author: Spallone, J. Berdon, J.,

text:
    State of Connecticut v. Andrea Eichstedt
    (7326)
    Spallone, Daly and Berdon, Js.
    Argued September 21
    decision released December 26, 1989

      Morgan J. O’Brien, special public defender, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, were Frank Maco, state’s attorney, and David Shepak, assistant state’s attorney, for the appellee (state).
   Spallone, J.

This is an appeal from the defendant’s conviction, after a jury trial, of illegal possession of cocaine with intent to sell and four counts of illegal sale of cocaine in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court erred (1) in instructing the jury concerning the defense of entrapment, (2) in concluding that there was sufficient evidence to prove the defendant guilty beyond a reasonable doubt, (3) in concluding that there was probable cause to issue a search warrant for the person and the motor vehicle of the defendant, and (4) in refusing to allow a witness to invoke his fifth amendment privilege against self-incrimination in the presence of the jury. We find no error.

The jury could have reasonably found the following facts. On June 8,1987, Robert Schoolnick was arrested on a motor vehicle charge and was subsequently found to be in possession of cocaine. He informed the arresting officers that he had obtained the cocaine from the defendant, Andrea Eichstedt.

Officers of the statewide narcotics task force were notified of Schoolnick’s arrest and his willingness to cooperate in a proposed investigation of the defendant. On June 10, 1987, in cooperation with the investigating officers, Schoolnick made a controlled buy of one-half of a gram of cocaine from the defendant at her place of employment in Canaan. On June 22, accompanied by task force undercover agent Trooper Leslie Norcia, Schoolnick bought more cocaine from the defendant.

Equipped with a body microphone, Norcia made purchases of cocaine from the defendant at her place of employment on June 24, June 25 and July 7,1987. At a prearranged meeting in Canaan on July 1,1987, Norcia made one purchase of cocaine from inside the defendant’s car.

On July 9, 1987, Norcia called the defendant to set up another transaction. The defendant told Norcia that she had no cocaine but that she was going to replenish her supply the next night. A search warrant was issued for the defendant’s car and person and on July 10,1987, the defendant was placed under surveillance. The police followed the defendant from her place of employment to a carnival in Lakeville where she met Alena Milton and Scott Higgins. The three eventually proceeded in the defendant’s car to the home of Milton’s stepsister in Millbrook, New York, where the defendant and Milton each received from Michael Sciarra a plastic bag containing cocaine.

The defendant, Milton and Higgins then returned to Connecticut in the defendant’s car and were stopped by the police upon reentering the state. Milton was driving, Higgins was riding in the front passenger seat and the defendant was in the right rear seat. The search conducted pursuant to the warrant led to the discovery of a plastic bag containing one-half of an ounce of cocaine located under the right rear seat. Seized in the search of the defendant’s vehicle, person and pocketbook were $1274.01, a mirror with traces of a white powdery substance, a cut plastic straw containing a white powder residue, pills, a syringe and other drug paraphernalia. Our review of the record, transcripts and briefs discloses that the defendant’s claims of error are without merit.

I

The defendant first claims that the trial court erred in omitting two sentences concerning predisposition to commit crimes from her requested charge on the defense of entrapment. A request to charge, relevant to the issues and correctly stating the law, must be honored. State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). A requested charge, however, need not be given in its exact language if given in substance. Id.; State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985). There is no error if the instruction, examined as a whole, fairly and adequately presents the case to the jury. State v. Jenkins, 8 Conn. App. 35, 40, 510 A.2d 1370 (1986); State v. Shindell, supra.

The trial court’s charge to the jury on entrapment, as the defendant concedes in her reply brief, was in the precise language of the statute, General Statutes § 53a-15, entitled “Entrapment as defense.” The trial court explained in depth the basic principles of entrapment and the charge included an instruction on the element of the defendant’s intent or predisposition to commit the crimes. The court drew the distinction between a trap for the unwary innocent and a trap for the unwary criminal. State v. McNally, 173 Conn. 197, 202-203, 377 A.2d 286 (1977); State v. Fine, 159 Conn. 296, 299, 268 A.2d 649 (1970). The charge on entrapment was completely adequate without the defendant’s requested additions.

II

The defendant next claims that there was insufficient evidence to prove her guilty beyond a reasonable doubt. We disagree. The standard for appellate review upon a challenge to the sufficiency of the evidence is whether a rational trier of fact could have concluded that the cumulative effect of the evidence, viewed in the light most favorable to sustain the verdict, established guilt beyond a reasonable doubt. State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986); State v. Holder, 18 Conn. App. 184, 194, 557 A.2d 553 (1989). The jury is entitled to draw reasonable and logical conclusions from the facts proved. State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985).

The defendant’s one sentence statement in support of this claim in her brief does not specify in what way the evidence at trial was deficient. As to the four counts of selling cocaine, the defendant does not dispute that she sold cocaine to Norcia on June 24, June 25, July 1 and July 7, 1987. If the defendant is challenging the evidence presented on the one count of possession, the jury could reasonably have found the following facts. The police had the defendant, her car and her companions under surveillance throughout the day and evening of July 10 and into the early morning hours of July 11, 1987. Higgins and Sciarra both testified that the defendant obtained a plastic bag from Sciarra on July 10 while in New York. When the defendant’s car was stopped at the Connecticut border and searched, a plastic bag containing cocaine was found under the right rear passenger seat where the defendant was seated alone. Although the defendant denied at trial that the cocaine found was hers, the evidence was sufficient to support the jury’s finding beyond a reasonable doubt that the cocaine was in her possession.

Ill

The defendant’s third claim is that the court erred in denying her motion to suppress the fruits of the search of her car and person. According to the defendant, the affidavit underlying the search warrant failed to supply adequate bases of probable cause to believe (1) that the informant, Schoolnick, was reliable, and (2) that the items to be seized would be on her person or in her vehicle at the time of the search.

Our review of the affidavit reveals that all the facts provided to establish grounds for a search and seizure warrant were supplied by the affiant, Norcia. The defendant, in her brief and reply brief, mistakes the contents of the affidavit; the information was not supplied by Schoolnick and his reliability is therefore not in issue.

Probable cause to search exists if there is probable cause to believe (1) the items to be seized relate to criminal activity or would help in apprehending or convicting a particular criminal, and (2) the items to be seized are where they are alleged to be. State v. Morrill, 205 Conn. 560, 564-65, 534 A.2d 1165 (1987); State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980). The defendant does not deny that the warrant listed items related to criminal activity but rather claims that there was an insufficient basis to believe the contraband would be in her car. We disagree.

The affidavit states that Norcia purchased cocaine from the defendant on four occasions over a three week period, three times at the defendant’s place of employment and once from inside the defendant’s car in a parking lot. The defendant herself told Norcia of the planned trip to obtain more cocaine. From these facts, we conclude that the judge determining probable cause could reasonably have inferred that the defendant was engaged in an ongoing business of selling cocaine and that she transported the drugs in her vehicle. The court, therefore, properly denied the defendant’s request to suppress the evidence.

IV

The defendant’s last claim is that the court erred in refusing to allow her to call Schoolnick as a defense witness, notwithstanding that Schoolnick would have invoked his fifth amendment privilege not to testify. This claim is meritless. A witness should not be put on the stand merely to have him exercise his privilege not to incriminate himself. United States v. Martin, 526 F.2d 485, 487 (10th Cir. 1975); Bowles v. United States, 439 F.2d 536, 541-42 (D.C. Cir. 1970), cert. denied, 401 U.S. 995, 91 S. Ct. 1240, 28 L. Ed. 2d 533 (1971); State v. Bryant, 202 Conn. 676, 681-82, 523 A.2d 451 (1987). “The rule is grounded ... in the danger that a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations.” Bowles v. United States, supra; State v. Bryant, supra, 683-84. The defendant has cited no authority to the contrary or distinguished her case from existing precedent. We decline to invent an exception to a sound and long-standing rule.

There is no error.

In this opinion, Daly, J., concurred.

Berdon, J.,

dissenting. Although the defendant clearly raises four claims of error, at least two of which have state constitutional underpinnings, her briefings of them do not warrant appellate review. The defendant’s initial brief contains a total of no more than three pages of argument, and her reply brief, one and one-half pages. Although “[bjrevity is the soul of wit,” there must be sufficient amplification to make an intelligent argument. The briefs fail in this regard.

The defendant makes broad recitations of law without attempting to relate them to the specific issues. In arguing that the court should have included the defendant’s request to charge on the defense of entrapment in its instruction to the jury, she neither explained how this constituted error nor demonstrated that the subject was inadequately covered by the court’s instructions. As the majority points out, the defendant raises the issue of the sufficiency of the evidence with a one sentence argument that does not specify in what manner the evidence was deficient. Her claim that the trial court erred in failing to grant her motion to suppress is supported only by general allegations. Finally, she does not cite authority or even attempt to explain why she should have been able to call Robert Schoolnick as a defense witness when Schoolnick would have invoked his fifth amendment privilege not to testify.

Failure to research the law or formulate sufficient legal argument; see State v. Smith, 10 Conn. App. 624, 635, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987); or the making of bare assertions of error without legal citations; see State v. Knighton, 7 Conn. App. 223, 226, 508 A.2d 772 (1986); or failure to relate the facts of the case to the claims of law or present the court “with any legal analysis whatsoever”; see State v. Nelson, 17 Conn. App. 556, 576, 555 A.2d 426 (1989); precludes this court from a meaningful appellate review. State v. Hernandez, 204 Conn. 377, 382, 528 A.2d 794 (1987). Indeed, the defendant’s briefs made no reference to the transcript, and her appendix included neither the relevant portions of the charge, nor the search warrant with its supporting affidavit, as mandated by Practice Book § 4065. See State v. Ramsundar, 204 Conn. 4, 17, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

The majority, in an endeavor to do justice, attempts to review these inadequately briefed issues without the benefit of counsel’s reasoned analysis. “Legal claims raised but not substantially briefed are burdensome to meet and difficult to decide correctly.” State v. Kennedy, 295 Or. 260, 266, 666 P.2d 1316 (1983). This is particularly the case in areas of emerging law such as state constitutional law. See H. Macgill, “Upon a Peak in Darien: Discovering the Connecticut Constitution,” 15 Conn. L. Rev. 7 (1982). “[A] judge rarely performs his functions adequately unless the case before him [or her] is adequately presented.” L. Brandeis, “The Living Law,” 10 Ill. L. Rev. 461, 470 (1916). In a case such as this, where state constitutional issues are raised, the advocacy of the court’s majority is insufficient to protect the rights of the defendant.

Although the right to appeal is statutory; General Statutes § 54-95; and there is no federal constitutional right to an appeal; Abney v. United States, 431 U.S. 651, 656, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); once it is granted, the right “invokes so significant a protection of liberty that it must be made available to all persons convicted of crimes.” Gaines v. Manson, 194 Conn. 510, 515, 481 A.2d 1084 (1984). When the defendant is indigent, as in the present case, she is entitled to the assistance of counsel appointed by the state in the presentation of her appeal. Paulsen v. Manson, 193 Conn. 333, 338, 476 A.2d 1057 (1984). Futhermore, counsel must be reasonably competent. State v. Lubesky, 195 Conn. 475, 485, 488 A.2d 1245 (1985). This competency includes appropriately raising and developing issues in a manner that can afford a meaningful appellate review. Counsel’s “role as advocate requires that he support his client’s appeal to the best of his ability.” Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967).

The remedy for counsel’s failure to represent the defendant adequately in this appeal is suggested in recent decisions of the Vermont Supreme Court. In State v. Jewett, 146 Vt. 221, 229, 500 A.2d 233 (1985), the court held that when counsel fails to develop diligently and to maintain plausibly state constitutional issues on appeal and there is a demonstration of “possible merit,” the court should order supplemental briefs addressing these issues. Id; see State v. Muir, 150 Vt. 549, 551, 554 A.2d 671 (1988); see also State v. Kennedy, supra. This requirement of supplemental briefs not only protects the rights of the individual defendant, but also fosters the development of state constitutional law. “This generation of . . . lawyers has an unparalleled opportunity to aid in the formulation of a state constitutional jurisprudence that will protect the rights and liberties of our people, however the philosophy of the United States Supreme Court may ebb and flow.” State v. Jewett, supra, 224.

Applying the “possible merit” standard of Jewett, I conclude that at least two state constitutional issues raised by the defendant should be pursued. The defendant’s claim that the trial court erred in finding that the search warrant was based on sufficient probable cause under the provisions of the search and seizure clause of the Connecticut constitution; Conn. Const., art. I, § 7; deserves further briefing. “Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Citations omitted; emphasis in original.) State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980).

Our Supreme Court has rejected the “totality-of-the-circumstances” analysis developed in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), to test the sufficiency of probable cause for search and seizure under the federal constitution. Under the search and seizure clause of our state constitution we continue to require the stricter standard of AguilarSpinelli. State v. Kimbro, 197 Conn. 219, 235-36, 496 A.2d 498 (1985). “That test, which stemmed from the United States Supreme Court’s opinions in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), consists of two prongs: ‘The issuing [judge] must be informed of (1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.’ ” State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984), quoting State v. Jackson, 162 Conn. 440, 446, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972).

The issue is whether there was probable cause on the date of the warrant to believe that the drugs would be found in the defendant’s automobile, and not probable cause to arrest her for the previous alleged sales she made to the undercover police. The state concedes that the search of the automobile was based upon the following paragraph in the supporting affidavit: “That during the early part of June, 1987, information was developed concerning the illegal narcotics trafficking of ANDREA L. EICHSTEDT, the manager of the Pateo Handy Shop located on Rt. 44 in North Canaan, Connecticut. This information was developed by the Western District Major Crime Squad of the Connecticut State Police Department. The information consisted of ANDREA EICHSTEDT dealing small quantities of cocaine from the backroom of the Pateo Handy Shop. That EICHSTEDT did not keep large quantities of cocaine at the store, but transport smaller quantities of cocaine to the store in her vehicle, which was reported to be a Pontiac Firebird, from her residence in Massachusetts.”

The affidavit does not indicate from whom the police obtained and developed the information that led the issuing magistrate to believe that the defendant would be transporting drugs in her automobile. The majority leaps to the conclusion that the information came from Leslie Norcia, a police undercover agent and one of the affiants on the search warrant. The affidavit, however, contains nothing that would indicate this information came from Norcia or any other informant. The majority seeks to bolster its conclusion that there was probable cause by stating that on July 9, 1987, one day before the issuance of the search warrant, the “defendant herself told Norcia of the planned trip to obtain more cocaine.” These facts are also not contained in the affidavit and were not before the magistrate. “The reviewing court may consider only the information that was actually before the issuing judge at the time he or she signed the warrant.” State v. Schifflett, 199 Conn. 718, 746, 508 A.2d 748 (1986).

Even if we assume that the “information developed” was from an informant, it is questionable whether the affidavit could pass state constitutional muster by satisfying both prongs of Aguilar-Spinelli test to support a search of the automobile on the date of the affidavit. See State v. Velez, 20 Conn. App. 168, 565 A.2d 542 (1989). The issuing magistrate was given no basis upon which he could evaluate the source of the information necessary to find probable cause to search the automobile. Furthermore “[i]t is axiomatic that hindsight may not be employed in determining whether a prior arrest or search was made with probable cause.” 1 W. LaFave, Search & Seizure: A Treatise on the Fourth Amendment (2d Ed.) § 3.2 (d). Surely, the issue has possible merit under our state constitution and should be argued by an advocate for the defendant, instead of being reviewed in a vacuum by this court.

The issue of whether the defendant was deprived of her state constitutional rights to bring witnesses before the jury, to present a defense and for compulsory process, when she was barred from calling Schoolnick as a witness, notwithstanding his claim that he would have refused to testify on the ground that it would tend to incriminate him, also deserves to be raised through appropriate legal analysis. Our Supreme Court, after taking into account a defendant’s sixth amendment federal constitutional rights, adopted the general rule set forth in Bowles v. United States, 439 F.2d 536 (D.C. Cir. 1970), cert. denied, 401 U.S. 995, 91 S. Ct. 1240, 28 L. Ed. 2d 533 (1971), that the defendant may not call a witness for the sole purpose of having him invoke his privilege against self-incrimination. State v. Bryant, 202 Conn. 676, 685, 523 A.2d 451 (1987). Justice Healey, however, writing for a unanimous court, stated that they could “imagine a case in which a defendant’s constitutional right to call witnesses on his behalf might arguably require that the witness who refuses to testify be called . . . .” Id., 686.

In this case, the defendant took the witness stand and admitted the sale of drugs. She claimed, however, the defense of entrapment by Schoolnick who was acting on behalf of the state police. The defendant testified that she sold drugs only after the persistent insistence of her friend, Schoolnick, and only after he threatened to inform her employer that she used drugs. She further testified that Schoolnick supplied the drugs she sold to the undercover police officer and that Schoolnick received the proceeds of the sale. Evidence of unlawful inducement may be found where the police or an agent acting on their behalf appeal to the defendant’s sympathy or friendship, or where they repeatedly or persistently solicit the defendant to commit the crimes. State v. Fine, 159 Conn. 296, 300, 268 A.2d 649 (1970).

Unlike the paucity of the evidence in Bryant to implicate the witness as the culprit, there was substantial evidence in this case to indicate that Schoolnick was the agent of the state whose friendship with the defendant and persistence allegedly induced her to sell drugs for him. Because she could not call Schoolnick, her defense of entrapment was made to appear less credible in the eyes of the jury. See Bowles v. United States, supra, 544 (Bazelon, C. J., dissenting). This case might very well fit into the mold of the exception that the Supreme Court envisioned in Bryant, and the defendant should be given an opportunity to develop this argument.

The defendant, who received a sentence of two concurrent terms of eight years, is entitled to a meaningful appellate review of the issues she raised. Her liberty is at stake and we should not pass her claims off simply because some time down the road she may get relief through habeas corpus for ineffective assistance of counsel. It may be, when all is said and done, that there is no merit to her appeal, but at least it then could be said that the defendant had her day of justice before this court.

In summary, I would order the parties to prepare and file supplemental briefs and appendices addressing the state constitutional and other issues raised in the defendant’s brief, and that a copy of this court’s decision be directed to the chief public defender. Accordingly, I respectfully dissent.

       The defendant’s request to charge would have included the statements, “Innocent means the absence of a predisposition or state of mind which readily responds to the opportunity furnished by the officer or his agent (informant) to commit the forbidden act with which the accused is charged” and “[e]vidence of unlawful inducement may be found where the police or an informant acting on their behalf appeal to the defendant’s sense of friendship or sympathy or where they repeatedly or persistently solicit the defendant to commit the crimes charged.”

       W. Shakespeare, Hamlet, act 2, sc. 2, line 90.

       The Vermont Supreme Court also reviewed the manner in which state constitutional issues should be developed through the historical (including legislative history), textual, sibling and economic and sociological approaches. State v. Jewett, 146 Vt. 221, 227, 500 A.2d 233 (1985); see E. Peters, State Constitutional Law: Federalism in the Common Law Tradition, 84 Michigan L. Rev. 583 (1986).

       It would be consistent with the Connecticut rules of practice to order counsel to submit a supplemental brief on state constitutional issues inadequately treated in an initial brief. Practice Book § 4061 provides, in part, that “[i]t is the responsibility of the appellant to provide an adequate record for review.” Section 4065 provides, among other things, that the appellate court may refuse to receive a brief not accompanied by a concise statement of the principal issues in the appeal. No rule of practice, however, prevents this court from ordering defense counsel to submit supplemental briefs when the original is inadequate.

       “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” Conn. Const., art. 1, § 7.

       The date of this conversation is set forth in the general facts recited on page 397, supra, of the majority opinion.

       “Section 8 of article first of the constitution is amended to read as follows: In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.” Conn. Const., amend. XVII.

       At the very least, under the general rule, the defendant is entitled to “a neutralizing instruction, one calculated to reduce the danger that the jury will in fact draw an inference from the absence of such a witness.” Bowles v. United States, 439 F.2d 536, 542 (D.C. Cir. 1970).

       The Court specifically pointed out that it was not addressing the state constitutional rights of the accused. State v. Bryant, 202 Conn. 676, 684 n.8, 523 A.2d 45 (1987).


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. William Charles Spears
    (7117)
    Borden, Spallone and Foti, Js.
    Argued October 17
    decision released December 26, 1989

      Pamela J. Bristol and Michael J. Lefebvre, certified legal interns, with whom were Richard Emanuel,

      Timothy H. Everett and, on the brief, Michael R. Sheldon, and ToddD. Femow, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Bradford Ward, assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), as an accessory pursuant to General Statutes § 53a-8. The defendant was sentenced to twenty years imprisonment. He claims that the trial court erred (1) in unconstitutionally diluting the state’s burden of proof and the presumption of innocence in its instructions to the jury, (2) in relieving the state of its burden of proof and invading the jury’s factfinding function by referring in its jury instructions to the state’s principal witness as an accomplice, and (3) in violating the defendant’s rights to a trial by jury and due process of law by repudiating the jury’s verdict and imposing a sentence based on its own factual determination regarding charges of which he was acquitted. We find no error.

The state’s principal witness was Valerie Carson, the daughter of the victim. Carson had pleaded guilty to manslaughter in the first degree in connection with her mother’s death, and testified against the defendant.

The state presented the following evidence. The defendant and Carson had known each other since grammar school, and were intimate friends from December, 1984, until April, 1987. In February, 1986, the defendant introduced Carson to crack cocaine. By February, 1987, she and the defendant had expensive crack habits for which she bore the primary financial burden, spending as much as $1000 per weekend. Carson’s salary was inadequate to cover these expenses, and in order to finance their drug habits, she began pawning her personal possessions, borrowing money and writing bad checks. She also made a fraudulent attempt to obtain a home improvement loan secured by the residence that she owned jointly with her mother, but she was unsuccessful. Carson’s failure to obtain the loan, compounded by the defendant’s anger toward her for failing to obtain the money, made her despondent and resulted in a suicide attempt.

Carson testified that the defendant repeatedly told her that he could “take care” of her mother “in a heartbeat,” which he told her meant death by strangulation. If her mother were dead, Carson anticipated that she would receive $10,000 as beneficiary of an insurance policy, and would obtain full ownership of the house. She also testified that the defendant brought rubber work gloves from his workplace in preparation for the strangulation.

On the evening of the homicide, Carson took her mother’s checkbook and forged a check to obtain cash to buy crack for herself and the defendant. Later that evening, she met Larry Leach, a mutual acquaintance of her and the defendant. Leach testified that he and Carson smoked numerous vials of crack, that Carson drove him to the defendant’s apartment, that Carson then drove him and the defendant to the victim’s house, and that Carson entered the house alone. Further, Leach testified that while he and the defendant were in the street, Carson reappeared at the door wearing gloves and holding a knife, and called for the defendant to enter the house alone. Leach testified that he left the scene after the defendant entered the home.

Carson testified that she and the defendant had agreed that she would distract her mother with a knife while the defendant would render her unconscious by-striking her and that he would then strangle her. She also testified that in the actual execution of the plan, the defendant grabbed the victim from behind, tried to hit her on the head with a candleholder, choked her, commanded Carson to stab her, and that the defendant aided Carson in the stabbings by placing his hand over hers to assist in driving the knife into the victim. The defendant also repeatedly stabbed the victim with a second knife.

Carson also testified that after the homicide, she and the defendant ransacked the house to simulate a burglary, and that the defendant attempted to start a fire by pouring alcohol on the victim’s face and lighting it. There was independent forensic evidence that the victim’s face was stained with rubbing alcohol.

The defendant and Carson then left the scene and returned to his apartment, where they removed their outer clothing and discarded it in a sewer along with the victim’s purse and checkbook. Their planned alibi was that they had spent the evening together at the defendant’s apartment. The next morning, Carson returned home, purported to “discover” the body and ran to a neighbor to notify the police. Carson testified further that while she was incarcerated for the homicide of the victim, she received letters from the defendant wherein he professed his love for her, suggested that she not inform the police of his involvement and indicated that his fate was in her hands.

The defendant testified that he did not join in any plan to kill the victim. He also testified that when Carson called him into the victim’s house, he followed her into the kitchen, where he saw the victim on the floor with blood on her face and head. He testified that he then ran outside and vomited.

The jury acquitted the defendant of the crime of murder as charged, both as a principal and as an accessory, and of the lesser included offense of manslaughter in the first degree as a principal. The jury found him guilty of the lesser included offense of manslaughter in the first degree as an accessory. This appeal followed.

I

The defendant first claims that the court erred in providing an instruction to the jury that unconstitutionally diluted both the presumption of innocence and the state’s burden of proving guilt beyond a reasonable doubt. The instruction at issue is as follows: “It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with crime by respecting the presumption of innocence which the law imputes to every person so charged and by making the state meet its burden of proving guilt beyond a reasonable doubt, but you must keep in mind that those rules of law are made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime charged, then it is your sworn duty to enforce the law and to render a verdict of guilty.” (Emphasis added.)

The defendant challenges the propriety of the language emphasized above. He argues that by instructing the jury that “those rules of law are made to protect the innocent and not the guilty,” the court improperly instructed the jury that neither the presumption of innocence nor the reasonable doubt standard protects the guilty and innocent alike. We disagree.

Because the defendant failed to raise this claim at trial, we undertake a limited review of the record to determine whether the record supports his claim. State v. Spigarolo, 210 Conn. 359, 388-89, 556 A.2d 112, cert. denied, U.S. , 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989), citing State v. Bailey, 209 Conn. 322, 329-30 n.4, 551 A.2d 1026 (1988) (in determining whether the record supports a constitutional claim for the purpose of Evans review, it must be shown that the claim is truly of constitutional proportions and not simply characterized as such by the defendant). We conclude that the defendant’s claim falls short of Evans review; State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); for want of support in the record. See, e.g., State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

Our Supreme Court has consistently rejected challenges to jury instructions with language very similar to that challenged in this case. See State v. Brown, 199 Conn. 14, 28, 505 A.2d 690 (1986); State v. Palmer, 196 Conn. 157, 168-69, 491 A.2d 1075 (1985); State v. Just, 185 Conn. 339, 352-53, 441 A.2d 98 (1981); State v. Jonas, 169 Conn. 566, 578, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed, 2d 331 (1976); Stater. Guthridge, 164 Conn. 145, 154, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); State v. Cari, 163 Conn. 174, 180-81, 303 A.2d 7 (1972). Those cases hold that an instruction that the law is made to protect society and the innocent and not the guilty, does not dilute the presumption of innocence when it is “used in conjunction with a clear instruction both as to the presumption of innocence and as to the duty of the state to prove beyond a reasonable doubt the defendant’s guilt . . . .’’ State v. Palmer, supra, 168.

We perceive no difference between those cases and this case, where the reasonable doubt standard is also linked to the challenged instruction. As long as the challenged instruction is used together with clear instructions on both the presumption of innocence and the reasonable doubt standard, “such language is both proper and correct.” Id. Where both the presumption of innocence and the reasonable doubt standard are linked with the challenged instruction, the use of clear instructions on these “logically similar” concepts; see State v. Coleman, 14 Conn. App. 657, 669, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988); eliminates any risk that the jury will believe it is free to disregard those concepts in reaching its verdict.

In this case, immediately following the challenged instruction, the court stated, “[i]f and when the presumption of innocence has been overcome by evidence proving beyond a reasonable doubt that the accused is guilty of the crime charged, then it is your sworn duty to enforce the law and to render a verdict of guilty.” This language clearly put the challenged instruction into its proper context with the presumption of innocence and the state’s burden to prove guilt beyond a reasonable doubt. Indeed, the language in the present case is almost identical to that approved in State v. Palmer, supra, where the trial court stated, “ ‘[i]f this presumption of innocence has been overcome or removed by evidence clearly demonstrating beyond a reasonable doubt that an accused person is guilty of the crime charged, then it is the sworn duty of the jury to enforce the law which is made for the protection of life, society and property and to render such a verdict as the evidence warrants.’ ”

II

The defendant’s next claim is that the court relieved the state of its burden of proof and invaded the jury’s factfinding role by instructing the jury that Carson “is what the law calls an accomplice.” He argues that this presented a conclusion of law to the jury, and that the jurors could reasonably have heard this statement to mean that they were bound to find that Carson and the defendant acted in concert, as the state claimed. This argument is without merit.

Because this claim was not raised at trial, the defendant seeks review of it under the Evans bypass. State v. Bailey, supra. It is clear, however, that he has simply put a constitutional label on a nonconstitutional claim. Id.

It is axiomatic that jury charges are to be viewed in their entire context, and are not to be critically dissected in a search for error. State v. Anderson, 212 Conn. 31, 37, 561 A.2d 897 (1989). They must also be evaluated from the viewpoint of the likelihood of the jury’s understanding of them. Id. The defendant’s argument violates these principles.

The challenged instruction was given in the context of the court’s charge on credibility of witnesses in general, and on the credibility of Carson in particular. It was not given as part of the instruction regarding the elements of the crimes charged or the rules of accomplice liability. Furthermore, the particular language challenged was part of the following instruction: “Now, one of the witnesses in this case — and I refer to the witness, Valerie Carson — by her own testimony, participated in the criminal conduct charged by the state in this case. She is what the law calls an accomplice.” (Emphasis added.) The court then instructed the jury that it should, in weighing her testimony, consider that she “is a self-confessed criminal,” and should weigh the “amount of moral wrong and the witness participation in the crime . . . .” It also charged the jury to keep in mind her interest in the outcome of the case because she may be hoping for favorable treatment in her own case, and that it should “look with particular care at the testimony of an accomplice and scrutinize it very carefully before you accept it.” The court pointed out, also, that testimony of one who is by her own testimony implicated in the crime may be reliable because it is against her own interest. Finally, the court reminded the jury that it was to decide “what credibility you will give to a witness who has admitted her own involvement in criminal wrongdoing,” and that such a credibility decision must be “based on all the evidence presented to you.”

Carson was the principal witness tying the defendant to the crime charged. The court’s legal characterization of her as an accomplice was clearly meant to refer to, and could only have been reasonably understood by the jury to mean, her role in the crime based upon her own testimony. Thus, the entire accomplice instruction was designed to guide the jury as to how to evaluate her credibility in implicating the defendant. Given the entire context of the challenged language, therefore, it is fanciful to think that the jury could have believed that the court was instructing it to find that the defendant was, as a matter of law, a participant in the crimes charged.

Ill

The defendant’s final claim is that the court violated his rights to a trial by jury and due process of law by repudiating the jury verdict and sentencing him for the crime of murder, of which he was acquitted. We disagree.

In reviewing a sentence that is within the statutory limits, we start with the basic premise that “[a]s long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion.” State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986). We are not persuaded that this case warrants interference with the trial court’s discretion.

The sentencing remarks of the trial court that the defendant chooses to accentuate do not constitute the imposition of a sentence for the crime of murder. Although the court considered evidence bearing on charges of which the defendant was acquitted, that consideration is a legitimate sentencing factor. State v. Huey, supra, 126; State v. Whittingham, 18 Conn. App. 406, 415-16, 558 A.2d 1009 (1989); State v. Mancinone, 15 Conn. App. 251, 287-88, 545 A.2d 1131 (1988). Moreover, that evidence was but one factor on which the court based its decision. The court also considered the presentence investigation report, which disclosed that there was no indication of any remorse on the part of the defendant, as well as the defendant’s extensive prior criminal history and drug involvement. The court also emphasized the defendant’s “lust for money to support the drug habit” that he and Carson shared, and the defendant’s responsibility for Carson’s severe drug addiction, which ultimately resulted in the victim’s death, the ruin of Carson’s previously productive life, and her imprisonment. All of this information, as a matter of due process, had the requisite minimal indicia of reliability; State v. Whittingham, supra, 416; and, therefore, was proper for the trial court to take into account in the sentencing calculus.

There is no error.

In this opinion the other judges concurred.

       The defendant was charged with the crime of murder, both as a principal and an accessory.

       General Statutes § 53a-55 provides in pertinent part: “(a) A person is guilty of manslaughter in the first degree when: ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       The sentencing comments challenged by the defendant are as follows:

        “I don’t know how the jury specifically arrived at its results in this trial,
        but I do know that certainly on the basis of the evidence that I heard, there is no question that this defendant, Mr. Spears, was the chief architect of this evil design.

      “Your lust for money to support the drug habit which you had and which Miss Carson had resulted in the death of a fifty-eight year old, law-abiding, respected, hardworking woman, Mrs. Carson .... And in addition to her death, before that, you were responsible, I have no doubt, for the addiction that her daughter, Valerie Carson, experienced, severe drug addiction.
      “This young lady, who as I recall it, was well educated, had a good work history, intelligent. Now she’s in prison. Her mother’s dead and she’s in prison. And the responsibility, so far as this Court is concerned, is yours. . . .

        “I think the jury in arriving at its results, treated you with an abundance of leniency. I don’t intend to do so.

      “The sentence of this Court, Mr. Spears, is that you be committed to the custody of the Correction Commissioner for a period of twenty years. Total effective sentence, twenty years to serve.” (Emphasis added by the defendant.)


author: O’Connell, J.

text:
    Wilcox Trucking, Inc. v. Mansour Builders, Inc.
    (7422)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued October 3
    decision released December 26, 1989

      Robert J. Reeve, with whom, on the brief, was Edward F. Scully, for the appellant (defendant).

      Mary F. Haddon, with whom, on the brief, was Dwight Owen Schweitzer, for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals from a judgment rendered by the trial court after the court rejected a portion of the findings filed by a factfinder pursuant to Practice Book § 546G. The defendant claims that the trial court erred (1) in substituting its own factual determinations for those made by the factfinder, and (2) in sustaining the plaintiff’s objections to the factfinder’s findings and memorandum of decision. We find error.

This case has its origin in an oral contract for the removal by the plaintiff of fill from a construction site, the contract price to be based on a price per truckload. The plaintiff represented to the defendant that there was no buyer for the fill and that it might even be necessary to pay a charge per truckload to dump it. During the plaintiff’s performance of the contract, however, it sold part of the fill to a nearby condominium project. The plaintiff fully performed under the contract, but the defendant refused to pay when it learned of the sale of the fill. The plaintiff thereafter filed suit for breach of contract, and the matter was referred to a factfinder, who found for the plaintiff on the contract in the amount of $1475.88. This was based on the contract price of $3659.88, less a setoff of $2184 that represented the amount the plaintiff realized on the sale of the fill. The plaintiff filed an objection to the acceptance of the factfinder’s report, and the trial court upheld the objection as it related to the sufficiency of evidence of the setoff. The court then rendered judgment in favor of the plaintiff for the full contract price of $3659.88. The defendant appeals.

In 1983, the legislature enacted General Statutes §§ 52-549n through 549t, creating the factfinder program for specified types of contract actions, and shortly thereafter Practice Book §§ 546B through 546K implemented that legislation. The statutes and rules of practice both require the factfinder to file findings with the court. The rules of practice also grant the factfinder the discretion to file a memorandum of decision addressing those matters deemed to be helpful in the resolution of the case. Practice Book § 546G. After reviewing the findings, the trial court may take any of the following actions: “(1) render judgment in accordance with the finding of facts; (2) reject the finding of facts and remand the case to the fact-finder who originally heard the matter for a rehearing on all or part of the finding of facts; (3) reject the finding of facts and remand the matter to another fact-finder for rehearing; (4) reject the finding of facts and revoke the reference; (5) remand the case to the fact-finder who originally heard the matter for a finding on an issue raised in an objection which was not addressed in the original finding of facts; or (6) take any other action the court may deem appropriate.” Practice Book § 546J.

In the present case, the factfinder filed his findings and memorandum, the plaintiff filed an objection claiming that the setoff was not supported by the evidence. A hearing was held on the plaintiffs objections, and the trial court, Shaughnessy, J., ordered the defendant to furnish the court with those portions of the transcript that supported the findings on the setoff. The defendant does not dispute that this order to furnish the transcript was within the province of the trial court under § 546J (6), which confers upon the trial court the authority to take any other action that it deems appropriate. The defendant argues, however, that once the requested evidence was provided, the trial court’s possible course of action was limited to one of the first five subsections of § 546J. The court, Kline, J., exercised none of those options. Instead, it sustained the plaintiff’s objections to that portion of the factfinder’s report upholding the defendant’s setoff and rendered judgment for the plaintiff for the full $3659.88.

A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980); the Appellate Court; Lerner v. Ceslik. 17 Conn. App. 369, 372, 553 A.2d 1142 (1989); or the Superior Court reviewing the findings of either administrative agencies; Gervasoni v. McGrath, 36 Conn. Sup. 297, 300, 418 A.2d 952 (1980), or attorney trial referees. See Practice Book § 443; Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 299, 552 A.2d 827 (1989). This court has articulated that attorney trial referees and factfinders “ 'share the same function . . . “whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.” ’ ” Rostenberg-Doern Co. v. Weiner, supra, quoting Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502, 508 A.2d 415 (1986).

It is apparent that here the trial court corrected the finding of facts to make them consistent with its reading of the record and then proceeded to render a judgment in line with that amended finding. This was error. Once the court rejected the finding of facts, its options were severely limited. It either had to remand the matter to the same or a different factfinder for a rehearing or, in the alternative, it had to completely revoke the reference. Practice Book § 546J.

The plaintiff argues that the trial court’s action should be sustained under subsection (6) of Practice Book § 546J which provides that, upon review of the findings, the trial court may take “any other action the court may deem appropriate.” The flaws in this argument become apparent when § 546J is examined in its entirety. Subsection (6) immediately precedes a provision of § 546J that states “[t]he court may correct a finding of facts at any time before accepting it, upon the written stipulation of the parties.” (Emphasis added.) This sentence would be meaningless if we were to hold that a court may correct a finding absent such written stipulation of the parties. In construing statutes, no word or phrase should be treated as superfluous; Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22, 31, 521 A.2d 212 (1987); and these rules of statutory construction apply equally to the rules of practice. DeTeves v. DeTeves, 202 Conn. 292, 298, 520 A.2d 608 (1987).

We conclude that the trial court also erred in sustaining the plaintiff’s objection to the factfinder’s report. In a contract action, findings of fact should be overturned only when they are clearly erroneous. Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 112, 497 A.2d 70, cert. denied, 197 Conn. 816, 499 A.2d 1336 (1985). We have reviewed the record and are satisfied that there was sufficient evidence to support the setoff. Therefore, there is nothing that is unreasonable, illogical or clearly erroneous in the findings of the fact-finder and the reasonable inferences that may be drawn therefrom.

There is error, the judgment is set aside and the case is remanded with direction to render judgment in accordance with the factfinder’s report.

In this opinion the other judges concurred.

       Practice Book § 546G provides in pertinent part: “The fact-finder may accompany his finding of facts with a memorandum of decision including such matters as he may deem helpful in the decision of the case.”

       We note that the Rostenberg-Doern court approved the trial court’s action in that case because the referee had erred on questions of law, not fact. Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 300-301, 552 A.2d 827 (1989). Thus, Rostenberg is inapposite to the present case.


author: Norcott, J.

text:
    Robert B. Kupstis v. Andre L. Michaud, Jr., et al.
    (7895)
    Borden, Daly and Norcott, Js.
    Argued November 7
    decision released December 26, 1989

      Michael A. DAmico, for the appellant (plaintiff).

      Robert J. Crean, for the appellees (defendants).
   Norcott, J.

The plaintiff appeals from the judgment rendered against him by the trial court on the report of an attorney trial referee. The plaintiff raises two closely related claims on appeal. He first claims that the trial court erred in accepting the attorney referee’s report over his objection after failing to find the 120 day time limitation of General Statutes § 51-183b applicable to attorney referees. The plaintiff’s second claim, necessarily dependent upon the outcome of the first, is that the unreasonable delay between the time of the hearing and the time of the filing of the referee’s report resulted in a denial of the plaintiff’s right to due process of law. We find no error.

On June 23, 1986, the plaintiff, Robert B. Kupstis, instituted an action for specific performance of a contract for the sale of certain real property against the defendants, Andre and Gilberte Michaud. Upon consent by the parties, the trial court referred the case to an attorney trial referee and a hearing was held on October 7 and October 16, 1987. After waiting four months, the plaintiff received no word of any report from the referee. The plaintiff thereafter made several informal attempts to prompt the referee to render a report.

Almost a year elapsed and the plaintiff had no success in prompting the referee to render his report. On September 22,1988, the plaintiff filed a motion to compel the report. The court, O’Brien, J., granted the motion, and, on November 1,1988, after ordering transcripts of the hearing, the referee rendered a report unfavorable to the plaintiff. The plaintiff objected to the court, McDonald, J., with respect to the entry of judgment against him, claiming that the report of the attorney referee, which he had moved to compel, was issued after an unreasonably long delay that far exceeded the claimed 120 day time limit. The court held that under the rule enunciated in Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 508 A.2d 43 (1986), attorney referees are not bound by the 120 day time limitation and rendered judgment on the report.

The plaintiff argues that the 120 day time limit prescribed by General Statutes § 51-183b is applicable to attorney referees as well as to judges and state trial referees and that the referee in this case far exceeded that time limit. This court addressed this issue in Kowalsky Properties, Inc. v. Sherwin-Williams Co., supra. There, we explicitly held that “[t]he time limitations of General Statutes § 51-183b only apply to judges and 'any trial referee who has the power to render judgments.’We have ruled . . . that attorney trial referees do not have the power to render judgments. Consequently, they are exempt from the 120 day time restraint.” Id., 140. The plaintiff argues, nonetheless, that attorney referees should not be exempt,'and that we should, as a matter of judicial policy, apply the 120 day time limit to them.

Here, however, the plaintiff consented to the reference of his case to an attorney referee. He then moved to compel the very report that he now claims was untimely filed, and he did so after the 120 day limitation period that he claims is controlling. Had the plaintiff instead moved to revoke the reference to the attorney referee; see Practice Book § 432 (applicable to attorney referees pursuant to Practice Book § 428); or waited for the report to be rendered and objected to its acceptance; see Practice Book § 440; he would have acted in accordance with the relief that he now seeks. Under these circumstances, therefore, we conclude that it would be inappropriate to sustain the plaintiff’s claim to apply the 120 day time limit to attorney referees by judicial decision, because he obtained the very relief he now seeks to disavow.

We recognize that, notwithstanding Kowalsky, an inconsistency does exist between attorney referees and other analogous persons to whom the court refers cases for findings of fact. While the court in Kowalsky properly exempted attorney referees from the statutory time limit of § 51-183b, it did not consider the 120 day limit prescribed by our rules of practice to factfinders and arbitrators requiring them to abide by the 120 day time limitation even though they are unable to render judgment. Attorney referees fall into a gray area that exists between our rules of practice and our statutes. Of these three, each performing analogous functions, only attorney referees are not specifically bound by any rule to the 120 day time limit, and we perceive no reason for this distinction.

We do not condone such extended delays by attorney referees in rendering their reports as that which occurred in this case. Moreover, we strongly suggest that this gray area be eliminated and that a rule that binds attorney referees to the 120 day time limit be established. Under the circumstances of this case, we conclude that the trial court did not err in holding that under the current status of Connecticut law, the attorney referee was not bound by the 120 day time limit and in accepting his report.

The plaintiff next claims that he was denied his right to due process because of the undue delay by the attorney referee in rendering his report. He argues that the attorney referee could not have clearly judged the credibility of the witnesses after the hearing, as indicated by the fact that he requested a transcript before rendering his decision. Although the time lapse is very long, this record is simply insufficient to lead us to conclude that the attorney referee could not make those determinations based on his own recollection, on whatever notes he may have made, and on the transcript he received. On this record, the plaintiff has not carried his burden of establishing a violation of his right to due process of law.

Furthermore, under the present rule, attorney referees are not bound by a 120 day time limitation; see Kowalsky Properties, Inc. v. Sherwin-Williams Co., supra; and appointment of a trial referee requires consent by the parties. Kroop v. Kroop, 186 Conn. 211, 217, 440 A.2d 293 (1982). If the plaintiff wanted to guarantee that a judgment would be rendered within 120 days, he could have objected to the appointment of the attorney referee and chosen to go to trial. He was afforded due process when he was given the option of a trial or an alternative dispute resolution. He cannot now, after voluntarily choosing a route to which no time limitation applied, claim a violation of due process.

There is no error.

In this opinion the other judges concurred.

       The plaintiff sent a reminder letter to the attorney referee on February 3,1988. On May 2, 1988, the plaintiff contacted the chief clerk of the trial court to investigate the delay of the report. On July 12, 1988, after hearing nothing during the interim, the plaintiff contacted the chief clerk again to inquire about what had become of the initial inquiry. On August 23, 1988, still having heard nothing, the plaintiff sent another letter to the attorney referee.

       Practice Book § 546G requires that “[wjithin one hundred and twenty-days of the completion of the factfinder’s hearing the factfinder shall file the findings of facts with the clerk of the court . . . Practice Book § 546Q mandates that “[w]ithin one hundred and twenty days of the completion of the arbitration hearing the arbitrator shall file his decision with the clerk of the court . . . .”

       We note that, according to our chief court administrator, attorney referees are compensated, as are factfinders and arbitrators, for their role in the alternative dispute resolution process as required by General Statutes § 52-434 (4). Further, their jurisdiction to find facts is limited, as is the case with both factfinders and arbitrators. General Statutes § 52-434 (1) (attorney referees can hear any civil nonjury case); cf. Practice Book § 546D (factfinders may hear any contract action in which money damages alone are sought and the amount sought is less than $15,000, exclusive of costs and interest); Practice Book § 546N (arbitrators may hear any civil action seeking damages, legal interest or property in which the value is less than $15,000 exclusive of interest and costs and in which a claim for a jury trial and a claim for the trial list have been filed).

       The defendants argue that this claim is not reviewable because it was not raised to the trial court and because the plaintiff does not present exceptional circumstances that would bring him under the rule of State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). We find that that the plaintiff did preserve this claim for appeal. While he may not have explicitly used the words due process, his claim was clearly that of a due process violation. He argued to the trial court “[tjhat it would be unfair for the court to accept the report in light of the obvious difficulties in judging the credibility of witnessess after a year has elapsed since trial.”


author: Spallone, J.

text:
    State of Connecticut v. Barry DeMartin
    (6980)
    Dupont, C. J., Spallone and Laveky, Js.
    Argued October 20, 1989
    decision released January 2, 1990

      Judith A. Sarathy, special public defender, with whom, on the brief, was Temmy Ann Pieszak, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals his conviction, after a jury trial, óf the crime of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1).

The defendant’s sole claim is that the trial court erred in its charge to the jury on justified physical force in defense of a third person as defined by General Statutes § ñ‘ia-19. The defendant alleges that the court incorrectly defined “initial aggressor” so as to eliminate the defendant’s justification if the jurors found that the deceased had threatened imminent physical harm but the defendant had been the first to strike a blow.

The jury could reasonably have found the following facts. Shortly after midnight on March 27, 1987, the patrons were gathered at the Greenwood Lodge in Meriden. In a room adjoining the bar area, the victim, Richard Serio, was shooting pool with Jill Thayer. Serio’s girl friend, Shawn Godfrey, was tending bar. The defendant, Barry DeMartin, was seated at a table with his sister, Rhonda DeMartin, his girl friend, Rhonda Gerard, and his sister’s boyfriend, Edward Jaskot. Both the victim and the defendant appeared to be intoxicated.

During the evening, these two groups of people became embroiled in several disputes among themselves and with each other. Rhonda DeMartin and Rhonda Gerard argued and tussled with Thayer over who had last put money in the jukebox. Thayer shortly thereafter saw the defendant holding his pool cue to Rhonda Gerard’s throat. When Thayer made a comment to the defendant, Rhonda DeMartin responded unpleasantly and punched Thayer in the face. Thayer thereupon threw her pool cue at Rhonda DeMartin.

The two women engaged in an increasingly vociferous shouting match until Shawn Godfrey, in an attempt to break up the altercation, ordered the unruly patrons to leave. Rhonda DeMartin, refusing to leave, got into a hair-pulling fistfight with Godfrey. As Godfrey tried to push Rhonda DeMartin through the exit door of the poolroom, Rhonda Gerard entered into the brawl and was thrown to the floor. The defendant stepped in and punched Godfrey in the stomach.

While Thayer and the victim looked on, Godfrey, the two Rhondas and the defendant skirmished near the exit door. The victim at this point started toward the melee. According to some witnesses, the defendant moved toward the victim and struck him on the side of his head with a pool cue. The defendant and other witnesses testified that the victim was on Rhonda DeMartin’s back, pulling her hair, when the defendant struck the victim with a pool cue. All witnesses saw the victim fall, but could not agree on whether he struck his head on a bench as he collapsed.

The police arrived moments later, at approximately 12:31 a.m., and saw the defendant walking away from the bar. An ambulance arrived within minutes and transported the victim to a hospital, where he was declared dead. The cause of death was determined to be blunt head trauma with internal hemorrhaging.

The police went to the defendant’s home at approximately 3:15 a.m. and were told by the defendant that he had not been involved in a fight and that he had left the bar at 10:45 p.m. the previous night. He was subsequently arrested and tried to a jury on the charge of manslaughter in the first degree. DeMartin’s defense was that he was justified in using force to defend his sister from the victim’s attack. He was convicted of the lesser included offense of manslaughter in the second degree and this appeal followed.

The defendant’s claim of error focuses entirely on whether the trial court incorrectly defined “initial aggressor” in its jury charge on the defense of justification. The defendant introduced sufficient evidence at trial to entitle him to an instruction on the defense of justification. See State v. Folson, 10 Conn. App. 643, 646, 525 A.2d 126 (1987). Specifically, the defendant alleged and testified that he acted to defend his sister from an assault by the victim. Accordingly, the trial court instructed the jury on the defense of a third person under General Statutes § 53a-19 (a). See State v. Silveira, 198 Conn. 454, 470, 503 A.2d 599 (1986) (statute covers defense of third person). The court also twice charged the jury on the “initial aggressor” exception to the defense of justification, pursuant to § 53a-19 (c). In explaining the term, the court twice stated that “a person is not justified in using physical force if, intending to cause injury to the other person he is the initial aggressor, that is the first one to use physical force.”

The defendant concedes that in defending his sister he struck the first blow against the victim. He denies that he is therefore necessarily the initial aggressor because the statute clearly contemplates that an initial aggressor may also be the party who, by word or deed, threatens the imminent use of force and thereby provokes another to strike the first blow. See State v. Silveira, supra. The defendant argues that the court erroneously excluded this distinction from the definition of an initial aggressor and so deprived him of the defense of justification.

As a threshold question, we must decide whether the defendant’s claim is reviewable. The defendant at trial failed to file a relevant request to charge and failed to object to the charge as given. The defendant, therefore, asks us to review this claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), or, alternatively, under the doctrine of plain error. Practice Book § 4185; see State v. Ramirez, 16 Conn. App. 284, 290, 547 A.2d 559, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988).

“A claim not raised at trial is reviewable only if the record adequately supports a claim that the defendant has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989); State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989). The defendant’s claim implicates a fundamental constitutional right because “instructions that misstate the statutory defense of self-defense unconstitutionally implicate a defendant’s due process right to establish a defense.” State v. Preyer, 198 Conn. 190, 198, 502 A.2d 858 (1985).

The record here indicates, however, that this claim of an erroneous jury instruction is not truly of constitutional proportions. See State v. Golding, supra, 240; State v. Bailey, 209 Conn. 322, 329-30 n.4, 551 A.2d 1206 (1988). The court’s obligation to define the defense of justification “ ‘ “does not transform every deviation from the particular statutory definition . . . into a constitutional error.” ’ State v. Utz, 201 Conn. 190, 202, 513 A.2d 1191 (1986).” State v. Huff, 10 Conn. App. 330, 335, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). A party is not entitled to a charge that is beyond criticism in every respect. State v. Harman, 198 Conn. 124, 134, 502 A.2d 381 (1985). “[individual instructions are not to be judged in artificial isolation from the overall charge.” State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert, denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Anderson, supra, 37. We must determine whether, in the light of the charge as a whole, it was reasonably possible that the jury was misled. State v. Laracuente, 205 Conn. 515, 524, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988); State v. Drummy, 18 Conn. App. 303, 311, 557 A.2d 574 (1989).

We find that the court’s instructions on justification as a whole “fairly presented the case to the jury so that no injustice was done to the legal rights of the defendant.” State v. Timmons, 7 Conn. App. 457, 470, 509 A.2d 64 (1986) , appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987) . The court’s charge followed closely the applicable portions of General Statutes § 53a-19 and the self-defense instruction set forth in D. Borden & L. Orland, Connecticut Criminal Jury Instructions § 6.1. The court twice stated that “[a] person is justified in using reasonable physical force upon another person to defend a third person from what he believes to be the use or imminent use of physical force and he may use such degree of force which he reasonably believes to be necessary for the purpose.” Overall, the court made no less than six statements to the effect that the defense of justification would be available to the defendant if he acted to defend a third person from the imminent use of physical force. The court gave a detailed explanation of the term “reasonableness.” The court also and properly emphasized that the burden remained on the state to disprove the defense of a third person beyond a reasonable doubt. It was made abundantly clear that the defendant could be the first to use force without being the initial aggressor. We conclude therefore that it was not reasonably possible that the jury was misled.

We also decline to review the defendant’s unpreserved claim under the doctrine of plain error which is properly used only to preserve the integrity of the judicial process and to avoid fundamental injustice, and not simply to detect errors of even constitutional proportions. State v. Luca, 19 Conn. App. 668, 670-71, 563 A.2d 752 (1989). In the context of the jury charge as a whole, we do not find that the court’s definition of initial aggressor “ ‘ “resulted] in an unreliable verdict or a miscarriage of justice.” ’ ” Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223, cert. denied, 206 Conn. 803, 535 A.2d 1316 (1987), quoting State v. Hinckley, 198 Conn. 77, 88, 502 A.2d 388 (1985). Under the facts and circumstances of this case, any error in the jury instructions was harmless beyond a reasonble doubt. See State v. Scott, 10 Conn. App. 347, 353, 522 A.2d 1245, cert. denied, 204 Conn. 804, 528 A.2d 1152 (1987) (determination of plain error depends on harmfulness of failure).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-19 provides in pertinent part: “(a) . . . a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose ....
      “(c) . . . a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor

       5 Connecticut Practice, D. Borden & L. Orland, Connecticut Criminal Jury Instructions § 6.1, entitled “Self-Defense,” set forth in pertinent part:
      “Finally, a person is not justified in using physical force if, intending to cause physical injury to the other person .... he is the initial aggressor— that is, the first one to use physical force.”


author: Per Curiam.

text:
    State of Connecticut v. Christopher Carroll
    (7507)
    Dupont, C. J., Borden and Lavery, Js.
    Submitted on briefs October 19, 1989
    decision released January 2, 1990

      Patrick J. Culligan, assistant public defender, filed a brief for the appellant (defendant).

      John M. Bailey, state’s attorney, Kevin McMahon, assistant state’s attorney, and LeonF. Dalbec, Jr., deputy assistant state’s attorney, filed a brief for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction for assault in the first degree in violation of General Statutes § 53a-59 and attempted kidnapping in the second degree in violation of General Statutes § 53a-94. We find no error.

The defendant raises two issues on appeal. The first is that the trial court erred in failing to instruct the jury that its verdict must be unanimous as to which of the several types of “serious physical injury” enumerated in General Statutes § 53a-59 was inflicted on the victim by the defendant. We have recently held that the various categories of “serious physical injury” listed in General Statutes § 53a-59 are not statutory alternatives requiring a unanimity instruction. State v. Wynter, 19 Conn. App. 654, 666, 564 A.2d 296, cert. denied, 213 Conn. 802, 567 A.2d 834 (1989); State v. Anderson, 16 Conn. App. 346, 357, 547 A.2d 1368, cert. denied, 209 Conn. 828, 552 A.2d 433 (1988). Consequently, this claim is without merit.

The defendant’s second issue is that the trial court erred in denying his motion for judgment of acquittal on the attempted kidnapping charge. The defendant argues, first, that General Statutes § 53a-91 defines “abduct” to mean preventing a victim’s liberation by a third party or outside force, and second, that the state failed to produce evidence sufficient to prove that the defendant “abducted” the victim within this interpretation of the statutory definition. The state’s evidence, according to the defendant, was sufficient to prove only that the defendant “restrained” the victim, that is, prevented the victim from liberating herself. The defendant urges us to conclude, therefore, that a conviction for attempted kidnapping was inappropriate because such a conviction requires proof that the victim was abducted, and not merely restrained.

The Connecticut Supreme Court has recently analyzed a similar claim. In State v. Paolella, 211 Conn. 672, 561 A.2d 111 (1989), the defendant presented an identical argument. The Supreme Court declined to follow the defendant’s “somewhat strained” interpretation of General Statutes § 53a-91, holding that the evidence in the case was sufficient to find that the defendant had intended to prevent the victim’s rescue by third parties as well as by her own efforts. Id., 679. Although we decline to approve the defendant’s interpretation of § 53a-91, we find that even under his own analysis his conviction will stand.

Here, the defendant forced the victim into his car and displayed a handgun in response to repeated resistance by both the victim and her family. Although these acts are not as clearly “abduction” as the actions of the defendant in Paolella, the defendant in this case was convicted of attempted kidnapping, not kidnapping. The proof required is therefore less stringent than that required in Paolella, since we need conclude only that the evidence, when considered in the light most favorable to sustaining the jury’s verdict, supports a finding that the defendant had taken a substantial step toward preventing the victim’s rescue by third parties. Consequently, even under the defendant’s analysis, his conviction for attempted kidnapping must stand.

There is no error.

       General Statutes § 53a-91 contains definitions applicable to kidnapping and the offenses related to it. Section 53a-91 provides in pertinent part:
      “(1) ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (a) deception and (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.
      “(2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation.”


text:
    David Kaye v. Town of Manchester et al.
    (7743)
    Borden, Norcott and Foti, Js.

      Argued October 11, 1989
    decision released January 2, 1990

      Harold R. Cummings, with whom was Vincent J. Pumhagen, for the appellant (plaintiff).

      Edward W. Gasser, with whom, on the brief, was Patricia Shea Lovell, for the appellees (named defendant et al.).

      Constance L. Epstein, with whom, on the brief, was Michael L. McDonnell, for the appellee (defendant Leonard Seader).
   Norcott, J.

The plaintiff, David Kaye, appeals from the trial court’s granting of the defendants’ motions for summary judgment. The plaintiff claims that the trial court erred (1) in concluding that the claim against defendant Leonard Seader was barred by the statute of limitations and granting his motion for summary judgment, and (2) in granting the motion for summary judgment filed by the town of Manchester and the town board of education. We find no error.

This case involves a complex procedural history. The plaintiff gave notice to the town and board of his intention to commence suit on January 23,1983. He initially instituted suit on September 14,1984, against the town and the board. The complaint was in two counts, one against each municipal defendant, and was based solely upon allegations of negligence in the construction and maintenance of a public sidewalk located at Bennett Junior High School, where the plaintiff allegedly fell and injured himself on September 22, 1982. On September 17, 1984, service of this complaint was made on the Manchester town clerk and on “Leonard Seader, Chairman” of the board.

On February 17, 1987, the town filed a motion for summary judgment claiming that the plaintiff’s suit was intended as an action pursuant to General Statutes § 7-465, and that § 7-465 is solely an indemnification statute and does not create a right of action against the town or board without a cause of action against an individual employee of that town. On July 15,1987, in response to the original defendants’ motion, the plaintiff filed a request to amend his complaint, and, on the next day, he filed a motion to cite in, as additional defendants, Seader and William Dion, the board’s supervisor of buildings and grounds. On August 31, 1987, the court granted both the motion to amend and the motion to cite in the additional parties.

The plaintiff’s amended complaint, filed on September 8,1987, added several counts. In addition to alleging negligence by the town and board, the amended complaint named Seader and Dion as defendants, alleged negligence by them and claimed that they were employees of the town under § 7-465. The complaint further alleged that the board is an employee of the town under § 7-465 and that the town is liable under § 7-465 by way of indemnity. On September 4, 1987, almost five years after the incident, Seader was served with the amended complaint. On February 22, 1988, the trial court granted Dion’s motion to dismiss the action as to him on the ground of insufficient service of process. Thereafter, Seader filed his motion for summary judgment claiming that the suit against him was barred by the statute of limitations. The trial court agreed and granted the motion.

On December 22, 1987, the town and board moved for summary judgment, claiming that when an action against specific municipal employees is dismissed or barred, the plaintiff cannot recover against the town or board pursuant to § 7-465. The court granted these motions on January 9,1988. On January 27,1988, the court rendered its judgment, concluding that because the cause of action against Seader was barred by the statute of limitations, the town and board were not liable under § 7-465 since there remained no viable suit against an individual employee.

The plaintiff first claims that the trial court erred in granting Seader’s motion for summary judgment. He claims that his original action was a § 7-465 action, that Seader was actually a party to this action from the date of the original complaint and that he was put on notice by both the plaintiff’s letter of notice and the original service of the summons and writ. The plaintiff further claims that when he finally amended his complaint and cited in Seader, his amendment related back to the date of the original action. We disagree.

The plaintiff’s argument is flawed because his original complaint cannot be construed to be a claim under § 7-465, Seader was not a party to the original complaint, and he was not on notice that he was being sued individually. We conclude that the amended complaint did not relate back to the date of the original complaint, and, therefore, the amended claim was barred by the statute of limitations.

The plaintiff’s original complaint, in order to comport with § 7-465, must have necessarily claimed liability on the part of Seader individually and indemnity therefor by his municipal employer. “ While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment ... it is quite clear that the municipality does not assume the liability in the first instance.’ Kostyal v. Cass, 163 Conn. 92, 97, 302 A.2d 121 [1972].” Fraser v. Henninger, 173 Conn. 52, 56, 376 A.2d 406 (1977). “The municipality’s liability is derivative.” Ahern v. New Haven, 190 Conn. 77, 82, 459 A.2d 118 (1983); see also Lund v. Trojanski, 29 Conn. Sup. 69, 70, 271 A.2d 123 (1970).

“An amended complaint, if permitted, relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action.” Jonap v. Silver, 1 Conn. App. 550, 555, 474 A.2d 800 (1984). While an amendment that corrects a minor defect relates back to the date of the original complaint, one stating a separate cause of action is barred by the statute of limitations. Further, if the amendment is deemed to be a substitution or entire change of a party, it will not be permitted. Pack v. Burns, 212 Conn. 381, 384-85, 562 A.2d 24 (1989). If the amendment does not affect the identity of the party sought to be described in the complaint, but merely corrects the description of that party, the amendment will be allowed. Id., 384. The test applied in order to determine whether an amendment is correcting a misnomer as opposed to substituting a new party or claim requires consideration of the following: (1) whether the defendant had notice of institution of the action; (2) whether the defendant knew he was a proper party; and (3) whether the defendant was prejudiced or misled in any way. Id., 385.

The treatment by our courts of cases that deal with amendments illustrates the distinction between amendments that merely correct descriptive defects and those that create new causes of action. In Pack v. Burns, supra, a case heavily relied upon by both parties, the plaintiff instituted suit against the “State of Connecticut Transportation Commission,” a nonexistent entity. The plaintiff served her complaint on Commissioner William J. Bums and thereafter amended her complaint to correct the name of the defendant to be “the Commissioner of Transportation.” The Supreme Court held that the amendment related back to the date of the original complaint because it merely corrected a “defect in description.” Id., 384. The court held that “ ‘[t]he plaintiffs mistake was not as to the entity itself — not as to the party sued, but in describing what kind of entity the defendant was; it sued the proper party, but in so doing misdescribed that party .... The change made by the amendment did not affect the identity of the party sought to be described, but merely made correct the description of the real party sued; it did not substitute or bring in a new party.’ ” (Emphasis added.) Id., 384, quoting World Fire & Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 643, 136 A. 681 (1927); see also Ducey v. Walsh Construction Co., 6 Conn. App. 256, 261, 504 A.2d 565 (1986).

In contrast to Pack, the original complaint in the present case contained only allegations of negligence by the town and board. It contained no reference to General Statutes § 7-465 nor did it contain any claim that the town or board was liable as an indemnitor for any individual defendant’s negligence. Further, no mention was made of any specific employee, much less one who might have been a misdescription of Seader. While it is true that Seader received service of the complaint, it is clear that he received it in his official capacity as agent for the board. There was nothing in either the complaint or in the original notice that would have alerted Seader to the fact that he was being sued for negligence. In short, the plaintiff did nothing within the two year limitation period to alert Seader to the fact that he was to be a defendant in this action.

Hence, although Seader had notice of the institution of the original action, he was not a party to it, had no way of knowing that he was to be a party, and would be prejudiced by the passage of time if the amended complaint were to relate back. Pack v. Burns, supra. As a result, when the complaint was amended in September, 1987, it stated a new cause of action against a new defendant, and did not relate back to the date of the original complaint.

Our decision on this first issue is dispositive of the plaintiff’s second claim, namely, that the court erred in granting the town’s and the board’s motions for summary judgment. Without the amendment, there was no cause of action stated against the town. Accordingly, the trial court properly granted the town’s and board’s motions.

Finally, the plaintiff attempts to salvage his original complaint by claiming that the board is an “employee” of the town within the meaning of § 7-465 (a). This claim is meritless. The clear language of § 7-465 (a) defines an employee as “a member of a town board of education and any teacher ... or other person employed by such board.” (Emphasis added.) Clearly, this language indicates that only individuals and not entire boards are considered to be employees under this section.

There is no error.

In this opinion the other judges concurred.

       The defendants involved in this appeal are the town of Manchester, the town board of education and Leonard Seader, chairman of that board. The plaintiff challenges the granting of the town’s and the board’s motion for summary judgment separately from his challenge to the granting of Seader's motion.

       General Statutes § 7-465 provides in pertinent part: “Any town . . . notwithstanding any inconsistent provision of law . . . shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for . . . physical damages to person or property ... if the employee, at the time of the occurrence . . . was acting in the performance of his duties and within the scope of his employment. . . . No action for personal physical injuries . . . shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and place where the damages were . . . sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. Governmental immunity shall not be a defense in any action brought under this section.” (Emphasis added.)

       Subsequent to the judgment from which the plaintiff is appealing, Dion was served with an amended complaint. Dion’s motion for summary judgment on that complaint was granted in October, 1989. Because that ruling occurred after the briefs had been filed and shortly before oral argument of this appeal, it is not the subject of this appeal.

       In Ducey v. Walsh Construction Co., 6 Conn. App. 256, 504 A.2d 565 (3986), the plaintiff named “Walsh Construction Co. Ltd” as the defendant instead of the intended “Walsh Construction Co. a Division of Guy F. Atkinsin, Co.” We held that the plaintiffs proposed amendment to correct the name of the defendant merely corrected a misnomer because the person who received notice was an officer of both corporations and knew of the mistake. He was, therefore, placed on notice and was not prejudiced by the amendment. Id., 261.

       Indeed, the summons was addressed to “Leonard Seader, Chairman.”