author: Dupont, C. J.

text:
    State of Connecticut v. Richard Smith
    (6240)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued May 3
    decision released September 13, 1988

      Katherine M. Delisle, with whom, on the brief, was James Mattem, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, was Philip Scarpellino, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction, rendered upon his conditional plea of nolo contendere, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant claims that the trial court erred in denying his motion to suppress the results of breath tests administered at the time of his arrest. We find no error.

Certain facts are pertinent. On December 31, 1986, Officer Adam Stuart of the Old Saybrook police department stopped the defendant after observing him operating his vehicle in an erratic manner. Stuart observed that the defendant showed signs of intoxication and administered a roadside sobriety test. The roadside sobriety test confirmed Stuart’s suspicions of intoxication, and the defendant was placed under arrest at approximately 11 p.m.

The defendant was then transported, handcuffed and in the rear of the police cruiser, to the Old Saybrook police headquarters. Upon arrival, the defendant was brought by Stuart into a room where a breathtesting device, known as an intoximeter, was located. An intoximeter tests the level of a subject’s blood alcohol content by breath analysis. At this time, Stuart checked the calibration of the intoximeter for accuracy and found it to be outside acceptable limits. As a result of the malfunction, Stuart did not use that intoximeter to measure the defendant’s blood alcohol level.

The defendant was then placed in the rear of a police cruiser and transported to the state police barracks in Westbrook. Stuart tested the intoximeter located there and found its accuracy to be within an acceptable range. The first intoximeter test was administered to the defendant at 11:25 p.m., and showed the defendant’s blood alcohol content to be above the allowable limit set forth in General Statutes § 14-227a (a) (2).

Following this first intoximeter test, Stuart processed the necessary paperwork, during which time the defendant remained in the presence of the officer. At 11:57 p.m., a second intoximeter test was performed on the defendant. That test also showed the defendant’s blood alcohol level to be above the allowable limit. After administering the second breath test, Stuart, once again, tested the intoximeter for accuracy, and concluded that the intoximeter readings were accurate.

The defendant claims that the trial court erred in denying his motion to suppress because (1) the accuracy tests performed by Stuart did not comply with either the requirements of General Statutes § 14-227a (c) (4) or §§ 14-227a-8 (d) and 14-227a-10 of the Regulations of Connecticut State Agencies applicable to the department of health services, and (2) because he was not under continuous observation for the fifteen minute period prior to the administration of each intoximeter test as required by § 14-227a-10 (b) (1) (A) of those regulations.

The issue to be resolved is whether the results of the tests were obtained in compliance with the governing statutory and regulatory requirements for insuring that such tests are accurate.

General Statutes § 14-227a (c) sets forth six elements which must be satisfied for the admissibility of the results of chemical analysis tests of a defendant’s blood, breath or urine in a criminal prosecution for violation of § 14-227a (a) or (b). The defendant’s challenge relates to the fourth element, which provides that chemical analysis results are inadmissible unless the testing device was tested for accuracy “at the beginning of each workday and no later than the end of each workday by a person certified by the department of health services.” General Statutes § 14-227a (c) (4). The requirements of testing set forth in the department of health services regulations §§ 14-227a-8 (d) and 14-227a-10 are essentially identical to the mandates set forth in General Statutes § 14-227a (c) (4), in that they both require that the alcohol testing device be checked for accuracy by a certified operator at the beginning and no later than the end of the workday or shift.

It is uncontested that Stuart was certified as an operator of the intoximeter at the time of the defendant’s breath tests. The defendant argues that, given the penal nature of General Statutes § 14-227a, the requirement that accuracy tests be performed at the beginning and before the end of the workday or shift must be strictly and literally construed. The defendant contends that because the accuracy tests were performed immediately before and after the breath analysis tests, a manner not expressly authorized by statute, the breath analysis results should have been suppressed.

The state concedes that the intoximeter used to take the defendant’s breath sample was not checked for accuracy at the beginning of the workday or shift. In denying the defendant’s motion to suppress, the trial court found, however, that the procedure used by Stuart, namely, checking the intoximeter for accuracy immediately before and after the defendant’s breath tests, achieved greater accuracy than that required by the statute and regulations and, thus, was in total compliance with them. We agree with the trial court’s conclusion.

In interpreting the meaning and requirements of a statute or regulation, we rely on the traditional rules of statutory construction. Mitchell v. Mitchell, 194 Conn. 312, 320, 481 A.2d 31 (1984). It is a fundamental principle of construction that a statute such as § 14-227a, which imposes criminal liability, is to be strictly construed. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). The rule of strict construction, however, 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. Id. 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. State v. Waterman, 7 Conn. App. 326, 334, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986).

It is evident from the language of General Statutes § 14-227a that the purpose of testing the intoximeter for accuracy is to ensure that the device reliably reflects the actual blood alcohol level of the subject tested. This purpose is implemented by §§ 14-227a-8 (d) and 14-227a-10 of the Regulations of Connecticut State Agencies.

An accuracy test performed at the beginning of the workday or shift, hours before a subject test is performed, raises the possibility that the intoximeter has malfunctioned during the period between the accuracy test and the subject test. It is evident that the closer the temporal proximity between the subject test and the accuracy check, the greater the reliability of the subject test. See 2 R. Erwin, Defense of Drunk Driving Cases (3d Ed.) § 22.04 (3) (h), p. 22-35 (verification of instrument accuracy should be performed for each set of subject tests); cf. State v. Hancich, 200 Conn. 615, 623-24, 513 A.2d 638 (1986) (where intoximeter is checked for accuracy immediately before administering test to a subject, evidence of the test results is admissible under General Statutes § 14-227a (c) (6), which mandates that such evidence demonstrate “that the test results . . . accurately reflect the blood alcohol content at the time of the alleged offense”).

General Statutes § 14-227a (c) (4) and the accompanying regulations provide a minimum standard of accuracy testing in order to admit the test results of a device into evidence against a defendant in a criminal prosecution. The accuracy requirement provides a safeguard against inaccurate or unreliable results being used against a defendant. It would be anomalous to hold the intoximeter results in this case inadmissible because the device was tested for accuracy closer in time to the defendant’s actual breath test than is required by the statute or regulations. Testing the intoximeter immediately before and after the defendant’s breath tests is a more rigorous accuracy procedure than is required by law and therefore constitutes compliance with the statute and regulations.

The defendant also claims that the breath analysis results should have been suppressed because he was not under “continuous observation” for at least fifteen minutes prior to each of the breath analysis tests, as required by the department of health services regulations; Regs., Conn. State Agencies § 14-227a-10 (b) (1) (A). That regulation provides that “the breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to the collection of each sample. During this observation period, the subject must not have ingested any alcoholic beverages or food, regurgitated or smoked.” Id.

The defendant was arrested at approximately 11 p.m. The first breath test was performed at 11:25 p.m., and the second test was performed at 11:57 p.m. The defendant does not contest the fact that at least fifteen minutes had elapsed prior to each test. The defendant argues, rather, that during those periods he was not “under continuous observation” as required by the regulation. Specifically, the defendant contends that during the observation period, when Stuart was operating the police cruiser, preparing the intoximeter for use, and processing the paperwork, the defendant could not have been “under continuous observation.”

The language of § 14-227a-10 (b) (1) (A) of the regulations, which requires “continuous observation,” must be interpreted with reference to the purpose of the regulation. See State v. Roque, supra, 151. The regulation, read in its entirety, indicates that the purpose is to determine whether the subject to be tested has ingested food, beverages, regurgitated or smoked. These activities adversely affect the accuracy of alcohol breath analysis. See 2 R. Erwin, supra, § 22.05 (4) (a), p. 22-42.18 (64). They are activities which do not require observation without cessation in order to determine if they have occurred.

During the hearing on the defendant’s motion to suppress, Stuart testified that at all times prior to the administration of the breath analysis, the defendant was in his presence. Stuart further testified that he was able to determine that the defendant had not engaged in any of the behaviors prohibited by the regulation.

In light of the regulation’s purpose, we do not interpret § 14-227a-10 (b) (1) (A) to require that an officer fix his unswerving gaze upon a subject during each fifteen minute interval prior to administration of a breath test. Such an interpretation would not only be practically impossible to perform but would allow a subject to thwart compliance with the regulation simply by turning his head away from the observing officer. Where, as here, evidence shows that a defendant was in an officer’s presence for at least a period of fifteen minutes and that the defendant did not ingest food or beverages, regurgitate or smoke, the requirement of “continuous observation” -under § 14-227a-10 (b) (1) (A) has been complied with. Accordingly, the trial court did not err in denying the defendant’s motion to suppress the results of the breath analysis tests.

There is no error.

In this opinion the other judges concurred.

       The defendant appeals pursuant to Practice Book § 4003 (b). Section 4003, which became effective October 1, 1986, provides in pertinent part: “APPEALS OF RULINGS ON MOTIONS TO DISMISS OR SUPPRESS FOLLOWING JUDGMENTS ENTERED UPON CONDITIONAL PLEAS OF NOLO CONTENDERE . . . . (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 § 54-94a allows a defendant to enter a plea of nolo contendere conditional on the right to take an appeal from the trial court’s denial of a motion to suppress evidence based on an unreasonable search and seizure or from the denial of a motion to dismiss. That section provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.” See also Practice Book § 4003 (a).
      In this case, the ground for the defendant’s motion to suppress, namely, that the results of the breath alcohol tests were obtained without compliance with all applicable state statutory and regulatory requirements, “is not included within the statutory language [of General Statutes § 54-94a] allowing appeals from an illegal search or seizure in violation of the fourth amendment. See State v. Madera, [198 Conn. 92, 99, 503 A.2d 136 (1985)].” State v. Chung, 202 Conn. 39, 43, 519 A.2d 1175 (1987). Jurisdiction arises, however, from the rule of practice. Practice Book § 4003 (b). See general principles of jurisdiction set forth in Szarwak v. Warden, 167 Conn. 10, 37, 355 A.2d 49 (1974); State v. Clemente, 166 Conn. 501, 514, 353 A.2d 723 (1974); In re Appeal of Dattilo, 136 Conn. 488, 492, 72 A.2d 50 (1950); Wakinshaw v. O’Brien, 130 Conn. 122, 142, 32 A.2d 547 (1943).

       The appeal in this case and the appeals in State v. Scott, 16 Conn. App. 172, 547 A.2d 77 (1988), and State v. Desso, 16 Conn. App. 165, 547 A.2d 74 (1988), were argued together in this court. Separate briefs were filed in each appeal.

       General Statutes § 14-227a provides in pertinent part: “(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 ... if he operates a motor vehicle . . . (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one percent or more of alcohol, by weight.”

       General Statutes § 14-227a (c) provides: “admissibility of chemical analysis. Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug 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: (1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (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. If a blood test is taken, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical technician II or a registered nurse; (4) the device used for such test was checked for accuracy at the beginning of each workday and no later than the end of each workday by a person certified by the department of health services; (5) an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed, provided however the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented which demonstrates that the test results and the analysis thereof accurately reflect the blood alcohol content at the time of the alleged offense.”

       Regs., Conn. State Agencies § 14-227a-8 (d) provides in pertinent part: “After initial certification the instrument shall be checked for accuracy at the beginning of each day of use or departmental shift and sometime before the end of each day or shift by a person certified by the department of health services.” Section § 14-227a-10 of those regulations provides in pertinent part: “Such operator . . . shall check the instrument for accuracy at the beginning and no later than the end of each workday or shift.”

       We note that a recent amendment to General Statutes § 14-227a (c) (4), effective October 1, 1988, requires accuracy testing to be performed “immediately before and after such test was performed by a person certified by the department of health services.” See Public Acts 1988, No. 88-85.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Lyman E. Desso
    (5595)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued May 3
    decision released September 13, 1988

      Glenn E. Coe, with whom, on the brief, was Mary Alice Moore, for the appellant (defendant).

      Geoffrey Marion, deputy assistant state’s attorney, with whom, on the brief, was Robert Britt, deputy assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant claims that he was denied a fair trial (1) because evidence of an intoximeter test result was admitted, (2) because the trial court failed to charge the jury as to the statutory and regulatory requirements relating to the intoximeter test, and (3) because the trial court failed to excuse three prospective jurors for cause.

The evidence at trial was that a state police officer stopped the defendant’s car after the officer had observed an erratic operation of the car. The officer smelled alcohol on the defendant’s breath, and noted that the defendant’s eyes were bloodshot and that his speech was slurred. On the basis of these observations and on the results of a roadside sobriety test, the officer placed the defendant under arrest. The defendant was taken to a state police barracks where an intoximeter breath test was administered to him about one hour after he had been stopped. The test measured his blood alcohol level at .191, a level above the legal alcohol limit set forth in General Statutes § 14-227a (a) (2). During the fifteen minutes prior to the test, the officer gave a similar breath test to another person who also had been arrested.

I

The defendant moved to suppress the intoximeter test results, contending that there had not been compliance with the regulations of the department of health services issued pursuant to General Statutes § 14-227a (e) or with the requirement of General Statutes § 14-227a (c) governing the admissibility of blood alcohol test results. The regulations are contained in § 14-227a-10 of the Regulations of Connecticut State Agencies. The trial court denied the motion. The defendant characterizes this issue, in his brief, as his “primary claim of error.”

There are six preconditions to the admissiblity of breathalizer tests. General Statutes § 14-227a (c) (1) through (6). The preconditions were met here. See State v. Smith, 16 Conn. App. 156, 547 A.2d 69 (1988). The defendant, contends, however, that in addition to the statutory preconditions, the state was also obligated to prove compliance with the regulations. Even if the state had the burden to prove such compliance, it satisfied that requirement.

The defendant argues that the regulations were not complied with because the operator of the test had not had the four hours of training necessary for certification; Regs., Conn. State Agencies § 14-227a-10 (c) (a) (ii); and because the operator of the test had not placed the defendant under “continuous observation” prior to the testing of the defendant. Regs., Conn. State Agencies § 14-227a-10 (b) (1) (A). The officer who administered the test testified that he had undergone training for certification in excess of the four hour minimum. The same witness also produced copies of his original certification and his recertification. He further testified that he kept the defendant in his sight for sixty minutes prior to the test and did not see him ingest any alcoholic beverages or food, or see him regurgitate or smoke, and that he would have noticed if the defendant had done so. We decided in State v. Smith, supra, 164, that “continuous observation” as used in regulation § 14-227a-10 (b) (1) (A) does not require observation without cessation. The trial court properly admitted the intoximeter test results.

II

The defendant’s next claim of error is that the trial court should have charged the jury on the statutory and regulatory requirements of the intoximeter test so that the jury might review the requirements “in determining the weight to be given to the test results and the testimony related thereto.” Once the trial court had properly admitted the result of the test into evidence, the jury would have no reason to consider the requirements of the statute or the regulations. Those requirements relate to the admissibility of the test as evidence, a function solely in the province of the court. The jury could give the test result whatever weight it chose in its determination of whether the state had proved the defendant guilty beyond a reasonable doubt.

Furthermore, the defendant’s request to charge the jury sought simply to request the court to read the statutes and regulations, and was without citation to a substantive principle of law. See Practice Book § 854. The court did not err in refusing to charge the jury as the defendant requested.

Ill

The last claim of error asserted by the defendant is that his motions to excuse certain jurors for cause should have been granted because the particular jurors could not be impartial. The defendant had a total of four peremptory challenges. He exercised one peremptory challenge, and then, rather than exercise his second challenge, he moved to exclude for cause a venireperson who testified that his wife’s grandmother had been killed by a drunken driver, and that he could remain impartial about the case only if he did not tell his wife about the kind of case he was hearing as a juror. The prospective juror had met his wife’s grandmother once and stated that her death had quite an impact on his wife. The court denied the defendant’s motion to excuse this venireperson for cause, and the defendant used his second peremptory challenge to excuse him.

The defendant subsequently used his third peremptory challenge to excuse another venireperson, and he later moved to excuse another venireperson for cause, at which time he had one peremptory challenge left. The court denied the motion and the defendant moved for an additional peremptory challenge. At the time those motions were denied, the defendant still had one challenge left which he failed to exercise. Instead, he allowed that venireperson to serve on the jury panel. The juror he allowed on the panel was the mother of a prosecutor. The prosecutor in this case stated that he knew the juror’s son and was friendly with him, but there is no indication that the juror herself knew the prosecutor in this case.

Practice Book § 843 provides that if the judicial authority finds that a person exhibits “any quality which will impair his capacity to serve as a juror,” then he shall be disqualified. General Statutes § 54-82f provides then if the trial judge “is of the opinion . . . that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge

Unless all peremptory challenges have been exercised before the completion of jury selection, there is a presumption that there is no juror serving who is regarded by the defendant as biased, although the defendant may have preferred other jurors. State v. Mercer, 208 Conn. 52, 61-62, 544 A.2d 611 (1988); State v. Vitale, 190 Conn. 219, 225, 460 A.2d 961 (1983). A trial court has discretion as to whether it will excuse a juror for cause. State v. Mercer, supra. This discretion is a wide one.

In Johnson v. New Britain General Hospital, 203 Conn. 570, 572, 575, 525 A.2d 1319 (1987), a medical malpractice case, a prospective juror, who was a retired dentist, stated during his voir dire that he had “an antagonism against malpractice suits and awards. . . . My general opinion is that many cases are frivolous. . . . Many awards are exorbitant.” Although the plaintiff had exercised all of his peremptory challenges at the time of the voir dire, it was held that it was not an abuse of discretion for the trial court to refuse to excuse the juror for cause. The assurance by the juror, “I think I would be fair,” was deemed to be sufficient assurance that he would be fair and impartial. The plaintiff claimed in Johnson that the testimony of the juror indicated actual bias and that the juror should have been disqualified under the common law. The court found that the responses of the juror tended to show bias but did not create a conclusive presumption of bias. It held that under the facts of the case, the juror had indicated that he could lay aside his impression or opinion and render a verdict based on the evidence presented.

We conclude that neither juror in this case showed such prejudice and bias that he or she should have been excused for cause. State v. Mercer, supra; Johnson v. New Britain General Hospital, supra; State v. Cubano, 203 Conn. 81, 88-89, 523 A.2d 495 (1987); see also United States v. Haynes, 398 F.2d 980 (2d Cir. 1968). Since the defendant need not have accepted the juror who was allowed to sit after the denials of his motions to excuse for cause because he still had a peremptory challenge left, it is all the more apparent that the trial court did not abuse its discretion. State v. Vitale, supra, 225.

There is no error.

In this opinion the other judges concurred.

       The appeal in this case and the appeals in 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), were argued together in this court. Separate briefs, however, were filed in each appeal.

       The defendant also claims that he had the right to introduce the regulations into evidence. The trial court took judicial notice of the regulations and they were marked for identification. Since regulations adopted pursuant to a legislative command have the force of law; Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 497, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); it is no more necessary that a court admit regulations as full exhibits into evidence than it would be necessary for a court to admit statutes as full exhibits into evidence.

       General Statutes § 14-227a provides that no test shall be admitted into evidence unless the test was performed “according to methods and with equipment approved by the department of health services” and that the commissioner of health services “shall adopt regulations governing the conduct of chemical tests, the operation and use of chemical test devices and the training, certification and annual recertification of operators of such devices as he finds necessary to protect the health and safety of persons who submit to chemical tests and to insure reasonable accuracy in testing results.” Since regulations must be adopted and the test administered with approved methods, the state must demonstrate to the satisfaction of the trial court that the regulations were followed as a precondition to the admissibility of a chemical test result. See State v. Tomanelli, 153 Conn. 365, 216 A.2d 625 (1966). When the legislature expressly directs a commission to adopt regulations, those regulations have the force of statutory law. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 497, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). Thus, the regulations here have the force of law and are as much a part of the statute as the statute itself.


text:
    State of Connecticut v. Donald Scott
    (6039)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued May 3
    decision released September 13, 1988

      James E. Mattern, with whom was Katherine Delisle, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, was Thomas Nazzaro, former assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant claims' that the trial court erred (1) in denying his motion to suppress the results of a chemical breath test of his blood alcohol level, (2) in denying his motion to dismiss based on an alleged violation of the trial court’s sequestration order depriving the defendant of his constitutional right to due process of law and statutory rights under General Statutes § 54-85a, and (3) in sustaining the state’s objection to the defendant’s subpoena duces tecum. We find no reversible error.

This case involves the following facts. On December 20, 1985, Trooper Donald M. Barbour stopped an automobile driven by the defendant for suspicion of driving under the influence of alcohol. Barbour administered field sobriety tests to the defendant, which the defendant failed. Barbour placed the defendant under arrest at about 12:40 a.m. The defendant was then placed in the passenger side of a police vehicle and transported to the police station.

At the police barracks, Barbour tested the defendant’s blood alcohol level with a breathalyzer device known as an intoximeter. The first test was administered at 1:15 a.m., yielding a blood alcohol ratio of .199. A second test was given to the defendant at 1:53 a.m., yielding a blood alcohol ratio of .184. Both of these ratios indicated blood alcohol levels above the legal limit set forth in General Statutes § 14-227a (a) (2). Barbour checked the intoximeter’s accuracy before and after each test. These checks indicated that the calibrations were accurate and that the intoximeter was functioning properly.

Barbour placed the printouts of the checks on the intoximeter’s accuracy together with the measurements of the defendant’s blood alcohol level in a log book kept in the police barracks, and mailed copies of the same to the defendant. On April 19, 1986, the log book was discovered to be missing. It had not been located by the time of the hearing on the defendant’s motion to suppress the results of the breath alcohol tests.

I

In his first claim of error, the defendant argues that the trial court erred in denying his motion to suppress the results of the breathalyzer tests (1) because the instrument was not checked for accuracy at the beginning of each day of use in accordance with General Statutes § 14-227a (c) (4), or at the beginning of each shift in accordance with the department of health services regulations; Regs., Conn. State Agencies §§ 14-227a-8 (d) and 14-227a-10; and (2) because the defendant was not under “continuous observation” for at least fifteen minutes prior to the collection of the breath samples in accordance with the department of health services regulations. Regs., Conn. State Agencies § 14-227a-10 (b) (1) (A). These issues of statutory and regulatory interpretation have been fully addressed in the companion case of State v. Smith, 16 Conn. App. 156, 547 A.2d 69 (1988).

In State v. Smith, supra, 163, we held that a check of the intoximeter’s accuracy prior to the subject test, as opposed to the beginning of each day of use or shift, complies with the requirements for admissibility set forth in the statute and regulations. Further, the trial court found that “as far as humanly possible the trooper kept the defendant under continuous observation for the requisite period.” That finding is supported by the record, and is all that is required under the regulations. State v. Smith, supra. The trial court did not err in denying the defendant’s motion to suppress on those grounds.

II

The defendant next claims that the trial court erred in denying his motion to suppress because the loss of the log book, which contained a copy of his test results and accuracy determinations of the intoximeter, violated his constitutional right to due process under the fourteenth amendment to the federal constitution. We disagree.

The state acknowledges the loss of the log book. The maintenance of a log book is required by the department of health services regulations. Regs., Conn. State Agencies § 14-227a-10 (b) (2) (B). The defendant does not argue that the violation of the regulation constituted sufficient support for his motion to suppress the results of the breath alcohol tests. Cf. State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988). The defendant argues, rather, that the alleged violation of his constitutional rights constituted sufficient support for his motion to suppress. We note in the first instance that a prosecutor has a constitutional duty to disclose exculpatory evidence which is known to the prosecution but unknown to the defense. Brady v. Maryland, 373 U.S. 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). It is apparent that this case does not involve the unintentional loss or nondisclosure of Brady material but, at most, involves the loss or nondisclosure of potentially exculpatory material. This is also so because the defendant had received copies of the printouts of the checks on the intoximeter’s accuracy and a copy of the measurements of his blood alcohol level by mail, which were items recorded in the log book.

The seminal case regarding a state’s constitutional duty to preserve potentially exculpatory evidence is California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984) (state’s failure to preserve a defendant’s breath alcohol sample does not violate the federal constitution). Trombetta held that the failure to preserve potentially exculpatory evidence does not result in a violation of the constitution unless such failure deprives a defendant of “a meaningful opportunity to present a complete defense.” Id., 485. Trombetta delineated two inquiries for discerning whether a defendant has had “a meaningful opportunity to present a complete defense.” The first inquiry is whether the authorities were “acting ‘in good faith and in accord with their normal practices.’ ” Id., 488, quoting Killian v. United States, 368 U.S. 231, 242, 82 S. Ct. 302, 7 L. Ed. 2d 256 (1961). The second inquiry is whether the evidence was material in that it (a) “possess[es] an exculpatory value that was apparent before the evidence was destroyed [and (b) is of] such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, supra, 489; see also Chaussard v. Fulcomer, 816 F.2d 925, 931-32 (3d Cir. 1987), cert. denied, 484 U.S. 845, 108 S. Ct. 139, 98 L. Ed. 2d 96 (1987) (loss of a tape recording did not constitute material evidence and therefore its absence did not result in a due process violation).

As to the good faith element of the Trombetta standard, the trial court found no evidence showing that the log book was purposely lost, or destroyed intentionally. “The record contains no allegation of official animus towards [the defendant and indicates] no conscious effort to suppress exculpatory evidence.” California v. Trombetta, supra, 488. Accordingly, the first Trombetta inquiry is satisfied in this case.

As to the materiality elements of the Trombetta standard, we conclude that the second inquiry is also satisfied in this case. First, the defendant cannot demonstrate that the log book’s exculpatory value was “apparent before the evidence was destroyed.” Id., 489. The defendant speculates that had the missing log book showed that the machine used to sample the defendant’s blood alcohol level previously malfunctioned and was not subsequently calibrated, an accuracy reading prior to the taking of the defendant’s breath sample may have been “tainted.” We find such speculation to be unsupported by the record. The evidence indicates that the machine used to test the defendant’s blood alcohol level was in fact tested for accuracy and calibrated by Barbour immediately prior to and following each breath test. The log book’s exculpatory value was therefore not “apparent” to the authorities when it was lost.

Second, the evidence is not “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. The defendant had comparable evidence available, in addition to the log book, by which to impeach the accuracy capabilities of the intoximeter used to sample his blood alcohol level. General Statutes § 14-227a (c) (2) requires that “a true copy of the report of the test result [be] mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day” in order for the test results to be admitted into evidence. The record indicates that the defendant received a copy of the test results that contained the two determinations of the defendant’s blood alcohol content, and numerical indications that the machine had been checked for accuracy. This copy was admitted into evidence at the suppression hearing. Because the record indicates that the log book contained an identical copy of the foregoing information, the fact that it was missing did not deprive the defendant of comparable evidence. Furthermore, the copy contained in the missing log book, identical to that received by the defendant, was inculpatory in that it demonstrated that the instrument was calibrated, accurate at the time the defendant was tested, and that the defendant’s blood alcohol level was above the legal limit. The regulations require no more information to be recorded in the missing log book; see footnote 9, supra; than that shown by the copy of the test results admitted into evidence at the suppression hearing. The defendant was not foreclosed from calling upon expert testimony to impeach the intoximeter results. The defendant could have obtained “comparable evidence by other reasonably available means.” California v. Trombetta, supra.

The defendant claims, however, that he was deprived of an opportunity to obtain additional, comparable evidence because the trial court sustained the state’s objection to the production of certain items enumerated in his subpoena duces tecum. The items requested were copies of the manufacturer’s operational instructions for the intoximeter, copies of all recertifications from October 8, 1985, through March 4, 1986, on the machine which was used to sample the defendant’s breath and copies of all repair or recalibration orders for the intoximeter.

This claim is subsumed under Trombetta’s materiality inquiry. The defendant requested a copy of the manufacturer’s operational instructions for the intoximeter. This evidence does not have any apparent exculpatory value with respect to impeaching the accuracy of the machine, and is reasonably available elsewhere. The defendant also requested evidence of the recertification and repair or recalibration orders for the machine used to sample the defendant’s blood alcohol level. Although this evidence may have shown that the machine had malfunctioned in the past, the undisputed evidence admitted at the suppression hearing demonstrated that the machine was accurate on the day that the defendant’s breath samples were taken. Even if there had been evidence that the machine malfunctioned previously, that evidence does not have apparent exculpatory value with respect to impeaching the defendant’s blood alcohol tests. Accordingly, the trial court did not err in denying the defendant’s subpoena duces tecum.

Ill

The defendant claims that the trial court erred in denying his motion to dismiss by failing to find a violation of the court’s sequestration order which allegedly deprived the defendant of his constitutional right to due process and statutory rights under General Statutes § 54-85a.

This issue involves the following facts. The hearing on the defendant’s motion to dismiss was conducted on two different days. On the first day, after Trooper Barbour had testified, the trial court ordered him not to discuss his testimony with Trooper Steven Fields, who was scheduled to appear as a witness at the later date. Prior to the commencement of the continued hearing on the defendant’s motion to suppress, the defendant’s attorney had observed Barbour and Fields talking with the prosecutor. The defendant subsequently moved to dismiss the charges against him on the ground that the trial court’s sequestration order had been violated. The prosecutor denied that Barbour’s prior testimony had been discussed. The prosecutor represented that he had told Fields to expect to be called as a rebuttal witness and informed the troopers that the hearing would likely conclude on that day. The defendant acknowledged that he did not know what the prosecutor and the troopers discussed. The trial court denied the defendant’s motion to dismiss and Fields was allowed to testify.

Sequestration orders may be implemented by statute; General Statutes § 54-85a; or by an order of the court which may impose a broader prohibition than that provided by the sequestration statute. State v. Williams, 169 Conn. 322, 331, 363 A.2d 72 (1975). The “primary concern [is] the ‘fairness of the trial, not the culpability of the prosecution.’ ” State v. Falby, 187 Conn. 6, 27, 444 A.2d 213 (1982), quoting Smith v. Philips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). The defendant urges this court to adopt a rule holding that a conference among a state’s attorney and witnesses subject to a sequestration order constitutes a per se violation of that order. This we decline to do.

The “obvious purpose of sequestering a witness . . . is to prevent the one sequestered from shaping his testimony to corroborate falsely the testimony of the other.” State v. Pikul, 150 Conn. 195, 200, 187 A.2d 442 (1962). A per se rule would prevent inquiry into whether the underlying purpose of the sequestration order had been served. That purpose primarily ensures that the defendant will receive a fair trial. An inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted.

We deem it necessary, therefore, to examine the testimony of Fields, which took place after the alleged violation of the sequestration order, for evidence of possible complicity. There is no indication that Fields fabricated his testimony to comport with that of Barbour. Fields’ testimony concerned his signature on the defendant’s consent form, the validity of which is not at issue in this case. In addition, the substance of Fields’ testimony indicated that he did not recall much about what took place that evening, whereas Barbour’s testimony focused on the events surrounding the defendant’s arrest in great detail. Any consistency in the testimony of the troopers is wholly explainable by reference to other factors such as standard police operating procedures. See, e.g., State v. Sullivan, 11 Conn. App. 80, 85, 525 A.2d 1353 (1987).

Moreover, the defendant had the opportunity to question Fields to expose any potential taint resulting from the conference between the state’s attorney and the troopers since Fields took the stand after the alleged violation of the sequestration order. “The failure of trial counsel to attempt ... to show any harm that may have flowed from the violation of the sequestration order is strong evidence that he did not deem it to be prejudicial.” Id., 86. We conclude, accordingly, that any violation of the court’s sequestration order did not deprive the defendant of his constitutional or statutory rights.

There is no error.

In this opinion the other judges concurred.

       The defendant appeals pursuant to Practice Book § 4003 (b). Section 4003, which became effective October 1, 1986, provides: “APPEALS OF rulings ON MOTIONS TO DISMISS OR SUPPRESS FOLLOWING JUDGMENTS ENTERED UPON CONDITIONAL PLEAS OF NOLO CONTENDERE .... (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 § 54-94a allows a defendant to enter a plea of nolo contendere conditional on the right to take an appeal from the trial court’s denial of a motion to suppress evidence based on an unreasonable search and seizure or from the denial of a motion to dismiss. That section provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.” See also Practice Book § 4003 (a).
      In this case, the grounds for the defendant’s motion to suppress, namely, that the results of the breath alcohol tests were obtained without compliance with all applicable state statutory and regulatory requirements, and that the loss of the log book violated his federal constitutional right to due process of law under the fourteenth amendment, are “not included within the statutory language [of General Statutes § 54-94a] allowing appeals from ... an illegal search or seizure in violation of the fourth amendment. See State v. Madera, [198 Conn. 92, 99, 503 A.2d 136 (1985)].” State v. Chung, 202 Conn. 39, 43, 519 A.2d 1175 (1987). Jurisdiction arises, however, from the rule of practice. Practice Book § 4003 (b). See general principles of jurisdiction set forth in Szarwak v. Warden, 167 Conn. 10, 37, 355 A.2d 49 (1974); State v. Clemente, 166 Conn. 501, 514, 353 A.2d 723 (1974); In re Appeal of Dattilo, 136 Conn. 488, 492, 72 A.2d 50 (1950); Walkinshaw v. O’Brien, 130 Conn. 122, 142, 32 A.2d 547 (1943).

       The appeal in this case and the appeals in State v. Desso, 16 Conn. App. 165, 547 A.2d 74 (1988), and State v. Smith, 16 Conn. App. 156, 547 A.2d 69 (1988), were argued together in this court. Separate briefs were filed in each case.

       “[General Statutes] Sec. 54-85a. sequestering of witnesses in criminal prosecution. In any criminal prosecution, the court, upon motion of the state or the defendant, shall cause any witness to be sequestered during the hearing on any issue or motion or any part of the trial of such prosecution in which he is not testifying.”

       General Statutes § 14-227a (a) provides in pertinent part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor .... A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor . . . if he operates a motor vehicle ... (2) while the ratio of alcohol in the blood of such person is ten-hundreths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-227a (c) provides in pertinent part: “[I]n any criminal prosecution for the violation of [§ 14-227a (a)] . . . evidence respecting the amount of alcohol ... in the defendant’s blood ... at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath . . . shall be admissible and competent provided: ... (4) the device used for such test was checked for accuracy at the beginning of each workday and no later than the end of each workday by a person certified by the department of health services . . . .” This statute has been amended and now provides in pertinent part: “[EJvidence respecting the amount of alcohol ... in the defendant’s breath . . . shall be admissible and competentprovided . . . the device used for such test was checked for accuracy immediately before and after such test was performed.” Public Acts 1988, No. 88-85.

         Regs., Conn. State Agencies § 14-227a-8 (d) provides: “After initial certification the instrument shall be checked for accuracy at the beginning of each day of use or departmental shift and sometime before the end of each day or shift by a person certified by the department of health services.”

       Regs., Conn. State Agencies § 14-227a-10 provides in pertinent part: “[T]he operator . . . shall check the instrument for accuracy at the beginning and no later than the end of each workday or shift.”

       Regs., Conn. State Agencies § 14-227a-10 (b) (1) (A) provides that the “breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to the collection of each sample. During this observation period the subject must not have ingested any alcoholic beverages or food, regurgitated, or smoked.”

       Regs., Conn. State Agencies § 14-227a-10 (b) (2) (B) provides in pertinent part: “A single current log book for the instrument shall be maintained in which the frequency of determination of accuracy of the instrument and the identity of the person performing the determination of such accuracy are given. ... All test results of each subject’s analysis and calibration shall be recorded in the log book maintained by the police agency.”

       Prior to Trombetta, the United States Supreme Court had “never squarely addressed the government’s duty to take affirmative steps to preserve evidence on behalf of criminal defendants.” California v. Trombetta, 467 U.S. 479, 486, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).

       The trial court denied the defendant’s subpoena duces tecum on relevancy grounds. Although the items requested by the defendant were relevant to the issues concerning the defendant’s motion to suppress, they were not material under California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984).


author: Borden, J.

text:
    State of Connecticut v. Thomas Mankus
    (6288)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 9
    decision released September 13, 1988

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, was Herbert Carlson, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of burglary in the third degree in violation of General Statutes (Rev. to 1977) § 53a-103. The defendant’s sole claim of error is that the trial court committed reversible error when it instructed the jury that it could convict the defendant of burglary on the basis of his remaining unlawfully in a building where the state specifically charged the defendant with haring committed the unlawful entry form of burglary. We find no reversible error.

The state’s evidence was as follows. On February 11, 1979, Edward Rolocut was visiting Scott Mankus, the defendant’s son, at the defendant’s home in Manchester. That evening, the defendant took Rolocut to the Rolocut home in West Hartford. Along the way, the defendant asked Rolocut if he could stay with Rolocut’s family in exchange for liquor and money. The defendant then dropped Rolocut off near his home, and waited while Edward joined his mother, Pauline Rolocut, his sister, Theresa Rolocut, and his sister’s friend, Pamela Lewis. Although Edward told his mother of the defendant’s offer, he never returned to the car. Sometime thereafter, the defendant made several calls to the Rolocut home and in one of those calls he threatened to injure Edward if he came out of the house.

At approximately 12:30 a.m. on February 12, 1979, the defendant and his son broke through the locked back door of the Rolocut home. Scott Mankus and Edward Rolocut then began fighting in the living room. Lewis testified on cross-examination that, at some point during the fight, she heard Pauline and Theresa Rolocut both tell the Mankuses to “get out of here.” When the defendant approached Edward Rolocut with a pair of vice grip pliers, Pauline Rolocut hit him with a ceramic statue. The defendant then struck her in the face with the pliers, causing permanent injury to her right eye.

The defendant and his son fled the scene. They were arrested on their way home. The police found the pliers in the defendant’s pocket during a search incident to the arrest.

The defendant was charged with one count of assault in the first degree in violation of General Statutes (Rev. to 1977) § 53a-59 (a) (1), and one count of burglary in the first degree in violation of General Statutes (Rev. to 1977) § 53a-101 (a) (2). He was acquitted on the first count and, on the second count, he was found guilty of the lesser included offense of burglary in the third degree. After the defendant’s appellate rights were restored pursuant to a petition for habeas corpus, this appeal followed.

In its information, the state charged the defendant with burglary in the first degree, alleging that he “did enter a building [unlawfully] with intent to commit a crime therein and intentionally, knowingly or recklessly inflicted or attempted to inflict bodily injury to another person.” (Emphasis added.) In its instruction to the jury, however, the court permitted the jury to find the defendant guilty of burglary if he “entered or remained unlawfully” in the building with the intent to commit a crime therein. (Emphasis added.) The defendant claims that the court’s instruction unconstitutionally enlarged the burglary offense as stated in the charging document and thereby permitted the jury to convict him on the basis of an uncharged portion of the statute in violation of his rights under the sixth amendment to the United States constitution and under article first, § 8, of the Connecticut constitution. Under the circumstances of this case, we disagree.

The defendant failed to raise this claim at trial and failed to take an exception to the trial court’s charge. We review this claim under the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), however, to the extent that the defendant’s claim of enlargement is adequately supported by the record, because this claim implicates “the fundamental constitutional right to be informed of the nature and cause of the accusation against him . . . and because we have recently granted an Evans review for a similar claim in State v. Newton, [8 Conn. App. 528, 532, 513 A.2d 1261 (1986)]; see also State v. Roque, 190 Conn. 143, 149-50, 460 A.2d 26 (1983).” State v. Trujillo, 12 Conn. App. 320, 325-26, 531 A.2d 142, cert. denied, 205 Conn. 812, 532 A.2d 588 (1987).

It is well established that “[w]here, as here, the trial court’s charge . . . included both the ‘enters unlawfully’ and the ‘remains unlawfully’ statutory language, each of which may be an element of the crime of burglary; and where the information restricted the offense to ‘entering unlawfully’ and no amendment was requested . . . the trial court erred in instructing the jury on the ‘remains unlawfully’ disjunctive element of burglary.” (Citations omitted.) State v. Belton, 190 Conn. 496, 502, 461 A.2d 973 (1983). “To prevail, however, the defendant must demonstrate that the court’s instruction resulted in unfair surprise or somehow prejudiced the preparation of his defense. State v. Franko, [199 Conn. 481, 490, 508 A.2d 22 (1986)].” State v. Peterson, 13 Conn. App. 76, 84, 534 A.2d 1237 (1987). The defendant does not claim that the instruction caused him unfair surprise. He claims, however, that it prejudiced him because the defense he set forth was insufficient to meet a charge that he committed the burglary by remaining unlawfully in the Rolocut home with intent to commit a crime therein.

“In determining whether a defendant has been prejudiced in the preparation of his defense, we consider the nature of his defense advanced at trial in relation to the trial court’s instruction. . . . Where the record indicates that a defendant would not have changed his defense in any way had he actually been charged by the state with the particular theory of criminal liability upon which the trial court instructed the jury, the defendant’s defense cannot be said to have been prejudiced .... Thus, if the defendant’s defense encompasses the uncharged theory of criminal liability as well as the charged theory, and, if believed by the jury, could lead to an acquittal under either theory, his constitutional rights have not been adversely implicated by the trial court’s instruction.” (Citations omitted.) State v. Trujillo, supra, 326-27.

The defendant put forward the following defense, through his own testimony and the testimony of Scott Mankus. Edward Rolocut stole money out of the defendant’s wallet while driving back to West Hartford with him. When confronted with this act, Edward Rolocut stabbed the defendant with a sharp instrument and left the car. After returning home, the defendant and his son called Edward Rolocut, asking that the money be returned. They then drove to the Rolocut apartment for the sole purpose of requesting the money back. Scott Mankus knocked on the back door and then entered through the unlocked door, with the defendant following. Scott Mankus had previously entered in this manner, and he felt he had implied permission to do so. The Mankuses testified, however, that the defendant had never entered the house before, and the defendant admitted that he entered the apartment without express or implied permission. Scott Mankus did not instigate the fight with Edward Rolocut, and the defendant never threatened Rolocut but was hit with an object. Edward Rolocut, wielding the pliers, accidentially hit his mother in the eye. While crouched over after being hit, the defendant was nearly hit by a falling pair of pliers. Before leaving, the defendant placed the pliers in his pocket so that they would not be used against him.

The defendant claims on appeal that his defense at trial was two-pronged: (1) that he did not enter unlawfully because his son was permitted to enter the Rolocut home, and, on February 12, he entered the home with his son “as his guest”; and (2) that he had no intent to commit a crime in the Rolocut home, either when he entered the residence because he merely intended to request the return of his money, or while he remained there because he was at all times a bystander, neither assaulting nor threatening anyone.

We will not review, under State v. Evans, supra, the defendant’s claim that he was prejudiced because his trial defense of a right to enter the Rolocut household as a guest of his son was insufficient to meet the enlarged offense. This portion of his claim is not “adequately supported] by the record.” Id., 70. The defendant has failed to supply this court with a transcript of his closing argument to the jury. Such a transcript would have provided us with the most cogent statement of his theory of the case as presented to the jury. In addition, from the evidence and from the court’s instructions to the jury, we find no support for the argument, now pressed on appeal, that it was the defendant’s theory that he entered lawfully as a guest of his son.

The defendant’s theory of defense presented at trial, namely, that he never intended to commit a crime in the Rolocut home, was not prejudiced by the erroneous instruction. By claiming that he did not have the requisite intent to commit a crime at any time during the incident, the defendant put forth a defense which, if believed by the jury, would have led to an acquittal regardless of whether the jury found him to have entered unlawfully or to have entered lawfully but remained unlawfully after having been told to leave. Under these circumstances, where the defendant’s defense encompassed both the charged and uncharged theories of liability, “and, if believed by the jury, could lead to an acquittal under either theory, his constitutional rights have not been adversely implicated by the trial court’s instruction.” State v. Trujillo, supra, 327.

The defendant also claims that had he known of the enlarged offense, he would have added to the defense by also directly disputing the “unlawfully remaining” element of the enlarged offense. The defendant argues that he would have asked different questions of Lewis on cross-examination to avoid eliciting her testimony, and to controvert her testimony, which tended to show that he remained unlawfully in the Rolocut apartment. The defendant asserts, then, that the court’s instruction prejudiced his defense because he would have attempted to impeach Lewis by asking questions that he does not specify, and because he would have more directly denied that witness’ assertions through his own testimony and that of his son.

We need not decide, however, whether this argument is simply too speculative to provide a sufficient basis for a conclusion that the defendant’s defense was prejudiced by the erroneous jury instruction. Under the circumstances of this case, we conclude that the jury did not convict the defendant of the unlawfully remaining form of burglary. Consequently, the instructional error was harmless because we are “satisfied beyond a reasonable doubt that it did not contribute to the verdict.” State v. Coleman, 14 Conn. App. 657, 682, 544 A.2d 194 (1988).

The defendant was acquitted by the jury of the charge of assault in the first degree, and of the lesser included offenses of assault in the second degree and assault in the third degree. Because the jury acquitted the defendant of the only crimes encompassed by the state’s theory of the case occurring while he remained unlawfully in the Rolocut residence, we conclude without a reasonable doubt that the jury did not convict the defendant of committing a burglary by remaining unlawfully in the Rolocut home with intent to commit a crime therein, despite the court’s erroneous instruction permitting the jury to do so. Implicit within this acquittal is an acceptance by the jury of the defendant’s testimony that he did not intend to commit any crime while he remained in the building.

For this reason, the defendant’s reliance upon State v. Belton, supra, 503-504, is misplaced. In Belton, the defendant was charged with and convicted of sexual assault and burglary, both in the first degree. In its information, the state charged the defendant with the “entry” form of burglary. The trial court, however, instructed the jury that it could find the defendant guilty under an “unlawfully remaining” theory of burglary. The defendant had presented evidence that his entry into the building and his sexual relations with the victim therein, were at all times consensual. Our Supreme Court stated that it could not conclude “from the verdict itself” that the erroneous charge did not affect the verdict. Id., 503. The court concluded: “That the erroneous charge was prejudicial to the defendant is readily apparent from his own testimony. He stated that he entered the building lawfully and remained lawfully, while the complainant testified in a manner consistent with unlawful entry. . . . Since the defendant was also convicted of sexual assault in the first degree, a finding of guilt not challenged in this appeal . . . implicit within this conviction is a rejection by the jury of the defendant’s testimony that he remained lawfully within the complainant’s apartment. The defendant’s own testimony of his lawful entry, coupled with the erroneous instruction, effectively allowed the jury to conclude that irrespective of the mode of entry the defendant was guilty of burglary.” (Emphasis in original.) Id., 503-504.

In this case, by contrast to Belton, we conclude from the verdicts that the erroneous charge manifestly did not affect the ultimate verdict. State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976). Here, the verdict makes clear that the jury could only have concluded that the defendant committed burglary by entering a building unlawfully with the intent to commit a crime therein, as charged in the information. Accordingly, the defendant was not prejudiced by the enlargement of the offense in the court’s instruction to the jury.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1977) § 53a-103 provides: “(a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein,” (Emphasis added.)

       In his direct testimony, the defendant never claimed that he believed that he was entitled or permitted to enter the Rolocut home. On crossexamination, he admitted that he had not been invited into the Rolocut home by anyone inside the apartment and no one inside the apartment had given him the impression that they wanted him to enter the home.

       The trial court instructed the jury that “even if the accused had entered a building and if he had that right and had been given that permission, and that right had been terminated or the permission revoked by someone who had the right to terminate it, you may still find unlawful remaining as a basis of the burglary.” The court then applied this rule to the evidence and claims of counsel as follows: “Now, as I recall the evidence, Mrs. Pauline Rolocut testified that she did not invite Thomas and Scott into her home or give them permission to come in. As I recall the evidence, Edward testified he did not give Thomas and Scott permission to come to the apartment. As I recall the testimony, Scott Mankus testified that although he never got permission to go to the Rolocut apartment, he had been there a number of times without objection, and from that he assumed he had permission. As I recall, Thomas Mankus testified he received no invitation to go over to the apartment.” The defendant’s failure to take an exception to this portion of the charge, which effectively charged a lawful entry defense out of the case, sends a powerful signal that counsel did not view this instruction as harmful; see State v. Coleman, 14 Conn. App. 657, 684, 544 A.2d 194 (1988); and, therefore, that the defendant’s theory of defense was not based upon a claim of lawful entry.


author: Norcott, J.

text:
    Edward Lawler v. Dolores Lawler
    (5702)
    Dupont, C. J., Norcott and Foti, Js.
    Argued May 31
    decision released September 13, 1988

      Lloyd Frauenglass, for the appellant (plaintiff).

      Raynald B. Cantin, with whom, on the brief, was David M. Askinas, for the appellee (defendant).
   Norcott, J.

The plaintiff appeals, challenging the financial orders rendered by the trial court incident to the judgment dissolving his marriage to the defendant. He claims that the trial court erred (1) in providing for automatic increases in periodic alimony payments reflecting cost-of-living increases without requiring a showing of a change in circumstances, (2) in concluding that the plaintiff had access to certain business income and in rendering orders based on that determination, (3) in making periodic alimony payments non-modifiable until the defendant reaches the age of sixty-two, (4) in rendering orders that required the plaintiff to remain at his present workplace until age sixty-two, and (5) in awarding attorney’s fees to the defendant. We find no error.

The facts pertinent to this appeal are as follows. The plaintiff and the defendant were married in Wassaic, New York, on March 22, 1954, and again, in another ceremony, in Hartford on April 24, 1954. At the time of the marriage, the plaintiff was a student at Trinity College and was employed part-time at Emerson Radio of Connecticut, where he and the defendant, who worked at Emerson as a secretary, first met.

Prior to his graduation in 1955 with a bachelor of science degree in mathematics, the plaintiff was offered, and subsequently accepted, a job at United Aircraft, which later became the United Technologies Corporation (UTC). He continued his education by receiving two masters degrees in mathematics and management and has since worked continually at UTC.

The defendant had completed only two years of high school at the time of the marriage but subsequently completed her high school education by attending adult evening classes at Hartford High School. She stopped working outside of the home when the couple’s first child was born in 1958. The couple had two more children, one born in 1961 and another born in 1964. The defendant’s primary responsibility was the care of the children and the family home, while the plaintiff remained the “chief breadwinner.”

Immediately after the marriage, the plaintiff became involved in various business ventures. After teaching part-time in various places, he began to invest in a series of restaurants in 1972. The plaintiff initially invested $15,000 to $20,000 in a restaurant in Nanuet, New York, and, after selling his interest therein and doubling the return on this investment, he again invested $15,000 to $20,000 in a restaurant in Torrington. In 1978, he sold this interest and realized a profit of $20,000; he then reinvested $60,000 in the New York restaurant, known as Charlie A’s Steakhouse and described in his financial affidavit as Saturn Pub and Kosamar Properties (Saturn-Kosamar).

The defendant became involved in a small clothing design store, Milana Designs (Milana), which was located in the Hartford Civic Center. Although the plaintiff allowed the defendant the use of $3000 to start the business, he was never supportive of it, and the business has never been much of a success. The store “pays the bills” but does not even provide the defendant with a salary.

The trial court concluded that the plaintiff was the sole cause of the breakdown of the marriage. The plaintiff admitted that he became involved in an adulterous affair in 1983 and continued similar relationships thereafter. The plaintiff admitted calling his wife and children vulgar names in private and in public, and the evidence revealed that as punishment for various misbehaviors he would refuse to talk to the offending child for months at a time. The record also reveals that he encouraged at least one child to be dishonest by showing him how to switch price tags at a gift store. It also is evident from the record that despite the defendant’s belief that the marriage could be saved, the plaintiff was continually deceitful to her and was contemptuous of her ambitions, endeavors and emotional state.

I

The plaintiffs first claim of error concerns the court’s award of periodic alimony. The court’s award of periodic alimony provides that “the plaintiff shall pay periodie alimony to the defendant in the amount of $480 per week, starting November 14, 1986 and continuing to February 1, 1998. The $480 figure will automatically be increased on a weekly basis by a cost-of-living factor and the cost-of-living factor will be based upon 60 percent of the percentage of the gross increase which the plaintiff actually receives from his employer. The increase shall continue each year until the alimony either ceases or reduces as herein below ordered.

“AND THAT, said alimony might modify earlier than the February 1, 1998 date if on or after February 1, 1995, the plaintiff retires. Until February 1, 1995, said alimony award shall not reduce. On February 1, 1995, or after, if the plaintiff retires, the alimony shall automatically reduce to $1200 per month. Again, said reduction shall take place no sooner than February 1, 1995. The $1200 will automatically be increased annually, or monthly, but on an annual review basis, again increasing by 60 percent of the annual percentage increases that the plaintiff receives on his pension from UTC. In other words, the defendant shall receive a percentage increase equivalent to 60 percent of the plaintiff’s percentage increase.”

The parties did not have a stipulation or settlement agreement between them as to periodic alimony, and nowhere in the record does it reflect that the parties themselves had negotiated for a cost-of-living adjustment as part of an alimony award. The plaintiff contends that the trial court erred in awarding automatic increases in periodic alimony payments without requiring any showing of a change in circumstances as required by statute regarding the modification of alimony orders. We disagree.

The question raised in the first claim of error is one with which our appellate courts have not expressly dealt to date. That question is whether the trial court may include in a periodic alimony award a future share in the spouse’s earned income should it be increased at some point in the future. We find that the trial court may make such an award.

General Statutes § 46b-82 authorizes the trial court to order alimony and to determine “the duration and the amount of the award.” The term “alimony” is not defined in the statute. Our Supreme Court, however, has often stated “that the type and amount of alimony awarded under a decree dissolving a marriage is within the sound discretion of the trial court.” (Citations omitted.) Rubin v. Rubin, 204 Conn. 224, 233, 527 A.2d 1184 (1987).

In Rubin, our Supreme Court held that an award to a spouse of a share of the other spouse’s prospective acquisition of another person’s property cannot be upheld either as a transfer of property or as alimony. While Rubin is factually inapposite to the present case, the following dicta in it is most illuminating: “[W]e are not aware of any principle of law that necessarily precludes a trial court, in exercising its discretion to fashion an alimony award, from ordering a payment that is contingent upon some future event. Such contingent awards often appear in judgments that have incorporated agreements of the parties that provide for adjustment of the amount of support or alimony to be paid in relation to the earnings of the parties .... We do not regard the consent of the parties to be essential to the validity of a contingent alimony award, although it may be relevant to the wisdom of such an order.” Id., 233-34.

The plaintiff contends that the Rubin decision requires that we invalidate the court’s award of periodic alimony in the present case in that the award here is analogous to the contingent assignment of expected property in Rubin. We disagree. Unlike the situation in Rubin, the plaintiff’s prospective pay increases here relate to his own income rather than to the expectancy of a beneficiary interest in a third person’s property. Here, the defendant’s periodic alimony is tied to the prospective increase in salary of the plaintiff. To allow the trial court to provide in the dissolution decree for future adjustments in periodic alimony is consistent with the well established principle “that an alimony order is predicated upon the obligation of support that spouses assume toward each other by virtue of the marriage”; id., 234; rather than by virtue of some potential inheritance.

The simple reality of the trial court’s award is that, if the plaintiff receives no raise, the defendant gets no increase in her periodic alimony; if his pay increases, her periodic alimony increases consistent with the order in the original decree. We are not persuaded that the holding in Rubin compels us to find that the plaintiff’s future increase in salary here is analogous to the “potential inheritance” which was the subject of the Rubin case. We conclude that the Rubin case speaks to the impermissibility of allowing expectancies of future interests in the property of a third person to be a basis for transfers of property under General Statutes § 46b-81. That case does not involve an award of periodic alimony such as the one at issue in the present case. The trial court did not err.

II

The essence of the plaintiffs second claim of error involves the trial court’s response to his motion for articulation, which requested that the court state what it determined the parties’ respective incomes to be at the time of the dissolution. As part of its response, the court stated that, with respect to the plaintiff’s restaurant business income, it believed the plaintiff to have “actually received cash payments far in excess of the payments he acknowledged in his testimony or he at least, had access to those payments.” The plaintiff urges us to upset the entirety of the financial awards made by the trial court because, he contends, there was no basis in the evidence upon which the court could have made such a finding. The plaintiff attacks both the amount of periodic alimony awarded and the division of a business asset on this ground. We disagree.

Our review of decisions regarding financial awards in dissolution cases is confined to two questions: “(1) whether the court correctly applied the law; and (2) whether it could reasonably have concluded as it did.” Mailly v. Mailly, 13 Conn. App. 185, 188-89, 535 A.2d 385 (1988). It is not our function to retry the facts. Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987).

We first note that in the present case, the trial court did not base its financial awards on the plaintiff’s outside business income. Our review of the court’s order and its articulation indicates that the court applied the statutory criteria set forth in General Statutes § 46b-82 and made its financial awards accordingly. Notwithstanding the confusing status of the plaintiffs restaurant business income, the trial court had a sufficient basis in the evidence of the plaintiffs and defendant’s principal sources of income (UTC and Milana) to make its alimony award. While the evidence suggested that the plaintiff’s income from Milana was meager at best, the court reasonably found the plaintiff’s income from UTC to be $63,000 per year plus certain pension benefits. Even with the deduction of the court’s alimony award, the plaintiff was left with a disposable income of approximately $663 per week, which did not take into account unspecified money that the court found to be at his disposal from Saturn-Kosamar. In this light, the confusion concerning these investments worked to the plaintiff’s benefit.

It is clear from the record that the court carefully considered the defendant’s total blamelessness with respect to the breakup of the marriage, her age, vocational skills and needs, and the gross disparity between the parties’ earning capacities and financial status. We will not disturb the trial court’s awards of alimony where the court correctly applied the law after carefully reviewing the evidence presented. See Mailly v. Mailly, supra, 189; see also Griffiths v. Griffiths, 12 Conn. App. 807, 808, 531 A.2d 1203 (1987).

The trial court went on to divide the marital assets pursuant to General Statutes § 46b-81. The plaintiff argues that the court’s reliance on the business as an asset was in error.

The record reveals that the trial court considered the following evidence relevant to this claim of error: (1) the 1985 tax return of Saturn-Kosamar, which did not comport with the plaintiffs trial testimony regarding the annual income grossed by the business; (2) a virtual lack of documentation that would accurately reveal the plaintiffs interest in the business; and (3) the plaintiffs testimony regarding the unreported taxable income he received from the business.

Additionally, pursuant to General Statutes § 46b-81, the court heard an abundance of testimony from several witnesses concerning Saturn-Kosamar. Those witnesses included the plaintiff and the defendant’s expert witness, an accountant who testified on the basis of information regarding the annual gross receipts of the business. The defendant claimed that the plaintiff owned a 20 percent interest in Saturn-Kosamar. The plaintiff disclaimed any knowledge of the exact percentage of interest in Saturn-Kosamar owned by himself. The trial court made no finding as to the actual percentage owned by the plaintiff.

The court chose not to credit the plaintiff’s testimony that he, a college graduate with a degree in mathematics and two postgraduate degrees, (1) did not follow the bookkeeping practices of his partners at Saturn-Kosamar, (2) was systematically “robbed” of his investment by his crooked partners, and (3) received no financial benefit from his investment other than the small weekly stipend he claimed he was paid for his weekend work at the restaurant. The court concluded that the plaintiff’s testimony regarding the business investment was illusory and accorded the plaintiff virtually no credibility.

Notwithstanding the above, the court was loath to enter an order that expressly required the plaintiff to pay a dollar figure of alimony based on income from an investment that “may have no dollar value.” Acknowledging that “[t]he biggest problem in this case is Saturn and Kosamar,” the court ordered the liquidation and equal division of the plaintiffs interest, if any. The actual amount that might be realized from the plaintiffs interest was unknown to the court, but the trial court had the discretion pursuant to the dictates of General Statutes § 46b-81 so to divide this asset. Such divisions of assets, including the liquidation and division of the marital home, are commonplace in dissolution decrees.

There is no indication in the record that the amount of periodic alimony was in any way dependent on any income from the business but rather was based on the plaintiff’s salary from his regular employment at UTC. Even though the court articulated its disbelief of the plaintiff’s testimony with respect to his business investment, it did not base any order on anything improper. Accordingly, the plaintiff’s second claim of error must fail.

Ill

The plaintiff’s third and fourth claims of error are interrelated. The plaintiff claims error in that the trial court, in effect, punished him (1) by making the periodic alimony payments nonmodifiable until February 1, 1995, the date of the plaintiffs projected retirement age of 62, and (2) by making an order that forced the plaintiff into a form of involuntary servitude. Both claims require little discussion.

In the present case, the court ordered the plaintiff to pay periodic alimony starting November 14, 1986, and continuing to February 1, 1998. The judgment file provided: “[s]aid alimony might modify earlier than the February 1, 1998 date if on or after February 1, 1995, the plaintiff retires. Until February 1, 1995, said alimony award shall not reduce.”

At the November 7, 1986 hearing the trial court explained this order as follows: “The alimony might modify earlier than the February 1, 1998 date if on or after February 1, 1995, he retires. But up until February 1, 1995, the alimony award will not reduce; therefore, if he chooses to retire at age fifty-five, he’s going to have to deal with that at that time, whether coming back to Court for a modification, which may not be considered, since I’ve considered this in rendering this decision, or some other means.”

It is clear from this order that the court left open the possibility for modification by the plaintiff after February 1, 1995, should he opt for early retirement at age fifty-five, but precluded modification before that date.

General Statutes § 46b-86 (a) clearly permits the trial court to make periodic awards of alimony nonmodifiable. Provisions for nonmodification are generally not favored, but to be upheld they must be clear and unambiguous. Calorossi v. Calorossi, 4 Conn. App. 165, 168, 493 A.2d 259 (1985); Bronson v. Bronson, 1 Conn. App. 337, 339, 471 A.2d 977 (1984). “If the decree is meant to be nonmodifiable, it must contain language to that effect. Cummock v. Cummock, 180 Conn. 218, 222-23, 429 A.2d 474 (1980); Lilley v. Lilley, 6 Conn. App. 253, 256, 504 A.2d 563 (1986).” Neal v. Neal, 7 Conn. App. 624, 625, 510 A.2d 210 (1986).

Here, it is abundantly clear that the trial court ordered the periodic alimony award to be nonmodifiable. The court’s order follows the statutory guidelines and is not an abuse of the discretion allowed to the court. We find nothing in the record that leads us to conclude that we should upset that order.

Next, with respect to the plaintiffs claim that the-court erroneously abused its discretion by establishing a retirement age of sixty-two, and thereby forcing him to work until that age, we find that this claim is completely without merit. Any award of periodic alimony based on a party’s income or earning capacity requires that party to continue work or find other sources of income to meet the obligations of the court’s order. Except for the wealthy, employment is often needed to comply with those obligations, and, to this extent, any order awarding alimony can be said to preclude retirement.

“In family matters, the court exercises its equitable powers. The balancing of equities is a matter which falls within the discretion of the trial court. Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). For that reason, equitable remedies are not bound by formula but are molded to the needs of justice. Hebrew University Assn. v. Nye, 26 Conn. Sup. 342, 348-49, 223 A.2d 397 (1966).” Oneglia v. Oneglia, 14 Conn. App. 267, 271-72, 540 A.2d 713 (1988). The court did not abuse its discretion in making the award of alimony payments.

IV

The plaintiff’s final claim is that the trial court erred in awarding attorney’s fees to the defendant.

As a part of its final judgment, the trial court awarded the defendant $6000 in counsel fees. In addition, the court ordered the plaintiff to pay one-half of the attorney’s fee to be incurred in litigation regarding the equal division of the Saturn-Kosamar interests. The plaintiff contends that the court erroneously (1) failed to follow the statutory criteria of General Statutes § 46b-82, (2) did not consider the plaintiff’s lack of resources, and (3) failed to make a finding of reasonableness. We disagree.

The trial court exercises broad discretion in determining whether to allow counsel fees, and, if so, in what amount. In exercising that discretion, the court must consider the statutory criteria set out in General Statutes §§ 46b-62 and 46b-82 and the respective financial abilities of the parties. Elliott v. Elliott, 14 Conn. App. 541, 547, 541 A.2d 905 (1988); see also Voloshin v. Voloshin, 12 Conn. App. 626, 631-32, 533 A.2d 573 (1987). The court is not obligated to make an express finding on each of the statutory criteria. Mihalyak v. Mihalyak, 11 Conn. App. 610, 619, 529 A.2d 213 (1987).

The basis for the award of counsel fees was set forth in the court’s memorandum of articulation dated June 2, 1987, as follows: “Once again, based upon all the relevant statutory criteria, which the Court followed in this case, the evidence presented, and the respective needs and abilities of the parties to pay, the Court felt that the award of counsel fees was fair and reasonable.” Notwithstanding the court’s comment on November 7, 1986, that it was “not making a finding on reasonableness,” we find that the evidence supports the conclusion that the award of counsel fees was indeed “reasonable” as later expressed in the court’s articulation.

Our careful review of the entire record indicates that, in awarding counsel fees, the court duly considered all the relevant statutory criteria in light of the evidence in the case. In doing so, the court did not abuse its discretion.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 46b-82 provides in pertinent part: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of the minor children has been awarded, the desirability of such parent’s securing employment.”

       In Rubin, the trial court made certain financial awards including an order that the plaintiff pay the defendant one third of the net estate that he might receive either as a residuary beneficiary of his mother’s revocable inter vivos trust or by way of inheritance from her. Our Supreme Court held that evidence of the plaintiff’s prospective acquisition of this property was inadmissible.

       General Statutes § 46b-81 provides in pertinent part: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”


text:
    State of Connecticut v. Willie A. Douglas State of Connecticut v. Richard Bush, Jr.
    (6390)
    (6391)
    Dupont, C. J., Norcott and Foti, Js.
    Argued June 15
    decision released September 13, 1988

      Leopold P. DeFusco, special public defender, for the appellant (defendant in the first case).

      James M. Connolly, special public defender, for the appellant (defendant in the second case).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Henry J. Lyons III and Gary W. Nicholson, assistant state’s attorneys, for the appellee (state).
   Dupont, C. J.

The defendants in this combined appeal were tried together and convicted of the crimes of attempted robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and aiding in an assault in the first degree in violation of General Statutes § 53a-59 (a) (3). Prior to the defendants’ trial, a codefendant, Herbert Johnson, was tried separately and acquitted of the same charges. In a prior appeal to this court, the defendants claimed error in the trial court’s failure to order the state to produce the transcripts of testimony of the state’s witnesses given in Johnson’s trial after those same witnesses testified in the trial of the defendants herein. We held that the trial court had erred in refusing to conduct an in camera examination to determine if the transcript in the trial of Herbert Johnson contained material inconsistent statements of witnesses who were also witnesses in the trial of Bush and Douglas sufficient to have affected the outcome of their trial. We remanded the case with instructions for the trial court to conduct an in camera inspection to determine whether the Johnson transcript contained such material prior inconsistent statements. See State v. Douglas, 10 Conn. App. 103, 522 A.2d 302 (1987), and State v. Douglas, 13 Conn. App. 685, 539 A.2d 155 (1988).

Upon remand, the trial court found that the transcript in the Johnson trial contained no material inconsistent statements of witnesses who were also witnesses in the trial of the defendants Bush and Douglas sufficient to have affected the outcome of the trials of either or both of the defendants. The sole issue presented in this appeal is whether the trial court erred in so concluding. We find no error.

We have conducted a thorough review and comparison of the testimony in each trial which the defendants claim is materially inconsistent. The comparison of a witness’ testimony in two trials is a precarious procedure because each trial is not an exact duplicate of the other featuring precisely the same questions and, therefore, there is bound to be a certain degree of inconsistency in the answers. Although our review of the transcripts reveals that certain testimony is indeed inconsistent, we conclude that the inconsistencies are not material to the proof of the crimes with which the defendants were charged and convicted. Furthermore, many of the variances are of a trivial nature and lack any relevance to the elements of the crimes with which the defendants were charged.

We conclude that the trial court did not err in finding that the Johnson transcripts did not contain material prior inconsistent statements of witnesses sufficient to have affected the outcome of the trial of the defendants Bush and Douglas.

There is no error.

In this opinion the other judges concurred.