text:
    State of Connecticut v. Freddy Payne
    (6209)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued May 3—
    decision released May 19, 1988

      Vincent Turley, special public defender, for the appellant (defendant).

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, were Ronald Fasano and Robert O’Brien, assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The sole issue in this appeal is whether the trial court erred in denying the defendant’s request to withdraw his guilty plea.

The defendant, through counsel, entered a plea of guilty under the Alford doctrine; North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); to the charge of unlawfully carrying a weapon in a vehicle in violation of General Statutes § 29-38. After canvassing the defendant’s plea, the trial court accepted it and continued the case for sentencing. At the time of sentencing, the defendant orally requested that the plea be withdrawn because he had found the “missing link” that he needed to win his case. Although the defendant’s attorney was present and seated next to the defendant at the hearing, the defendant himself made the request. The trial court denied the motion to withdraw the plea, and sentenced the defendant. Neither the defendant himself nor the defendant’s attorney requested an evidentiary hearing on the motion to withdraw the plea.

“Practice Book § 721 sets forth the grounds for allowing the withdrawal of an accepted guilty plea. . . . To warrant consideration, the defendant must allege and provide facts which would justify permitting him to withdraw his plea under § 721.” (Footnote omitted.) State v. Deboben, 187 Conn. 469, 474, 446 A.2d 828 (1982) . The defendant bears the burden of showing a plausible reason for the withdrawal of a plea of guilty. State v. Lasher, 190 Conn. 259, 265-66, 460 A.2d 970 (1983).

At oral argument before this court, the defendant conceded that he had not presented the trial court with an acceptable reason under Practice Book § 721 for withdrawing his plea. The defendant nevertheless argues in essence that because he, as a layperson, made the request, he need not have brought himself within the terms of § 721. At all times during these proceedings, however, the defendant was represented by counsel.

The only ground upon which the defendant based his request to withdraw the plea was that there existed a “missing link” which would allow him to win his case. The defendant failed to offer any specifics about the nature of this missing link. He did not make an offer of proof or ask for an evidentiary hearing. The attorney who represented the defendant at the time he entered the plea and at the sentencing hearing never supported the defendant’s claim of such an evidentiary link. At argument before us, the defendant’s counsel revealed that the defendant had never even told his own attorney the nature of the missing link. We conclude that it was reasonable for the trial court to have assigned little or no evidentiary significance to the defendant’s vague and conclusory allegation of a missing link that would allow him to win his case. State v. Watson, 198 Conn. 598, 613, 504 A.2d 497 (1986).

The defendant also argues that the trial court denied the defendant’s motion to withdraw the plea because the court felt that a withdrawal of the plea would be against the defendant’s own interests. “[T]he decision as to whether the risks inherent in a change of plea should be undertaken is a decision which should be made by the defendant himself and not by the court, no matter how well-intentioned the court’s decision may be.” State v. Brown, 157 Conn. 492, 497, 255 A.2d 612 (1969). In this case, the trial court did offer its opinion as to what the defendant’s prospects would be if he were allowed to withdraw the plea. The record, however, does not reveal that the denial of the motion rested solely on the trial court’s evaluation of the defendant’s prospects of winning his case.

We conclude that the trial court did not err in denying the defendant’s request to withdraw his guilty plea.

There is no error.

       “The Court: Mr. Payne?
      “Mr. Payne: I pleaded guilty under the Alford doctrine—on the Alford doctrine. I would like to withdraw my plea and take the case to trial.
      “The Court: On what basis, Mr. Payne?
      “Mr. Payne: I plead guilty under the Alford doctrine because of the certain circumstances and it was impossible for me to get a not guilty. But I felt that I found the missing link that I really need to win my case.
      “The Court: Mr. Payne, several months ago, you appeared before me for sentencing, if I recall correctly, for two class D felonies and the state recommended an imposition of a three and one-half year sentence and nolle the remaining files. At that time you did the same thing and asked for permission to withdraw your plea of guilty and that was granted to you. Since that time you have been convicted, I think, on two matters and you had a hearing on a violation of probation. Now, if my memory serves me correctly, you have ten and one-half years consecutive to serve and I indicated to you on December 17th, I would impose a sentence of three years to run concurrent with the sentence imposed after you went to trial on one of the matters for which you got three and one-half years. You are killing yourself, Mr. Payne. I find it difficult to believe that you are competent to make those decisions. Mr. Lewis, is there anything you wish to say before the Court imposes sentence?
      “Mr. Lewis: I have nothing further to add, sir. Your Honor is well acquainted with Mr. Payne.
      “The Court: Mr. Payne, the court hereby sentences you to the custody of the commissioner of correction for a period of three years. That sentence is to run concurrently with the sentence imposed by the court on December 17th after you went to trial and were convicted by a jury of your peers.
      “Mr. Payne: I would still move to to have my plea withdrawn.
      “The Court: Your motion is denied. I find no valid reason. I took your plea of guilty under the Alford doctrine. I canvassed your plea. I listened to the facts. I stated that there was a factual basis for the plea under the Alford doctrine.
      “Mr. Payne: But, your Honor—
      “The Court: I will note your exception and you may take an appeal, if you wish. Nolles may be noted on the other files.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Roberto Serrano et al. v. Roberto Behar
    (5829)
    Bieluch, O’Connell and Stoughton, Js.
    Argued March 15—
    decision released July 26, 1988

      Jason M. Dodge, for the appellants (plaintiffs).

      Frank H. Cathcart, for the appellee (defendant).
   O’Connell, J.

The plaintiffs appeal from the judgment rendered following the opening of a default judgment, in their action for rescission of a real estate contract, money damages and return of a deposit.

The record discloses that the defendant was defaulted for failure to appear for trial on March 15, 1985, and that on April 12, 1985, judgment was rendered for the plaintiffs in the amount of $14,994.56 plus costs.

On July 12,1985, the defendant filed a motion to open the judgment. The trial court did not act upon the motion because the defendant failed to file an accompanying affidavit required by General Statutes § 52-212 and Practice Book § 377. No further action was taken in the case until August 15,1985, when the defendant filed a second motion to open the judgment. This second motion, which met the statutory requirements and rules of practice, was heard as a contested matter and granted on August 26, 1985, despite the observation of the judge presiding over the short calendar docket that the motion was filed more than four months after entry of judgment. The case was then referred to a fact-finder, upon whose finding a judgment was rendered for the plaintiffs, in the reduced amount of $2500. The plaintiffs claim that the trial court did not have jurisdiction to open the default judgment of April 12,1985. We agree.

With certain exceptions not applicable here, General Statutes § 52-212a and Practice Book § 326 each provide for the opening of any civil judgment, conditioned on the filing of a motion within four months of the rendering of a judgment. General Statutes § 52-212, and Practice Book § 377, see footnotes 1 and 2, supra, reiterate the four month rule that is mandated for the opening of all civil judgments, and add the further requirement that motions to open default judgments have an affidavit annexed thereto articulating the reason for the movant’s default.

A trial court has no jurisdiction to open a judgment beyond the four month period. See Van Mecklenburg v. Pan American World Airways, Inc., 196 Conn. 517, 518, 494 A.2d 549 (1985). The defendant’s motion was filed on August 15, 1985, a time beyond the four month limit. The defendant argues that the defective motion of July 12, 1985, tolled the running of the time limit, but fails to furnish authority to support this theory. To the contrary, in Van Mecklenburg, supra, for example, our Supreme Court held that when a plaintiff filed a timely motion to open judgment after dismissal for failure to diligently prosecute, but failed to include a filing fee, an untimely motion subsequently filed with a proper fee would not relate back to the timely but incomplete motion.

In addition, the defendant does not claim that the second motion to open, filed August 15,1985, is a correction or amendment to his timely but incomplete, July 12, 1985 motion, which should therefore be considered, nunc pro tunc, to have been filed on July 12, 1985.

We conclude that the motion to open was not timely filed and that, therefore, the trial court lacked jurisdiction to open the default judgment.

There is error, the judgment is set aside and the case is remanded with direction to reinstate the April 12, 1985 default judgment.

In this opinion the other judges concurred.

       General Statutes § 52-212 provides in pertinent part: “(a) Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms as respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

       Practice Book § 377 provides in pertinent part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed, and the case reinstated on the docket on such terms in respect to costs as the court deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear.”

       We note that as the plaintiffs complaint contained a request for rescission of the contract, the case was beyond the jurisdiction of the factfinder. Factfinders are limited in their jurisdiction to addressing only contract matters in which the request for relief is limited to a claim for money damages. General Statutes § 52-549n; E. I. Constructors, Inc. v. Scinto, 12 Conn. App. 348, 352-53, 530 A.2d 1081 (1987).

       In view of the disposition of this appeal, a second claim of error pertaining to an award of liquidated damages is not reached.

       General Statutes § 52-212a provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court.”

       Practice Book § 326 provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court.
      “Upon the filing of a motion to open or set aside a civil judgment, except a judgment in a small claims or juvenile matter, the moving party shall pay to the clerk the filing fee prescribed by statute unless such fee has been waived by the court.”


author: Bieluch, J.

text:
    Robin Rizzo v. Jeffrey Pack
    (5314)
    Daly, Bieluch and Fern, Js.
    Argued January 19—
    decision released July 26, 1988

      Wilbur Ward Dinegar, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (state).
   Bieluch, J.

The plaintiff brought this action on April 26,1983, to establish the paternity of her second child, a daughter born out of wedlock on March 27, 1983. A judgment was rendered in favor of the defendant. The state of Connecticut, a party to this action pursuant to General Statutes § 46b-160, has appealed from the denial of its petition for a new trial. We find no error.

The following facts are relevant to this appeal. This action was tried to the court, Gerety, J., on March 7, 1985. On March 22,1985, subsequent to trial but before judgment was rendered, the trial court ordered the plaintiffs counsel to notify the state of the pending action and of its status after the court found no record in the file that the state had been served with a copy of the petition even though a public assistance recipient was involved. General Statutes § 46b-160. The state thereafter entered an appearance on March 27, 1985, and, on April 8, 1985, filed a waiver of service of notice.

A judgment in favor of the defendant was rendered on July 3, 1985. No posttrial proceedings were instituted by the state until August 20, 1985, when a petition for a new trial was served upon the defendant. The state sought a new trial on the ground that the judgment was “unjust” because a comparison of the court’s memorandum of decision with the trial transcript revealed discrepancies as to the identity of the testimonial witnesses cited in the court’s decision.

A hearing on the petition was held on September 24, 1985, before the court, Ryan, J. On January 8, 1986, the petition was denied with respect to the claims of law; the equitable issues were referred to the trial court, Gerety, J., for consideration. These issues were denied by oral decision from the bench following a hearing on June 30,1986. The state’s motion for an articulation of the earlier decision denying the petition with respect to the claims of law was denied by Judge Ryan, and this appeal followed.

The state claims that the court abused its discretion in denying the petition at law and in equity. The state maintains that the memorandum of decision regard- . ing the paternity action demonstrates that “the decision of the trial judge, Gerety, J., was based, in párt at least, on that judge’s disregarding as contrived the testimony of specific witnesses for the plaintiff, which witnesses the official record indicates never entered the courtroom or took the stand.” We need not reach a decision on the merits of this claim because we find that the filing of the petition for a new trial was an improper attempt by the state to overcome its failure to take an appeal from the judgment rendered in the paternity action.

The procedure for procuring a new trial by petition, whether in a civil or criminal case, is authorized by § 52-270 of the General Statutes. “[T]he proceeding is essentially equitable in nature; the petitioner has the burden of alleging and proving facts which would, in conformity with our settled equitable construction of the statutes, entitle him to a new trial on the grounds claimed; and the petition is addressed to the legal discretion of the trial court.” State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966).

The purpose of a petition for a new trial is to permit the granting of a new trial when a party had a meritorious defense below, but did not have an opportunity to present it. Id.; Krooner v. State, 137 Conn. 58, 60, 75 A.2d 51 (1950). When a petition is based upon newly discovered evidence, such evidence must in fact be newly discovered and could not have been discovered previously and produced at trial. State v. Grimes, supra.

“A petition will never be granted except on substantive grounds. It does not furnish a substitute for, or an alternative to, an ordinary appeal but applies only when no other remedy is adequate and when in equity and good conscience relief against a judgment should be granted.” Id.; see Wetzel v. Thorne, 202 Conn. 561, 564, 522 A.2d 288 (1987). “[A petition for a new trial] is not a substitute for an appeal of a claimed error which the party knew or should have known at the time the appeal could have been taken.” (Citations omitted.) Clapper v. Clapper, 3 Conn. App. 637, 638, 490 A.2d 1030 (1985).

Nothing in the record of this matter distinguishes it from a case in which a litigant has failed to take a timely appeal. The grounds alleged in the state’s petition for a new trial, as well as the state’s appearance as a party and waiver of notice of action in the paternity proceeding, support the reasonableness of the trial court’s conclusion that an appeal should have been filed.

The state’s petition does not claim the discovery of new evidence, but instead alleges grounds which are properly the basis for an appeal. In its petition, the state requested that a trial court decide whether a previous trial court committed error in view of the trial evidence and the record. Specifically, the subsequent trial court was requested to review the prior proceedings and, based on the state’s claim that the original trial court had made mistaken identifications of testimonial witnesses in its memorandum of decision, determine whether the judgment rendered was “unjust.” Such judicial inquiry, by its very nature, has been reserved for review by this court and our Supreme Court. Practice Book § 4061.

The state was a party to this action. Although it did not participate at trial, the state was later notified of the pending action and of its status before a judgment was rendered. No request was made by the state for a new trial before or after the rendition of judgment. After notice of the action, upon the court’s direction subsequent to the trial, but before judgment, the state, entered an appearance, and subsequently waived service of notice. The record also reveals that the state, working in conjunction with a private attorney retained by the state, upon his selection by the beneficiary of public assistance from a referral list provided by the state department of human resources, had the responsibility to initiate any action beyond trial. It is, therefore, the responsibility of the state in cases involving public assistance to monitor ongoing paternity actions prosecuted by private attorneys and to pursue an appeal if one is indicated. The state’s failure to file an appeal cannot be attributed to the initial lack of service of the writ, summons and complaint, since notice was thereafter given, and the required service was waived before the rendition of judgment. Indeed, the state concedes that it had timely and adequate notice of the necessity to move for a new trial at the time judgment was rendered on July 3, 1985. Additionally, a timely appeal could have been filed.

General Statutes § 52-270 does permit a new trial to be granted on petition upon proof of “reasonable cause.” The basic test of “reasonable cause” is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal. Wetzel v. Thorne, supra, 565; Tilo Co. v. Fishman, 164 Conn. 212, 214-15, 319 A.2d 409 (1972). “A new trial may be granted ‘to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident.’ Krooner v. State, [supra, 60]. Absent such special circumstances, ‘[a] petition for a new trial does not furnish a substitute for, or an alternative to, an ordinary appeal.’ Tilo Co. v. Fishman, supra, 215; State v. Grimes, [supra, 325]; Black v. Universal C.I.T. Credit Corporation, [150 Conn. 188, 193, 187 A.2d 243 (1962)]; Wojculewicz v. State, [142 Conn. 676, 678, 117 A.2d 439 (1955)]; Bishop v. Copp, 96 Conn. 571, 574, 114 A. 682 (1921); Andersen v. State, 43 Conn. 514, 516 (1876).” Wetzel v. Thorne, supra, 565.

The state had available to it the remedy of an appeal. Notwithstanding our conclusion that we need not address the merits of the state’s claim, we observe that no injustice will result if a new trial is not granted. The trial court’s apparent confusion in its recollection as to the identity of the witnesses who had testified, and in attributing credit for testimonial evidence given, did not affect the probity and credibility of the evidence with regard to the issues before the court. The testimony relied upon by the court was correct; only the identity of its source was inaccurate in the court’s memorandum of decision. The decision relied upon the facts given, and not the confusion in the names of their source.

, The trial court did not abuse its discretion in denying the state’s petition for a new trial. The petition was an attempt to escape a judgment finalized upon failure to appeal.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 46b-160 provides in relevant part: “Proceedings to establish paternity of a child bom or conceived out of lawful wedlock, including one bom to, or conceived by, a married woman but begotten by a man other than her husband, shall be instituted by a verified petition of the mother or expectant mother, with summons and order, filed in the superior court for the geographical area in which either she or the putative father resides. ... In cases involving public assistance recipients the petition shall also be served upon the attorney general who shall be and remain a party to any paternity proceeding and to any proceedings after judgment in such action.”

       Since a petition for a new trial is the institution of a separate and distinct cause of action; State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980); the state properly served a writ of summons on the defendant together with the petition. When these papers were returned to court, however, the clerk failed to make a separate docket for the state’s petition. General Statutes § 51-52 (a) (6). The record reveals that the clerk instead reopened the original file which had previously been concluded by judgment from which no appeal had been taken, and placed the petition on the short calendar for a hearing.

       Following the filing of this appeal by the state on July 18, 1986, at the request of the clerk of this court, Judge Gerety underscored and signed the portions of the hearing transcript constituting his memorandum of decision. Practice Book § 4059.

       “[General Statutes] Sec. 52-270. causes for which new trials may be granted, (a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a non-suit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.
      “(b) An affidavit signed by any party or his or her attorney shall be presumptive evidence of want of actual notice.”

       Practice Book § 320 provides, in relevant part: “Motions ... for new trials, unless brought by petition served on the adverse party or parties, must be filed with the clerk within five days after the day the verdict is accepted or judgment rendered.”

       See footnote 5, supra.


author: Per Curiam.

text:
    Attilio DeVellis v. Maria DeVellis
    (6013)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued April 13—
    decision released June 10, 1988

      Edward L. Cleary, for the appellant (defendant).

      Vito A. Castignoli, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the judgment dissolving her marriage to the plaintiff, challenging the trial court’s award of lump sum alimony and its refusal to order an award of periodic alimony.

The court dissolved the parties’ marriage and awarded sole custody of their minor child to the plaintiff, with reasonable visitation rights in the defendant. The court awarded to the defendant the marital home, valued at $225,000 at the time of the dissolution, subject to a mortgage of approximately $10,000. The court also awarded the defendant lump sum alimony of $4125, but did not award any periodic alimony to her. The trial court ordered that all real property in the plaintiff’s name remain his property, together with all stocks, bonds and insurance policies. The plaintiff was ordered to pay the defendant’s counsel fees in the amount of $1500, and all joint debts of the marriage.

The defendant argues that the trial court could not reasonably have applied the criteria in General Statutes § 46b-82 so as to deny her periodic alimony because (1) the parties had been married for twenty years, (2) no fault had been attributed to the defendant wife for the irretrievable breakdown of the marriage, (3) the plaintiff is in good health, whereas, the defendant is disabled by a deteriorating state of mental illness, and has a conservator to care for her person and to manage her estate, (4) the plaintiff is employed full time as a union carpenter and enjoys a good income, whereas, the defendant has been unemployed since 1979 with the onset of her illness and remains unemployable because of her illness and the expectation that her condition will worsen, (5) the plaintiff has income producing assets, whereas, the defendant does not, and (6) the trial court materially tainted its entire decision in this matter by erroneously concluding that the mortgage balance on the family home was only $1000 rather than the actual amount of $10,000. See footnote 1, supra.

The defendant also argues that the trial court abused its discretion in failing to award, as lump sum alimony, any funds from certain bank accounts because, although title to the funds is not in her name, the accounts contain joint marital property to which she made contributions.

Pursuant to General Statutes § 46b-82, a trial court has discretion to award alimony to either spouse. This statutory provision is permissive not mandatory. A trial court may exercise broad discretion in awarding alimony as long as it considers all relevant statutory criteria. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982); Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987). In its memorandum of decision, the trial court asserted that, in rendering its financial orders, it was fully cognizant of the statutory criteria enumerated in General Statutes § 46b-82. There is nothing in the record on appeal that contradicts the conclusion that the trial court properly considered all mandatory statutory criteria.

On both of her claims of error, the defendant seeks on appeal to have this court hold that the trial court abused its discretion in applying the statutory criteria to the facts as set out in her brief. We cannot. The trial’s court’s memorandum of decision is very brief. We cannot say that the trial court’s conclusions concerning its financial orders were illogical and inconsistent with the facts it found when we do not have a complete record of the facts as found by the trial court. It was incumbent upon the defendant as the appellant to supply this court with an adequate record with which to review her claims. Carpenter v. Carpenter, supra, 739 n.2; Kaplan v. Kaplan, 186 Conn. 387, 388 n.l, 441 A.2d 629 (1982). It was her burden, therefore, to seek an articulation of the trial court’s decision as to the relevant facts it found and the underlying reasons for it. Without a showing that the trial court incorrectly applied the law or could not reasonably have concluded as it did, we cannot reverse the court’s rulings with regard to its financial orders. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985); O’Neill v. O’Neill, 13 Conn. App. 300, 302, 540 A.2d 374, cert. denied, 207 Conn. 806, 536 A.2d 978 (1988).

The trial court could reasonably have concluded as it did. The court awarded to the wife the marital home, the most significant asset of the marriage. It is irrelevant that this court, if deciding the case de novo, might reach a different result, “The trial court is not obligated to make express findings on each of the statutory criteria. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). Also, the trial court is not required to give equal weight to each of the specified criteria it considers in determining an award. While a trial court must consider all statutory criteria for property division and alimony, no single criterion is preferred over the others, and the court has wide latitude in varying the weight placed on each criterion under the circumstances of each case. Carpenter v. Carpenter, supra, 740-41. Where, as here, the trial court considered all mandatory factors in reaching its decision, this court on appeal may not vary the weight which the trial court placed upon various factors in reaching its determination. Kinney v. Kinney, 5 Conn. App. 484, 487, 500 A.2d 569 (1985), cert. denied, 199 Conn. 804, 506 A.2d 146 (1986).” Debowsky v. Debowsky, supra, 526-27.

There is no error.

       In its memorandum of decision, the trial court stated that the amount of the mortgage was “approximately $1000.” The plaintiff’s financial affidavit and the uncontroverted testimony at trial, however, showed the actual amount of the mortgage to be approximately $10,000. Neither of the parties moved for a correction or an articulation of the $1000 figure stated by the trial court. It is not known, therefore, whether the $1000 figure was the result of a clerical error or the erroneous belief of the trial court.

       The trial court awarded to the defendant, by way of lump sum alimony, one half of all bank accounts held jointly with the plaintiff. Her share amounted to $4125.

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

       Although the standards by which the courts determine an assignment of property and awards of alimony are almost the same, the one characteristic which distinguishes a property assignment from an award of alimony is the court’s duty, pursuant to subsection (c) of § 46b-81, to consider the “contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” See Pasquariello v. Pasquariello, 168 Conn. 579, 583, 362 A.2d 835 (1975). Courts must consider both of the parties’ monetary and nonmonetary contributions in making its distribution of the parties’ assets. O’Neill v. O’Neill, 13 Conn. App. 300, 306-307, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). That consideration is not a mandatory factor under General Statutes § 46b-82 alimony provision.


author: Spallone, J.

text:
    Paul J. Marsala, Jr. v. City of Bridgeport et al.
    (6335)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued May 4—
    decision released June 10, 1988

      Robert G. Zanesky, associate city attorney, with whom were R. Christopher Meyer and, on the brief, Lawrence J. Merly, for the appellants (defendants).

      George P. D’Amico, with whom, on the brief, was Harold L. Rosnick, for the appellee (plaintiff).
   Spallone, J.

The defendants appeal from the judgment rendered in favor of the plaintiff. The plaintiff, Paul J. Marsala, Jr., initiated a three count complaint against the defendants, the city of Bridgeport; Thomas W. Bucci, mayor of the city of Bridgeport; and Frank A. Mercaldi, building official of the city of Bridgeport; seeking, in count one, a writ of mandamus; in count two, a quo warranto; and, in count three, damages for the city’s breach of its agreement to employ him for a term of four years. We find no error.

There was evidence adduced at trial, which reasonably supported the following findings and conclusions of the trial court. On January 1,1979, the then mayor of Bridgeport appointed Joseph Savino as building official for the city, for a term of four years ending January 1, 1983. Although Savino’s four year term officially concluded on December 31,1982, he remained in the position of building official until August 6, 1984. On August 6, 1984, mayor Leonard Paoletta appointed the plaintiff as building official for the city for a term of four years ending August 6,1988. On or about March 20,1987, the defendant Bucci terminated the plaintiff without providing notice or an opportunity to be heard, and appointed the defendant Mercaldi to the position of building official. Soon thereafter, the plaintiff commenced this action against the defendants.

Pursuant to an order to show cause, and by stipulation of the parties, a limited hearing was held as to the mandamus and quo warranto counts of the complaint. After this hearing, the trial court found the issues on these counts for the plaintiff, and from the judgment rendered thereon, the defendants appeal.

The defendants claim that the trial court erred (1) in concluding that the plaintiffs term of office commenced from the date of his appointment, and (2) in concluding that the defendant Mercaldi was not holding office under color of title.

The defendants’ first claim is that the trial court erred in concluding that the plaintiff’s four year term of office began to run from the date of his appointment. General Statutes § 29-260 sets forth the term of office of a building official. Subsection (a) provides, in relevant part: “The chief executive officer of any town, city or borough, unless other means are already provided, shall appoint an officer to administer the [state building] code for a term of four years and until his successor qualifies and quadrennially thereafter shall so appoint a successor.” (Emphasis added.) Subsections (b) and (c) set forth the proper procedures with regard to notice and hearing for the removal of such official for cause.

The defendants argue that each four year term commences from the date of the first appointment, and a new term commences on the anniversary of that date every four years. In order to support such a view, we would, in effect, have to hold that where a person in office holds over, he depletes that portion of his successor’s term commensurate with his service past his termination date. The successor’s four year term would then be four years, less any time served by the predecessor in office. This interpretation is flawed and lacks any basis in law.

“[I]t is only when the law does not fix the commencement of the term it begins to run from the date of appointment.” Brown, State’s Attorney ex rel. Gray v. Quintilian, 121 Conn. 300, 306, 184 A. 382 (1936). “The commencement of the term of public office may be fixed by the constitution or statute of a state. Where no time is fixed by law for the commencement of an official term, the general rule is that the term begins to run from the date of appointment. . . .” 63A Am. Jur. 2d, Public Officers and Employees § 160, pp. 786-87.

The statute setting forth the term of the building official is clear and unambiguous. It mandates a four year term “and [such period of time] until his successor qualifies.” (Emphasis added.) The interpretation pressed by the defendants would render the conjunctive “and” meaningless and would allow an appointing authority to “set aside the plainly expressed intention of the legislature.” State ex rel. McCarthy v. Watson, 132 Conn. 518, 536-37, 45 A.2d 716 (1946). “Where the language is plain and unambiguous, as in this case, the intent of the statute is to be determined from its language. Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70 [1952]. In such a case, the enactment speaks for itself and there is no occasion to construe it. State ex rel. Cooley v. Kegley, 143 Conn. 679, 683, 124 A.2d 898 [1956]; Wilson v. West Haven, 142 Conn. 646, 654, 116 A.2d 420 [1955]. The words used in expressing the legislative intent are to be given their commonly approved meaning. General Statutes § 1-1; Southern New England Telephone Co. v. Public Utilities Commission, 144 Conn. 516, 522, 134 A.2d 351 (1958); Spellacy v. American Life Ins. Assn., 144 Conn. 346, 354, 131 A.2d 834 [1958]. It must also be assumed that the General Assembly had a purpose, for every sentence, clause or phrase in the statute. McAdams v. Barbieri, [143 Conn. 405, 419, 123 A.2d 182 (1956)].” State v. Springer, 149 Conn. 244, 248, 178 A.2d 525 (1962). Furthermore, there is no room for statutory construction where the legislative intent is clear. Brown v. Kuhlman, 32 Conn. Sup. 275, 278, 351 A.2d 81 (1975). Accord Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978). “The basic rule of statutory construction requires us to ascertain the intention of the law-making body; Bell v. Planning and Zoning Commission, 173 Conn. 223, 226, 377 A.2d 299 (1977); Bridgeman v. Derby, 104 Conn. 1, 8, 132 A. 25 (1926); and to construe the statute in a manner that effectuates that intent.” Green v. Warden, 178 Conn. 634, 637-38, 425 A.2d 128 (1979).

The trial court’s conclusion that the legislature’s intent, as expressed in General Statutes § 29-260, was to provide for a four year term plus any holdover time as an extension of that term, is legally and logically sound. It would be inappropriate and difficult to give any other meaning to the word “and” as used in the statute. Certainly, the defendant’s argument that the word “and” diminishes the length of the officeholder’s successor is untenable.

The defendants’ final claim is that the defendant Mercaldi held office legally, under color of title, and could not be ousted from his position in an action of quo warranto. We disagree.

“An action in the nature of quo warranto may be brought to challenge a person’s legal authority to hold public office. State ex rel. Neal v. Brethauer, 83 Conn. 143, 145-46, 75 A. 705 (1910).” Carletonv. Civil Service Commission, 10 Conn. App. 209, 212, 522 A.2d 825 (1987). “A quo warranto proceeding under the common law lies only to test the defendant’s right to hold office de jure. State ex rel. Hoerle v. Thomas, 127 Conn. 426, 428, 17 A.2d 514 (1941); State ex rel. Eberle v. Clark, 87 Conn. 537, 541, 89 A. 172 (1913). In proceedings in the nature of quo warranto, the object is to test the ‘actual right to the office and not merely a use under color of right.’ State ex rel. Southey v. Lashar, 71 Conn. 540, 545, 42 A. 636 (1899), and see cases there cited. It is well established that in quo warranto proceedings the burden is upon the defendant to show ‘a complete title to the office in dispute.’ State ex rel. Gaski v. Basile, [174 Conn. 36, 38, 381 A.2d 547 (1977)]; see State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 616, 136 A.2d 792 (1957); State ex rel. Wallen v. Hatch, 82 Conn. 122, 125, 72 A. 575 (1909); State ex rel. Reiley v. Chatfield, 71 Conn. 104, 110, 40 A. 922 (1898).” Cheshire v. McKenney, 182 Conn. 253, 256-57, 438 A.2d 88 (1980); see also Beccia v. Waterbury, 185 Conn. 445, 456-57, 441 A.2d 131 (1981) (Beccia I).

The trial court’s finding that the defendant Mercaldi’s appointment was void ab initio due to the plaintiff’s unlawful removal from office before his term expired is fully supported by the evidence adduced at trial. The defendant failed to sustain its burden of proof. Cheshire v. McKenney, supra, 257.

There is no error.

In this opinion the other judges concurred.

       The defendants also claim that the court erred in finding that the plaintiff was qualified for, and legally held, the position of building official because (1) the plaintiff never took an oath of office, and (2) the plaintiffs appointed term, from August 6, 1984 to August 6, 1988, was actually for a term of four years and a day and, therefore, illegal. We find no merit to either of the claims and they warrant little discussion. First, the trial court’s conclusion that General Statutes §§ 29-260 and 29-261, which authorize the position of building official, do not require the administration of an oath is not erroneous. Second, we agree with the trial court that even if the plaintiff’s appointment was flawed by the inclusion of an extra day, that defect would invalidate only the last day not the entire term. The defendants conveniently ignore the fact that all of the preceding appointments to this position were similarly made on the basis of calendar years and they offer no support for their contention that such an appointment creates a de facto tenure.

       General Statutes § 52-491, the statutory authorization for quo warranto proceedings, provides: “When any person or corporation usurps the exercise of any office, franchise or jurisdiction, the superior court may proceed, on a complaint in the nature of a quo warranto, to punish such person or corporation for such usurpation, according to the course of the common law and may proceed therein and render judgment according to the course of the common law.”


text:
    State of Connecticut v. Kenneth Speight
    (6301)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 7—
    decision released June 23, 1988

      Jean Elmblad Blue, special public defender, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, were Susan C. Marks and Theodore R. Paulding, deputy assistant state’s attorneys, for the appellee (state).
   Per Curiam.

The defendant is appealing his conviction, after a jury trial, of the crime of conspiracy to possess cocaine with intent to sell in violation of General Statutes §§ 21a-277 (a) and 53a-48.

The determinative issue is whether the trial court erred in denying the defendant’s motion for a new trial based on the state’s failure to disclose that a major witness, called by the state, had criminal charges pending against him. The defendant claims that the failure to disclose such charges violated the strictures enunciated in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The witness first testified for the defendant. Later, upon learning that the witness was a confidential police informant who had supplied information about the defendant to the police, the state called him as a rebuttal witness. The state denied that it had intentionally withheld any information disclosable under Brady.

After a full evidentiary hearing on the defendant’s motion for a new trial, the trial court found no Brady violation and denied the motion. Our review of the record, transcripts and briefs fails to disclose that such finding was clearly erroneous or that the decision was otherwise erroneous in law. Practice Book § 4061.

There is no error.


author: Norcott, J.

text:
    State of Connecticut v. Stanley King
    (6165)
    Borden, Daly and Norcott, Js.
    Argued May 11—
    decision released July 26, 1988

      John A. Forbes, Jr., assistant public defender, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, was Gerald Eisenman, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment of conviction of criminal possession of a pistol in violation of General Statutes § 53a-217 (a) and carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant raises the following claims of error: (1) the trial court erred in denying the defendant’s motions for acquittal and for a new trial based on claims of prosecutorial and juror misconduct; (2) the court erred in ruling, in response to the defendant’s motion in limine, that consecutive sentences could be imposed upon convictions for carrying a pistol without a permit and criminal possession of a pistol; (3) that his convictions under General Statutes §§ 29-35 and 53-217 (a) were in violation of the double jeopardy clause of the fifth amendment to the United States constitution; and (4) that the evidence was insufficient to sustain his convictions for the crimes of which he was convicted.

We have carefully reviewed the entire record of the present case and find each and every claim of error to be without merit. The defendant has not successfully borne the burden of showing the manner in which either the allegedly tainted language of the prosecutor or the alleged improper juror misconduct prejudiced him or denied him his right to a fair trial. State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983); see also State v. Nowakowski, 188 Conn. 620, 452 A.2d 938 (1982); State v. Kluttz, 9 Conn. App. 686, 521 A.2d 178 (1987).

Similarly, when construing the evidence in the light most favorable to sustaining the jury’s verdict, we find it clear that the jury could reasonably have concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984); State v. Iovieno, 14 Conn. App. 710, 713, 543 A.2d 766 (1988).

Finally, we find that under the holding of Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the defendant has not been denied protection against multiple trials and multiple punishments for the same offense under the double jeopardy clause. See also State v. Rawls, 198 Conn. Ill, 120, 502 A.2d 374 (1985); State v. Wright, 197 Conn. 588, 592-93, 500 A.2d 547 (1985).

There is no error.

In this opinion the other judges concurred.

       We need not consider the defendant’s second claim of error since, at sentencing, the trial court imposed concurrent sentences of five years for each charge of which the defendant was convicted. The claim of error regarding the court’s ruling on the motion in limine that the defendant “could” be sentenced consecutively is a moot issue for the purposes of this appeal.


text:
    Combustion Engineering, Inc. v. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, Local 237
    (6085)
    Borden, Daly and Norcott, Js.
    Argued May 12—
    decision released July 26, 1988

      Emanuel N. Psarakis, with whom, on the brief, was Frank F. Coulom, Jr., for the appellant (plaintiff).

      Stephen E. McEleney, for the appellee (defendant).
   Norcott, J.

The dispositive issue of this appeal is whether the collective bargaining agreement (project agreement) between the plaintiff employer and the defendant union empowers the trial court or the arbitrator to decide the question of arbitrability.

The facts of this case are not in dispute. The plaintiff brought an action in the Superior Court seeking to enjoin the defendant from proceeding with arbitration. The underlying issue in dispute is whether the plaintiff is obligated under the project agreement to pay the union employees a travel allowance. The defendant moved to dismiss the action on the ground that, pursuant to the agreement, the question of arbitrability was to be determined by an arbitrator rather than the court.

The trial court, O’Neill, J., denied the motion, because “[t]he court has insufficient facts to determine the issue.” Subsequently, the trial judge to whom the case was assigned for trial, A. Aronson, J., granted the defendant’s motion to dismiss, and the plaintiff appealed from that judgment. We find no error.

“It is well established that arbitration is a matter of contract and that parties may agree to have questions concerning the arbitrability of their disputes decided by a separate arbitrator.” Paranko v. State, 200 Conn. 51, 57, 509 A.2d 508 (1986). The function of the court is very limited when the parties have so agreed to submit all questions of contract interpretation to an arbitrator. United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 567-68, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960). “ ‘Whether the parties have agreed to submit to arbitration not only the merits of the dispute but the very question of arbitrability, as well, depends upon the intention manifested in the agreement they have made.’ ” Policemen’s & Firemen’s Retirement Board v. Sullivan, 173 Conn. 1, 6, 376 A.2d 399 (1977), quoting Connecticut Union of Telephone Workers, Inc. v. Southern New England Telephone Co., 148 Conn. 192, 197, 169 A.2d 646 (1961). The intent to submit the question of arbitrability to an arbitrator may be demonstrated in an agreement by an express provision or by the use of broad terms. Policemen’s & Firemen’s Retirement Board v. Sullivan, supra; Hartford v. Local 308, 171 Conn. 420, 427, 370 A.2d 996 (1976). In sum, “ ‘the language of the contract controls and determines whether the arbitrability of a dispute is for the court or the arbitrators.’ ” East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 656, 539 A.2d 125 (1988), quoting Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 122, 318 A.2d 84 (1972).

Article 14 of the project agreement provides for a grievance adjudication procedure and provides in pertinent part: “It is specifically agreed that in the event any dispute arises out of the interpretation or application of this agreement, excluding questions of jurisdiction of work, the same shall be settled by means of the procedure set out herein.” A grievance is defined under the agreement as a dispute involving “the interpretation or application of this agreement excluding the jurisdiction of work.” Pursuant to the express terms of the agreement arbitration is the final step in the grievance adjudication process.

The key to the resolution of this appeal rests in the breadth of the arbitration clause. The language in the arbitration clause in this case is very similar to that found in the case of Hartford v. Local 308, supra, 427: “[A]ny grievance or dispute which may arise between the parties concerning the application, meaning or interpretation of this agreement, unless specifically excluded by this agreement, shall be settled in the following manner. . . .” With respect to that clause, our Supreme Court held that “[t]he broad language of the arbitration clause . . . indicates that the parties desired the arbitration clause itself to be the subject to the arbitrators’ decision.” Id.

The only clear distinction between the language in Hartford v. Local 308 and the present case is the exclusionary clause, “excluding questions of jurisdiction of work” which appears in article 14. That clause apparently refers to disputes regarding the allocation of work among employees. While the full meaning of the exclusionary clause has not been presented in this appeal, it does not follow that, in the context of the entire arbitration clause, the question of arbitrability falls within the ambit of that exclusionary language so as to preclude the arbitrator from deciding questions of arbitrability. Furthermore, in determining whether an agreement confers on the arbitrator the authority to arbitrate, “any ‘[djoubts [concerning arbitrability] should be resolved in favor of coverage.’ United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 [1960]; International Union v. General Electric Co., 148 Conn. 693, 701, 702, 174 A.2d 298 [1961].” Board of Police Commissioners v. Maher, 171 Conn. 613, 621, 370 A.2d 1076 (1976).

The trial court’s interpretation of the arbitration clause in issue was that the parties’ intention was to submit “all” disputes to the arbitrator, except questions of jurisdiction of work, and that the matter of arbitrability was not included in that exclusionary language. Our review leads us to conclude similarly.

The plaintiffs final claim of error is that the second trial court, A. Aronson, J., erred by reversing the prior ruling of Judge O’Neill denying the motion to dismiss. This claim was never raised in the trial court. “Only in the most exceptional circumstances will this court consider a claim that was not raised in the trial court.” Cahill v. Board of Education, 187 Conn. 94, 99, 444 A.2d 907 (1982); see Practice Book § 4185. In the present case, no such exceptional circumstance invites our review of this claim.

There is no error.

In this opinion the other judges concurred.

       See Policemen’s & Firemen’s Retirement Board v. Sullivan, 173 Conn. 1, 6, 376 A.2d 399 (1977), for a listing of cases wherein the broad terms of an arbitration clause were found to confer the authority to determine the arbitrability issue on the arbitrator.


author: Daly, J.

text:
    Seaborne Herbert Tanner, Jr., et al. v. Conservation Commission of the City of Norwalk
    (5741)
    Daly, Bieluch and Foti, Js.
    Argued February 18—
    decision released July 26, 1988

      Simon Sumberg, for the appellant (defendant).

      Reuben S. Midler, for the appellees (plaintiffs).
   Daly, J.

The defendant conservation commission of the city of Norwalk appeals from the judgment of the trial court sustaining the appeal of the plaintiffs, Seaborne Herbert Tanner, Jr., et al. The plaintiffs had sought to obtain the defendant’s approval for the construction of a single-family dwelling on their combined adjoining property. The commission claims that the trial court erred (1) in finding that it had acted without substantial evidence in its denial of the application, (2) in finding that all of the expert witnesses had agreed that the proposed residences would have no significant impact on area wetlands, and (3) in ruling that the agency is incapable of determining environmental impact without expert testimony. We find no error.

The following undisputed facts are relevant to this appeal. The plaintiffs are the owners of abutting land within a designated wetlands area located between Westview Lane and Oakhill Avenue in Norwalk. These lots were combined to create a 1.115 acre site and the plaintiffs applied for permission to construct a single-family residence thereon. The defendant is the duly designated municipal commission entrusted with enforcement of the Inland Wetlands and Watercourses Act, General Statutes §§ 22a-36 through 22a-45, and the wetlands regulations of the town of Norwalk.

On May 29,1984, a hearing was held on the application by the agency. The plaintiffs presented the testimony of two professional engineers, a soil scientist and a biologist. These were the only expert witnesses who offered evidence at the hearing. The commission claims that while Holt McCord, a professional engineer, and Bruce Lasky, a soil scientist, agreed that the single-family dwelling as proposed would have no significant impact upon the soil, wetlands or watercourse systems, the biologist, John Campbell, disagreed, hence providing substantial evidence for the board’s refusal.

The trial court held that the experts stated that, in their opinions, the proposed house and driveway would have no significant impact on the wetlands. On the basis of this finding, the court sustained the appeal, determining that the commission had acted without substantial evidence to refute the plaintiffs’ experts.

Our review of the record indicates that all the experts were in agreement that the proposed project could be built on the site. The commission created a disparity among the experts where none existed. Campbell stated that “the site has some wetland value, especially along the stream, but I do also believe that the stream should not be touched, and that the canopys of trees [around the stream fifty feet, on either side] not be touched at all . . . .” He subsequently restated his position, however, to the effect that the proposed house could be built without any adverse impact. It is clear from the trial court’s determination that there was no disagreement among the experts that this was, in fact, the case.

The commission’s first claim of error is that the trial court erred in finding that the commission had acted without substantial evidence in denying the plaintiffs’ application for a single-family dwelling. We disagree.

At the outset, we note that the authority of an inland wetlands agency is extremely limited in that it can consider only matters that impact on designated wetlands areas. Connecticut Fund for the Environment, Inc. v. Stamford, 192 Conn. 247, 250, 470 A.2d 1214 (1984); Glendenning v. Conservation Commission, 12 Conn. App. 47, 52, 529 A.2d 727, cert. denied, 205 Conn. 802, 531 A.2d 936 (1987). The test that the reviewing court must apply in determining whether the commission’s decision should be sustained is referred to as the substantial evidence rule. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 552, 525 A.2d 940 (1987).

“ ‘This so-called substantial evidence rule is similar to the “sufficiency of the evidence” standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords “a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” . . . “The‘substantial evidence rule’ is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of ‘weight of the evidence’ or ‘clearly erroneous’ action. . . .” ’ (Citations omitted.) Lawrence v. Kozlowski, [171 Conn. 705, 713-14, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977)]; Persico v. Maher, 191 Conn. 384, 409, 465 A.2d 308 (1983). The United States Supreme Court, in defining ‘substantial evidence’ in the ‘directed verdict’ formulation, has said that it ‘is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966); see Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S. Ct. 206, 83 L. Ed. 126 (1938). ‘The reviewing court must take into account [that there is] contradictory evidence in the record . . . but “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” ’ American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490, 523, 101 S. Ct. 2478, 69 L. Ed. 2d 185 (1981), quoting Consolo v. Federal Maritime Commission, [383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966)].” Huck v. Inlands Wetlands & Watercourses Agency, supra, 541-42.

In this case, the agency was cognizant of the holding in Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980), that a lay commission acts without substantial evidence “when it relies on its own knowledge and experience concerning technically complex issues . . . .” The commission asserts that it was correct in disregarding the conclusion of two of the plaintiffs’ experts while taking the recommendation of Campbell, that the stream should not be rerouted.

As stated previously, this reliance upon the testimony is misplaced, since an examination of the transcript and Campbell’s report indicates that it was his opinion that construction of the proposed activity would have no adverse impact on the wetlands. The trial court did not hold that the evidence was insufficient on the basis of its improperly excluding proper evidence from its consideration. See Central Bank for Savings v. Planning & Zoning Commission, 13 Conn. App. 448, 458, 537 A.2d 510 (1988). Rather, this is a case where the trial court recognized that the commission, in dealing with complex issues, ignored the testimony of the expert witnesses and relied solely on their own insight. Feinson v. Conservation Commission, supra, 428. While we recognize that an administrative agency is not required to believe any of the witnesses, including expert witnesses; Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980); it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge. We find there was no substantial evidence since there was an absolute disregard of the unanimous contrary expert opinion.

In finding that there was no substantial evidence, we have considered the remaining two claims of error and find them to be without merit. Accordingly, we hold that the trial court was correct in its determination that the action of the defendant should be set aside and that the plaintiffs’ appeal sustained.

There is no error.

In this opinion the other judges concurred.

       The trial court discounted the report provided by John Schwartz, the town environmental officer, pursuant to Connecticut Natural Gas Corporation v. Puca, 183 Conn. 128, 140 n.10, 439 A.2d 287 (1981), which states that the trial court must exclude nonrecord evidence in determining whether substantial evidence supports the decision.

       As noted in Feinson v. Conservation Commission, supra, 428: “If an administrative agency chooses to rely on its own judgment, it has a responsibility to reveal publicly its special knowledge and experience, to give notice of the material facts that are critical to its decision, so that a person adversely affected thereby has an opportunity for rebuttal at an appropriate stage in the administrative proceedings.”


author: Stoughton, J.

text:
    State of Connecticut v. Earl Reddick
    (5421)
    Dupont, C. J., Borden and Stoughton, Js.
    Argued February 9—
    decision released August 2, 1988

      Temmy AnnPieszak, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Roland D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney for the appellee (state).
   Stoughton, J.

The defendant was convicted, after trial to a jury, of burglary in the first degree, in violation of General Statutes § 53a-101 (a) (1), and criminal possession of a firearm, in violation of General Statutes § 53a-217. From that judgment, the defendant appeals.

Three of the claims the defendant presses on appeal will not be reviewed owing to the defendant’s failure to comply with Practice Book § 4065 (d), which expressly provides that briefs shall contain “[t]he argument, divided under appropriate headings into as many parts as there are points to be presented . . . . ” The defendant has chosen to disregard this clear directive and, accordingly, we refuse to review any claim or any alternative claim to a properly briefed claim which has been presented and argued by way of footnotes, notwithstanding the fact that they are set forth in the preliminary statement of issues.

Confining our analysis to the arguments properly set forth in the body of the defendant’s brief, the assignments of error can be classified as follows: (1) error on the part of the trial court in denying his motion to suppress certain evidence; (2) error on the part of the trial court in denying his motion to suppress certain statements by him on two separate theories; (3) error on the part of the trial court in admitting a statement made to the police by a witness against the defendant; (4) error on the part of the trial court in its instructions to the jury; (5) misconduct on the part of the prosecutor in closing argument; and (6) that General Statutes § 53a-217 is unconstitutional.

A jury could reasonably have found the following facts: On October 23,1985, at sometime around 4 p.m., Joseph McAlpine was leaving his apartment at 35 Springside Avenue, in New Haven, when the defendant and another man exited an apartment leased to Rose Hamilton. The two men then walked into an apartment across the hall. One of the two men was about high school age, the other somewhat older. The apartment they went into was occupied by Glen Shanbrom, who had a history of mental problems. When Hamilton returned to her apartment, she found the door unlocked, the apartment ransacked and jewelry, silverware, and a clock/radio missing. The point of entry to the apartment was the bathroom window.

Two days later, Kyle Collins met with Detective Leonard Pastore of the New Haven police department. Collins complained to Pastore that the defendant had threatened him with a gun. On the basis of this complaint, Pastore and Detective Anthony Dilullo proceeded to 35 Springside Avenue, Apt. D-l. Shanbrom, the tenant of that apartment, answered the door and allowed the officers inside. A male, later identified as Bobby Groomes, was in the living room with a female. Pastore and Dilullo then proceeded to a bedroom where the defendant was lying in bed. The defendant awoke and made a sudden move for his pillow, whereupon he was ordered out of bed at gunpoint and handcuffed. One of the officers looked under the pillow and discovered a loaded revolver in a holster underneath. The defendant was read his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), after which he indicated that the gun was his uncle’s and that he had no permit for it. Groomes later gave a statement to the police concerning the burglary. He also turned over several items which Hamilton later identified as missing from her apartment two days earlier.

The defendant had moved into Shanbrom’s apartment sometime after Groomes and Collins had moved there. The defendant occupied the main bedroom in the apartment, while Groomes occupied a sofa in the living room. The gun was in the defendant’s possession during his stay at Shanbrom’s apartment. Shanbrom was fearful of the defendant and was in no way connected to the burglary.

I

The Court’s Denial of the Defendant’s Motion to Suppress

The defendant commences his attack upon his convictions by asserting that the trial court erred in denying his motion to suppress evidence seized at apartment D-l. He argues that the “search” beneath the defendant’s pillow exceeded the scope of a valid search incident to an arrest. We disagree.

The police went to the apartment at 35 Springside Avenue with outstanding warrants for the defendant’s arrest and a recent complaint concerning the defendant’s use of a gun. When they knocked at the door, one of the occupants, Shanbrom, allowed them inside. When they proceeded to the bedroom occupied by the defendant, he made a sudden moved toward his pillow. At that point, he was ordered not to move and was handcuffed, while one of the detectives lifted the pillow to determine what was underneath.

It is well established that when an individual is placed under arrest in a dwelling, police may search not only the defendant’s person incident to that arrest, but any area into which that person might reach to grab a weapon or to destroy a piece of evidence. In Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), the United States Supreme Court reasoned that “[a] gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.” See State v. Shaw, 186 Conn. 45, 438 A.2d 872 (1982); State v. Januszewski, 182 Conn. 142, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). The transcript indicates that the seizure of the gun was simultaneous with the defendant’s arrest. Even had the defendant already been handcuffed, it is not inconceivable that he may have grabbed for a gun, especially one that was slipped under a pillow as contrasted with one located in a drawer or closet. Moreover, we note that there were two other people in the apartment when the arrest occurred, one of whom had been described to the police as being somewhat mentally retarded and under care for psychological problems. The police were justified in lifting the pillow in an attempt to find the gun they had been told the defendant slept with. Hence, the police acted legitimately in looking under the pillow as the defendant was in the immediate area. There is no error as to this claim. Because the search was valid and proper, the defendant’s related argument that his subsequent statement to the police was the fruit of an illegal search necessarily fails.

II

The Admission of the Defendant’s Statement

The defendant next claims that his statements regarding the revolver ought to have been suppressed on the grounds (1) that the record does not demonstrate that adequate warnings under Miranda were given, and (2) that, even if they were, the defendant did not knowingly and intelligently waive his rights. Although the defendant never raised this precise issue at trial and, in fact, impliedly acknowledged at trial that he did receive his warnings, he nonetheless claims review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

During argument on his motion to suppress, the defendant never argued that proper, complete warnings had not been given. His argument was, rather, that owing to the time of the arrest, the defendant was not as alert as he would have been otherwise, and the state could not meet its burden of showing a knowing and intelligent waiver. In State v. Vasquez, 9 Conn. App. 648, 652-53, 520 A.2d 1294, cert. denied, 203 Conn. 808, 525 A.2d 523 (1987), this court refused to review an identical claim which had not been raised below. The adequacy of the warnings was assumed by both the state and defendant and the court was never given the opportunity to rule upon it. “The trial judge presiding over a criminal case is not engaged in taking a Kafkaesque academic test which he may be determined on appeal to have failed because of questions never asked of him or issues never clearly presented to him.” State v. Cosby, 6 Conn. App. 164, 174, 504 A.2d 1071 (1986); State v. Vasquez, supra, 653. Moreover, by the defendant’s failure to assert the inadequacy of the warnings at trial, the state was deprived of the opportunity to establish their adequacy. We therefore decline to afford review to this claim under State v. Evans, supra.

The next, related claim of the defendant is that, even if adequate warnings were given, the state failed to demonstrate that the defendant knowingly and intelligently waived his rights and thus it was reversible error for the trial court to admit his statements pertaining to the revolver. We disagree. We accept the defendant’s argument that it is the state’s burden to establish that any waiver is voluntary and knowing. Voluntariness is established by the totality of the circumstances and it falls upon the state to establish by a preponderance of the evidence that a valid waiver was effected. State v. Gray, 200 Conn. 523, 532, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

Applying this standard, the testimony adduced indicates that the defendant had been in custody only a brief period before being questioned by the police. The police officers testified that he had been given his Miranda warnings. Moreover, the questioning took place in the familiar surroundings of the kitchen of the apartment occupied by the defendant. The defendant was not harassed or threatened in any way. The defendant, according to the testimony, willingly answered questions about the gun and at no time refused to answer any questions. Each of the above factors indicates a valid waiver. While it is true that the duty is not on the defendant to establish that a waiver was invalid, the state need only establish by a preponderance of the evidence that a waiver was valid. The only evidence produced by the defendant to indicate that the waiver was invalid was the time of his arrest, 5 a.m. The defendant never testified that he did not understand the warnings or was unfamiliar with criminal proceedings. State v. Pellegrino, 194 Conn. 279, 289, 480 A.2d 537 (1984). “[A] court cannot supply evidence that is lacking.” State v. Harris, 188 Conn. 574, 581, 452 A.2d 634 (1982). The court did not err in admitting the statements.

Ill

The Admission of Groomes’ Statement

The defendant next claims that the trial court erred in admitting a portion of Groomes’ statement to the police on the ground that it was hearsay and did not fall within any exception. We disagree.

At trial, the defendant cross-examined Groomes in an attempt to highlight several areas in which his testimony at trial was inconsistent with the version of events set forth in his statement. The cross-examination also had the effect of suggesting that his testimony in court was purely the result of an agreement between him and the state concerning the disposition of a similar charge pending against him.

The statement of Groomes was clearly admissible as a prior consistent statement following his impeachment on the basis of motive or interest since the statement had been made prior to Groomes’ negotiations with the state. State v. Dolphin, 178 Conn. 564, 571, 424 A.2d 266 (1979). The trial court also has the discretion to allow into evidence consistent portions of a statement from which inconsistencies have been offered by the defense, for purposes of rehabilitation, to place inconsistencies in context so as not to mislead the jury. State v. Apostle, 8 Conn. App. 216, 243-45, 512 A.2d 947 (1986). State v. Cardona, 6 Conn. App. 124, 130, 504 A.2d 1061 (1986). The trial court did not abuse its discretion in admitting the portion of the statement that made no reference to past misconduct of the defendant.

IV

Error Relating to the Court’s Charge

The defendant’s next claim is that in instructing the jury on the elements of burglary, the court committed reversible error in stating that “[a] person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with the intent to commit a crime therein . . . .’’(Emphasis added.) The defendant asserts that since no evidence was adduced tending to show anything other than an initial unlawful entry into Hamilton’s apartment, to mention that portion of the statute which reads “remains unlawfully” was to instruct the jury on a theory of liability which was not supported by the evidence. The defendant acknowledges that he did not except to the charge, but maintains that such a claim is nevertheless reviewable under State v. Evans, supra. We agree that the defendant’s claim facially implicates a fundamental constitutional right. State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). Accordingly, we will review the record to determine whether the defendant’s claim is truly of constitutional proportions or is simply characterized as such by the defendant. State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). After giving the defendant’s claim the limited scope of review afforded under the second prong of our Evans analysis, we conclude that what the defendant represents to be a sufficiency of the evidence problem is, in fact, a claim that the trial court’s instruction regarding the burglary statute was over inclusive.

While the trial court did read that portion of the burglary statutes dealing with the concept of remaining unlawfully, it specifically instructed the jury that Hamilton never testified that she gave anyone permission to be in her apartment. This effectively removed from the jury the option of finding the defendant guilty of burglary in the first degree on the theory that Hamilton somehow invited him in and he stayed beyond the point that he was privileged to do so. The defendant has not demonstrated how he has been deprived of a fundamental constitutional right and a fair trial as the result of the court’s instruction. Even if this claim merits review under State v. Evans, supra, we find that there was no possibility that the jury was misled into mistaking the issues that it was to determine. State v. Townsend, 206 Conn. 621, 627, 539 A.2d 114 (1988).

The defendant had submitted a request to charge that the jury may draw no adverse inferences from his refusal to testify. General Statutes § 54-84 (b). The defendant also takes issue with that part of the instruction in which the court stated to the jury that it could not draw any inference from the fact that the defendant did not testify, and added that the rule was based upon the defendant’s right “to remain silent and simply in effect to say to the State, you say I did these things, well, you prove it. Why should I help you out in any way?” (Emphasis added.) The defendant did not except to this portion of the charge, but we will consider it as having been encompassed by the request to charge. State v. Marshall, 3 Conn. App. 126, 128, 485 A.2d 930 (1985). We agree with the defendant that the trial court’s embellishment of “[w]hy should I help you out in any way” can be viewed as suggesting that had he taken the stand it would have helped to prove the state’s case. The question to be resolved, therefore, is whether the comment was harmless beyond a reasonable doubt.

The disputed statement amounted to one line of a charge which occupied approximately sixteen pages in the transcript. It occurred in a portion of the charge in which the court repeatedly emphasized that the defendant had no obligation whatsoever to refute the charge and that the burden of proof rested with the state at all times. “ ‘To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. ... In considering the charge as a whole we eschew critical dissection . . . thereby not passing upon the instructions attacked in “artificial isolation” from the whole charge. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.’ State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984), quoting State v. Corchado, 188 Conn. 653, 660-61, 453 A.2d 427 (1983).” State v. Marshall, supra, 129.

We find that the brief and isolated nature of the comment, viewed in the context of the charge as a whole, could not have led the jury to conclude that had the defendant taken the stand he would have furnished information which would have assisted the state. The error was harmless beyond a reasonable doubt.

The defendant presses a related claim that the trial court erred in failing to instruct the jury that an inference based on circumstantial evidence may be drawn only if the basic fact is proven beyond a reasonable doubt. Once again, the defendant failed to preserve this claim at the trial level and, argues that the claim is reviewable under State v. Evans, supra. We accept the defendant’s argument that any instruction which tends to undermine the state’s burden of establishing every element of the offense beyond a reasonable doubt facially implicates a fundamental constitutional right. State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983); State v. Peay, 13 Conn. App. 578, 581, 538 A.2d 708 (1988); State v. Biggs, 13 Conn. App. 12, 20, 534 A.2d 1217 (1987). Here, however, there was no such misleading instruction. The defendant has failed to point to even one case, nor do we know of one, which holds that a court is required specifically to instruct the jury that an inference can be drawn only if a subordinate fact is proven beyond a reasonable doubt. The instructions were not misleading or confusing. Thus, there is no record sufficient to raise a claim of constitutional dimension and we decline to review it further.

The defendant also requests that we review under State v. Evans, supra, another portion of the court’s instruction that was not objected to. This portion of the charge was as follows: “Whatever you do, don’t create any issues for yourself. Trade views, listen to the others, make your own point of view known, but don’t create any issue that has not been put forward by the lawyers. Believe me, they are very, very capable of putting before you whatever you need to know. For instance, don’t go in there and start speculating about some third party being involved in these things a fourth party or fifth party or sixth party. You know what the state is claiming. You know what the defendant was cross-examined on.” The defendant asserts that this instruction created a “mandatory burden-shifting presumption” which “placed on defense counsel the burden of pointing out the basis of a reasonable doubt before such doubt could be considered by the jury.” The defendant’s argument in this portion of the brief is barely comprehensible, but the thrust of his argument is that the instruction operated to deprive the defendant of his right to a fair trial and to have a jury determine whether the state had proven beyond a reasonable doubt each element of the offenses charged and to have issues of fact decided by a jury not by the court.

We accept that the defendant’s claim facially implicates a fundamental constitutional right. Giving the record the limited review afforded it under the second step in our Evans analysis, however; see State v. Thurman, supra, 306; we find that this claim is not truly of constitutional dimension, but rather is characterized as such by the defendant. The trial court’s instructions, by its very terms, expressly allowed the jury to consider any theory or claim put forth by the defendant. Moreover, the court clearly instructed the jury that it was permissible to entertain “doubt that is based on reason and [that] grows out of the evidence or the lack of evidence,” and if it did, it could not convict the defendant. His claim that the charge that the jury not engage in speculation somehow undercut his right to a fair trial and to have the state prove each element of the offense beyond a reasonable doubt is simply not supported by the record. State v. Foshay, 12 Conn. App. 1, 23, 530 A.2d 611 (1987).

V

Error Relating to the Prosecutor’s Conduct During Closing Argument'

The defendant next claims that pervasive misconduct on the part of the prosecutor during closing argument so “inflamed and diverted” the jury as to deny him his state and federal due process rights, his right to a fair and impartial jury, and his right to confront and cross-examine witnesses against him. The defendant concedes that this issue was not preserved for appellate review and, once again, maintains a claim is reviewable under State v. Evans, supra, as well as plain error. State v. Williams, 204 Conn. 523, 536, 529 A.2d 653 (1987). Specifically, the defendant alleges that the record adequately supports five separate categories of misconduct on the part of the prosecutor: (1) he appealed to the passions and emotions of the jury by seeking sympathy for the victim and a state’s witness and by vilifying the defendant; (2) he argued facts not in evidence by acting as an unsworn “expert” witness and implied that the defendant engaged in prior similar misconduct; (3) he opined on the ultimate issue of the defendant’s guilt and on the credibility of a witness; (4) he misstated evidence by arguing evidence only for impeachment purposes as substantive evidence; and (5) he “implied that exercising one’s right to counsel was indicative of the defendant’s guilt by attacking counsel’s claims as tailored to fit the evidence.”

It is well settled that when a defendant does not object and take exception to allegedly prejudicial remarks of the state’s attorney, at the time they are made or at close of argument, the right to press the claimed error is waived; State v. Tyler-Barcomb, 197 Conn. 666, 673, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct 1518, 89 L. Ed. 2d 916 (1986); State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985); unless the remarks constitute a pattern of blantantly egregious misconduct indicating a deprivation of a fair trial. State v. Williams, supra, 537. When counsel fails to request a curative charge, we presume that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was jeopardized. State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983). We have reviewed the record and we do not find that the prosecutor’s remarks were so pervasive, inflammatory or suggestive as to support his claim that he has been clearly deprived of a fundamental constitutional right and a fair trial within the meaning of Evans. Nor do these remarks qualify for review under “plain error.” Practice Book § 4185. The defendant has waived his right to raise his claim of prosecutorial misconduct on appeal. State v. Tyler-Barcomb, supra, 674.

VI

The Constitutionality of Connecticut General Statutes § 53a-217

The defendant challenges General Statutes § 53a-217 as violative of his right to bear arms, to due process and equal protection of the laws, and constitute a bill of attainder and an ex post facto law. The defendant did not raise this issue in the trial court. Our decision in State v. Banta, 15 Conn. App. 161, 180-85, 540 A.2d 91 (1988), is dispositive with respect to this issue. There is no merit to the defendant’s claim.

There is no error.

In this opinion the other judges concurred.

       These claims of error relate to the court’s charge to the jury. The defendant sought review under the rule of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), with respect to two of these and for the other review either as a preserved error or as “plain error” under Practice Book § 4185.

       The defendant also claims that the entire statement given by Groomes was submitted to the jury. The transcript indicates, however, that it was not. The state’s attorney, who prosecuted the case at trial, vigorously urges that that was not what transpired and the condition of the exhibit mark-. ings on the statement support this. In the absence of a clear showing by the defendant to the contrary, we presume the statement was properly excised.