author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. FRANKIE JENKINS
    (12465)
    Landau, SchaUer and Hennessy, Js.

      Argued November 7, 1995
    officially released June 11, 1996

      Thomas D. Nalband, deputy assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Stephen G. Preleski, assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Frankie Jenkins, appeals from the judgment of conviction, rendered after a jury trial, of sale of cocaine by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), sale of cocaine in violation of General Statutes § 2 la-277 (a) and possession of cocaine in violation of General Statutes § 21a-279 (a). The court combined the first two counts as one conviction and imposed a total effective sentence of ten years, execution suspended after five years, and three years probation. On appeal, the defendant claims that the trial court violated his state and federal constitutional rights to a fair trial and to due process of law when it denied his motion to bifurcate the trial to consider separately the issue of drug dependency. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. As part of an investigation of cocaine sales in and around a Bristol housing complex, the Bristol police department stationed a police officer in one of the apartments in the complex with a view of the area outside one of the buildings. The officer observed a paid police informant approach the defendant and purchase what was later determined to be 0.12 grams of crack cocaine from the defendant. After the jury found the defendant guilty of all three counts, this appeal followed.

In support of his claim that the trial court denied him a fair trial and deprived him of due process of law by denying his motion to bifurcate for trial the issue of drug dependency, the defendant argues that (1) pursuant to McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), drug dependency is purely a sentencing factor that is not an issue appropriately heard during trial, (2) State v. Ferrone, 96 Conn. 160, 113 A. 452 (1921), mandates a bifurcated hearing, (3) the failure to bifurcate improperly places the subject of punishment in the province of the jury, and (4) requiring the defendant to produce and persuade on the issue of drug dependency during his trial for sale of narcotics violates his rights to a fair trial and due process of law. Finally, the defendant argues that a new trial is necessary because he was prejudiced by the trial court’s erroneous instructions on the issue of drug dependency, which he claims were confusing to the jury and contrary to existing law. We affirm the judgment.

I

To address the defendant’s arguments, we first examine the statutory scheme. General Statutes § 21a-278 (b) provides in pertinent part that “[a]ny person who sells . . . [or] possesses with the intent to sell . . . any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years . . . .” (Emphasis added.) General Statutes § 21a-277 (a) provides in pertinent part that “[a]ny person who sells . . . [or] possesses with the intent to sell ... a narcotic substance . . . for a first offense, shall be imprisoned not more than fifteen years . . . .” The statutes are virtually identical except that § 21a-278 applies exclusively to persons who are not drug-dependent. The design and effect of § 21a-278 (b) is to punish persons who are not drug-dependent and sell narcotics more severely than drug-dependent persons who sell narcotics. The legislature accomplishes that goal by providing for a five year mandatory minimum sentence for those convicted under § 2 la-278 (b). A drug-dependent person can escape liability under § 21a-278 (b), and thus the five year mandatory minimum sentence, by proving that he was drug-dependent at the time of the offense. State v. Januszewski, 182 Conn. 142, 167, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981) (clear meaning of clause relating to absence of drug dependency to exempt particular class of persons from operation of statute). A drug-dependent person, could, however, be convicted under § 21a-277 (a), which does not consider drug dependency, but which also does not carry a mandatory minimum sentence. State v. Paredes, 35 Conn. App. 360, 372, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994).

Our Supreme Court has decided whether not being drug-dependent is an element of § 21a-278 (b) and who bears the burdens of production and persuasion on the issue of drug dependency in a line of cases culminating with State v. Hart, 221 Conn. 595, 605 A.2d 1366 (1992). See State v. Januszewski, supra, 182 Conn. 142; State v. Brown, 163 Conn. 52, 301 A.2d 547 (1972). In State v. Januszewski, supra, 168, our Supreme Court concluded that drug dependency is not an element of § 2 la-278 (b), but is rather an exemption from liability pursuant to General Statutes § 21a-269. Section 21a-269 provides: “In any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, proviso or exemption contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.” In Januszewski, our Supreme Court held that the defendant may constitutionally bear the burden of producing evidence of drug dependency. State v. Januszewski, supra, 168 (constitutionality of allocating to defendant burden of proof on this mitigating factor is without doubt after United States Supreme Court’s decision in Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 [1977]). The Januszewski court reasoned that “[a] defendant’s drug dependency at the specific point of time in the past at which the offense occurred is certainly a matter personal to the defendant and peculiarly within his own knowledge. Moreover, the enactment of [§ 21a-269] appears to be an implicit recognition by the legislature of the difficulty created when any party is given the burden of proving the nonexistence of a certain fact, especially where . . . that fact is the nonexistence of a physical status of the defendant at one, usually distant, point prior in time.” State v. Januszewski, supra, 167. The Januszewski court also likened the status of not being drug-dependent to the status of sanity, thus permitting the state to presume that a defendant was not drug-dependent at the time of the offense until the defendant makes drug dependency an issue. Id., 168; see State v. DeJesus, 236 Conn. 189, 204, 672 A.2d 488 (1996).

Finally, in State v. Hart, supra, 221 Conn. 607-11, our Supreme Court held that the defendant also bears the burden of persuading the trier of fact, by a preponderance of the evidence, that he was drug-dependent at the time of the offense. The court relied on the United States Supreme Court decision in McMillan v. Pennsylvania, supra, 477 U.S. 79, to support its conclusion that placing this burden on the defendant is not unconstitutional. State v. Hart, supra, 611. “The federal due process clause does not bar state legislatures from placing the burden on a defendant to prove an affirmative defense or to prove that he or she falls within an exemption to liability for an offense.” Id.

In summary, a person charged with sale of narcotics pursuant to § 21a-278 (b) is presumed not to have been drug-dependent, but may avoid liability under § 2 la-278 (b) by proving by a preponderance of the evidence that he was drug-dependent at the time of the offense.

A

The defendant first argues that drug dependency is a sentencing factor and that McMillan requires a bifurcated hearing on that issue. The state argues that drug dependency is a defense akin to an affirmative defense, which does not require a bifurcated hearing. We are persuaded that McMillan does not require us to order a bifurcated hearing and that drug dependency is a defense akin to an affirmative defense.

McMillan v. Pennsylvania, supra, 477 U.S. 81, involved a Pennsylvania statute which imposed a five year mandatory minimum sentence if the defendant visibly possessed a firearm during the commission of certain crimes. The statute required that the trial court consider, during a sentencing hearing, the evidence adduced at trial in addition to other evidence offered by the parties at the hearing to determine by a preponderance of the evidence whether the defendant visibly possessed a firearm. Id. The defendants in McMillan objected to the procedure because they argued that visible possession of a firearm constituted an element of the offense that should be proven beyond a reasonable doubt. Id., 83. The United States Supreme Court, relying on Patterson v. New York, supra, 432 U.S. 197, disagreed. McMillan v. Pennsylvania, supra, 84—85. The court held that visible possession of a firearm is not an element of the offense but merely a sentencing factor that establishes a mandatory minimum sentence within the sentencing range already established for the offense. Id., 87.

The defendant relies on McMillan to support his argument that the issue of drug dependency is a sentencing factor that requires a separate hearing. The mere fact that our Supreme Court relied on McMillan in Hart does not require this conclusion. McMillan stands for the proposition that a statutory provision requiring a mandatory minimum sentence is not necessarily an element of the offense and that a statute may reduce the burden of proof on that issue. McMillan v. Pennsylvania, supra, 477 U.S. 88. While the Hart court relied on McMillan, it did so for the proposition that the legislature may place the burden of proving drug dependency by a preponderance of the evidence on the defendant, not for the proposition that drug dependency is a sentencing factor.

Furthermore, the fact that the statute involved in McMillan required a separate hearing on the issue of a visible firearm does not mandate a separate hearing on the issue of drug dependency. The United States Supreme Court did not hold that a separate hearing was necessary; the court, in fact, did not even address that issue. It was the Pennsylvania legislature that required, through legislation, that the issue would be heard in a sentencing hearing. McMillan v. Pennsylvania, supra, 477 U.S. 81 n.1. Therefore, nothing in McMillan requires the conclusion that drug dependency is a sentencing factor or that the issue of drug dependency requires a separate hearing. The defendant’s argument is further weakened by the fact that the burden shifting approach originated with Patterson v. New York, supra, 432 U.S. 197, which did not involve a sentencing factor and did not require a separate hearing.

We conclude that the issue of drug dependency is more akin to the affirmative defense described in Patterson than the sentencing factor described in McMillan. Patterson, which served as the basis for the United States Supreme Court’s decision in McMillan, involved New York’s murder statute and the defense of extreme emotional disturbance. Patterson v. New York, supra, 432 U.S. 198. New York’s murder statute essentially provides that a person is guilty of murder if with the intent to cause the death of another person he causes the death of such person. Id., 198-99 n.2. The statute affords a complete defense to murder if the defendant proves by a preponderance of the evidence that he acted under the influence of extreme emotional disturbance. Id. New York’s manslaughter statute provides that a person is guilty of manslaughter if with the intent to cause the death of another person he causes the death of that person under such circumstances that do not constitute murder because he acted under the influence of extreme emotional disturbance. Id., 199 n.3. In affirming the statutory scheme, the United States Supreme Court made it clear that a state need not “prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of punishment.” Id., 207. The court added that a state may place the burden on a defendant to prove “a factor that mitigates the degree of criminality or punishment . . . .’’Id., 209.

The court also recognized that “ ‘[t]he affirmative defense, intelligently used, permits the gradation of offenses at the earlier stages of prosecution and certainly at the trial, and thus offers the opportunity to a defendant to allege or prove, if he can, the distinction between the offense charged and the mitigating circumstances which should ameliorate the degree or kind of offense. . . . Absent the affirmative defense, the crime of murder or manslaughter could legislatively be defined simply to require an intent to kill, unaffected by the spontaneity with which that intent is formed or the provocative or mitigating circumstances which should legally or morally lower the grade of crime. ... In sum, the appropriate use of affirmative defenses enlarges the ameliorative aspects of a statutory scheme for the punishment of crime, rather than the other way around — a shift from primitive mechanical classifications based on the bare antisocial act and its consequences, rather than on the nature of the offender and the conditions which produce some degree of excuse for his conduct, the mark of an advanced criminology.’ ” Patterson v. New York, supra, 432 U.S. 211-12 n.13, quoting Patterson v. New York, 39 N.Y.2d 288, 305-307, 347 N.E.2d 898, 383 N.Y.S.2d 573 (1976).

Connecticut’s statutory scheme with respect to drug dependency and the difference between §§ 2 la-277 (a) and 21a-278 (b) are similar to the extreme emotional disturbance defense involved in Patterson and the difference between murder and manslaughter. With both drug dependency and extreme emotional disturbance, proof by a preponderance of the evidence of the mitigating circumstance allows the defendant to escape liability for an offense that carries a greater punishment. Our laws increase the punishment for the sale of narcotics by a person who is not drug-dependent because the legislature has chosen to punish those who sell drugs for profit more than those who sell to sustain their own habits. The exemption from liability in this case, drug dependency, allows a defendant to avoid greater punishment for a crime that our legislature considers a greater evil. In both cases, even if the defense is successful, the defendant may be convicted of a crime that carries a less severe penalty.* *

The Connecticut murder and manslaughter statutes are virtually identical to those tested in Patterson. Both the Connecticut statutes and the New York statutes in Patterson place the burden on the defendant to prove the defense of extreme emotional disturbance by a preponderance of the evidence. See State v. Raguseo, 225 Conn. 114, 122, 622 A.2d 519 (1993). Connecticut, like New York, describes the extreme emotional disturbance defense as an affirmative defense. General Statutes § 53a-54a. While Connecticut’s statutes use different nomenclature for the defenses of extreme emotional disturbance “affirmative defense” and drug dependency “exemption from liability,” these defenses operate the same way. Both defenses excuse liability for an offense, although the elements of that offense have been satisfied. Thus, even if the state proves the elements of murder, causing a death with intent to cause a death, the defendant can escape liability for murder by proving extreme emotional disturbance, which is not an element of the offense. Similarly, with respect to § 21a-278 (b), even if the state proves the elements of the offense, sale of narcotics, the defendant can escape liability under that statute by proving he was drug-dependent, also not an element of the offense pursuant to State v. Hart, supra, 221 Conn. 595. See State v. Januszewski, supra, 182 Conn. 168. In neither case will the defendant completely escape liability because he will likely be convicted either of manslaughter or under § 21a-277 (a). Therefore, we conclude that an exemption from liability on the issue of drug dependency is akin not only to the New York statutes tested in Patterson, but also Connecticut’s statutory scheme for murder and manslaughter.

Furthermore, the use of. different nomenclature for the two defenses is explained by the fact that the defenses were adopted as part of separate statutory schemes. Affirmative defenses were adopted as part of our penal code, which is modeled after that of New York. State v. Havican, 213 Conn. 593, 601, 569 A.2d 1089 (1990). The exemption from liability statute, § 21a-269, is specific to those statutes pertaining to controlled substances. Section 21a-269 expressly applies to General Statutes §§ 2 la-240 through 2 la-283. Sections 2 la-269 and 2 la-277 (a) were not adopted with our penal code, but in a bill enacted specifically to address the drug abuse problem in the state. Therefore, we do not consider it significant that our legislature chose to use two different names for a defense that operates similarly but in two different arenas. We conclude that the defense of drug dependency is substantially similar to the defense of extreme emotional disturbance, and that McMillan v. Pennsylvania, supra, 477 U.S. 79, does not require a bifurcated hearing.

B

The defendant also argues that the issue of drug dependency is a sentencing factor pursuant to State v. Ferrone, supra, 96 Conn. 160, and, therefore, that Fer-rone mandates a bifurcated hearing on the issue of drug dependency. In Ferrone, the information charged the defendant with possession of burglary tools and also alleged that the defendant had twice before been convicted, sentenced and imprisoned in a state prison. Id., 171. The state alleged the previous convictions because of a statute that provided that “when any person who is to be sentenced after conviction of a crime ‘shall have twice before been convicted, sentenced and imprisoned in a state prison or penitentiary, the court shall sentence said person to a maximum of thirty years.’ ” Id., 172. The defendant objected to the admission of testimony at trial regarding his prior convictions and to the submission of the information to the jury. Id., 171-72.

The Ferrone court held that it was improper for the state to proffer evidence of the prior convictions to the jury and ordered a bifurcated hearing on the issue. Id., 175. First, the court noted that the information presented two separate issues: (1) whether the defendant was guilty of the underlying crime; and (2) whether the defendant had twice before been convicted, sentenced and imprisoned. Id., 172-73. The court reasoned that the issue of prior convictions relates solely to the penalty and “does not involve or state any other or different crime from that first stated.” Id., 173. The court further reasoned that “the issue of former convictions does not relate to the issue of the commission of the specific crime alleged, and for which only the accused is to be tried; and the fact of former convictions does not tend in any way to prove the commission of the crime charged.” Id., 174.

Our Supreme Court recently revisited the Ferrone decision in State v. Jones, 234 Conn. 324, 662 A.2d 1199 (1995). The defendant in Jones was charged with having committed a capital felony in violation of General Statutes § 53a-54b (3). Section 53a-54b (3) provides that a person is guilty of a capital felony if he or she commits murder and has previously been convicted of intentional murder or of murder committed in the course of the commission of a felony. At trial, the defendant moved that the court preclude admission of his prior murder conviction until after the jury first determined whether he had committed the murder for which he was on trial. Id., 334. The trial court denied the motion. Id., 337. Relying on Ferrone, our Supreme Court reversed the conviction and ordered a new trial. Id., 337-49.

The court reasoned that subdivision (3) of § 53a-54b is a sentence enhancer and “is classified as capital felony for the same reason we have previous offender statutes — to increase the sentence as a deterrent to recidivism. The prior murder conviction, although an element of subdivision (3), is not otherwise related to the current murder.” State v. Jones, supra, 234 Conn. 341. The court distinguished subdivision (3) from other subdivisions of the same statute, which the court concluded were not simply sentence enhancement provisions, but were designed to define different crimes. Id., 340-41. The court noted that many of the other subdivisions involve crimes that are capital felonies because they involve more atrocious types of murder: “Murder during a kidnapping (subdivision [5]), or sexual assault (subdivision [7]), murder of a peace officer (subdivision [1]), murder of two or more people (subdivision [8]), murder for pecuniary gain (subdivision [2]), and murder of a person following ingestion of drugs provided for profit by the defendant (subdivision [6]) . . . .” Id., 341.

The court further distinguished subdivision (3) from the other subdivisions of the statute by looking to the relationship of the elements. Id., 342. The court noted that subdivision (3) does not require the state to prove that the defendant’s prior murder conviction is related to the present murder, whereas the other subdivisions use phrases such as “during the course of’ and “before such person is able to return or be returned to safety” which connect the elements of the offense. Id., 342 and n.11.

We disagree with the defendant’s argument that drug dependency is a sentencing factor similar to the previous conviction involved in Ferrone and as such requires a bifurcated hearing. In Jones we learned that Ferrone is not applicable to statutes that define a more atrocious or different type of crime. State v. Jones, supra, 234 Conn. 340-41. Our legislature has defined a different, more heinous type of narcotics sale by providing that § 21a-278 (b) applies exclusively to persons who are not drug-dependent. Furthermore, both Ferrone and Jones involved a sentencing provision unconnected to the crime. Section 21a-278 (b) requires that the seller not be drug-dependent at the time of the sale. This requirement buttresses the legislative effort to distinguish the offense by those who sell to support their habit and those who sell for profit.

For the foregoing reasons, we conclude that drug dependency is not a sentencing factor within the ambit of either Ferrone or Jones and does not require a bifurcated hearing.

C

The defendant next claims that the lack of a bifurcated hearing unconstitutionally places the subject of punishment in the province of the jury. This argument relies on the defendant’s assumption that the issue of drug dependency is a sentencing factor. Because we conclude that the issue of drug dependency is not a sentencing factor, but is more akin to an affirmative defense, this argument necessarily fails.

D

The defendant’s final argument in support of a bifurcated hearing also relies on Ferrone. The defendant argues that requiring a defendant to offer evidence on the issue of drug dependency (1) is equivalent to requiring him to testify against himself, and (2) pollutes the objectivity of the jury. The defendant claims that it is unfair to require a defendant to place illegal drugs within his ambit while attempting to defend himself on a sale of narcotics charge. This situation, the defendant argues, forces him to choose between offering evidence regarding drug dependency, which may prejudice the jury, and remaining silent on the issue of drug dependency.

In defending a charge of sale of narcotics pursuant to § 21a-278 (b), the defendant may defend on either or both of two grounds: (1) that the state has failed to meet its burden on one of the elements of the offense; or (2) that he was drug-dependent. If the state fails to prove the elements of the offense, the defendant will escape liability under § 21a-278 (b). If the state proves the elements of § 2 la-278 (b), the defendant may still escape liability under § 2 la-278 (b) by proving that he was drug-dependent.

The mere fact that the defendant is faced with a difficult choice regarding whether to present a seemingly inconsistent defense does not mandate a bifurcated hearing. Our Supreme Court addressed a similar issue in St,ate v. Suggs, 209 Conn. 733, 745, 553 A.2d 1110 (1989). In Suggs, the defendant demanded that the state choose to try him for either sexual assault in a cohabitating relationship, General Statutes § 53a-70b (b), or sexual assault in the first degree, General Statutes § 53a-70, to which cohabitation is a defense. See General Statutes § 53a-67 (b). The defendant contended that because cohabitation is an affirmative defense to sexual assault in a noncohabitating relationship, the state, by charging the defendant with both counts in one trial, placed the defendant in a position of raising an affirmative defense to one count that would not only assist the state in establishing an element of the other count, but also undermine his efforts to challenge the state’s proof on that element. State v. Suggs, supra, 739, 744. The defendant added that a joint trial on these counts forced him to choose between “forgoing his right to present the affirmative defense of cohabitation to the § 53a-70 count, or exercising that right by producing evidence of cohabitation and thereby assisting the state in proving an essential element of the § 53a-70b count.” Id., 741.

The court held that “a defendant’s voluntary decision to maintain mutually inconsistent defenses” does not result in a due process violation that requires separate trials. State v. Suggs, supra, 209 Conn. 745. The court added that any evidence that the defendant may offer on the issue does not relieve the state of its burden to prove the elements of the crime beyond a reasonable doubt, and that the trial court had made that clear in its charge to the jury. Id., 745, 747.

The defendant in this case argues that his assertion of the drug dependency defense forced him to proffer evidence that brought illegal narcotics within his ambit and thus assisted the state in proving the elements of sale of narcotics. We conclude, consistent with Suggs, that the defendant’s voluntary choice to pursue these seemingly conflicting defenses does not require bifurcation. In fact, the circumstances of this case present a stronger argument against a separate hearing than in Suggs, because, unlike in Suggs, evidence of the defense in this case is not direct evidence of an element of another crime with which the defendant was charged.

Furthermore, the trial court clearly instructed the jury that it was not to use evidence of drug dependency as evidence that the defendant was guilty of the sale of narcotics. The trial court’s instruction also mitigated any prejudice to the defendant that might have resulted from the jury’s knowledge of the defendant’s involvement in prior misconduct. See State v. Sheets, 40 Conn. App. 328, 334, 671 A.2d 366 (1996).

“The decision of which defenses to present to a jury in a criminal trial is properly left to the judgment and wisdom of the criminal defendant and his attorney. The due process clause of the Fourteenth Amendment does not guarantee one charged with a crime a separate audience for each and every defense he or his counsel may devise. As with many other decisions made prior to and during trial, a wrong choice of defenses may have severe adverse consequences. However, due process is not implicated simply by the fact that such a choice is foisted upon the criminal defendant.” Gilreath v. Robinson, 544 F. Sup. 569, 575-76 (1982).

Accordingly, we conclude that the trial court did not improperly deny the defendant’s motion to bifurcate for trial the issue of drug dependency.

II

The defendant’s final claim focuses on the trial court’s charge. At one point during the charge, the trial court improperly stated that the absence of drug dependency was an element of the crime of sale of narcotics to be proven beyond a reasonable doubt. The state contends that viewing the charge as a whole it was not reasonably possible that the jury was misled by this misstatement. We agree with the state.

“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. ... In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the puipose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. ...” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

In charging on the issue of drug dependency, the trial court stated the following: “If you find that the defendant knowingly sold a substance and that substance was a narcotic substance and at the time of the sale the defendant was not drug-dependent, as I have defined all those terms for you, you should find him guilty. If you do not find all these elements proven beyond a reasonable doubt, however, you should find him not guilty.” The trial court referred to the issue of not being drug-dependent as an element that must be found beyond a reasonable doubt. Drug dependency is not an element of the offense, but is an exemption from liability which the defendant must prove by a preponderance of the evidence. State v. Hart, supra, 221 Conn. 607-11. This misstatement is the only statement that the defendant attacks. Having determined that the trial court made an improper statement concerning the drug dependency defense, we look to the charge as a whole with respect to that issue to determine whether it is reasonably possible that this single misstatement misled the jury.

Prior to the misstatement, the trial court charged the following: “The statute [§ 21a-278 (b)] sets up two elements, both of which must be established beyond a reasonable doubt in order to justify a finding of guilty. First, that the substance was a narcotic substance, and, two, that the defendant knowingly sold it. . . . Now, the absence of drug dependency by the defendant, in other words, being a non drug-dependent person, is not an element that the state has to prove. Drug dependency is a fact which, if proven, exempts the defendant from this statute. The burden of proof, therefore, is on the defendant to prove by a preponderance of the evidence that he was drug-dependent at the time of the alleged sale.” Shortly thereafter, the trial court made the misstatement previously quoted.

Immediately after the misstatement, the trial court charged as follows: “Now, as I’ve just said on the issue of whether the defendant was drug-dependent at the time of the alleged offense, if it is proved that he was drug-dependent, he is exempt under the statute. However, as I said, the defendant, not the state, but the defendant has the burden of proving the drug dependency by a fair preponderance of the evidence. Now, preponderance of the evidence is a lesser burden than beyond a reasonable doubt. The state must prove the defendant’s guilt beyond a reasonable doubt. The defendant, on the other hand, must prove his drug dependency only by a preponderance of the evidence. Now, preponderance of the evidence means this: He must prove the facts of drug dependency by the better and weightier of the evidence. You will take all of the evidence on the issue of drug dependency that has been offered and consider the various circumstances involved. You will weigh them and balance them. And then if you find the evidence fairly preponderates in favor of the defendant on this issue, he will have proved he was drug-dependent. If, on the other hand, it does not fairly preponderate in his favor, if the better and weightier evidence does not seem to you to establish his drug dependency, then he has failed in his burden to prove the facts upon which he relies. And if you find the evidence on this issue evenly balanced so that you cannot say it inclines one way or another, then your decision on this question must be against the defendant because it is for him to prove it and not for the state to disprove it. Put another way, if you balance the evidence on a scale and the part of the scale for the evidence in his favor on this issue is even slightly higher than the part of the scale against his position, then he has proved his point. If, on the other hand, his side of the scale is equal to or even slightly below the other side, you must find against him on this issue. On a percentage basis, if his evidence was worthy of anything over 50 percent, you must find for him. If it is for 50 percent or less, you must not find for him.”

Last, the court charged: “[I]f you believe the state has proven the elements of sale beyond a reasonable doubt and that the defendant has not proven he was drug-dependent by a preponderance of the evidence, then you must find him guilty of the first count, sale of a narcotic substance by a non drug-dependent person. If, on the other hand, the state has not proven the elements of sale beyond a reasonable doubt or if the state has proven the elements of sale beyond a reasonable doubt but the defendant has proven by a preponderance of the evidence that he was a drug-dependent person at the time of the alleged sale, then you must find him not guilty of the first count, sale of a narcotic by a non drug-dependent person.”

Initially, the trial court correctly charged the jury, then made the isolated misstatement, and then correctly charged the jury at considerable length on the drug dependency defense. The jury charge as a whole made it clear that drug dependency is not an element of the crime, and that the defendant bears the burden of persuading the jury on that issue by a preponderance of the evidence. Accordingly, we conclude that it was not reasonably possible that the jury was misled.

The judgment is affirmed.

In this opinion the other judges concurred.

       The judgment ordered that the mittimus reflect that the portion of the combined conviction that is based on the conviction of § 21a-278 (b) carries with it a five year mandatory minimum sentence.

       The legislative history of § 21a-278 reveals this intent: “The intent of the bill is to give the state’s attorney and the prosecuting attorney an opportunity to charge an additional crime which does carry a harder sentence which goes towards imprisoning the person who is not drug-dependent and who is, in fact, selling drugs for a profit.” 14 H.R. Proc., Pt. 10, 1971 Sess., pp. 4616-17.

       While the exact workings of §§ 21a-277 (a) and 21a-278 (b) and the New York murder and manslaughter statutes are not identical, their effect is the same. Both extreme emotional disturbance and drug dependency provide for a complete defense to the New York murder statute and § 21a-278 respectively. Unlike § 21a-277 (a), however, New York’s manslaughter statute expressly exempts those guilty of murder from the operation of the statute. Therefore, a defendant can never be convicted of both murder and manslaughter. As is evident in this case, in Connecticut a defendant may be convicted of both §§ 21a-277 (a) and 21a-278 (b). State v. Chicano, 216 Conn. 699, 721, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). The double jeopardy doctrine, however, prevents punishment for both offenses. Id. Therefore, the effect of the statutes is identical, in that in both cases a defendant may be punished only for one offense. Id.

       See General Statutes §§ 53a-54a and 53a-55.

       Generally, defenses may be divided into five categories: (1) failure of proof defenses; (2) offense modifications; (3) justifications; (4) excuses; and (5) nonexculpatory defenses. 1 P. Robinson, Criminal Law Defenses (1984) § 21. An offense modification, defense is one that exists even when all of the elements of the offense have been satisfied. Id., § 23. “[Djifferent offense modifications . . . are supported by a variety of different rationales. Consent and extreme emotional distress, for example, serve to exculpate or to mitigate; they are based on a concern for the actor’s culpability.” Id., § 23 (a). Professor Robinson defines the extreme emotional disturbance defense as set forth in Patterson, as an offense modification. Id., § 27 (a). The issue of drug dependency can similarly be classified as an offense modification defense because it operates to exculpate a defendant even though all'of the elements of the crime have been met. The defendant avails himself of the benefits of the defense by introducing an issue independent of what the state must prove to obtain a conviction pursuant to § 21a-278 (b). Id., § 27 (a) (affirmative defense does not negate any fact that state must prove to convict of murder but constitutes separate issue on which defendant is required to carry burden of persuasion); see Patterson v. New York, supra, 432 U.S. 206-207.

       The legislative history of the bill reveals that the laws pertaining to controlled substances were enacted separately from our penal code to address specifically the problem of drug abuse: “As characterized by the many people who have sponsored the bill, it represents a total approach to a growing and very important problem, rather than a piecemeal type of approach, which we have seen to date on the state and federal levels. I submit that this is very significant, Mr. Speaker. This total approach consists of combining in one package, five different but equally important responsibilities and functions. Regulation, enforcement, education, research and treatment are each to be performed by appropriate state departments working with each other and the other, the general coordinating activity of a drug advisory council made up of the various state commissioners, representatives of the medical, psychiatric and pharmaceutical professions as well as the general populace. This bill comes to us as a product of over a year’s extensive activity.” 12 H.R. Proc., Pt. 8, 1967 Sess., pp. 3657-58, remarks of Representative William E. Strada, Jr.

       See footnote 2.

       The trial court gave the following limiting instruction: “Now, another word about the evidence of drug dependency offered by the defendant. You must, not draw any inference from any evidence offered by the defendant to show he was drug-dependent to determine if he was guilty of the charge of sale of cocaine. As to whether or not he sold cocaine, the state must still prove the elements of sale that I’ve previously described beyond a reasonable doubt before you can find the defendant guilty of sale regardless of any evidence offered by him to show he was drug-dependent. Remember on voir dire, when you were questioned individually as to whether or not you could be a fair and impartial juror, you were asked in essence whether you believe, A, a person who is a drug user was therefore a drug seller, and, B, whether a seller was therefore a user, and you answered no to both questions, in effect agreeing that the two are separate and distinct. So, again I caution you that if you believe the defendant offered evidence to show he was drug-dependent, you must not use that evidence to draw an inference that he was, therefore, a seller. You must decide whether he was a seller solely on the basis of whether the state has proved the elements of sale by the defendant beyond a reasonable doubt as I have explained those elements to you.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    JAMES NESTOR v. TRAVELERS INDEMNITY COMPANY
    (14576)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued February 27
    officially released June 11, 1996

      David M. Reilly, for the appellant (plaintiff).

      Robin S. Linker, with whom, on the brief, was Louis A. Ricciuti, Jr., for the appellee (defendant).
   FOTI, J.

The plaintiff appeals from the judgment rendered for the defendant following the trial court’s granting of the defendant’s motion to strike the plaintiffs amended complaint and his petition for the taking of depositions.

This case is an action in equity for discovery filed by the plaintiff against the defendant, Travelers Indemnity Company. The plaintiff alleged in his complaint that he was an employee of North American Phillips Corporation (North American), and that the defendant had issued an automobile insurance policy covering his employer’s fleet of forty-two trucks. The plaintiff further claimed that the policy of insurance provided uninsured and underinsured motorists coverage in the amount of $20,000 per person and $40,000 per accident for each vehicle, with a two million dollar limit on liability.

The plaintiffs complaint alleged that he sustained injuries while operating one of his employer’s vehicles when it collided with another automobile. Although the operator of the other vehicle was legally responsible for the accident, that individual had insufficient liability coverage to compensate the plaintiff for his injuries. The plaintiff claims to be entitled to proceed in arbitration, claiming benefits under the defendant’s underinsured motorists coverage insurance policy. The plaintiffs complaint asserted that he believed that North American and the defendant intended the insurance contract to provide underinsured benefits not to exceed two million dollars by way of aggregating or “stacking”* the coverage on each of the vehicles in North American’s fleet. The plaintiff sought discovery for the purpose of demonstrating, in an arbitration proceeding, that at the time North American and the defendant entered into the insurance contract, both parties intended to stack the insurance coverage on North American’s fleet of vehicles.

The defendant filed a motion to strike the complaint, alleging that the plaintiff lacked the necessary good faith and probable cause to commence the action because he did not establish a prima facie case in support of his claim regarding the intention of the defendant and North American and, therefore, failed to state a cause of action on which relief could be granted. The trial court, Maiocco, J., granted the motion and the plaintiff filed an “Amended Complaint and Petition for Taking of Depositions.” This complaint was identical to the original complaint with the exception of two additional paragraphs setting forth the plaintiffs statutory claims, 5and one added paragraph in the prayer for relief.

The defendant then filed a second motion to strike this complaint. The plaintiff again filed a request to amend his complaint by adding two new paragraphs, to which the defendant objected. The trial court, Had-den, J., overruled the defendant’s objection to the request to amend and, with the agreement of the parties, treated the motion to strike as applying to the original complaint as further amended. In granting the motion to strike, the trial court concluded that the plaintiff had “failed to demonstrate that the information he is seeking is material and necessary to his action. The plaintiff has not set forth facts sufficient to show good faith or probable cause to support his claim that stacking was reasonably expected by the parties to the insurance contract.”

In reviewing a trial court’s ruling on a motion to strike, we accept as true all facts that are well pleaded and construe the complaint in a manner most favorable to sustaining its legal sufficiency. Sassone v. Lepore, 226 Conn. 773, 779-80, 629 A.2d 357 (1993).

“The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought. ... As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries. . . . The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery. . . . Furthermore, because a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court’s discretion. . . .

“To sustain the bill, the petitioner must demonstrate that what he seeks to discover is material and necessary for proof of, or is needed to aid in proof of or in defense of, another action already brought or about to be brought. . . .

“Discovery is confined to facts material to the plaintiffs cause of action and does not afford an open invitation to delve into the defendant’s affairs. ... A plaintiff must be able to demonstrate good faith as well as probable cause that the information sought is both material and necessary to his action. ... A plaintiff should describe with such details as may be reasonably available the material he seeks . . . and should not be allowed to indulge a hope that a thorough ransacking of any information and material which the defendant may possess would turn up evidence helpful to [his] case. . . . What is reasonably necessary and what the terms of the judgment require call for the exercise of the trial court’s discretion. . . .

“The plaintiff who brings abill of discovery must demonstrate by detailed facts that there is probable cause to bring a potential cause of action. Probable cause is the knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action. ... Its existence or nonexistence is determined by the court on the facts found. . . . Moreover, the plaintiff who seeks discovery in equity must demonstrate more than a mere suspicion; he must also show that there is some describable sense of wrong. The plaintiff need not, however, state each claim with technical precision; he need only set forth facts that fairly indicate that he has some potential cause of action.” (Citations omitted; internal quotation marks omitted.) Berger v. Cuomo, 230 Conn. 1, 5-8, 644 A.2d 333 (1994).

The plaintiff concedes that the trial court must consider the underlying claim. He argues, however, that the trial court improperly concluded that, as a matter of law, stacking is not applicable with respect to uninsured motorists coverage that is provided in fleet insurance policies, and, therefore, in this particular case, the plaintiff cannot maintain that the defendant and North American reasonably expected that stacking would be allowed. We do not agree.

Stacking as a reasonable expectation of the parties does not extend to fleet contracts. Cohn v. Aetna Ins. Co., 213 Conn. 525, 530, 569 A.2d 541 (1990). Our review of the record and briefs demonstrates that the trial court properly concluded that the plaintiff had not set forth facts sufficient to show good faith or probable cause to support his claim that the parties to the insurance contract reasonably expected stacked insurance coverage. The plaintiff did not establish through his pleadings that he had probable cause to bring a potential cause of action but, rather, merely alleged unfounded suspicions.

The existence or nonexistence of probable cause to proceed to arbitration under a policy such as the defendant’s is usually determined by a court on the facts found. In the present case, however, because the court was acting on the defendant’s motion to strike, we are limited to the facts that are well pleaded in the plaintiffs complaint. The sole paragraph going to the heart of this bill of discovery is paragraph twelve. What appear to be allegations of fact are, in reality, speculations and suspicions that form the basis of the discovery itself. The allegations are not sufficient as facts to establish that probable cause exists to bring a potential cause of action. If stacking as a reasonable expectation of the parties does not extend to fleet contracts; id., 530; the plaintiff must by his pleadings do more than merely allege the opposite. He speculates that if the discovery is granted, he may perhaps, if the premiums are found to be somehow greater than usual, show a different intention between his employer and the defendant as to the fleet coverage.

The plaintiff bases his statutory claims on General Statutes § 52-412 (c), which allows a party to seek “an order directing the taking of depositions . . . for use as evidence in an arbitration,” and on General Statutes § 52-156. By his pleading, the plaintiff has sought permission to take depositions without identifying any persons he intends to depose and without claiming the unavailability of those persons for purposes of discovery. No statutory basis exists pursuant to § 52-412 (c) for the taking of depositions absent specificity as to the identity of the deponents and without “setting forth the reasons” for the application. Section 52-156 allows a person seeking to preserve the testimony of a witness to submit an application to the court, naming the witness, giving reasons for the application and describing the subject matter of the controversy. The plaintiff has not complied with the provisions of § 52-156.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court’s memorandum of decision does not specifically address the plaintiffs request for discovery by deposition pursuant to General Statutes §§ 52-412 (c) and 52-156, nor does it articulate a decision regarding the plaintiffs statutory claim.

       “ ‘Stacking’ refers to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first policy alone would be inadequate.” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388 n.2, 446 A.2d 1059 (1982).

       The filing of the amended complaint acts as a withdrawal of the original complaint, following the granting of a motion to strike. Royce v. Westport, 183 Conn. 177, 179, 439 A.2d 298 (1981). If the amended complaint merely restates the original cause of action that was stricken, the plaintiff may not, appeal the granting of a subsequent motion to strike. Doe v. Marselle, 38 Conn. App. 360, 364, 660 A.2d 871 (1995), rev’d on other grounds, 236 Conn. 845, 675 A.2d 835 (1996).

       The plaintiffs complaint added the following paragraphs: “10. This action is brought pursuant to [General Statutes] § 52-412 (c) to obtain an order directing the taking of depositions for use as evidence in a deposition and for equitable orders by way of bill of discovery pursuant to compulsory arbitration mandated by statute, [General Statutes §] 38-175c, Revision of 1985 as amended by [Public Acts 1985, No. 85-7, and Public Acts 1986, No. 86-403], and the provisions of [General Statutes] § 38-175a (b) which provides: ‘Nothing contained in such regulations or in [General Statutes §§] 38-175a to 38-175e, inclusive shall prohibit any insurer from affording broader coverage under a policy of automobile liability insurance than that required by such regulations.’
      “11. The depositions to be taken will be evidentiary depositions available for use by either party pursuant to [Practice Book] § 248, and are necessary to preserve records pursuant to [General Statutes] § 52-156. Witnesses are at greater distance than 30 miles from the place where arbitration will be held [the] plaintiff will be unable to produce witnesses by subpoena as witnesses to the transactions described are unknown to the plaintiff, exceptional circumstances as to make it desirable in the interest of justice and with due regard to the importance of obtaining and presenting the testimony of witnesses, that the court permit the taking of depositions, and depositions sought are and will be from officers or directors or persons to be designated to testify on behalf of the defendant, a private corporation, under [Practice Book] § 244.”

       The prayer for relief added the following for production pursuant to depositions authorized under General Statutes § 52-412 (c): “(n) All documents which together with and in addition to the policy of insurance constitute the full and complete contract of insurance between the defendant and its named insured.”

       The second amendment to the complaint added the following paragraphs: “12. The plaintiff will present factual evidence to the arbitrators that the plaintiffs employer obtained the additional benefits for underinsured motorist coverage for the purpose of establishing additional contractual benefits that were specially created for the primary and exclusive benefit of employees hired to operate motor vehicles owned by the employer. The purchase of said policy was intended as a condition and term of employment by both the employer and employees. The plaintiff will present evidence to the arbitrators that the defendant in this action accepted a premium for the risk of covering the cost of providing such benefit and by so doing promised benefits to employees as third party beneficiaries during the life of said policy.
      “13. The defendant’s insurance policy contains a provision for arbitration with provision for final determination of coverage issues in the arbitration proceeding.”

       Because of our disposition of the case we deem it unnecessary to determine whether the right to proceed in arbitration is “an action” as a prerequisite to the bringing of an independent action for a bill of discovery.

       See footnote 6.

       See footnotes 1 and 4.


author: STOUGHTON, J.

text:
    CONNECTICUT CAR RENTAL, INC. v. RICHARD PATLA
    (14246)
    Landau, Schaller and Stoughton, Js.

      Argued January 16
    officially released June 11, 1996

      F. Woodward Lewis, Jr., for the appellant (defendant-third party plaintiff).

      Beverly Johns, for the appellee (third party defendant).
   STOUGHTON, J.

The defendant, Richard Patla, appeals from the judgment rendered on his third party complaint in favor of the third party defendant, Allstate Insurance Company (Allstate). On appeal, the defendant claims that the trial court abused its discretion by (1) finding no insurance coverage for damage to an automobile he rented despite his claim that the insurance policy lacked conspicuous notice that the policy does not cover rental vehicles, as required by General Statutes § 38a-335 (b), (2) integrating language in the policy in a manner inconsistent with § 38a-334-5 et seq. of the Regulations of Connecticut State Agencies, (3) not requiring the third party defendant, Allstate, to bear the burden of proof on the exclusion, and (4) taking the issue of rental vehicle coverage from the jury.

The following facts are undisputed. On or about March 19, 1993, the defendant rented an automobile from the plaintiff, Connecticut Car Rental, Inc. (Connecticut Car). David Patla, the defendant’s brother, was an additional driver under the rental contract. David Patla was operating the automobile a few days later when it was damaged in a collision.

The rental contract provided, inter alia, that the automobile must be returned in the condition in which it was received. On or about August 17,1993, Connecticut Car instituted an action against the defendant to recover for the damage to the automobile and certain costs and expenses. David Patla, at the time of the collision, was the named insured on an automobile liability policy (policy) issued by Allstate. The defendant, therefore, filed a motion to implead Allstate as a third party defendant, which the trial court granted.

In his third party complaint, the defendant alleged that he rented the automobile for David Patla, who was driving at the time of the collision. The defendant further alleged that David Patla was insured by Allstate under a policy providing coverage for any nonowned automobile used by the insured or a resident relative with the owner’s permission. The defendant claimed that Allstate was or might be liable to him for all or part of Connecticut Car’s claim because he was a third party beneficiary of the insurance contract between David Patla and Allstate.

Connecticut Car and the defendant stipulated that the property damage claim amounted to $11,060.50 and that the defendant is liable for that amount. Allstate agreed that the defendant is insured under the policy and that it would not raise as a coverage defense the fact that the defendant had agreed to the amount of damages claimed by Connecticut Car.

The trial court rendered judgment in favor of Connecticut Car against the defendant in accordance with the facts agreed to in a stipulation. The issue for the trial court was whether the policy covered the defendant’s liability to Connecticut Car. Although the case had been claimed to the jury, the trial court determined that interpretation of the insurance contract on the issue of coverage was a question of law and withdrew the issue from the jury. Thereafter, the trial court decided that coverage was excluded by the contract and rendered judgment with respect to the third party complaint in favor of Allstate.

Although the defendant alleged that Allstate was or might be liable to pay the Connecticut Car claim against him because he was a third party beneficiary of the contract, there is no allegation that Allstate and David Patla intended that Allstate should assume a direct obligation to the defendant. See Westport Bank & Trust Co. v. Corcoran, Mallin & Aresco, 221 Conn. 490, 493, 605 A.2d 862 (1992); Stowe v. Smith, 184 Conn. 194, 196, 441 A.2d 81 (1981). This deficiency has not been raised by the third party defendant and we, therefore, disregard it in this case.

I

The defendant first claims that the trial court should have found coverage because the exclusionary language relied on by the trial court fails to satisfy § 38a-335 (b). He claims liability coverage, under part I of the policy, for claims resulting from accidents “arising out of the ownership, maintenance or use, loading or unloading of the auto we insure.”

Part I, paragraph four, of the policy defines an “insured auto” to include “[a] non-owned auto used by you or a resident relative with the owner’s permission. This auto must not be available or furnished for the regular use of an insured person.” It was conceded at oral argument that the Patla brothers were residents of the same household. Thus, either the defendant or David Patla would have been insured against liability for damages he became legally obligated to pay arising out of ownership, maintenance or use, or loading or unloading of the automobile. There is no question that the Allstate policy covered David Patla for liability while operating the rental vehicle.

Allstate, however, claimed that there was no coverage in this instance because of an exclusion from coverage in part I, paragraph six, for “injury or destruction of property an insured person owns, is in charge of, or rents.” The trial court, in its oral decision on November 17, 1994, agreed, finding that the language of the insurance contract was clear and unambiguous, and that Allstate had established by a fair preponderance of the evidence that this exclusion applied. The court, therefore, found that there was no coverage. The court specifically relied on Lyon v. Aetna Casualty & Surety Co., 140 Conn. 304, 99 A.2d 141 (1953), apparently agreeing with Allstate that damage to a rental vehicle was excluded from coverage.

In Lyon, our Supreme Court held that the defendant insurer was not liable under a liability insurance policy for any sums the plaintiff garage owner might become obligated to pay as a result of damage caused by a fire to automobiles left at his shop for repairs. Id., 309-10. The basis on which the court found no coverage was an exclusion for damage to “ ‘property owned by, rented to, in charge of or transported by the Insured.’ ” Id., 307. The court in Lyon found that the plaintiff garage owner was “in charge of’ the automobiles at issue within the meaning of the exclusionary clause. Id., 310.

Although the exclusionary language in the present case is nearly identical to that in Lyon, the defendant claims that the rental car exclusion does not apply here because the policy did not contain or have attached to it a “conspicuous statement” specifying that coverage is excluded for a rental car, as required by § 38a-335 (b). He asserts that § 38a-335 (b) “overrules” Lyon, requiring a conspicuous statement before this exclusion can apply. The defendant claims that the policy here contains no such conspicuous statement of an exclusion of coverage for rental vehicles.

Section 38a-335 (b) no doubt was enacted so that policyholders would know whether they were covered while operating rental vehicles. It is unnecessary, however, to the determination of coverage in this case to decide whether § 38a-335 (b) “overrules” Lyon or whether the rental vehicle language in the policy here constitutes a sufficiently conspicuous statement to satisfy the statute. The issue of whether the rental vehicle language satisfies the statute is a “red herring” in this case. The issue is not whether a rental vehicle is properly excluded from coverage, but whether part I of the policy relied on by the defendant provided coverage for any vehicle for the type of claim made here.

Connecticut Car’s claim against the defendant arises out of the rental contract and not out of the use of the automobile by the defendant. The insurance contract does not cover contractual liability. The defendant’s claim is, therefore, that he is a third party beneficiary of the insurance contract and, although not clearly articulated by him, that Allstate is liable to pay his claim against David Patla for damage to the automobile. Because David Patla was in charge of the automobile when it was damaged, however, the exclusion applies and the damage to the automobile is not covered. Lyon v. Aetna Casualty & Surety Co., supra, 140 Conn. 310.

The same provision that excludes liability coverage for damage to a rental vehicle excludes coverage for liability for damage to a vehicle that the insured person is “in charge of.” It is undisputed that David Patla was “in charge of’ the vehicle in question in this case. The exclusion, therefore, applies without the necessity of looking to the “rental vehicle” language. The damage to the vehicle in question is not covered under the clear language of the contract. Id. This would be so whether the vehicle was owned or rented.

The exclusion of coverage for damage to “property an insured person owns, is in charge of or rents,” in essence, means that only “liability coverage,” and not “collision coverage,” is provided. It means that coverage is provided for liability for damage inflicted on others and their property by an insured’s operation of a covered vehicle. Coverage is not provided for liability for damage caused to the vehicle that, under the control of the insured, inflicts the damage. The defendant’s claim is essentially a claim for “collision coverage,” that is, coverage of damage to the vehicle “in the control of’ the insured at the time of the incident in question. Such damage is not covered. Thus, we reach our conclusion on the basis of a portion of the same exclusion different, from that on which the trial court relied. See Iovieno v. Commissioner of Correction, 40 Conn. App. 553, 557, 672 A.2d 530 (1996).

II

The claim that the trial court erroneously interpreted the exclusion in a manner inconsistent with § 38a-334-5 (c) of the Regulations of Connecticut State Agencies is similarly without merit. Section 38a-334-5 (c) (7) (B) permits exclusions for damage to property “rented to or in the care, custody or control of the insured . . . other than property damage to a residence or private garage by a private passenger motor vehicle covered by this insurance . . . .” The defendant suggests that this exclusion applies not to vehicles but to property damage other than damage to vehicles. The plain meaning of the section is otherwise. Coverage was excluded because the vehicle was in the control of the operator.

Ill

The claim that Allstate was not required to bear its burden of proof that the policy contained or had attached to it a conspicuous statement concerning coverage for rental vehicles is also without merit. Damage caused by operation of the vehicle by an insured was covered, but the damage to the vehicle itself was excluded from coverage because the vehicle was in the control of the insured, not because it was a rental vehicle.

IV

Last, the defendant claims that a jury should have been allowed to decide whether the requirement of a conspicuous statement had been met. As previously noted, the vehicle was excluded from coverage because it was in the control of the insured, and not because it was a rental vehicle. The issue of whether the conspicuous statement requirement was met is, therefore, not relevant to our decision in this appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       This is not a claim under part VI of the policy, which pays for loss to the automobile from a collision, if collision coverage is indicated on the “declarations page” of the policy.

       Part I of the policy, under the heading “Automobile Liability Insurance, Bodily Injury — Coverage AA, Property Damage — Coverage BB,” provides in part: “Allstate will pay for all damages an insured person is legally obligated to pay — because of bodily injury or property damage meaning:
      “(1) bodily injury, sickness, disease or death to any person, including loss of services; and
      “(2) damage to or destruction of property, including loss of use.
      “Under these coverages, your policy protects an insured person from claims for accidents arising out of the ownership, maintenance or use, loading or unloading of the auto we insure.”

       General Statutes § 38a-335 (b) provides: “Each automobile liability insurance policy issued, renewed, amended or endorsed on or after October 1, 1988, and covering a private passenger motor vehicle as defined in subsection (g) of section 38a-363, shall contain or have attached thereto a conspicuous statement specifying whether the policy provides liability, collision or comprehensive coverage for damage to a rented private passenger motor vehicle and, where the policy provides such coverage, the limit of coverage provided and whether any deductible amount applies.”

       Section 38a-334-5 (c) of the Regulations of Connecticut State Agencies, entitled “Exclusions,” provides: “The insurer’s obligation to pay and defend may be made inapplicable:
      “(1) To liability assumed under contract;
      “(2) to intentionally caused injury or damage;
      “(3) to any obligation of the insured to provide workers’ compensation or disability benefits or to cover liability of an employer for employee injuries;
      “(4) to the use of a motor vehicle as a public or livery conveyance;
      “(5) to bodily injury or property damage resulting from the radioactive, toxic, explosive or other hazardous properties of source, special nuclear or byproduct material, each as defined in the Atomic Energy Act of 1954, as amended;
      “(6) while the private passenger motor vehicle is used for towing a trailer, designed for use with other than a private passenger motor vehicle which is owned or hired by the insured and not covered by like insurance in the same company;
      “(7) to damage to property (A) owned or transported by the insured or (B) rented to or in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control, other than property damage to a residence or private garage by a private passenger motor vehicle covered by this insurance;
      “(8) to the operation of a motor vehicle by an individual or individuals specifically named by endorsement accepted by the insured, the form of which has been accepted for filing by the insurance commissioner;
      “(9) to liability arising out of pollution or contamination;
      “(10) to bodily injury or property damage due to war, whether or not declared, civil war, insurrection, rebellion or revolution, or to any act or condition incident to any of the foregoing;
      “(11) to bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of any
      “(A) haulaway, tank truck or tank trailer or any automobile used therewith owned, hired or held for sale by the named insured;
      “(B) motor vehicle (i) while being used in any prearranged or organized racing, speed or demolition contest or in any stunting activity or in practice or preparation for any such contest or activity, or
      “(ii) while rented to others by the named insured unless to a salesman for use principally in the business of the named insured, or
      “(iii) while being used by the insured as a public or livery conveyance or for carrying property for a charge.
      “(12) To bodily injury to any passenger while occupying a motorcycle.”


author: HEIMAN, J.

text:
    STATE LIBRARY v. FREEDOM OF INFORMATION COMMISSION ET AL. CITY OF NORWICH ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (14415)
    (14416)
    Landau, Heiman and Spear, Js.
    Argued January 19
    officially released June 11, 1996

      Victor Perpetua, with whom, on the brief, were Catherine Wassel-Nasto, commission counsel, and Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Jane Richardson, with whom was James C. McGuire, for the appellants (defendant Maria T. Hileman et al.).

      Linsley J. Barboto, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Ralph E. Urban and Bernard F. McGovern, Jr., assistant attorneys general, for the appellee (plaintiff in the first case).

      March S. Mandell, for the appellees (plaintiffs in the second case).

      Jeffrey F. Gostyla filed a brief for Connecticut Police Chiefs Association, as amicus curiae.
   HEIMAN, J.

This is a consolidated appeal. In the first appeal, the defendant freedom of information commission (commission) appeals from two judgments of the trial court reversing the commission’s decision ordering access to certain hearing transcripts. In the second appeal, the defendants Maria Hileman and the Day Publishing Company appeal from the same trial court judgments. The commission asserts that the trial court improperly (1) found that the plaintiffs were aggrieved by the decision of the commission where no evidence existed to support that conclusion, (2) found that the order of the commission failed to withstand scrutiny under the contracts clause of the United States constitution, and (3) sustained the administrative appeals because it failed to follow the applicable scope of review mandated in such appeals. Hileman and Day Publishing assert that (1) the trial court improperly found that the plaintiffs were aggrieved by the decision of the commission and that the court had subject matter jurisdiction, (2) the trial court improperly applied the standard of review appropriate in this matter pursuant to General Statutes § 4-183, (3) the trial court improperly found that the commission’s decision was in violation of article one, § 10, of the United States constitution, and (4) the commission’s decision protects the character and reputation of the individuals at issue. We agree with the defendants that the trial court improperly determined that the plaintiffs were aggrieved, and, on that ground, we reverse the judgments of the trial court.

The facts necessary to a resolution of this appeal may be summarized as follows. On September 30,1964, the Norwich city council voted to establish a special five member committee from among the members of the council. The committee was authorized to investigate the official conduct of the Norwich police department and the officers and members thereof, pursuant to the Norwich city charter. The committee was established in response to allegations that complaints of misconduct by members of the police department had been reported to the chief of police and that no action had been taken by the chief to resolve the complaints.

The committee began hearings in October, 1964, and concluded the hearings in November, 1964. A total of fifty-four persons testified under oath at the hearings. Approximately one half of the witnesses were members of the Norwich police department. Some of the testimony related to the behavior of certain members of the Norwich police department. The testimony established that certain officers drank alcoholic beverages prior to going on duty and while on duty. Additional testimony concerned the administration of the Norwich police department. Witnesses testified that defects existed concerning the safeguarding of keys to commercial buildings left in the possession of the police, that there were inadequate police patrols in the city at night, and that the rules and regulations of the department were in a book dated 1898 that had not been updated since that time. It was established that the rules and regulations book contained a list of livery stables and instructions for lighting gas lights. Moreover, the first aid section included bloodletting as a corrective measure. Further, testimony established that no training program existed for new officers nor were any continuing education programs in place for officers. Finally, testimony revealed that the detective division was understaffed, that the police department operated in much the same manner as it had twenty to fifty years prior to the hearings, and that the morale of the department was low.

In March, 1966, the Norwich city council voted that the transcripts of the hearings before the special committee be held for a period of six: years and then destroyed in accordance with the provisions of General Statutes (Rev. to 1966) § 7-109. In the fall of 1972, the city of Norwich sought permission from the public records administrator to destroy the hearing transcripts. See General Statutes (Rev. to 1972) § 7-109. The state archivist and the public records administrator both agreed that the records were of sufficient historical significance to the state as to justify their permanent retention. Accordingly, the request of the city to destroy the transcripts was denied. As an alternative, the public records administrator suggested that the transcripts could be transferred to the state library, and that such transfer could be made under seal if disclosure of the contents would adversely affect the public security or financial interests of the state or the reputation or character of any person. The administrator suggested that under such circumstances, the state library would undertake to respect and preserve the confidentiality of the records for an agreed upon period of time. In April, 1973, eighteen volumes of transcripts of testimony taken by the special committee were transferred to the care of the state library to be held under seal and preserved for fifty years.

In December, 1992, Hileman, a reporter for the Day, a newspaper published in New London by the Day Publishing Company, requested that the archivist of the state library release copies of the transcripts of the testimony taken before the special committee. Hileman claimed that although the documents were sealed in 1973, there was no justification under the Freedom of Information Act for continuing to keep them sealed. In January, 1993, the state archivist notified Hileman that her request was denied. Thereafter, Hileman and the Day Publishing Company filed a complaint with the commission. The city of Norwich, the Norwich police department, Richard Abele, and James McGeowan were granted intervenor status.

A commissioner held a hearing, and Hileman, the state archivist, Abele and McGeowan testified. In August, 1993, the commissioner issued a proposed finding to the parties that provided for disclosure of the transcripts at issue subject to certain redactions being made. In September, 1993, the proposed finding was considered by the commission. The state library, the city of Norwich, the Norwich police department, Abele, and McGeowan all objected to the proposed finding. The commission tabled the proposed finding and remanded the case to the commissioner for reconsideration.

In October, 1993, the matter was again considered by the commission. Over the continuing objection of the state library, the city of Norwich, the Norwich police department, Abele and McGeowan, the commission voted to adopt the commissioner’s proposed finding with certain limited modifications that were proposed by the commissioner. Thereafter, the commission issued its final decision.

The state library, the city of Norwich, the Norwich police department, Abele and McGeowan (collectively the plaintiffs) appealed to the Superior Court from the commission’s decision. The court found that each plaintiff was aggrieved by the decision of the commission, and the court sustained the plaintiffs’ appeals. The commission, Hileman, and the Day Publishing Company (collectively the defendants) appealed to this court.

The dispositive issue in this appeal is whether the trial court properly found that the plaintiffs were aggrieved by the decision of the commission. We conclude that the trial court’s finding of aggrievement was improper.

The cases involved contested matters before the commission, an administrative agency, and, thus, the right of appeal from the commission is governed by General Statutes §§ l-21i (d) and 4-183 (a). Both §§ l-21i (d) and 4-183 (a) require that a person who desires to appeal from a final decision of the commission be aggrieved by that decision. “[I]t is well-settled law that the question of aggrievement is a jurisdictional one and claims of aggrievement present an issue of fact for the determination of the trial court with the burden of proving aggrievement resting upon the plaintiffs who have alleged it.” Nader v. Altermatt, 166 Conn. 43, 59, 347 A.2d 89 (1974). Pleading and proof of aggrievement are prerequisites to the trial court’s jurisdiction over the subject matter of a plaintiffs appeal. Beckish v. Mana-fort, 175 Conn. 415, 419, 399 A.2d 1274 (1978).

“The question of aggrievement is essentially one of standing . . . .’’Id. Unless the plaintiffs could establish that they were aggrieved by the decision of the commission, they had no standing to appeal. Id. “The trial court must be satisfied, first, that the plaintiff alleges facts which, if proven, would constitute aggrievement as a matter of law, and, second, that the plaintiff proves the truth of those factual allegations. . . . The mere statement that the appellant is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient.” (Citation omitted; internal quotation marks omitted.) Id.

“[Our Supreme Court] has considered at length the criteria by which the question of aggrievement is to be determined. In Nader v. Altermatt, supra, [166 Conn.] 51, [the court] stated: ‘The fundamental test by which the status of aggrievement for purposes of qualifying to take an appeal from an administrative order or regulation is determined encompasses a well-settled two-fold determination. First, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.’ ” Beckish v. Manafort, supra, 175 Conn. 420.

Our review of the record and of the proceedings before the trial court reveals that the court failed to take evidence with respect to the plaintiffs’ claimed aggrievement. Prior to hearing the appeals, the only source of information that the court had before it regarding any possible aggrievement was that contained in the administrative record. Under our law, however, a party may not properly rely on the administrative record to establish the fact of aggrievement, but instead, that party has the burden of proving aggrievement in the trial court. See Mystic Marine Life Aquarium, Inc. v. Gill, 175 Conn. 483, 498, 400 A.2d 726 (1978); Nader v. Altermatt, supra, 166 Conn. 59; Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968). The plaintiff must prove aggrievement as an essential prerequisite to the court’s jurisdiction over the subject matter of the appeal. Mystic Marine Life Aquarium, Inc. v. Gill, supra, 493. Here, the record on appeal does not reveal that the trial court considered competent evidence to establish the plaintiffs’ claims of aggrievement. Without such evidence, the appeals were void, and the trial court was without jurisdiction to hear them. Kerin v. Goldfarb, 160 Conn. 463, 467, 280 A.2d 143 (1971). In light of our conclusion regarding the issue of aggrievement, we do not discuss the other claims raised by the parties.

The judgments are reversed and the cases are remanded to the trial court with direction to render judgments dismissing the appeals.

In this opinion the other judges concurred.

       Two administrative appeals were commenced by individual process and later consolidated for trial by the Superior Court. Subsequently, certain defendants appealed separately to this court from the judgments of the Superior Court. Those appeals are consolidated here.

       General Statutes (Rev. to 1966) § 7-109 provides in pertinent part: “Any official, board or commissioner of a municipality . . . may, with the approval of the administrative head of such municipality and of the state examiner of public records, destroy any document in his or its custody relating to any matter which has been disposed of and of which no record is required after six years from the date of such document. . . .”

       At the time of the special committee hearings and at the time of the filing of the appeals in this court, Abele and McGeowan were employees of the Norwich police department.

       General Statutes § l-21i (d) provides in pertinent part: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183 . . . .”

       General Statutes § 4-183 (a) provides in pertinent part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. . . .”

       We note that even the parties cannot properly confer jurisdiction on the court by agreeing that aggrievement exists. Hughes v. Town Planning & Zoning Commission, supra, 156 Conn. 509.