendant’s statutory and constitutional rights were not violated, because the defendant, by his actions, had waived his right to be present.

The defendant himself created the circumstances that led to his incarceration in South Carolina by voluntarily leaving the state of Connecticut during the pendency of the hearing, knowing this constituted a violation of a general condition of his probation. This is not a case where the defendant was absent because of a subsequent arrest that caused him to be incapable of knowingly and voluntarily waiving his right to be present, but rather one where the defendant’s own voluntary act of improperly leaving the state, followed by his voluntary entering of a plea in another state caused him to lose the opportunity to be heard and present a defense in a matter that had already commenced.

Under these circumstances I cannot find, as the majority has found, that the trial court abused its discretion in proceeding to complete the hearing without the defendant’s presence.

For the foregoing reasons, I respectfully dissent.

       General Statutes § 53a-32 provides: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. . . . Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       Practice Book § 943 provides: “In cases where the revocation of probation is based upon a conviction for a new offense and the defendant is before the court or is being held in custody pursuant to that conviction, the revocation proceeding may be initiated by a motion to the court by a probation officer and a copy thereof shall be delivered personally to the defendant. All other proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of his probation or his conditional discharge or by a written notice to appear to answer to the charge of such violation, which notice, signed by a judge of the superior court, shall be personally served upon the defendant by a probation officer and contain a statement of the alleged violation. All proceedings thereafter shall be in accordance with the provisions of Secs. 634 and 660. At the revocation hearing, the prosecuting authority and the defendant may offer evidence and cross-examine witnesses. If the defendant admits the violation or the judicial authority finds from the evidence that he committed the violation, the judicial authority may make any disposition authorized by law.”

       In United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), the court relied upon not only the constitutional right of a defendant to be present but Rule 43 of the Federal Rules of Criminal Procedure. Our Practice Book § 967 is a derivation of the federal rule; 4 L. Orland, Connecticut Practice Book Annot. (1986) § 967; and provides a defendant with the right to be present at trial.

       The certified conviction from South Carolina showed that the defendant was sentenced to “five years hard labor on the public works of Dillon County.” The defendant’s counsel later represented that the defendant had been presented, the day he appeared in South Carolina, with the choice of pleading guilty and accepting a five year sentence or facing trial and a much longer term. While this was not a fact before the trial court, there was enough on the record to show that this was not a classic case of an unexplained absence from trial, where, it can be presumed, the defendant flees to avoid punishment or to change the course of proceedings in his favor. See, e.g., United States v. Tortora, 464 F.2d 1202 (2d Cir. 1972).

       General Statutes § 54-186 Article III provides in relevant part: “(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of the imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.”

       The defendant also received a copy of those conditions.

       The defendant, at his sentencing in South Carolina, requested that his sentence there be imposed to run concurrently with the sentence he would be receiving on his probation revocation hearing. While this was not a fact before the trial court, it shows that the defendant was aware and expected that the revocation hearing would be proceeding without his presence. The majority states that “there was enough on the record to show this was not a classic case of an unexplained absence from trial, where, it can be presumed the defendant flees to avoid punishment or to change the course of proceedings in his favor.” The only true issue is waiver; the state has never claimed that the defendant fled to avoid prosecution, nor is that a prerequisite to waiver.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Peter A. Kelly v. Michael Dearington et al.
    (8931)
    Dupont, C. J., Foti and Lavery, Js.
    Argued September 25
    decision released December 25, 1990

      Peter A. Kelly, the appellant (plaintiff).

      Julia DiCocco Dewey, with whom, on the brief, were John J. Kelly, chief state’s attorney, and Michael Dearington, state’s attorney, for the appellees (defendants).
   Dupont, C. J.

The dispositive issue of this appeal is whether the plaintiff had standing to obtain the relief sought in his complaint.

The parties stipulated to certain facts. The plaintiff, an attorney, was assigned to represent David Mooney, who was facing criminal charges in the New Haven Superior Court. Before the trial, the plaintiff presented an application for an arrest warrant drafted by him, to the defendant Michael Dearington, the state’s attorney for New Haven. The application sought the arrest, on perjury charges, of Mark Allen, a codefendant of Mooney. Allen was also to be the state’s key witness in the prosecution of Mooney. The defendant Dearington returned the application to the plaintiff, citing the plaintiff’s partiality and the lack of an adequate investigation for an arrest warrant application by an impartial agency, such as a police department. The plaintiff, because of the defendant Dearington’s alleged conflict of interest, then forwarded the application to the defendant John Kelly, the chief state’s attorney, requesting that he act on the application. Kelly also returned the application to the plaintiff, and advised him in writing that he found no evidence of a conflict of interest on the part of Dearington. Kelly also stated that Dearington had not abused his discretion by failing to initiate a prosecution, and that the plaintiff’s application and affidavit were insufficient to sustain probable cause for an arrest.

The plaintiff sought a writ of mandamus from the trial court to order Kelly to submit the application for the arrest warrant to another prosecuting authority for a fair and impartial review. In the alternative, the plaintiff sought the appointment by the trial court of a special prosecutor to determine whether the application evidenced probable cause to believe a crime had been committed. The trial court denied the relief of mandamus on the grounds that neither of the two defendants had a clear legal duty to perform the action sought by the plaintiff, and that the plaintiff had no clear legal right to a performance by the defendants of the action sought. Additionally, the trial court concluded that the plaintiff failed to prove he had any equitable, compelling, or constitutional right to any other relief.

The plaintiff raises two claims on appeal. First, he challenges the trial court’s finding that the application for the arrest warrant was reviewed by Kelly. Second, he disputes the court’s conclusion that Dearington had no conflict of interest. The plaintiff, therefore, does not claim on appeal, as he did in the trial court, that he was entitled to the appointment by the trial court of a special prosecutor to determine whether the warrant application established probable cause to believe that a crime had been committed.

The defendants contend that a prosecutor’s discretionary functions include the act of reviewing an application for an arrest warrant, and that, therefore, a prosecutor cannot be forced to review an application. The defendants further argue that, even if the review of the application were not discretionary, the application was in fact reviewed by Kelly.

Before reaching the merits of the plaintiff’s claims, we must decide whether the plaintiff has standing to pursue the relief sought in his complaint because the issue of standing implicates this court’s, subject matter jurisdiction and “must be addressed” even if not raised at trial or upon appeal. Planning & Zoning Commission v. Gaal, 9 Conn. App. 538, 542, 520 A.2d 246, cert. denied, 203 Conn. 803, 522 A.2d 294 (1987). The plaintiff here mounts a challenge to prosecutorial inaction, as opposed to prosecutorial selective action. The question here is whether the plaintiff, as counsel for a defendant in a related criminal case, has standing, in the absence of specific legislation, to force the review of an arrest warrant application.

Standing to pursue a particular action focuses on the party seeking to bring his complaint before the court and not on the issues that he raises. Id., 543. “When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable . . . . ” (Emphasis added.) Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 492, 400 A.2d 726 (1978).

To be entitled to invoke the judicial process, a party must haves suffered an aggrievement. Id. “The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, ‘the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.’ Nader v. Altermatt, 166 Conn. 43, 51,347 A.2d 89 [1974], and cases therein cited.” Mystic Marinelife Aquarium, Inc. v. Gill, supra, 493; see also Monroe v. Horwitch, 215 Conn. 469, 473, 576 A.2d 1280 (1990).

The United States Supreme Court in Linda R. S. v. Richard D., 410 U.S. 614, 615, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973), affirmed the lower court’s dismissal of the case for want of standing of a private citizen to bring suit to enjoin the “discriminatory application” of the Texas penal code. The court held that the plaintiff failed to make a sufficient showing of a direct nexus between the vindication of her interest, namely the receipt of child support payments, and the relief sought, namely the enforcement of the Texas criminal laws. The relief requested by that plaintiff would have resulted in the jailing of the child’s father but would not have given the plaintiff child support payments. Id., 618-19. The court stated that “a [private] citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Id., 619. That is because “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Id.; see also S. Green, “Private Challenges to Prosecutorial Inaction: A Model Declaratory Judgment Statute,” 97 Yale L. J. 488 (1988); note, “Reviewability of Prosecutorial Discretion: Failure to Prosecute,” 75 Colum. L. Rev. 130 (1975).

Several other courts have found that a private citizen plaintiff lacks standing to compel a prosecution. In Dohaish v. Tooley, 670 F.2d 934 (10th Cir.), cert. denied, 459 U.S. 826, 103 S. Ct. 60, 74 L. Ed. 2d 63 (1982), a father sought to compel the state’s attorney to prosecute a man who allegedly killed his son. The court dismissed for lack of standing, holding that an “ordinary citizen does not have a general interest justifying a lawsuit based on the criminal prosecution or non-prosecution of another.” Id., 937. The court further held that such a right is not recognized in the law and then reasoned that it would contravene public policy “to allow every private citizen to force the prosecutor to proceed with a case in pursuit of a private objective.” Id. A prosecutor swears to uphold the law generally and does not have a duty to enforce the law for the purpose of satisfying a third person who has no direct legal interest. Id.; see also Nader v. Saxbe, 497 F.2d 676, 680 (D.C. Cir. 1974); Pugach v. Klein, 193 F. Sup. 630, 635 (S.D.N.Y. 1961), cert. denied sub nom. Pugach v. New York, 374 U.S. 838, 83 S. Ct. 1890, 10 L. Ed. 2d 1059 (1963); cf. NAACP v. Levi, 418 F. Sup. 1109 (D.D.C. 1976).

Although courts recently have expanded the categories of injury that support standing, the fundamental requirement that the party seeking review must himself have suffered an injury has not been eliminated. Mystic Marinelife Aquarium, Inc. v. Gill, supra. In the present case, the plaintiff, as a private citizen and as counsel for Mooney, has not demonstrated a specific, personal and legal interest that has been specially and injuriously affected by Kelly’s alleged failure to review the arrest warrant application. Neither the plaintiff nor Mooney has suffered a judicially cognizable injury. Mooney himself has suffered, at best, an abstract and speculative injury because it cannot be known what impact the arrest of Allen for perjury would have had on Mooney’s trial.

Even if the plaintiff established the existence of an injury, this satisfies only half of the aggrievement test because a plaintiff must also show “a logical nexus between the status [injury] asserted and the claim sought to be adjudicated.” Flast v. Cohen, 392 U.S. 83, 102, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); see also Linda R. S. v. Richard D., supra, 618. Here, the plaintiff has made no showing that Kelly’s alleged failure to review the arrest warrant application would deprive Mooney of ammunition to attack the credibility of Allen during Mooney’s trial. In this case, the direct nexus between the alleged injury and the relief sought is absent.

We conclude that the plaintiff lacks standing.

The appeal is dismissed.

In this opinion the other judges concurred.

       The trial of David Mooney had been assigned to an assistant state’s attorney in the state’s attorney’s office for New Haven.

       The defendants in this decision are referred to as Dearington and Kelly. The plaintiff, P§ter Kelly, is referred to as the plaintiff.

       Although we need not reach this issue, it is problematic whether the trial court has the power to grant the relief requested because of the separation of powers doctrine. The constitution of Connecticut, amendment twenty-three, vests the prosecutorial power exclusively in the executive branch and specifically with the chief state’s attorney and the state’s attorney for each judicial district. Thus, the courts may lack the power to oversee and direct the prosecutorial process. Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973); Newman v. United States, 382 F.2d 479, 481, 482 n.9 (D.C. Cir. 1967); United States v. Cox, 342 F.2d 167,171 (5th Cir), cert. denied sub nom. Cox v. Hauberg, 381 U.S. 935, 85 S. Ct. 1767,14 L. Ed. 2d 700 (1965); see also Note, “Reviewability of Prosecutorial Discretion: Failure to Prosecute,” 75 Colum. L. Rev. 130 (1975).

       A claim of prosecutorial misconduct arising out of selective enforcement of laws directly concerns the target of the enforcement, thereby giving him standing to complain. State v. Anonymous (1980-7), 36 Conn. Sup. 338, 340, 420 A.2d 910 (1980).

       Legislative bodies have enacted some statutes providing citizens with specific recourse in the event of judicial or administrative inaction. See H. Brill, “The Citizen’s Relief Against Inactive Federal Officials: Case Studies in Mandamus, Actions ‘In the Nature of Mandamus,’ and Mandatory Injunctions,” 16 Akron L. Rev. 339 (1983). For example, in Connecticut, a victim of a family violence incident has the right, pursuant to General Statutes § 46b-38b (d), to file an affidavit or a warrant'for the arrest of the actor in such an incident regardless of whether the peace officer investigating the incident determines that cause exists for an arrest. In the present case there is no statute that would provide the plaintiff with standing to pursue his cause of action.

       In his brief, the plaintiff describes the alleged injury and the effect of it as follows: “In order to convict Mooney, the jury would have to believe the testimony of Allen. And Allen’s credibility would have been seriously damaged, if not destroyed, had the state’s attorney sought a warrant for his arrest on perjury charges on the eve of trial — not to mention the chilling effect such action would have had on Allen’s willingness to testify against Mooney at all.”


author: Per Curiam.

text:
    State of Connecticut v. Kenneth Lash
    (8949)
    Daly, Foti and Cretella, Js.
    Argued December 4
    decision released December 25, 1990

      Patricia Buck Wolf, for the appellant (defendant).

      Margaret G. Radionovas, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from his conviction, after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-49 (a), and assault on a peace officer in violation of General Statutes § 53a-167c (a) (l). The defendant claims that the evidence presented at trial was insufficient to allow the jury to find him guilty beyond a reasonable doubt. We affirm the judgment of conviction.

The jury could reasonably have found the following facts. On February 25, 1987, at approximately 6:30 a.m., Robert McKenzie left his Madison home, located west of Hammonasset State Park, to depart for work. Before leaving, he warmed up both his and his wife’s cars. As he backed his wife’s car to the front of the house he observed a stranger running toward him from the garage area. The person had a beard and mustache and was wearing a quilted skimobile-type suit with a hood that covered most of his head.

This person, the defendant, had a wild erratic look and talked loudly, hollering at McKenzie accusing him of stealing the car. After a brief argument about the ownership of the car and a claim by the defendant that he owned United Technologies where McKenzie had stated he worked, the defendant came at him with karate moves, kicking McKenzie in the legs three times. He then stated he would get his .357 magnum and fix McKenzie. McKenzie followed the defendant as he headed toward the state park.

The police were called by McKenzie’s wife, and Officer Barnett Kukta approached McKenzie just as the defendant came back toward them. McKenzie identified the defendant and warned Kukta that he thought the defendant had a gun. When the defendant reached a distance approximately fifteen to twenty yards from Kukta, he raised the weapon and pointed it at Kukta. Before Kukta ducked after seeing the defendant assume a combat stance, he had observed the defendant with a full beard, dressed in a dark jump suit, holding a stainless steel weapon with a six or eight inch barrel. The windshield of the police cruiser shattered and Kukta was struck in the face and neck by glass and bullet fragments. Kukta radioed for help and backed up his vehicle as the defendant continued to advance toward him. At about this time, Officer Robert H. Dudley, Jr., arrived, and he and Kukta took cover behind their cruisers. The defendant, who was then approximately eighty yards from them, was told at least three times to drop his gun. The defendant continued to advance and raised the gun as if to fire. Both officers then fired at the defendant. Even after he was shot, the defendant continued to advance toward the officers. He then stumbled to his knees, stood up and limped away. The officers saw a trail of blood on the road but lost sight of the defendant.

More officers arrived and a search was begun. The defendant was seen heading through nearby sand dunes toward the officers and was apprehended. At the time of apprehension, he had a full beard and was wearing a hooded black jump suit. There was no one else in the area. The defendant was suffering from gunshot wounds and, despite the freezing temperature, was soaking wet from the shoulders down. He had in his possession two spent Winchester Western .357 magnum cartridges. A trail of blood was found between a creek and the dunes. The creek was located in an area between where the incident had begun and where the defendant had been apprehended, and a search of the creek resulted in the discovery of an operable Ruger .357 magnum with a six inch barrel. The creek was about chest deep where the gun was found. The shells found on the defendant fit the weapon found. A set of recent footprints that led up to and appeared to go into the water was seen on one side of the creek, located approximately across from where the gun had been found. In addition, the police discovered a camper belonging to the defendant in the area.

The defendant argues that the jury could not reasonably have concluded that he was the individual who had committed these crimes; that is, that the evidence with respect to his identification was insufficient to support the verdict.

“ ‘When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. ... We then determine whether “ ‘the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’”. . .’ ’’(Citations omitted.) State v. Carpenter, 214 Conn. 77, 78-79, 570 A.2d 203 (1990). “It is the ‘cumulative impact of a multitude of facts’ that establishes guilt. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984).” State v. Sherbacow, 21 Conn. App. 474, 480, 574 A.2d 817, cert. denied, 216 Conn. 808, 580 A.2d 65 (1990).

We must determine whether the jury could have logically reached its conclusion from the facts shown. If the jury is able to find guilt beyond a reasonable doubt without resorting to speculation, the conviction must stand. State v. Osman, 21 Conn. App. 299, 303, 573 ^ A.2d 743, rev’d on other grounds, 218 Conn. 432, 589 A.2d 1227 (1990). It is the province of the jury to weigh the evidence and resolve questions of credibility. State v. Cobbs, 203 Conn. 4, 6-7, 522 A.2d 1229 (1987).

The cumulative impact of the evidence in this case was sufficient to enable the jury to conclude beyond a reasonable doubt that the defendant was the participant in the shooting. Kukta identified him in court as the one who had shot at him and McKenzie and Dudley corroborated the identification. The evidence, if believed, would allow the identification to be based on trustworthy eyewitness evidence, rather than merely circumstantial evidence, and reaches the quantum of proof necessary to establish beyond a reasonable doubt that the defendant was the culprit.

The judgment is affirmed.

       The defendant was found not guilty of assault in the third degree in violation of General Statutes § 53a-61 (a) (1).


author: Landau, J.

text:
    State of Connecticut v. John Cavanaugh
    (8421)
    Spallone, Norcott and Landau, Js.

      Argued October 4
    decision released December 25, 1990

      Kimball Haines Hunt, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom were JohnM. Bailey, state’s attorney, and, on the brief, John Malone, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, after a jury trial, of four separate counts in a substituted information of the crimes of (1) sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), (2) sale of a narcotic substance in violation of General Statutes § 21a-277 (a), (3) conspiracy to sell a narcotic substance in violation of General Statutes §§ 53a-48 (a) and 21a-277 (a), and (4) possession of a narcotic substance in violation of General Statutes § 21a-279 (a). The defendant claims that the convictions should be reversed for the following reasons: (1) the court incorrectly failed to consider Wharton’s Rule and thus improperly denied the defendant’s motion to strike the third count of the substituted information and improperly denied the defendant’s motion for judgment of acquittal on the same count because of insufficient evidence, and (2) the court failed to grant the defendant’s motion to sever his trial from that of his codefendant. At oral argument before this court, both parties questioned the trial court’s acceptance of the jury verdict of guilty of the second count, sale of a narcotic substance in violation of § 2 la-277 (a), in view of the defendant’s conviction on the first count, sale of a narcotic substance by a person who is not drug-dependent in violation of § 21a-278 (b). We affirm the trial court’s judgment as to counts one, three and four, and reverse its judgment as to count two.

The defendant’s trial was consolidated with the trial of Veronica Hart on charges similar to those against the defendant. The jury could reasonably have found the following facts. The defendant was a bouncer at 190 East, a bar known to the Enfield police department for extensive drug trafficking. The codefendant, Hart, was a regular patron at the bar. On October 23, 1986, as part of an undercover operation, Officers Steven Cahill and Paul Vanderheiden, members of the statewide narcotics task force, entered the bar to purchase drugs. After Cahill spread the word that he was interested in purchasing drugs, Hart approached him and told him that she had heard that he wanted some cocaine, and offered to split a gram with him. Hart told Cahill that she needed $50 in cash up front, and that she was going to obtain the cocaine from “John, the big guy at the door.” As she said this, Hart gestured towards the defendant. As soon as Cahill handed her the cash, she approached the defendant and gave him the money. The defendant put the money in his pocket and gave Hart a packet of cocaine. Hart returned to Cahill and they went outside together and got into Cahill’s car to divide the cocaine. When they returned to the bar, Cahill thanked the defendant who did not respond.

I

A

The defendant, on the basis of Wharton’s Rule, seeks the reversal of the third count of the substituted information charging him with conspiracy to sell a narcotic substance in violation of General Statutes §§ 53a-48 and 21a-277 (a).

A person is guilty of conspiracy when “with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” General Statutes § 53a-48 (a). “[T]he essence of [conspiracy] is an agreement to commit an unlawful act. . . . The prohibition of conspiracy is directed not at the unlawful object, but at the process of agreeing to pursue that object.” State v. Beceia, 199 Conn. 1, 3, 505 A.2d 683 (1986), quoting United States v. Simms, 508 F. Sup. 1188, 1196 (W.D. La. 1980). Conspiracy thus requires a showing that two or more coconspirators intended to engage in or cause conduct that constitutes a crime. State v. Grullon, 212 Conn. 195,199, 562 A.2d 481 (1989). A defendant cannot be guilty of conspiracy if the only other member of the alleged conspiracy lacks any criminal intent. Id.

In this case, the state charged the defendant and Hart with conspiring to distribute, sell or otherwise dispense a narcotic substance in violation of General Statutes § 21a-277 (a).

The defendant’s claim that Wharton’s Rule applies in this case misconstrues the application of that rule. Wharton’s Rule is described in Wharton’s criminal law treatise as follows: “An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.” 1 R. Anderson, Wharton’s Criminal Law and Procedure (1957) § 89, p. 191.

Before Wharton’s Rule can be applied, the defendant must show that his offense requires the active, culpable participation of two people. Iannelli v. United States, 420 U.S. 770, 785, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975); State v. Baker, 195 Conn. 598, 607, 489 A.2d 1041 (1985). “The classic Wharton’s Rule offenses — adultery, incest, bigamy, duelling — are crimes that are characterized by the general congruence of the agreement and the completed substantive offense. The parties to the agreement are the only persons who participate in commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than on society at large.” Iannelli v. United States, supra, 782; State v. Acklin, 171 Conn. 105, 117-18, 368 A.2d 212 (1976).

The substantive offense with which the defendant is charged is sale of a narcotic substance. A sale is “any form of delivery which includes barter, exchange or gift, or offer therefor . . . .” General Statutes § 21a-240 (50). It is clear from the language of the statute that the sale of a narcotic substance does not require the participation of two persons. Rather, it is the doing of the prohibited act, i.e., sale of prohibited substances, that constitutes a violation of the statutory crime. State v. Husser, 161 Conn. 513, 515, 290 A.2d 336 (1971); see State v. McClary, 207 Conn. 233, 240, 541 A.2d 96 (1988). It is necessary only that the seller have a culpable intent. State v. McClary, supra.

The fact that two persons acted together to commit the crime does not in and of itself implicate Wharton’s Rule because two persons need not act together for the commission of the underlying crime. See State v. DeMartin, 171 Conn. 524, 530-33, 370 A.2d 1038 (1976); State v. Acklin, supra, 116-19. The sale of narcotics is not a crime that necessarily requires the participation of two culpable persons for its commission and therefore Wharton’s Rule, by its own terms, is not applicable. “Wharton’s Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents. In such cases, a closer relationship exists between the conspiracy and the substantive offense because both require collective criminal activity.” Iannelli v. United States, supra, 785-86.

B

The defendant’s next claim is that there was insufficient evidence to support his conviction on the charge of conspiracy. He contends that the jury was given insufficient evidence to support a finding that the defendant intended to sell the contraband to anyone other than Hart. A review of the evidence adduced at trial confirms that there was substantial evidence to support the jury’s verdict of guilty of conspiracy to sell narcotics.

The standard of review in an insufficiency claim is that the reviewing court must first review the evidence presented at trial in the light most favorable to sustaining the jury’s verdict. We must then determine whether, on the facts 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. Foreshaw, 214 Conn. 540, 550, 572 A.2d 1006 (1990); State v. Callahan, 21 Conn. App. 654, 657, 575 A.2d 704, cert. denied, 216 Conn. 803, 577 A.2d 716 (1990).

As discussed above, conspiracy requires a showing that two or more coconspirators intended to engage in or cause conduct that constitutes a crime. State v. Grullon, supra. The jury heard evidence that Officer Cahill entered the 190 East Bar and let it be known that he wanted to purchase narcotics. Cahill testified that shortly thereafter Hart approached him and said that she had heard he was interested in purchasing narcotics. The officer related that Hart told him she would “get the drugs from John” while gesturing toward the defendant. As soon as the officer gave her the money, he saw Hart approach the defendant and hand over the cash. Cahill also saw the defendant give Hart a “snowfold” of cocaine. Hart immediately returned to Cahill with the cocaine and they stepped outside to split the packet. Cahill also testified that when he reentered the bar and passed the defendant, Cahill said to the defendant, “Thanks very much,” but the defendant made no reply.

From this evidence, the jury could have reasonably and logically inferred that the defendant and Hart had agreed to work in concert to commit the crime of selling narcotics. Hart’s statements could indicate that the defendant was her supplier. Hart’s actions in immediately going to the defendant, and turning the cash over to him, further support the jury’s conclusion that they were partners in this crime. The jury heard testimony that the defendant handed her a cocaine packet, which she promptly delivered to the officer, and further testimony that the defendant did not respond to the officer’s words of thanks. From this, the jury could reasonably have concluded that the defendant was in fact the source of the drug that the officer had just purchased. His silence also suggests that he was aware that a third party, rather than Hart alone, was obtaining drugs from him.

The defendant’s own testimony indicated that he was stationed at the doorway of the bar and that his job required him to oversee all the activities in the bar. From this, the jury could have reasonably inferred that the codefendant’s transaction with the officer did not escape his notice. Furthermore, the quick, efficient exchange between the defendant and Hart permitted the jury to infer that this was one of many such transactions effected in the ordinary course of their drug deals. We conclude, therefore, that there was ample evidence before the jury from which they could reasonably have found that the defendant and Hart conspired to sell narcotics.

II

The defendant challenges the court’s denial of his motion to sever on three separate grounds. He claims that the denial prejudiced him because (1) it violated his right of confrontation under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed, 2d 476 (1968), (2) the codefendant’s drug dependency defense was antagonistic to his own defense, and (3) manifest injustice resulted from the joint trial.

In general, persons who are charged under a joint information are tried together. Separate trials are the exception, with the decision to sever resting in the discretion of the court. State v. DeWitt, 177 Conn. 637, 644, 419 A.2d 861 (1979). Only if it is shown that the trial court abused its discretion and that that abuse resulted in manifest prejudice to one or more of the defendants will the trial court’s decision not to sever be reversed. State v. Vinal, 198 Conn. 644, 649, 504 A.2d 1364 (1986).

First, the defendant argues that Hart’s statement to the undercover policeman that the defendant would give her cocaine was inadmissible hearsay and therefore violated his constitutional right of confrontation pursuant to Bruton v. United States, supra. In accordance with Bruton, a defendant’s constitutional rights are violated when a substantial risk exists that, despite instructions to the contrary, a jury could rely on a codefendant’s out-of-court admissions. Id., 137. Bruton is not applicable to the present case.

Under a well established exception to the hearsay rule, the admission of statements made by a coconspirator in furtherance of the conspiracy is deemed not to violate the confrontation clause. Dutton v. Evans, 400 U.S. 74, 81-82, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970); State v. Spencer, 198 Conn. 506, 513, 503 A.2d 1165 (1986).

The defendant’s claim is based on his coconspirator’s statement made while the conspiracy was ongoing and in furtherance of the conspiracy. Hart’s statement to the undercover officer that she could purchase the cocaine from “John, the big guy at the door,” was made clearly during the course of and in furtherance of the conspiracy to sell narcotics. Hart’s statement is thus admissible under an exception to the hearsay rule and its admission does not violate the confrontation clause. State v. Pelletier, 209 Conn. 564, 577, 552 A.2d 805 (1989); State v. Vessichio, 197 Conn. 644, 654-55, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986).

In addition, because the admission of Hart’s statement is not a Bruton violation but falls under an exception to the hearsay rule and relevant to both defendants, it would be admissible even if separate trials were ordered. “Where evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit.” (Emphasis in original.) State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).

Second, the defendant claims that his codefendant’s defense of drug dependency was antagonistic to his defense of non-drug-dependency and thus his motion to sever should have been granted.

When a defendant claims that the defenses are antagonistic, a reviewing court must scrutinize the strategies employed by each defendant, then determine whether the conflict between the defendants tainted the proceedings. State v. Vinal, supra; State v. Delarosa, 16 Conn. App. 18, 29, 547 A.2d 47 (1988). When two or more criminal defendants are scheduled to be tried together and one or more moves for severanee, separate trials “ ‘will be ordered where the defenses of the accused are antagonistic, or evidence will be introduced against one which will not be admissible against others, and it clearly appears that a joint trial will probably be prejudicial to the rights of one or more of the accused. The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded.’ ” State v. Vinal, supra, 648. Moreover, no abuse of discretion exists if “the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly.” State v. Pollitt, supra. The accused bears the burden of showing that any prejudice from joinder may be beyond the curative powers of the court’s instruction. State v. King, 187 Conn. 292, 300, 445 A.2d 901 (1982).

The defendant directs our attention to Hart’s testimony in support of her drug dependency defense to support his claim that this evidence tainted the jury’s opinion of his innocence. He argues that her witnesses’ testimony improperly infected the jurors’ minds and led them to find him guilty of drug involvement and further tainted his right to be presumed innocent because of his association with Hart. His argument is unpersuasive, however, as it fails to identify any evidence that would have been inadmissible if the trials had been severed or inculpatory statements that were present because of the joint trial. See State v. Varricchio, 176 Conn. 445, 450, 408 A.2d 239 (1979).

A review of the record shows that the defendant asked for and received limiting instructions on this issue. In addition, defense counsel pointed out to the jury during the testimony involving Hart’s drug dependency that the testimony applied only to Hart. Second, the defendant testified as to his previous conviction of four counts of drug violations. Finally, the jury’s verdict, i.e., guilty as persons who were not drug-dependent, against both defendants suggests that it did not believe that Hart was drug-dependent. Because her assertion of drug dependency was not deemed credible as to her, it certainly could not have had a prejudicial effect as to the defendant. Thus, the defendant’s contention as to an antagonistic defense is also without merit.

Third, the defendant makes a general claim that the drug dependency charge given to the jury concerning his codefendant caused him manifest injustice. The defendant did not raise this claim at trial. Relying upon State v. Luca, 19 Conn. App. 668, 563 A.2d 752 (1989), the defendant asserts that his unpreserved claim merits review under the “plain error” doctrine. Practice Book § 4185. Luca is not applicable because the defendant challenges a jury instruction that concerned Hart and not himself.

The trial court carefully distinguished the evidence presented on behalf of the two defendants both during the trial and in its jury charge. In its charge, the trial court clearly and incisively instructed the jury that no evidence was presented about drug dependency with respect to the defendant. Therefore, any error in the instruction pertaining to Hart would have no effect on the defendant. This unpreserved claim of error about an instruction clearly directed only to his codefendant is not reviewable under the “plain error” doctrine.

Ill

On the basis of his transaction with Hart on October 23, 1986, the defendant was charged with and found guilty of the sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and sale of a narcotic substance in violation of General Statutes § 21a-277 (a). On each of these counts, the defendant was sentenced to fifteen years incarceration, suspended after twelve years, and five years probation. These sentences were to run concurrently.

At oral argument before this court, for the first time, both parties questioned the appropriateness of the trial court’s acceptance of these findings by the jury. This court may, in the interest of justice, notice plain error that was not brought to the attention of the trial court pursuant to Practice Book § 4185. In re Jonathan P., 23 Conn. App. 207, 211, 579 A.2d 587 (1990). Where, as here, a reading of the statutes involved clearly indicates that a defendant cannot be sentenced under the circumstances of this case for a violation of both statutes, it is thus in the interest of justice that we review the claim under the plain error doctrine.

A violation of General Statutes § 21a-277 (a) is a lesser included offense of a violation of § 21a-278 (b). State v. Amaral, 179 Conn. 239, 243, 425 A.2d 1293 (1979); State v. McNeil, 21 Conn. App. 519, 523, 574 A.2d 1314 (1990). As such, proof of the greater offense includes all the elements of the lesser offense and double jeopardy attaches. State v. De Matteo, 13 Conn. App. 596, 602, 538 A.2d 1068 (1988). Double jeopardy therefore precludes the defendant’s being sentenced under both statutes. Both convictions, however, should stand and the conviction on the lesser offense should be “combined” with the conviction on the greater offense. State v. Chicane, 216 Conn. 699, 725, 584 A.2d 425 (1990). Accordingly, we remand to the trial court with direction to combine the defendant’s conviction under General Statutes § 21a-277 (a) with his conviction under General Statutes § 21a-278 (b) and to vacate the defendant’s sentence under § 21a-277 (a).

The judgment is reversed as to the sentence on the second count of the substituted information and the case is remanded with direction to vacate that sentence and to combine the convictions on the first and second counts. The judgment is affirmed as to the first, third and fourth counts.

In this opinion the other judges concurred.

       The codefendant, Hart, has filed a separate appeal that is also before this court.

       General Statutes § 21a-277 (a) provides in pertinent part: “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 controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter . . . shall be imprisoned ... or be both fined and imprisoned. . . .”

       Testimony reveals that a “snowfold” is a packet of white paper folded and used to hold cocaine.

       In State v. Luca, 19 Conn. App. 668, 672, 563 A.2d 752 (1989), the defendant, on appeal, successfully challenged a jury instruction under the plain error doctrine. The Luca court improperly instructed the jury that it had the duty to determine whether the defendant had introduced substantial evidence of drug dependence. This instruction caused the jury to consider two different standards of proof, as well as potentially shifting burdens of proof.

       The court stated: “Now, in connection with this possession with intent to sell by a non-drug-dependent person, you will recall that this seems to apply only to persons who are not drug-dependent, and that the information alleges that the defendant was not at the time of such transaction a drug-dependent person. Now, as this was also the allegation against the defendant John Cavanaugh and what this means is that if the defendant in this case — now I’m speaking of John Cavanaugh — introduces some evidence tending to prove his drug dependency at the time of the offense, the issue of his status as a person who was not drug-dependent becomes an essential element of the case which the state must prove beyond a reasonable doubt. However, where no such evidence of drug dependency has come into the case — and you will recall no such evidence was offered on behalf of John Cavanaugh — the state does not have the burden of proving non-drug-dependency. And, as I recall, there was no evidence offered in the course of this trial as to the defendant Cavanaugh’s drug dependency, and the defendant has made no such claim. You may properly assume, therefore, that the defendant Cavanaugh was not drug-dependent and, accordingly, the state would not have to be required to prove non-drug-dependency under the circumstances of that. In other words, possession with intent to sell by a non-drug-dependent person, the issue of drug dependence does not apply in the case of John Cavanaugh. He has not attempted to pursue an exemption.’’ (Emphasis added.)


author: Norcott, J.

text:
    Ann Lukstas et al. v. Saint Francis Hospital and Medical Center et al.
    (8614)
    Nokcott, Foti and Cretella, Js.

      Argued November 5
    decision released December 25, 1990

      Joseph E. Fazzano, with whom, was Andrew Dewey for the appellants (plaintiffs).

      Edward J. Daly, Jr., for the appellees (defendant Joseph Sadowski et al.).
   Norcott, J.

The plaintiffs in this medical malpractice action appeal from the judgment, rendered after a jury trial, in favor of the defendants Neurosurgical Associates, Inc., and Joseph Sadowski, a neurosurgeon. The plaintiffs challenge the trial court’s denial of their motion to set aside the verdict because (1) the court failed to find that juror misconduct resulted in probable prejudice to the plaintiffs and (2) the court improperly submitted interrogatories to the jury and repeatedly recharged the jury as to the standard of care.

The facts relevant to this appeal are as follows: On August 1, 1989, the trial court submitted the case to the jury together with eight interrogatories to which the plaintiffs duly excepted. During the following day’s deliberations, the jurors, evincing confusion, requested the testimony of three witnesses and asked that the court reinstruct them regarding the “standard of care,” “informed consent” and the interrogatories. The court overruled the plaintiffs’ objection to these inquiries and repeated the requested instructions. Later that same day, the jury asked for further clarification of the “standard of care” instruction alone.

On August 4,1989, the jury informed the court that it was deadlocked. The court then gave the jury a Chip Smith charge, urging it to reconvene in a further attempt to reach a verdict. After a recess, the plaintiffs’ attorney revealed for the record and the trial court accordingly made full disclosure of the fact that, on the preceding day, two members of the jury had engaged in an ex parte communication with the judge and his clerk concerning the deadlocked status of the jury. The plaintiffs then moved for a mistrial and were joined in that motion by the defendants. The trial court denied the joint motion and, shortly thereafter, the jury returned a verdict for the defendants.

The plaintiffs moved to set aside the jury’s verdict. The court granted the plaintiffs an evidentiary hearing on their motion specifically with respect to whether any prejudice had been occasioned by juror misconduct. The individual jurors testified at this hearing on September 26, 1989. On October 6, 1989, the trial court heard further oral argument on the plaintiffs’ motion, denied the motion and rendered judgment in favor of the defendants.

The plaintiffs first argue that certain facts surrounding the proceedings in the trial court constituted prejudice to them and warrant a new trial. We agree.

These further facts are relevant to our decision. All six jurors testified at the evidentiary hearing. The jury foreman testified that he could not recall his exact conversation but did remember that “if he [the judge] said anything about [urging the jury to reach a verdict] it was only [in] the most general terms that it is very important to reach a verdict for all parties involved.” When questioned further, the foreman did not elaborate on that conversation. He concluded by stating that he never told the other jurors about his visit to the judge’s chambers.

The second juror stated that he inadvertently happened upon the foreman and the judge and joined in their conversation. The juror’s vague recollection of that conversation was that it concerned “whether we should continue for the balance of the day . . .'.’’He testified that his role in the conversation was limited to telling the judge that the jury needed more time. The juror could not remember whether the other four jurors were told of the ex parte communication.

The third and sixth jurors knew nothing of the ex parte visit. They also stated that they were aware of no juror deliberations held outside of the presence of the full jury.

The fourth juror recalled that the foreman went “to ask the judge some question, but I don’t remember what it was.” He testified that the foreman notified the other jurors of his visit to the judge. The juror also “clearly recollected] discussing the case with other jury members outside the jury room. When asked about the substance of those discussions, the juror described them as concerning the “difficulty with a situation,” “how [we] can best explain this [difficulty] to another member” and “confirming what we knew.”

The fifth juror had no knowledge of the ex parte communication but stated, with respect to jury deliberations, that there was at least one occasion during lunch where substantive issues concerning the case were discussed by only a few of the jurors.

After hearing this testimony and hearing further argument on the plaintiffs’ motion to set aside the verdict, the trial court determined that the plaintiffs were not prejudiced by what had transpired and that, therefore, a new trial was not warranted. We disagree.

“ ‘ “The rule, long ago enunciated by this court, is that ‘if it does not appear that [the juror misconduct in question] was occasioned by the prevailing party, or any one in his behalf; if it do[es] not indicate any improper bias upon the juror’s mind, and [if] the court cannot see, that it either had, or might have had, an effect unfavourable to the party moving for a new trial; the verdict ought not to be set aside.’ ” . . .’Williams v. Salamone, [192 Conn. 116, 119, 470 A.2d 694 (1984)].” (Citations omitted.) Speed v. DeLibero, 215 Conn. 308, 313, 575 A.2d 1021 (1990). The burden rests on the moving party in a civil case to demonstrate that the juror misconduct complained of resulted in probable prejudice to him. Id., 314. Against this general principle we measure the allegations of juror misconduct here as manifested in both the ex parte conversation and the juror deliberations held outside the presence of the full jury.

In the present case, there is no question that during a recess an ex parte conversation ensued among the jury foreman, a second juror and the judge. While the record demonstrates that the judge was caught somewhat off guard by the suddenness of the foreman’s appearance in his chambers, it also reveals that a conversation regarding the continuing deliberations did take place. “Any ex parte meeting or communication between the judge and the foreman of a deliberating jury is pregnant with possibilities for error.” United States v. United States Gypsum Co., 438 U.S. 422, 460, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978).

Here, the total circumstances surrounding the unfortunate ex parte conversation are disturbing. The jury had already indicated to the court by written note that it was hopelessly deadlocked, the case was complex and “hard” by everyone’s assessment and the jury foreman had gone to the judge’s chambers seeking direction regarding the deadlock. We also note that, after hearing what, in itself, might seem to be an innocuous statement by the judge concerning the importance of reaching a verdict, the jury did in fact reach a verdict within minutes of the ex parte communication. Although we cannot discern from the record what coercive effect, if any, the court’s comments may have ultimately had on the jury, we do note that at least one other juror testified that the communication was reported to the jury. “Unexpected questions or comments can generate unintended and misleading impressions of the judge’s subjective personal views which have no place in his instruction to the jury — all the more so when counsel are not present to challenge the statements. Second, any occasion which leads to communication with the whole jury panel through one juror inevitably risks innocent misstatements of the law and misinterpretations despite the undisputed good faith of the participants.” Id., 460-61.

The traditional judicial Chip Smith charge to a potentially deadlocked jury has the advantage and protection of counsel’s opportunity to monitor the charge and to object and except thereto when necessary. We cannot determine from the record in this case what the exact words of the ex parte communication were or what effect they had on the foreman and the rest of the jury. We can say, however, that the plaintiffs made a sufficient showing that the conversation took place, that it was communicated to at least half of the jury and that, under the circumstances of this case, a verdict was returned with unexpected immediacy. Whether the plaintiffs have demonstrated by these factors that they were prejudiced and denied a fair trial is resolved by our next discussion.

In addition to the claim of prejudicial ex parte communication, the plaintiffs argue that the fact that certain jurors deliberated outside the presence of the full jury constituted prejudicial error and warrants a new trial. It is clear from the testimony of certain jurors at the evidentiary hearing that such improper deliberations took place. Not all juror impropriety, however, impacts on the fairness of the trial. See Speed v. DeLibero, supra.

In Speed, our Supreme Court held that the trial court did not abuse its discretion by denying the plaintiffs’ motions for mistrial when the trial court, after a hearing on alleged juror misconduct, was satisfied that no discussion of “evidence” presented in the case was part of the improper juror deliberations. In this case, the trial court made no such finding; it merely concluded in its memorandum of decision that it found no prejudice to the plaintiffs in the proceedings. This conclusion was made, however, in the face of a clear showing by the plaintiffs that “issues” and certain “difficulties” had been discussed by some jurors out of the presence of the full jury. While the exact nature of these “issues” and “difficulties” was not fully developed, the record amply supports the conclusion that the juror conversations in question involved more than innocuous procedural niceties.

Coupled with the disturbing problem of the ex parte conversation between the judge, the foreman and another juror, the matter of the improper juror deliberations presents a pattern of misconduct that, under the circumstances of this case, warrants a new trial. The plaintiffs specifically attempted to show that probable prejudice resulted when an ex parte conversation concerning the trial judge’s desire for a verdict was conveyed to a “hopelessly deadlocked” jury, who returned a verdict within minutes of the conversation, and when juror discussions regarding substantive issues in the case were held outside of the presence of the full jury. The trial court, as the closest party to the unique developments in this case, should have concluded from all the evidence presented that the plaintiffs had met their burden of demonstrating that the juror misconduct resulted in probable prejudice to the moving party and that fairness dictated that a new trial was in order.

Because our resolution of the plaintiffs’ first claim is dispositive, and, further, because we find no merit to their claim of instructional error, we will not discuss it here.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       On April 25,1989, the plaintiffs, Ann and Edward Lukstas, withdrew the ease against the defendant St. Francis Hospital and Medical Center. We will refer in this opinion to Sadowski and Neurosurgical Associates, Inc., as the defendants.

       The plaintiffs’ motion for the removal of the interrogatories was similarly denied by the trial court.

       The trial court’s recitation of the incident is as follows:
      “The Court: Yes, I would be glad to state for the record what transpired. A juror came in and before I could even stop him he seemed to just talk and said that, he said, we are deadlocked but we are still trying, there is some hope, we are not very optimistic about it and he said the vote is five to one, would you like to know more about it and I said, no, we don’t care to know any more about it. And that was the substance. I may have omitted something but I think'the record should reflect that and, in fact, I commented to our clerk, Mr. Otto, I said, I don’t like these people coming in, I don’t care to know about these things. But, at any rate, he did blurt it out and I couldn’t stop him and having learned it, I felt I should tell you gentlemen — what happened.”

       The juror’s testimony on the question of improper juror deliberations states in pertinent part:
      “Q. At lunchtime, were there discussions that were held about this case outside the presence of the full jury?
      “A. I would say yes ... I can only remember one, one instance specifically.
      “Q. Were some issues discussed?
      “A. I think so.
      “Q. In the absence of the full jury?
      “A. I think so.”


text:
    Charlotte Boline v. Paul J. Albert et al.
    (8958)
    O’Connell, Norcott and Foti, Js.
    Argued November 5, 1990
    decision released January 1, 1991

      Austin Carey, Jr., for the appellant (plaintiff).

      F. Jerome O’Malley, for the appellees (defendants).
   Norcott, J.

The plaintiff, a real estate broker, appeals from the decision of the trial court granting the defendants’ motion for summary judgment. The dispositive issue on appeal is whether the two listing agreements signed by the parties, if considered together, fulfill the requirements of General Statutes § 20-325a (b). We find that the conditions of that statute have not been satisfied and affirm the judgment of the trial court.

The trial court found the following facts. On July 31, 1987, the parties entered into an exclusive listing agreement for the sale of the defendants’ property located on the Four Mile River in Old Lyme. The agreement described the property as an “84 slip marina,” gave a listed price of $1,200,000 and stipulated that the plaintiff receive a 10 percent commission should she find a buyer ready, willing and able to purchase the marina at the listed price. This initial agreement expired by its own terms on October 1, 1987.

On October 20,1987, the parties signed a second listing agreement. The trial court found that, at the time of its signing, the second agreement failed to state (1) the legal address of the plaintiff, (2) the legal address of the defendants, (3) the listed price, and (4) various special conditions of listing. Our review of the record reveals that, in fact, only the defendants’ address and the conditions of listing were completely omitted from the three page document. This information was later added by Janet Mashia, an agent of the plaintiff. As so modified, the agreement described the listed property as “[l]and for dry dock storage and 1176 square foot building that can be utilized for marina related business.” (Emphasis added.) It gave the defendants’ address as “4 Bank Rd., Old Lyme, Ct.”

In November, 1987, while the second listing agreement was in effect, the plaintiff produced a potential buyer for the marina. The defendants did not sell the property to this prospective buyer, however, because the buyer requested that the defendants produce permits and licenses for the operation of the marina. The defendants acknowledged that they do not have any such permits or licenses.

The plaintiff instituted the present action for recovery of her commission in July, 1988. The trial court granted the defendants’ motion for summary judgment on February 13,1990, finding that the plaintiff had not produced a buyer ready, willing and able to purchase the property on the terms contained in the second licensing agreement. In an articulation dated April 23, 1990, the court also found that the plaintiff’s action was barred by General Statutes § 20-325a (b), which provides that all listing agreements must “(1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner . . . and by the real estate broker or his authorized agent.”

It is clear that the parties’ second listing agreement, which, at the time of its signing, contained neither the defendants’ address nor the special condition that the property be usable for “marina related business,” fails to meet the criteria established by General Statutes § 20-325a (b). Connecticut courts have consistently held that, when a listing agreement between a broker and a seller does not fully comply with these statutory requirements, the broker’s action for commission is precluded. See Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52,453 A.2d 771 (1983) (absence of addresses of both parties); Hossan v. Hudiakoff, 178 Conn. 381, 423 A.2d 108 (1979) (absence of brokers’ addresses); Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 552 A.2d 827 (1989) (absence of commission or rate schedule). The plaintiff contends, however, that the two listing agreements signed by the parties, when considered together, include all the information required by General Statutes § 20-325a (b).

“[Sjeparate documents will be deemed to constitute a valid contract under § 20-325a (b) if they collectively satisfy the statutory requirements and relate to the same agreement. [Good v. Paine Furniture Co., 35 Conn. Sup. 24, 27, 391 A.2d 741 (1978)]. It is not within the power of courts to create new and different agreements. Collins v. Sears Roebuck & Co., 164 Conn. 369, 375, 321 A.2d 444 (1973).” (Emphasis in original.) Jay Realty, Inc. v. Ahearn Development Corporation, supra, 55; Rostenberg-Doern Co. v. Weiner, supra, 305-306.

In the present case, neither listing agreement “ ‘points unquestionably to the other . . . so as to create a consistent contract.’ Jay Realty, Inc. v. Ahearn Development Corporation, supra, 56.” Rostenberg-Doern Co. v. Weiner, supra, 306. The original listing agreement does not refer to a subsequent agreement. Nor does the second listing agreement “refer unequivocally to the original contract”; id.; so as to incorporate its terms. The plaintiff’s subsequent efforts to create a valid contract by filling in the required information “ ‘cannot legally alter the terms of the contract after it was signed by the defendant^].’ ” (Emphasis in original.) Id. We therefore conclude that the trial court properly determined that the second listing agreement was not a valid contract under General Statutes § 20-325a (b) and that, as such, the plaintiff’s action is barred.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants, Paul J. Albert, Helen S. Albert and Helen C. Stanhope, hold title to the property at issue as trustees under an inter vivos trust agreement settled by Raymond L. Stanhope.

       The plaintiff’s address, which was omitted from page two of the agreement, was included on pages one and three. Similarly, the listed price was specified on pages one and two, but was omitted from page three.

       In light of our resolution of the plaintiffs first claim, we need not address the plaintiff’s remaining claim that the trial court improperly found that she had not secured a buyer ready, willing and able to purchase the property under the terms of the second listing agreement.