author: Lavery,. J.

text:
    Richard R. Sweet v. Sumnerbrook Mill Development Corporation et al.
    (5793)
    (5794)
    Daly, O’Connell and La very, Js.
    Argued December 6, 1989
    decision released April 10, 1990

      Philip N. Walker, with whom, on the brief, was John L. Laudati, for the appellant (plaintiff).

      Mark T. Kelly, for the appellees (defendants).
   Lavery,. J.

In these combined appeals, the plaintiff challenges the dissolution of two ex parte attachments of real estate. The plaintiff claims that the trial court erred (1) in reaching a determination on the merits of the issue of fraud, and (2) in determining that the evidence adduced at the hearing was insufficient to support probable cause as to the validity of the claim of fraudulent conveyance. We find no error.

The law governing prejudgment remedies is codified in General Statutes §§ 52-278a through 52-278n. An ex parte prejudgment remedy, such as that sought in this case, is available under the conditions set forth in General Statutes § 52-278e (a). A defendant may move to dissolve or modify such prejudgment remedy pursuant to General Statutes § 52-278e (c). Upon the filing of a motion to dissolve, the court must “hear and determine such motion expeditiously.” At the hearing, the plaintiff has the burden of demonstrating “that there is probable cause to sustain the validity of [his] claim.” General Statutes § 52-278e (c); see Self-Service Sales Corporation v. Heinz, 1 Conn. App. 188, 191-92, 470 A.2d 701 (1984); see also Hurley v. Sheet Metal Manufacturing Co., 21 Conn. App. 805, 572 A.2d 390 (1990).

The hearing in probable cause for the issuance of a prejudgment remedy is not intended to be a full scale trial on the merits of the plaintiffs claim. Three S. Development Co. v. Santore, 193 Conn. 174, 175-76, 474 A.2d 795 (1984). The plaintiff does not have to establish that he will prevail, but must establish only that there is probable cause to sustain the validity of the claim. Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 584, 376 A.2d 60 (1977). The court’s role in such a hearing, as well as in a hearing to dissolve an ex parte prejudgment attachment, is to determine probable success by weighing probabilities. See Goodwin v. Pratt, 10 Conn. App. 618, 620-21, 524 A.2d 1168 (1987).

“The court’s role on review of the granting of a prejudgment remedy is very circumscribed. It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. Tn the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.’ [Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977).]” Three S. Development Co. v. Santore, supra, 176; see also Price Saver, Inc. v. Maynard, 5 Conn. App. 90, 91, 496 A.2d 991 (1985).

At the hearing on the motion to dissolve, the plaintiff presented no witnesses and rested on his complaint and the affidavits submitted with his motion for the ex parte real estate attachments. In each of these pleadings, the plaintiff alleged that the defendant Sumner-brook Mill Development Corporation was indebted to him for breach of contract. He further alleged that the corporation and defendant Patricia Bowley, the wife of the corporation’s president, conspired to have the corporation transfer a condominium to her in order to avoid certain debts to the plaintiff, and that the conveyance deprived the corporation of the means to pay the alleged debts to the plaintiff.

At the dissolution hearing, the defendants presented evidence that Bowley paid the corporation $65,000 for the property, and that she took the condominium subject to a mechanic’s lien in the amount of $20,000: The defendants gave a careful accounting of the funds Bowley received from her husband to purchase the condominium, and they showed that the condominium Bowley purchased had suffered $1000 in water damage from a leaking sprinkler and was missing appliances worth approximately $1000.

The defendants presented further evidence that the mechanic’s lien could have been settled for $14,000 and that two previous attempts to sell the condominium to other parties for $67,500 had fallen through on account of the water damage and the fact that the condominium was not laid out in accordance with the condominium public offering statement. They presented evidence that other condominiums in the complex had sold for between $69,000 and $85,000. The proceeds from the sale of the subject condominium were paid by the corporation to subcontractors who had performed services on the project.

The trial court found that the transfer from the corporation to Bowley was not made for less than substantial consideration, and that the conveyance was not made with intent to defraud creditors but in order to facilitate payment to bona fide creditors other than the plaintiff. The court further found that the sources of the funds used by Bowley to purchase the property were duly accounted for, as was the disposition on behalf of the corporation of all the funds received. The court found no evidence of actual intent to defraud on the part of the corporation or Bowley.

Responding to a motion for articulation, the trial court elaborated on its findings, concluding that the purchase price of the condominium was not so substantially below its market value as to constitute fraud. The court also determined that the transfer of the property to Bowley was probably intended to deprive the plaintiff of payment in preference of other bona fide creditors but that such preference did not constitute a deliberate transaction to defraud the creditors not so paid. The court found that neither the corporation nor Bowley personally derived any benefits from the transaction, and that neither received any funds from the transaction to the detriment of corporate creditors.

“A fraudulent conveyance for the purpose of attachment is one made without substantial consideration and which renders the debtor unable to meet his obligation or one made with a fraudulent intent in which the grantee participated. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 307, 407 A.2d 971 (1978).” Denison Development Co. v. Gunther, 189 Conn. 333, 335, 455 A.2d 1340 (1983). It was the plaintiffs burden to adduce evidence either that the corporation had conveyed the property for less than substantial consideration and was thereby rendered unable to pay the alleged debts or that the conveyance was made with a fraudulent intent that Bowley shared. See id.

The plaintiff did not sustain his burden of proof. His reliance on his complaint and affidavits made his argument long on conclusions and short on facts. The defendants, on the other hand, presented evidence, which the trial court found credible, that the transfer was not for less than substantial consideration and that there was no intent by the parties to defraud.

“[I]f review of the record indicates the trial court reached legal conclusions which have a reasonable basis, those conclusions must stand, even though a plenary review of them might well yield a different result.” Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 394, 480 A.2d 561 (1984); see also Hurley v. Sheet Metal Manufacturing Co., supra. We conclude that the determinations of the trial court are amply supported by the evidence and are reasonable.

There is no error.

In this opinion the other judges concurred.

       The challenge to the dissolution of the attachments here is not affected by the recent decision by the United States Court of Appeals for the Second Circuit declaring the granting of an attachment without a hearing to be unconstitutional. See Pinsky v. Duncan, 907 F.2d 17 (2d Cir. 1990) (Docket No. 89-7521).

       The record reveals that Bowley received the following funds: $30,000 as a gift from her husband; $27,000 representing the proceeds of a loan to her husband from American National Bank; and $8000 representing a loan to her from Group Concepts Management, Inc., a corporation owned solely by her husband.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Yale University Adjustment Service v. John Gallichon
    (8035)
    Dupont, C. J., Borden and O’Connell, Js.

      Submitted on briefs January 16
    decision released April 10, 1990

      Jeannette T. Chambers filed a brief for the appellant (plaintiff).

      John Galliehon, pro se, the appellee (defendant), filed a brief.
   O’Connell, J.

The plaintiff appeals from a judgment for the defendant, rendered after a trial to the court. The plaintiff brought this collection action following the defendant’s default on a student loan. The plaintiff claims the trial court erred in finding that there was insufficient evidence to determine the amount due on the note. We find error.

On September 19,1978, the defendant, at that time a Yale University graduate student, executed a promissory note for $3950, payable to the order of the plaintiff, in connection with a student loan. The note provided for interest at the rate of 7 percent per annum with the debt to be paid in forty installments. It also provided for costs of collection in the event of default. The defendant left the university without receiving his degree, and the debt became due according to its terms. After making certain unspecified payments on the note, the defendant ceased payment.

In its complaint, the plaintiff alleged that “after allowing all credits and payments due the defendant, there remains due and owing to the plaintiff from the defendant the sum of $5028.87 . . . .” The defendant explicitly stated in his answer that “the defendant does not dispute the amount of the claim nor his moral obligation to make every effort to pay such claim. The defendant has never made any attempt to deny the validity of his obligation to pay plaintiff.” (Emphasis added.) The remainder of the answer dealt with matters unrelated to the defendant’s liability on the note. In his trial testimony, the defendant again acknowledged the validity of the note and the amount due thereon. He testified that he suspended payments on the note when the university refused to award .him a degree. He asserted that payments would be resumed when and if the university reversed its decision to refuse him a degree. .

The defendant claims, in essence, that the university breached its obligations to him when it “unfairly” changed its degree requirements during the course of his studies. He contends that he need not resume payments on the note until this dispute is resolved. Any disagreement over the granting of the degree is completely irrelevant to this action, however, because the defendant’s obligation to repay the borrowed money is separate and distinct from any disagreement about his degree.

The defendant likens his failure to abide by the terms of the note to such consumer legislation as our automobile “lemon law.” We do not find this to be a valid comparison. None of the defendant’s claims in any way supports his refusal to meet his obligation under the note. Nor did this argument persuade the trial court, which found the defendant liable on the note. The court concluded, however, that because there was no evidence to show the amount already paid by the defendant, the amount due could not be determined. We disagree.

The amount due can be determined readily from the pleadings. The complaint alleged that the defendant executed a note that now has an unpaid balance of $5028.27, and the defendant’s answer admitted both the validity of that note and the amount due. It is axiomatic that the admission in a pleading of the truth of an allegation is conclusive upon the pleader. West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986); 2 B. Holden & J. Daly, Connecticut Evidence (1988) § 103 (b). Accordingly, the pleadings support a plaintiff’s judgment for $5028.27, and judgment should have rendered for that amount.

There is error, the judgment is set aside as to the first count of the plaintiff’s complaint and the case is remanded with direction to render judgment on that count in favor of the plaintiff in the amount of $5028.27.

In this opinion the other judges concurred.

       Judgment was rendered for the plaintiff on the second count, in which the plaintiff sought payment of unpaid room and board chárges. The defendant did not appeal from that part of the judgment.

       In view of our disposition of the first claim of error, we do not reach a second claim of error pertaining to the burden of proof as to payments made. The third claim of error relating to the balance due is subsumed under our analysis of the first claim.

      The plaintiff, however, has not sought attorney’s fees in this action.


author: Norcott, J.

text:
    Margaret Febbroriello v. Michael Febbroriello
    (7272)
    Spallone, Daly and Norcott, Js.
    Argued January 4
    decision released April 10, 1990

      Louis Parley, for the appellant (defendant).

      Edward J. Dolan, for the appellee (plaintiff).
   Norcott, J.

The defendant appeals challenging the financial orders entered by the state trial referee acting as the trial court in a dissolution action. On appeal, the defendant claims that the trial court erred (1) in basing the alimony and child support orders on an improper income analysis, (2) in basing the division of property on its finding that the defendant had an interest in certain additional property, (3) in awarding counsel fees to the plaintiff, and (4) in ordering the defendant to pay the plaintiff for nonsupport during the parties’ separation. We find no error.

The following facts are relevant to this appeal. The parties were married on May 29, 1971, and have two children born during the marriage, a son born March 29,1974, and a daughter born April 9,1981. The parties separated in January, 1987, after the plaintiff commenced the dissolution action.

The defendant is an administrator of the diagnostic imaging services at Yale-New Haven Hospital. He receives a second income from a corporation, H.O.M.E., Inc., in which he holds a 25 percent ownership interest. By August, 1987, he had signed a real estate agreement for the purchase of a house in Cheshire with his companion, Cynthia Lago, with whom he was residing at the time of trial. The plaintiff is a full-time homemaker who possessed certain nursing skills, which she had not used since her marriage to the defendant seventeen years earlier. At the time of trial, she hoped to go back to work on a part-time basis, subject to her childcare needs.

Additionally, the parties owned a Florida condominium from which they received rental income. Other property interests of the parties included a $10,000 to $16,000 savings account, funds invested in a tax sheltered annuity, and funds in the defendant’s pension plan.

I

The defendant first argues that the alimony and child support orders must be set aside because the trial court erroneously based these orders on the defendant’s gross income rather than on his available net income. He claims that the only evidence before the trial court dealt with gross figures, and, therefore, the trial court could only have based its award on gross amounts. We disagree.

The standard of review in domestic relations cases is well settled. This court “will not reverse a trial court’s rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did.” (Emphasis added.) Watson v. Watson, 20 Conn. App. 551, 554, 568 A.2d 1044 (1990); see also Sunbury v. Sunbury, 13 Conn. App. 651, 661, 538 A.2d 1082 (1988), reversed on other grounds, 210 Conn. 170, 553 A.2d 612 (1989). In determining whether the trial court’s broad legal discretion is abused, “ ‘ “ ‘great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.’ ” ’ ” Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985). On review of the entire record, including the transcripts and exhibits, we conclude that the defendant has not shown that the trial court’s award could only have been based on the defendant’s gross income.

It is clear that a trial court must base periodic alimony and child support orders on the available net income of the parties. Sunbury v. Sunbury, supra. “Gross earnings is not a criterion for awards of alimony. It is the net income, which is available to the defendant, which the court must consider.” Tobey v. Tobey, 165 Conn. 742, 747, 345 A.2d 21 (1974). The trial court had before it ample evidence from which it could have determined the defendant’s net income. It not only heard the testimony of the parties on the issue of the defendant’s income, but it also had before it the defendant’s financial affidavit as well as his tax returns for the years 1985 through 1987, which clearly list his gross income and total taxes. Further, the trial court heard extensive testimony on the supplemental income earned by the defendant from his interest in H.O.M.E. as well as the taxes withheld therefrom. The court also had before it the defendant’s W-2 wage and tax statements from this supplemental income indicating the amounts withheld from that income. This information, too, was evident from, and had been incorporated into, the defendant’s tax returns.

With all of this information before it, we cannot say that the trial court could only have based its award on the defendant’s gross income. The trial court could have easily determined the defendant’s available income and reasonably reached the result that it did. Because the trial court’s award was supported by the evidence, it is not clearly erroneous. Accordingly, we find no error.

II

The defendant next claims that the trial court erred in its property division order. He claims that it was erroneous for the trial court to find that he had an interest in property owned by Cynthia Lago because he had “testified that he had no interest.” This argument is without merit.

“ ‘It is the sole province of the trial court to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.’ Smith v. Smith, 185 Conn. 491, 493, 441 A.2d 140 (1981) .... We will not retry the facts.” (Citations omitted.) Ferrucci v. Ferrucci, 11 Conn. App. 369, 373-74, 527 A.2d 1027, cert. denied, 205 Conn. 805, 531 A.2d 935 (1987); see also Pascal v. Pascal, 2 Conn. App. 472, 482, 481 A.2d 68 (1984). The court was free to discredit the defendant’s testimony that he had no interest in the property. Pascal v. Pascal, supra, 483. This is especially true in light of the defendant’s testimony that he makes the mortgage payments, that his name appears on the mortgage, the purchase agreement and on every bank paper except the deed itself, that he was living in the house and that as soon as the divorce became final he planned to marry Lago.

Ill

The defendant next argues that the trial court erred in awarding counsel fees to the plaintiff. He claims that there was no evidence presented upon which the court could have based its award. We disagree.

The decision to award counsel fees is a matter of discretion. “Pursuant to General Statutes § 46b-62, a trial court has the discretion to award counsel fees to a party in a dissolution action ‘in accordance with their respective financial abilities and the criteria set forth in Section 46b-82,’ including length of the marriage, causes for the dissolution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skill, employability, estate and needs of each party.” O’Neillv. O’Neill, 13 Conn. App. 300, 305, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). “ ‘ “Courts ordinarily award counsel fees in divorce cases so that a party (usually the wife) may not be deprived of her rights because of lack of funds.” ’ ” Id., 305-306.

The plaintiffs complaint contained a request for attorney’s fees. The trial court also had before it the plaintiff’s sworn financial affidavit listing an outstanding balance of $7500 for legal fees. This was evidence of the costs incurred. Cf. Costa v. Costa, 11 Conn. App. 74, 77, 526 A.2d 4 (1987). “Courts have a general knowledge of what would be a reasonable attorney’s fee for services which are fairly stated and described.” Pearl v. Nelson, 13 Conn. App. 170, 172, 534 A.2d 1257 (1988). The trial court was free to exercise its discretion in determining that counsel fees should be awarded and that the figure listed by the plaintiff was reasonable.

IV

The defendant’s final claim is that the trial court erred in awarding the plaintiff $7500 for his failure to support the children during the last eight months preceding the dissolution hearing. He claims that this award for arrearages was improper because the pendente lite orders that obligated the defendant to pay support to the plaintiff were no longer in effect, and, hence, the award was based on nonexistent orders.

In order to address this issue, we must look to a portion of the procedural history in this case. On January 14,1987, the parties appeared before the court with the agreements they had reached for the purpose of having the court enter pendente lite orders. The court entered pendente lite orders obligating the defendant to pay the mortgage payments, the house insurance, real estate taxes for January, 1987, and the cost of house repairs. The order also obligated the defendant to pay, as he had agreed, for all current balances on the plaintiffs car loan and credit cards, the medical bills for the plaintiff and the children as well as the deductible for the children, and any medicine required by the plaintiff as long as the prescriptions are filled at Yale-New Haven Hospital. The plaintiff was ordered to fulfill certain obligations as well.

On March 26, 1987, the case was dismissed for the plaintiff’s failure to prosecute. See Practice Book § 251. On April 11, 1987, the plaintiff filed a motion to open and restore the case to the docket, but the case was not restored to the docket until June 13, 1988. The hearing on the dissolution was then held on June 28 and 29, 1988.

Pendente lite orders, by their very definition, are orders that continue to be in force “during the pendency of a suit, action, or litigation.” Ballentine’s Law Dictionary (3d Ed.) 1969. “Pendente lite orders necessarily cease to exist once a final judgment in the dispute has been rendered because the purpose is extinguished at that time.” Connolly v. Connolly, 191 Conn. 468, 479, 464 A.2d 837 (1983). Pendente lite orders do not survive the entry or rendition of judgment. Tobey v. Tobey, supra, 745; LaFaci-Zitzkat v. Zitzkat, 19 Conn. App. 805, 806, 562 A.2d 527 (1989).

An order for alimony and support pendente lite is “interlocutory and terminates with the judgment that follows it. . . . In other words, the judgment . . . was final unless set aside by the court, and it disposed with finality of all interlocutory orders.” Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953). The dismissal here was a final judgment. “An order of non-suit terminates an action when it is issued and no further proceedings are necessary.” Osborne v. Osborne, 2 Conn. App. 635, 638, 482 A.2d 77 (1984).

The plaintiff correctly concedes that the pendente lite orders necessarily lapsed when the action was dismissed. She argues, however, that the underlying agreement continued to be in effect. This argument is without merit.

It is clear from a review of the transcript of the hearing on the pendente lite motions that the agreement between the parties was an agreement for pendente lite purposes. The parties, at the time of the hearing, clearly indicated that their agreement was merely for purposes of expediting the hearing, and there is no indication that either party intended this agreement to serve any purpose other than to provide the court with the basis for the content of the pendente lite orders. Once the action lapsed, therefore, the orders also lapsed.

The plaintiff further argues that even if the agreement fails, the defendant violated his statutory obligation to provide “reasonable support” to the family. See General Statutes § 46b-37. Although we conclude that the pendente lite orders lapsed with the court’s dismissal of the case and that no agreement survived that dismissal, we, nevertheless, hold that the trial court did not err in ordering the defendant to pay the plaintiff $7500 for his failure to provide reasonable support.

In her complaint, the plaintiff claimed dissolution of marriage, custody of the children, child support, alimony, property division, counsel fees, and any “further relief as law and equity may provide.” See LaCroix v. LaCroix, 189 Conn. 685, 689, 457 A.2d 1076 (1983). Although the complaint did not specifically contain a claim for past support, the case was presented to the court on this contested issue as well as the one specifically mentioned; see Vanderlip v. Vanderlip, 1 Conn. App. 158, 159 n.3, 468 A.2d 1253 (1984); and the plaintiff did claim support; see Martin v. Martin, 134 Conn. 354, 355, 57 A.2d 622 (1948); and “further relief as law and equity may provide.” See LaCroix v. LaCroix, supra. An award for past support is founded in equity. Martin v. Martin, supra, 356.

“The paramount role of a court when considering domestic relations cases is one of a ‘court of equity.’ The court’s equity powers are essential to its ability to fashion the appropriate relief in domestic relations cases. ‘The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute .... These powers, although not expressly given to the court by statute, have been held to be inherent powers of the trial court . . . .’ ” LaBow v. LaBow, 13 Conn. App. 330, 351, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); see also Darak v. Darak, 210 Conn. 462, 478, 556 A.2d 145 (1989). An equitable award may be found to be error only if it is based on factual findings that are clearly erroneous. LaCroix v. LaCroix, supra.

The trial court found, on the basis of the evidence before it, that the cause of the breakdown of the marriage was the defendant’s erratic behavior and failure to keep reasonable hours. At the time the dissolution proceedings began, the defendant was involved with Lago and shortly thereafter purchased a house with her where they were living at the time of trial.

The trial court also heard the plaintiff’s testimony that the defendant stopped providing support to the plaintiff in October or November, 1987, except for one payment of $500 in January, 1988. The plaintiff also testified that because she was unable to make certain bill payments, her telephone was shut off for eighteen days and her power was shut off for a period of time. Also, because her children’s doctor bills had not been paid and she was unable to pay them the doctor refused to treat her daughter when she contracted mumps. She could not pay the house taxes or the mortgage payments, and the bank threatened foreclosure proceedings against her. In order to make the payments on her bills and to keep her house, she was forced to borrow from her family and to withdraw money from a CD account that she and the defendant had set up in their son’s name for his education.

General Statutes § 46b-37 (b) makes it the “joint duty” of both spouses to “support his or her family.” This statute permits an action against a spouse who is liable for support if that spouse has not provided “reasonable support.” See General Statutes § 46b-37 (c). The defendant did not contest his obligation to provide reasonable support to the plaintiff. He argued, rather, that he had provided the support necessary. The court was free to reject this testimony and to believe the plaintiff. Pascal v. Pascal, supra.

“When the husband has abandoned the wife, or when he makes it intolerable for her to live with him and thereafter he refuses to furnish her support and fulfill the . . . obligation which the law places upon him, upon proper evidence offered, she may be entitled to relief under the statute [§ 7308, the predecessor of § 46b-37] on the grounds that she has been compelled to support herself.” Cantiello v. Cantiello, 136 Conn. 685, 689, 74 A.2d 199 (1950); see also Yale University School of Medicine v. Collier, 206 Conn. 31, 36-38, 536 A.2d 588 (1988). The wife in that situation is entitled to indemnity by the husband “ ‘for any money that she shall have been compelled to pay’ for the support of the family.” Churchward v. Churchward, 132 Conn. 72, 79, 42 A.2d 659 (1945).

The total amount spent by the plaintiff to meet her bills and support her family was almost $15,000, and the trial court was justified in assessing $7500 as the defendant’s share. On the basis of the evidence before the trial court, we cannot say that it was error to order the defendant to pay $7500 for failure to provide support during the eight months preceding the trial.

There is no error.

In this opinion the other judges concurred.

       The defendant claims that under the rule of Sunbury v. Sunbury, 210 Conn. 170, 553 A.2d 612 (1989), because there is error in the trial court’s award of alimony and support, this court must also vacate the property division award. Our conclusion that there is no error in the alimony and support awards is, therefore, dispositive and we need not address the issue.

       The defendant advances the same Sunbury claim for this issue as he did for his challenge of the property award. We need not address this issue. See footnote 1, supra.


author: Foti, J.

text:
    State of Connecticut v. Richard Comollo
    (7693)
    Daly, Norcott and Foti, Js.
    Argued December 12, 1989
    decision released April 10, 1990

      Christopher W. Bromson, with whom were Francis S. Holbrook II and Donald G. Leis, Jr., for the appellant (defendant).

      Jacqueline J. Footman, deputy assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Warren Gower, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, after a plea of nolo contendere, pursuant to General Statutes § 54-94a and Practice Book § 4003, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a). The defendant claims that the court erred in denying his motion to dismiss and his motion to suppress. We find no error.

The facts are as follows. At 2:23 a.m. on March 22, 1987, Officer Steve Madden of the Connecticut state police received a dispatch that a one car accident had occurred on Interstate 84 approximately 200 feet east of exit 56. He arrived at the scene of the accident within minutes after he received the call. He observed an automobile on the right side of the road, resting against a guardrail in the eastbound lane. The damage to the car was consistent with its striking the guardrail before coming to a stop. The officer also observed that the car was stationary, the motor was not running but the engine compartment was warm. The headlights were off, the keys were not in the ignition, and there was no operator behind the wheel. The officer did not observe any skid marks at the scene and he was unable to locate any additional witnesses to the accident. There were no pedestrians in sight, a fact consistent with the type of highway.

When the officer approached, the defendant was standing next to the vehicle. Although it had been raining, the defendant’s clothes were dry, leading Madden to conclude that the defendant had not been out in the rain for any appreciable length of time. Madden asked the defendant if he had been the driver of the car and whether he had been injured. The defendant replied that he was the driver and that he had not been injured. The defendant told the officer that another vehicle had struck his car, forcing him off the highway. At Madden’s request, the defendant retrieved his driver’s license, registration and insurance information from the vehicle’s glove compartment. The registration indicated that the car was owned by General Motors Acceptance Corporation.

As the defendant and Madden spoke, the officer detected a strong odor of alcohol on the defendant’s breath. During the course of their conversation, the defendant first stated that he was coming home from the movies. He later stated that he had been drinking before he went to the movies. Finally, the defendant stated that he had been drinking at a lounge and restaurant prior to the accident.

The officer administered a field sobriety test that confirmed his suspicions that the defendant was intoxicated. The defendant was arrested and transported to the state police barracks where he consented to an alcohol breath test. The defendant was given two intoximeter tests that morning. The first, administered at 3:31 a.m., resulted in a blood alcohol reading of .191. The second intoximeter test was administered at 4:06 a.m. and showed a blood alcohol reading of .185.

I

The defendant claims that the court erred in denying his motion to dismiss, which was filed pursuant to General Statutes § 54-56 and Practice Book § 815 (5). He asserts that there was insufficient evidence to warrant a finding that the defendant was operating the motor vehicle. It is the defendant’s position that any admission or statement he made at the time of the arrest is inadmissible unless the state first produces sufficient independent corroborative evidence to establish that he was operating the motor vehicle. Specifically, the defendant claims that the state failed to offer sufficient preliminary proof of the corpus delicti of the element of operation to allow his admission to be used by the trier of fact as proof that he was, in fact, the driver of the car. We do not agree.

General Statutes § 14-227a provides that “[n]o person shall operate a motor vehicle while under the influence of intoxicating liquor . . . .” “The state must prove each of the two essential elements of the crime charged [that the defendant was the operator and that he was under the influence of intoxicating liquor] beyond a reasonable doubt. . . . The court was entitled to draw all fair and reasonable inferences from the facts established by the evidence, but the conclusion based on them must not be the result of speculation and conjecture.” (Citations omitted.) State v. DeCoster, 147 Conn. 502, 504, 162 A.2d 704 (1960).

Although the defendant was not behind the wheel of the car when Madden came upon the scene of the accident, he later told the officer that he was the driver of the car. At common law, a confession of an accused could not be admitted until the corpus delicti, or prima facie proof that a crime had been committed by someone, was proven by extrinsic evidence. “In [State v. Tillman, 152 Conn. 15, 20, 202 A.2d 494 (1964), our Supreme Court] adopted Professor Wigmore’s definition of the term ‘corpus delicti,’ and stated: ‘The corpus delicti consists of the occurrence of the specific kind of loss or injury embraced in the crime charged. ’ . . . The confession, then, as evidence tending to prove both the crime charged and the corpus delicti, is not sufficient of itself to prove the former, and without evidence aliunde of facts tending to prove the corpus delicti, is not enough to warrant a conviction. There must be such extrinsic corroborative evidence as will, when viewed in connection with the confession, establish the corpus delicti ... in the mind of the trier beyond a reasonable doubt.” (Citation omitted.) State v. Ruth, 181 Conn. 187, 198, 435 A.2d 3 (1980). Applying this rule of law to the present case, it was necessary for the state to present sufficient corroborative evidence that, when viewed in connection with the defendant’s admission, would lead the trier of fact to conclude, beyond a reasonable doubt, that the defendant was, in fact, operating the vehicle.

While it is true that the trial court here applied an incorrect standard when it neglected to resolve the question of corpus delicti and found that the element of operation was satisfied by viewing only the extrinsic corroborative evidence presented in complete isolation from the defendant’s admission of operation, that error was harmless. When we apply the correct standard of law to the facts at hand, and view the extrinsic facts in connection with the defendant’s admission, we also conclude that sufficient evidence existed to satisfy the element of operation. In reaching this conclusion we have considered the following: The motor of the car had recently been turned off, as evidenced by the warmth of the car’s hood; there were no other individuals within view either walking for assistance or leaving the scene of the accident on foot; the defendant had just been inside the car as evidenced by the dry condition of his clothing on a rainy day; this car was the only one in sight; the defendant knew where to find the car’s registration and insurance information and he did not question the officer’s interest in his driver’s license. Further, although the defendant is correct in his assertion that the car was not registered in his name, it was not registered to another person, but to a corporate entity which is consistent with the assumption that it was a vehicle within the defendant’s complete control at the time of the accident.

These facts and the defendant’s admission must be viewed for their cumulative impact. When they are taken together with the inferences that could reasonably be drawn from them, it becomes clear that the corpus delicti of operation was sufficiently proven for the prosecution to proceed with the proof of its case.

II

The defendant next claims that the trial court erred in denying his motion to suppress the results of both of the breathalizer tests administered to the defendant.

The facts relevant to this claim are as follows. Officer Madden administered a breathalizer test to the defendant on an Intoximeter 3000, an instrument certified by the department of health services. At the hearing on the defendant’s motion to suppress, Madden produced a photocopy of the instrument’s certification bearing the signature of Abraham Stolman, chief toxicologist for the state toxicological laboratory. The copy was allowed into evidence, over the defendant’s objection that it was not the best evidence. In addition, Madden testified that he himself was certified by the department of health services to administer alcohol breath tests on the Intoximeter 3000 and had performed between fifty and one hundred tests. A photocopy of the officer’s recertification was allowed into evidence over the defendant’s objections that it too was not the best evidence, that no evidence of the officer’s written application to perform such testing had been introduced pursuant to § 14-227a-5 of the Regulations of Connecticut State Agencies and that Madden did not personally receive his recertification in writing prior to administering the test to the defendant pursuant to § 14-227a-6 of the Regulations of Connecticut State Agencies.

The defendant’s claims with respect to the court’s denial of his motion to suppress are twofold. First, the defendant contends that the court erred in allowing photocopies into evidence, and second that the court erred in not suppressing the results of the intoximeter tests because the state failed to comply with department of health regulations §§ 14-227a-5 and 14-227a-6.

A

The defendant argues that the best evidence rule requires that the state produce duly authenticated originals, or certified copies of the certification and recertification of Madden. We do not agree.

“ ‘ “[I]n proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.” ’ Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10, 513 A.2d 1218 (1986), quoting C. McCormick, Evidence (3d Ed.) § 230. The best evidence rule typically applies when attempting to prove the contents of ‘ “instruments such as deeds, wills or contracts, where a slight variation of words may mean a great difference in rights.” ’ Brookfield v. Candlewood Shores Estates, Inc., supra, 10-11, quoting C. McCormick, supra, § 231. The ‘ “basic premise justifying the rule is the central position which the written word occupies in the law.” ’ Brookfield v. Candlewood Shores Estates, Inc., supra, 10, quoting C. McCormick, supra.” Morales v. Saint Francis Hospital & Medical Center, 9 Conn. App. 379, 382, 519 A.2d 86 (1986), cert. dismissed, 202 Conn. 807, 520 A.2d 1287 (1987).

“In any event, the best evidence rule ‘at common law is a preferential, rather than an exclusionary rule.’ Comment on Rule 602 Clause (a) of the Model Code of Evidence (American Law Institute) p. 301 . . . .” Brookfield v. Candlewood Shores Estates, Inc., supra, 12.

The issues in the present case were, at all times, whether Madden was certified, whether these documents were actually issued, and whether they were properly issued. The specific terms or phrases used in either document were never before the trial court. No claim was made by the defendant that he was unable to examine the documents thoroughly. Likewise, he never sought a continuance in order to perform such an examination to assist him in questioning Madden’s certification. The written words contained in each document were not relevant to the issue of whether Madden was actually certified. Copies of the documents in question, accompanied by Madden’s testimony, were sufficient to dispose of the remainder of the issues before the court.

The defendant further asserts a claim that the instructor who trained Madden should have been brought in as a witness as a precondition for admitting test results. The defendant can point to no requirement in the law for such a procedure. We conclude that this claim is without merit.

B

The defendant’s final claim is that the trial court erred in determining that General Statutes § 14-227a (c) (3) and §§ 14-227a-5 and 14-227a-6 of the Regulations of Connecticut State Agencies had been satisfied. He argues that because General Statutes § 14-227a (c) (3) requires that the direct breath test be performed by a person certified or recertified for that purpose, §§ 14-227a-5 and 14-227a-6 of the regulations must be complied with or the results are not admissible. We do not agree.

We have recently upheld the application of the general requirements of the health service’s regulations, together with the statutory requirements of General Statutes § 14-227a (c), as controlling the admissibility of breath tests. State v. Scott, 16 Conn. App. 172, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988); State v. Desso, 16 Conn. App. 165, 547 A.2d 74, cert. denied, 209 Conn. 827, 552 A.2d 433 (1988); State v. Smith, 16 Conn. App. 156, 547 A.2d 69, cert. denied, 209 Conn. 820, 551 A.2d 758 (1988).

General Statutes § 14-227a (c) provides in part that “evidence respecting the amount of alcohol ... in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided .... (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the department of health services and was performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the commissioner of health services.”

It is not disputed that a person administering an intoximeter test must be certified or recertified for that purpose by the department of health services or recertified by someone certified as an instructor by the commissioner of health services. General Statutes § 14-227a (c) (3). The defendant asserts, however, that the health service regulation requiring that an application for certification to perform alcohol analysis be made in writing and include a statement of the learning and experience of the applicant; Regs., Conn. State Agencies § 14-227a-5; and the health service regulation specifying that approvals and certifications are not effective until the applicant has been informed in writing of the action of the commissioner; Regs., Conn. State Agencies § 14-227a-6; were not satisfied as required by § 14-227a (c) (3). We disagree and conclude that §§ 14-227a-5 and 14-227a-6 of the Regulations of Connecticut State Agencies are not applicable to direct breath alcohol test operators because these operators are regulated exclusively by § 14-227a-10 of the Regulations of Connecticut State Agencies.

The trial court, in a carefully worded and well reasoned memorandum of decision, concluded: “The rule of strict construction . . . does not require that the most narrow, technical and exact meaning be given to the language of a statute in frustration of an obvious legislative intent. The application of common sense to the language of a penal statute should not be excluded so as to result in absurdity or frustration of the evident design of the legislature.” We agree.

The Regulations of Connecticut State Agencies involved herein were amended, effective June 21,1983, in reaction to State v. Crepeau, Superior Court, judicial district of New Haven at Meriden, Docket No. MV 7-25228 (May 26, 1983). That decision concluded that the results of breathalizer tests could not be admitted into evidence because the commissioner of health had not complied with the rule making provisions of the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; in approving the use of the Intoximeter 3000. The original regulations that had been in effect since June 27,1976, ended with § 14-227a-9. The amended regulations added § 14-227a-10 (section 10) entitled “Direct breath alcohol analysis.” A plain reading of section 10 leads us to conclude that it was intended to be an exclusive regulation of the administration of direct breath alcohol analyses by law enforcement officers or employees of the department of health services with a machine such as an intoximeter, as opposed to a test conducted in a laboratory by an analyst. Section 10 appears to be a self-contained and exclusive regulation addressing the approval of the test instruments, the conducting of tests, the certification of operators and instructors and the revocation of certification. Moreover, we agree with the finding of the trial court that these provisions are, “in some respects, radically different from similar provisions in the non-Section 10 regulations.”

The demarcation between section 10 and the original provisions found in the Regulations of Connecticut State Agencies §§ 14-227a-l through 14-227a-9 is emphasized in at least two ways by the regulations themselves. First, section 10 is set apart in the definition of the term “laboratory” as set forth in § 14-227a-l (f), which provides: “ ‘Laboratory’ means any place or area in which any sample of blood, breath or urine is subjected to a chemical or instrumental analysis, whether or not a device or instrument is used. Places or areas under the jurisdiction of any police agency or organization in which direct breath alcohol analyses are performed and which are covered in Section Ik-227a-10 are not considered laboratories for the purposes of these regulations. ” (Emphasis added.) Second, section 10 provides for a substantially different certification process for the administrator of the direct breath test, the accuracy of which depends largely on the reliability of the instrument used, as opposed to the certification of a laboratory analyst whose judgment and experience play a major role in determining statutory intoxication. Furthermore, section 10 is controlled by the more general requirement stated in § 14-227a-2 of the Regulations of Connecticut State Agencies. Some of the other regulations dealing with laboratories are not applicable to direct breath tests, by definition.

It is our conclusion that section 10 provides for a process of certification that is substantially different from §§ 14-227a-5 and 14-227a-6 of the regulations. Section 10 is limited to law enforcement officers or employees of the department of health services; it does not require a statement as to training and experience by the applicant; it specifies the exact nature of the training; it limits validity of certification for twelve months; it does not require an application in writing or notice of approval in writing to the operator and provides for a separate process of revocation of certification.

We agree with the trial court’s conclusion “that the statutory and regulatory scheme is divided by a bright line between the certification of analysts whose judgment and experience play a major role in determining statutory intoxication and the certification of direct breath operators where reliance is placed in the accuracy of the machine and not on the education or experience of the operator other than to assure the proper operation of the machine. It was reasonably anticipated by the drafters of the regulations that law enforcement officers would not have a knowledge of science or have previous experience in laboratories. The linchpin to the direct breath tests is the accuracy of the machine not the knowledge or experience of the operator other than minimal training requirements directed to the accurate operation of the machine.”

We have recently stated that “[t]he requirement in General Statutes § 14-227a (c) that regulations be followed evinces an interest in promoting the accuracy and reliability of the actual testing process, and not with recording mechanics.” State v. Garrity, 17 Conn. App. 376, 383, 552 A.2d 452 (1989); c.f. State v. Janson, 20 Conn. App. 348, 352 n.3, 566 A.2d 1377 (1989). In the absence of any evidence that the legislature intended to make the requirements of §§ 14-227a-5 and 14-227a-6 of the Regulations of Connecticut State Agencies a condition precedent to the admission of a breathalizer, we conclude that the test results were properly admitted. We further conclude, as did the trial court, that those regulations are not directed toward guaranteeing the accuracy of the machine in direct breathalizer test cases, and that noncompliance will not result in an exclusion of the results of those tests.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-94a governs pleas of nolo contendere and 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, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       Practice Book § 4003 provides:
      “(a) 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 appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution. The court shall not accept a nolo contendere plea pursuant to this subsection where the denial of the motion to suppress would not have a significant impact upon the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere plea where the record available for review of the denial of the motion to suppress or motion to dismiss is inadequate for appellate review of the court’s determination thereof.
      “(b) With the approval of the court, after a hearing to consider any objections thereto, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any motion made prior to the close of evidence, which motion must be specified in such written reservation. If the defendant prevails on appeal, the judgment shall be set aside and the defendant shall be allowed to withdraw the conditional plea of nolo contendere after the case has been remanded to the trial court. The court shall not accept a plea of guilty or nolo contendere pursuant to this subsection where the adverse determination of the specified motion would not have a significant impact on the disposition of the case in the trial court. The court shall also decline to accept such a nolo contendere or guilty plea where the record available for review of the ruling upon the specified motion is inadequate for appellate review of the court’s determination thereof.”

       “[General Statutes] Sec. 14-227a. operation while under the influence OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR, (a) OPERATION while under THE influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       The defendant’s reliance on State v. McDonough, 129 Conn. 483, 29 A.2d 582 (1942), and State v. DeCoster, 147 Conn. 502, 162 A.2d 704 (1960), is misplaced. In neither of those cases was an admission of operation made by the defendant.

       Although the trial court’s application of an improper standard of law is error, it is harmless error in the present case. An error is only harmful where the erroneous action of the court would have been likely to effect the result of the trial. State v. Ruth, 181 Conn. 187, 196, 435 A.2d 3 (1980). Here, the trial court’s disregard of the defendant’s admission of operation and consequent failure to resolve the question of corpus delicti, viewed the evidence presented in a light more favorable to the defendant than the standard we apply. Nonetheless, that court came to the same ultimate conclusion that we reach here, that is, that the element of operation was satisfied.

       Section 14-227a-5 of the Regulations of Connecticut State Agencies provides: “application foe certification to perform alcohol tests
      “Application for certification to perform alcohol analyses may be made by the candidate for certification or by his employer. It shall be made in writing to the commissioner and shall be accompanied by a statement of the training and experience of the candidate.”

       Section 14-227a-6 of the Regulations of Connecticut State Agencies provides: “granting of approvals and certifications “No approval or certification shall be effective until the applicant has been informed in writing of such action by the commissioner. Approval or certification may be granted subject to such conditions as the commissioner shall impose or may be denied after review and investigation. A candidate for certification may be required to demonstrate ability to perform and control alcohol analyses or to operate and control analytical devices before certification is granted. Suspension or revocation for cause of approvals or certifications shall be effective upon receipt of written notice of the same from the commissioner. Continuation of approval or of certification shall be subject to review by the commissioner or his agent at any time through evaluation of performance or by investigation of alleged unsatisfactory performance. Approval of a method or methods shall be construed to include approval of the equipment specified therein, subject to proper maintenance. When such equipment includes alcohol test devices as defined herein, they shall be checked and controlled as specified in section 14-227a-8.”

        State v. Scott, 16 Conn. App. 172, 547 A.2d 77 (1988), and State v. Smith, 16 Conn. App. 156, 547 A.2d 69 (1988), dealt with the reliability of the alcohol measuring device under § 14-227a-8 as performed in laboratories. State v. Desso, 16 Conn. App. 165, 547 A.2d 74 (1988), held that section 10 had to be complied with as part of the admissibility test.

       Section 14-227a-10 of the Regulations of Connecticut State Agencies provides: “direct breath alcohol analysis
      “No person shall be an operator of a breath analysis instrument unless such person is employed by a law enforcement agency or by the department of health services and is certified by the department of health services. Such operator shall conduct the tests according to methods and with equipment certified by said department and shall check the instrument for accuracy at the beginning and no later than the end of each workday or shift.
      “(c) CERTIFICATION OF OPERATORS AND INSTRUCTORS.
      “(1) Certification of operators.
      “(a) In order to be certified as an operator of a breath analysis instrument, "a person shall apply to the department for certification and shall:
      “(i) Be employed by a law enforcement agency or by the department of health services;
      “(ii) Successfully complete a minimum of four (4) hours of training in the operation of the instrument to be used. Such training may be acquired by training courses given by the department or by instructors certified by the department for such purposes in accordance with subdivision (3) below;
      “(iii) Demonstrate to the department the proper use and application of the instrument.
      “(B) An operator’s certificate shall be valid for twelve (12) months from the date of issuance. The certificate is valid only while the operator is with the particular law enforcement agency for which certification was originally issued.
      “(C) Proficiency testing. In order to maintain an operator’s certificate, an operator may be required to satisfactorily analyze proficiency test samples provided by the department by using approved direct breath test instruments at periodic intervals.
      “(2) Recertification of operator. Each operator shall be recertified at the end of the certification period in accordance with subdivision (1) above.
      “(3) Certification of instructors. In order to be certified as an instructor by the department, such person shall
      “(A) Be a member of a law enforcement agency or the department and
      “(B) Successfully complete a minimum of seven (7) hours of instruction approved by the department on the designated instrument. Such instruction shall include the following:
      “(i) The theory of the instruments used in the analytical process which measures alcohol content of the blood;
      “(ii) Practical application and experience in the use of the instrument;
      “(iii) Presentations, discussions ahd demonstration of the pharmacological and physiological effects of alcohol in the human body.”

       Section 14-227a-2 of the Regulations of Connecticut State Agencies provides in pertinent part: “general requirement and exemption
      “Sections 14-227a-l to 14-227a-10, inclusive, shall apply to the chemical or instrumental analyses of blood, breath and urine for alcohol when the results thereof may be offered as evidence in a court of law with respect to persons alleged or suspected to have been under the influence of intoxicating liquor while operating a motor vehicle.”


author: Dupont, C. J.

text:
    In re Lori Beth D. et al.

    (7701)
    Dupont, C. J., Daly and Norcott, Js.
    Argued November 9, 1989
    decision released April 10, 1990

      William L. Ankerman, for the appellant (respondent).

      Daniel E. Lynch, with whom, on the brief, was Daniel E. Lynch, Jr., for the appellees (petitioners).

      Susan L. Miller, with whom, on the brief, was Robert E. Byron, legal intern, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Dupont, C. J.

This is an appeal from the judgment of the trial court terminating the parental rights of the respondent father. The respondent first claims that the Probate Court transferred the action to the Superior Court without affording him notice and an opportunity to be heard in the Probate Court on the motion to transfer, thus divesting the Superior Court of subject matter jurisdiction. He also claims (1) that the trial court should have appointed a guardian ad litem for him, (2) that the adjudication date should have been the date the petition was filed rather than the date the trial started, and (3) that there was no clear and convincing evidence on which to base a decision to terminate his parental rights. We find no error.

The petition was filed in Probate Court by the children’s mother pursuant to General Statutes § 45-63.C. She sought termination of the respondent father’s parental rights with respect to Lori Beth and Mary Elizabeth D. on the bases of abandonment, pursuant to General Statutes § 45-61f (f) (1), and denial of care, guidance and control, pursuant to § 45-61f (f) (2). The respondent was served in hand on January 9, 1988, with notice of a hearing to be held in Probate Court on January 21, 1988. The respondent was present at the hearing in Probate Court, at which time he informed the court of his intention to contest the petition.

The petitioner, on January 25, 1988, filed a motion to transfer the matter to the Superior Court. On January 22, 1988, a copy of the motion was sent to the respondent at a local motel, in care of another named individual. The respondent filed no objection, oral or written, to the motion to transfer, and the motion was granted. The petition was thereafter transferred to the Superior Court in Hartford. On June 9, 1988, the maternal grandparents, who had previously been awarded guardianship of both children, filed a motion to amend, seeking to be joined as parties petitioner with respect to Lori Beth. Their petition alleged both of the statutory grounds originally raised as well as the additional ground of no ongoing parent child relationship. General Statutes § 45-61f (f) (3). The motion to amend was granted with respect to both intervention and the additional ground on June 9,1988. A trial ensued, with proceedings on June 9, June 30, and July 1, 1988. At trial, the respondent raised no objection to the transfer. On November 3,1988, the court issued its decision granting the petition for termination of the respondent’s parental rights with respect to both children.

We must first determine whether the case was improperly transferred from the Probate Court to the Superior Court on the petitioner’s motion, thereby divesting the trial court of subject matter jurisdiction. General Statutes § 45-61c (g) provides in relevant part: “Before a hearing on the merits in any case in which a petition for termination of parental rights is contested in a court of probate, the court of probate shall, on the motion of any legal party except the petitioner or may on its own motion or that of the petitioner, under rules adopted by the judges of the supreme court, transfer the case to the superior court. . . .” (Emphasis added.) The statute does not provide for notice and hearing on the motion to transfer, and leaves the granting of such a motion by the petitioner to the discretion of the Probate Court, within the limits of the rules imposed on that court by our Supreme Court.

Rule 7.2 of the Probate Court Rules also imbues the Probate Court with discretionary power over such transfers: “Contested petitions for termination of parental rights may, in the discretion of the judge of probate be transferred from the court of probate to the juvenile court upon either the motion of the petitioner or that of the court itself.” (Emphasis added.) The only Probate Rule addressing the availability of a hearing and notice of a hearing on a motion to transfer is Rule 7.6, which provides: “Upon receipt of a motion by the petitioner to transfer, the court of probate may set the time and place for a hearing on such motion to show cause why the matter should be transferred to the juvenile court for determination. Notice of such hearing shall be given to all parties in interest by certified mail or otherwise no later than 3 days prior to the date set by the court of probate for such hearing . . . .” (Emphasis added.) We read this rule to mean that whether a hearing is held on a petitioner’s motion to transfer is within the discretion of the Probate Court, but that if the court, in fact, decides to hold a hearing, notice of “such hearing,” in accordance with the procedure set out in Rule 7.6, becomes mandatory. Here, because the court, in the proper exercise of its discretion, chose not to hold a hearing on the motion, there was no proceeding of which to give notice. Furthermore, notice of the transfer motion itself was sent to the respondent on January 22, 1988, and he failed to object orally or in writing, at that time or during trial in the Superior Court, either to the transfer motion, or to the lack of a hearing or to the lack of notice of a hearing on that motion. Given the discretion conferred upon the Probate Court by General Statutes § 45-61c (g) and Probate Court Rule 7.6, we find that no notice of a hearing was required and that the petition was properly transferred to the Superior Court.

General Statutes § 45-61c (g) provides in part: “Upon transfer, the clerk of the court of probate shall transmit to the clerk of the superior court the original files and papers in the case. The superior court, upon hearing after notice [on the petition for termination] as provided in sections 45-61d and 45-61f, may grant the petition as provided in section 45-6If.” The Superior Court upon transfer, therefore, had subject matter jurisdiction to hear and decide the matter.

The respondent next argues that the trial court should have appointed a guardian ad litem for him pursuant to General Statutes § 45-61e or, at a minimum, should have considered appointing a guardian ad litem for him because he had been diagnosed as mentally ill and was unable to explain where he had been or what he had been doing between January, 1984, and October, 1987. The petitioners correctly argue that because the respondent failed to raise this claim at trial, this court is limited to plain error review. Polce v. Stop & Shop Cos., 4 Conn. App. 18, 19, 492 A.2d 206 (1985). Thus, the claimant must show not only plain error in the lower court’s proceedings or reasoning, but also that he was prejudiced by it. State v. Brown, 187 Conn. 602, 613, 447 A.2d 734 (1982); State v. Scott, 10 Conn. App. 347, 522 A.2d 1245, cert. denied, 204 Conn. 804, 528 A.2d 1152 (1987).

Section 45-61e (a) provides: “When, with respect to any petition filed under section 17-43a, section 45-61c or section 45-61d, it appears that either parent of the child is a minor or incompetent, the court shall appoint a guardian ad litem for such parent. The guardian ad litem shall be an attorney-at-law authorized to practice law in Connecticut or any duly authorized officer of a child-placing agency if the agency is not the petitioner.”

Thus, under the language of § 45-61e, a guardian ad litem must be appointed, pursuant to § 45-61e (a), where the respondent “appears incompetent.” The respondent, however, offers no support for his statement that the court was required, at the very least to consider the possibility of appointing a guardian ad litem, and we can find none. Therefore, no plain error exists unless it is clearly demonstrated that the respondent, in fact, appeared incompetent, that a guardian ad litem should have been appointed for him, and that, nevertheless, none was appointed. Our review of the record indicates that there was sufficient information for the court reasonably to conclude that, despite his mental illness, the respondent did not appear incompetent. The court, therefore, need not have appointed a guardian ad litem. Moreover, the respondent has not offered any explanation as to how he was harmed by the court’s failure to appoint a guardian ad litem. The failure of the court to make such an appointment, therefore, does not constitute plain error.

The respondent next argues that the court erred in using the date the trial began, rather than the date the petition was filed, as an adjudication date without, sua sponte, granting a continuance. The later date was apparently used because an additional ground of “no ongoing parent-child relationship” was added by the amended petition of the grandparents as to Lori Beth. This issue, like the previous one, was first raised on appeal, and we, therefore, review it under the plain error doctrine. State v. Brown, supra.

Belated amendments to the pleadings are allowed except where the amendment will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues. Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980). The respondent did not ask for a continuance at the time the amendment was allowed and now offers no explanation as to how the granting of the motion to amend, without, sua sponte, granting a continuance, prejudiced him. He merely states that the date of adjudication should have been the date the petition was filed, rather than the date the trial began. He fails to offer any explanation of how his evidence with respect to the earlier date would have differed or how any such difference harmed him. We therefore conclude that there was no plain error as to this claim.

Finally, the respondent argues that the trial court erred in finding clear and convincing evidence on which to base its decision to terminate his parental rights. Under General Statutes § 45-61f (f), the court may terminate the parental rights of an individual if, on the basis of clear and convincing evidence, it finds that termination is in the best interest of the child and that (1) the parent has abandoned the child, i.e., has “failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child,” or (2) he or she has, by acts of commission or omission, denied the child the “care, guidance or control necessary for his physical, educational, moral or emotional well-being,” or (3) no ongoing parent child relationship exists and to allow further time for the establishment of the parent child relationship would be detrimental to the best interests of the child.

Thus, the language of § 45-61f (f) provides that the court may, in its discretion, grant a petition for termination of the parental rights of a nonconsenting parent if it finds, based on clear and convincing evidence, both that termination is in the best interest of the child and that one of the three specified grounds exists. The statutory ground of abandonment was found as to both children, as was the conclusion that termination was in their best interest. The respondent claims, however, that the trial court erred in finding by clear and convincing evidence that he had abandoned the children by failing to maintain a reasonable degree of interest, concern or responsibility as to their welfare. General Statutes § 45-6 If (f).

We will not disturb the trial court’s findings that the parent has abandoned the child and that termination is in the best interest of a child unless “those findings are not supported by the evidence and are, in light of the evidence in the whole record, clearly erroneous.” In re Juvenile Appeal (84-3), 1 Conn. App. 463, 478, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). The trial court in this case found little dispute over the facts of the history of the children’s relationship with their parents and grandparents. It based its finding of abandonment on the fact that from January, 1984, to October, 1987, the father made “no attempts at telephone calls, no gifts or cards or letters, no initiation of court action to secure visitation rights, no direct communication with the children’s mother or legal custodians.” On this basis, despite the respondent’s personal problems during that period, the court found that he had, within the meaning of § 45-61f (1) (1), objectively “failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child[ren] . . . .”

In considering whether to terminate the parental rights, the court also considered, as required, the factors listed in General Statutes § 45-61f (h) and made the statutorily required written findings. The court found (1) that no services were provided to the respondent by any agency because he sought none, (2) that the respondent complied with the only court orders involved, which gave guardianship of Lori Beth to the maternal grandfather and of Mary Elizabeth to the maternal grandparents, (3) that the children had no feeling for their father prior to an episode of his violent behavior and only anxiety following that episode, (4) that the children, then aged five and one-half and seven, had not seen their father for nearly five years, during which time they had received “secure and consistent nurturing” from their mother and maternal grandparents, (5) that the respondent had made no apparent effort to adjust his circumstances in order to make it in the best interest of either child to reside with him or even to visit with him and had maintained no contact or communication of any kind with their custodians during his nearly five year absence from their lives, and (6) that no unreasonable act of the mother or grandparents had prevented him from maintaining a reasonable relationship with the children prior to his disappearance in January, 1984. Having thus considered the six statutory factors, the court determined that the respondent’s continued parental rights would jeopardize the children’s well being, and that their emotional needs required complete severance of those rights. It, therefore, granted the petition for termination. Our review of the record indicates ample evidentiary support for all of the court’s findings and conclusions of law.

There is no error.

In this opinion the other judges concurred.

       Although the court found no ongoing parent child relationship, that ground could be used as a basis for termination only with respect to Lori Beth, since it was included as a ground in only the second petition, which did not name Mary Elizabeth.

       The court also found no ongoing parent child relationship with either child. Although this could properly be used to fulfill the statutory requirement only as to Lori Beth, the trial court's application of it with respect to Mary Elizabeth does not vitiate the basis of the decision because the ground of abandonment was properly found as to both children and is a sufficient ground for termination where termination is found to be in the best interest of the child.

       The factors listed in that section, General Statutes § 45-61f (h), are: “(1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


text:
    State of Connecticut v. Ariel Hernandez
    (7130)
    (7131)
    Daly, O’Connell and Foti, Js.

      Argued January 18
    decision released April 17, 1990

      Richard Emanuel, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Frank McQuade, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

In the first case, the defendant appeals from the judgment of conviction, after a jury trial, of sale of narcotics by a person who is not drug-dependent, in violation of General Statutes § 21a-278 (b). In the second case, he appeals from the order revoking his probation and putting into effect a suspended sentence imposed for an earlier conviction.

In the first appeal, the defendant claims that the trial court erred (1) in unfairly marshalling the evidence against him in its jury instructions, (2) in refusing to charge that the information and arguments of counsel were not evidence, (3) in denying his motion to dismiss because of prearrest delay, and (4) in denying his motion for a mistrial following improper remarks made by the prosecutor during closing argument. Our resolution of the appeal of the narcotics conviction necessarily controls our disposition of the claim involving the probation revocation. We find no error.

The jury could reasonably have found the following facts. On or about June 12, 1986, the defendant sold cocaine to an undercover police officer attached to the Naugatuck Valley street crime unit. The unit was engaged in an undercover investigation of narcotics trafficking in the Naugatuck Valley. The unit’s work was part of a cooperative effort, ending in January, 1987, with the federal drug enforcement administration and the federal bureau of investigation.

Following the conclusion of the unit’s investigation, an arrest warrant was issued for the defendant on January 28,1987. The arrest, however, was not made until June 11,1987. During this period, the police made numerous, but unsuccessful, attempts to take the defendant into custody. They placed the defendant’s suspected residence under surveillance on many occasions, looked for the defendant in local bars, and also made inquiries among street sources, all of whom denied knowledge of the defendant’s whereabouts. Eventually, however, the police learned that the defendant might be planning to leave Connecticut for an unknown Florida destination. Until that time, they had not directly approached the defendant’s suspected residence for fear that he might flee if they failed to take him into custody immediately. This fear proved to be unfounded, however. When, as a last resort, an officer knocked at the defendant’s door and left word that the police wanted to see him, he called the police station shortly thereafter and turned himself in.

I

In his first claim, the defendant argues that the trial court, in summarizing the facts during the jury instructions, marshalled the state’s evidence to the virtual exclusion of the defendant’s. This, he asserts, had the effect of a directed verdict for the state and violated his federal and state constitutional rights to a fair trial. Specifically, he contends that he presented an alibi defense and was entitled to have the court relate to the jury the facts supporting this defense. We do not agree.

We have long recognized that a judge’s instructions to the jury may not concentrate solely on the state’s case and exclude evidence presented by the defendant, thereby sinking the defendant’s case completely out of view. State v. Gallman, 16 Conn. App. 433, 434-35, 547 A.2d 932 (1988). It is also true, however, that because the state has the burden of proof, it will often present the majority of the evidence. Consequently, the trial court, when instructing the jury, will more likely than not spend more time discussing state’s evidence than the defendant’s. State v. LaCasse, 9 Conn. App. 79, 84, 516 A.2d 145, cert. denied, 201 Conn. 815, 518 A.2d 72 (1986). In this case, the state presented a much greater quantity of evidence upon which the court could comment than the defendant presented.

The defendant was the only witness testifying on his behalf, and his testimony was limited to an assertion that while he could not remember specifically where he was on the night in question, he was not present when the alleged drug sale took place. Therefore, he claims, he could not have made the sale to the undercover officer. The law does not require “exact parity in the time spent on comments on both the prosecution and defense portions of a case”; State v. Cazimovski, 20 Conn. App. 190, 192-93, 565 A.2d 254 (1989); nor is it error for the court to comment on the claims of one party in more detail and at greater length than those of the opposition. State v. LaCasse, supra, 85. Whenever a court comments on the evidence, “ ‘ “the charge must to some extent uncover the weakness of a weak case, the difficulties of a difficult case, or the strength of a strong case.” . . .’” (Citations omitted.) Id.

Furthermore, it is rudimentary jurisprudence that the jury charge must be considered as a whole to see if the case was fairly presented to the jury. State v. Sinclair, 20 Conn. App. 586, 597, 569 A.2d 551 (1990). The jury was properly instructed on at least two occasions that its recollection of the evidence, and not the trial court’s, was controlling. The charge, taken as a whole, was proper, and the trial court did not direct the jury as to how to decide the case. See State v. Sinclair, supra.

II

A

The defendant’s next claim of error arises from the court’s failure to instruct the jury that the information was not evidence but was merely the formal means of accusing the defendant of a crime. Whether the requested instruction is required is a question of first impression in Connecticut, and there is a split of authority in other jurisdictions. The defendant cites numerous cases from other jurisdictions supporting his contention that failure to include this charge constitutes reversible error. See, e.g., United States v. Scales, 594 F.2d 558, 561-62 (6th Cir. 1978), cert. denied, 441 U.S. 946, 99 S. Ct. 2168, 60 L. Ed. 2d 1049 (1979); United States v. Downen, 496 F.2d 314, 320 (10th Cir. 1974), cert. denied, 419 U.S. 897, 95 S. Ct. 177, 42 L. Ed. 2d 141 (1975). The state, on the other hand, points to several decisions holding that the failure to charge as the defendant asks is not error if the jury has been properly instructed on the presumption of innocence and the burden of proof beyond a reasonable doubt. See, e.g., United States v. Martin, 223 F.2d 666, 667 (2d Cir. 1955); State v. Keffer, 3 Or. App. 57, 62, 471 P.2d 438 (1970).

We conclude that the cases relied upon by the state represent the better reasoned approach and we adopt the rule contained therein. The trial court clearly informed the jury that it was to base its verdict solely on the evidence and the court’s instruction on the law. A full and complete instruction on the presumption of innocence was given, and the court repeatedly told the jury that the state had the burden of proof on each and every element of the crime. In view of these detailed instructions, the jury was not misled into viewing the information as evidence of guilt. State v. Keffer, supra. The instruction sought is unquestionably a correct statement of the law, but failure to give every correct statement of the law does not ipso facto constitute error. We decline to adopt a rule that failure so to instruct is, per se, error.

B

The defendant also claims that the trial court erred in not giving his requested instruction to the effect that the final arguments of counsel were not evidence. The failure of the court to charge in the explicit language of the defendant’s request is not error if the point was fairly covered in the charge as given. State v. Colton, 174 Conn. 135, 141, 384 A.2d 343 (1977). The instruction as given here adequately addressed the defendant’s concerns.

Ill

The defendant claims that the trial court erred in denying his motion to dismiss because of prearrest delay. Although “ ‘[tjhere is no constitutional right to be arrested’ State v. Echols, 170 Conn. 11, 16, 364 A.2d 225 (1975); a prearrest delay may, under some circumstances, implicate a defendant’s due process rights. Id., 17. In order to establish a due process violation because of prearrest delay, the defendant must demonstrate both that actual and substantial prejudice resulted from the delay and that the delay itself was wholly unjustifiable. State v. Morrill, 197 Conn. 507, 522, 498 A.2d 76 (1985).

The gist of the defendant’s claim of prejudice is that the delay impaired his ability to present a specific or concrete alibi defense. He argues that because a year had elapsed between the crime and his arrest, he could not remember where he was or with whom he was at the time of the crime. Thus, he claims, it was impossible for him to secure witnesses on his behalf who could recall the events of the evening in question. The defendant’s claim of prejudice is speculative at best. It is well established that vague assertions of dimmed memory and inability to locate possible witnesses are not enough to demonstrate actual prejudice. See State v. John, 210 Conn. 652, 686, 557 A.2d 93, cert. denied, U.S. 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989) (five year prearrest delay found not to be prejudicial); State v. Little-john, 199 Conn. 631, 645-47, 508 A.2d 1376 (1986) (over four year prearrest delay not prejudicial despite defendant’s claim of failed memory). Accordingly, the defendant failed to demonstrate that actual and substantial prejudice resulted from the delay. Therefore, the trial court properly denied his motion to dismiss.

IV

The defendant grounds his final claim of error on remarks he contends were made by the state’s attorney during closing argument. Because the arguments of counsel were not transcribed by the court reporter, we have no basis on which to review this claim. State v. Mendez, 15 Conn. App. 531, 538-39, 545 A.2d 587, cert. denied, 209 Conn. 810, 548 A.2d 441 (1988).

With remarkable prescience, the defendant anticipated this ruling and claims in the alternative that the trial court erroneously denied his motion for a mistrial because the arguments were not recorded. This claim has no merit. Arguments of counsel are not recorded unless requested by one of the parties. General Statutes § 51-61 (a). Because the defendant did not make such a request, he has no grounds upon which to claim error. Failure to request recording of arguments is deemed consent to their omission from the record. State v. Gasparro, 194 Conn. 96, 110, 480 A.2d 509, cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1984).

V

In the second appeal, the defendant claims that the trial court erred in revoking his probation for an earlier, unrelated criminal case. His conviction of the sale of narcotics in violation of General Statutes § 21a-278 (b) constituted the alleged violation of probation. Since we find no error on the appeal from that conviction, it follows that there is no error here.

There is no error on either appeal.

In this opinion the other judges concurred.

       Although the defendant purports to rely on both the federal and state constitutions, he offers no separate analysis under the state constitution. Accordingly, we decline to undertake such analysis. State v. Blackwell, 20 Conn. App. 193, 199 n.5, 565 A.2d 549 (1989).

       The court properly included an instruction that “[i]f I refer to certain facts orto certain evidence in the case you are not to assume that I mean thereby to emphasize with any particularity those facts or that evidence, nor must you limit your consideration only to them. Should I overlook any evidence in this case, and I undoubtedly will, you will supply it from your own recollection. And I say that because it is not my function to repeat to you my recollection of all the evidence in the case.”
      The court concluded its instruction with the remarks that “[i]f I may have made any reference to the position of the state or of the defendant or more of the one than of the other, it is not my intention to convey to you directly or indirectly how the court feels as to what should be the outcome of this case.”

       The defendant sought the following instruction: “I remind you that the piece of paper containing the charge, the information is not evidence, but is merely the formal manner of accusing a person of a crime. You must not consider it as evidence of guilt or draw any inference of guilt from the fact that the accused has been arrested and charged.”

       See State v. Avis, 209 Conn. 290, 307, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions § 2.8.

       The pertinent part of General Statutes § 51-61 (a) provides as follows: “[The court reporter] shall attend the court and make accurate records of all proceedings in the court, except ... the arguments of counsel, provided upon the request of any party, he shall make accurate records of the arguments of counsel.” (Emphasis added.)


text:
    State of Connecticut v. Larry Taylor
    (7677)
    Borden, O’Connell and Foti, Js.
    Argued January 18
    decision released April 17, 1990

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

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Eva Lenczewski, deputy assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and burglary in the first degree in violation of General Statutes § 53a-101 (a) (1). He was acquitted of a charge of unlawful restraint in the first degree under General Statutes § 53a-95 (a).

The defendant claims that the trial court erred (1) in denying his midtrial motion to sever his trial from that of his codefendant, (2) in refusing to give a missing witness instruction, and (3) in erroneously instructing the jury on the elements of robbery in the first degree. He also claims that the state’s attorney made improper and prejudicial comments during closing arguments and that the evidence was insufficient to justify his conviction of robbery in the first degree. We find error.

This case arose out of an incident in Waterbury on December 24,1987. At approximately 11:30 a.m., three men, one armed with a pistol and another armed with a sword, burst into the victims’ apartment. One of the victims, William Terry Moore, observed the faces of two of the perpetrators as they broke through the door and before they pulled ski masks completely over their faces. Moore was forced into the bedroom and onto the bed, with the other victim, his girl friend, Shirley Miller. The man with the pistol demanded drugs and money and simultaneously slammed the gun against Moore’s foot. After handcuffing the victims together, threatening to kill them and ransacking the apartment, the men left.

Both victims later gave statements to the police in which they identified the defendant, whom they had seen in their neighborhood, as the man who was holding the gun. Moore’s identification was based on what he saw prior to the perpetrator’s pulling down his mask. Miller based her identification on her observation of part of the gunman’s face and her recognition of his accent. They also identified the codefendant as a participant in the crime. After the codefendant’s motion to sever was denied, the two defendants were tried together.

The defendant’s motion to sever arose in the following context. During the presentation of the state’s case, both Moore and Miller recanted their statements to the police in which they had identified the codefendant as a participant in the crime. They testified instead that while they remembered seeing the defendant’s face, they never saw the codefendant’s. The codefendant, as part of his case-in-chief, called attorney Louis Avitabile and assistant state’s attorney Marcia Smith to testify as to a conversation that took place between Miller and Smith prior to the trial. Avitabile, at the time, was representing Miller on an unrelated criminal charge when Smith met with Miller to discuss the burglary. Both Avitabile and Smith testified that Miller told Smith, in Avitabile’s presence, that her statement to the police was incorrect and that she could not identify the codefendant as one of the robbers. The sole purpose of this testimony was to bolster the credibility of Miller’s in-court testimony in which she had identified the defendant, but failed to identify the codefendant. As soon as the nature and purpose of the proffered testimony became clear, the defendant moved to sever. This motion was denied. The codefendant was acquitted of all charges.

The defendant acknowledges that he made no pretrial motion for severance and explains that he had no reason to suspect that his codefendant’s case would be antagonistic to his own. Once the antagonism became apparent, however, he immediately moved for severance.

Severance of trials of defendants involved in the same incident lies within the discretion of the trial court. State v. Smith, 201 Conn. 659, 668, 519 A.2d 26 (1986). Joint trials are the rule, and separate trials will be ordered only when “ ‘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. . . ” State v. Vinal, 198 Conn. 644, 648, 504 A.2d 1364 (1986). The trial court’s refusal to sever will be reversed on appeal only when manifest prejudice to one or more of the defendants results. Id., 649.

Turning to the facts of this case, we note that the codefendant sought to undermine the state’s case against him by supporting the credibility of Miller’s in-court testimony. This had the effect of counteracting the defendant’s attempts to impeach the witness’ credibility and show a reasonable doubt. Under these circumstances, the denial of the defendant’s motion to sever resulted in “substantial injustice” to him. See State v. McLucas, 172 Conn. 542, 559, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977). It is apparent from his closing argument that the codefendant attached considerable importance to the victims’ in-court testimony. He abandoned a planned alibi defense and, instead, concentrated solely on the testimony of Moore and Miller. Several times counsel asked the jury to believe these witnesses, stating at one point, “I am asking you to believe them just as the State wants you to.” (Emphasis added.) Thus, under the facts presented here, we are convinced that the defendant’s conviction was in part a result of his codefendant’s success in defending himself by urging the jury to believe testimony which, although it exculpated the codefendant, inculpated the defendant. State v. Vinal, supra, 652. Simply stated, in a criminal prosecution, the defendant should have to defend himself against only the state and not against his codefendant as well.

Accordingly, we must set aside the defendant’s conviction and remand the case for a new trial. In light of our disposition of the first claim, we do not reach the remaining claims of error.

There is error, the judgment is set aside and the case is remanded for a new trial on the charges of robbery in the first degree and burglary in the first degree.

In this opinion the other judges concurred.

       We have reviewed the defendant’s claim that there was insufficient evidence to support his conviction of first degree robbery. We are satisfied that there is nothing to prevent his retrial on this charge.