author: LAVERY, J.

text:
    JOANNE ROCAMORA v. PETER HEANEY ET AL. JOANNE ROCAMORA v. ELIZABETH ACTON
    (AC 33610)
    Gruendel, Alvord and Lavery, Js

      Argued November 28, 2012
    —officially released August 6, 2013

      John L. Laudati, with whom, on the brief, was P. Jo Anne Burgh, for the appellant (plaintiff).

      Matthew G. Berger, for the appellees (defendant Peter Heaney et al.).

      Paul M. Geraghty filed a brief for the appellees (defendant John P. Petrillo, Jr., et al.).
   Opinion

LAVERY, J.

In this consolidated action to quiet title, the plaintiff, Joanne Rocamora, appeals from the trial court’s judgments quieting title in favor of the defendants in the first case, Peter H. Heaney, Patricia Heaney Farr, Helen Heaney, and Michael K. Heaney, and the defendants in the second case, Patricia Acton and Marilyn Moss, determining that a map prepared by the defendants’ expert established the boundary lines and titles to the plaintiffs property and three other lots. The plaintiff claims that the court erred in (1) failing to resolve the boundary dispute in a maimer consistent with the expressed intent of the original grantor and the original grantees, (2) finding that the boundary lines were other than those set forth in the map referred to in the deed, because no other map was in the chain of title, (3) admitting another map into evidence even though it was irrelevant and inadmissible hearsay, and (4) finding that the map referred to in the deed could not be scaled. We disagree, and therefore, affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The parties are the owners of lots 11, 12, 13 and 14 depicted on a 1919 map entitled “Plan of Beach Point on West Bank of Niantic River, East Lyme, Conn.” (1919 map). The lots, located between the east side of Elizabeth Street and the Niantic River in the Saunders Point area of East Lyme, were originally conveyed out of property owned by Grace Barnard Smith, at or about the same time in 1919. A complete chain of title for each lot was put into evidence and indicated the following: Lot 11, which is the northernmost of the four lots and is known as 2 Elizabeth Street, is owned by the defendants John P. Petrillo, Jr., and Gail Petrillo as trustees of the Petrillo Real Estate Trust (Petrillo lot). Lot 12, directly to the south of the Petrillo lot and known as 4 Elizabeth Street, is owned by Acton (Acton lot). Lot 13, directly to the south of the Acton lot and known as 6 Elizabeth Street, is owned by the plaintiff (Roca-mora lot). Lot 14, directly to the south of lot 13 along the north side of Round Rock Road, known as 8 Elizabeth Street, is owned by Heaney (Heaney lot). Each of the four original deeds executed by Smith contains a description of the property using metes and bounds and refers to certain monuments on the ground. Each deed also refers to the 1919 map and contains the following condition: “The conditions upon which this deed is granted are as follows: The lines on the map above referred to are agreed upon and accepted by the grantees herein.”

At issue in the quiet title actions are the parties’ conflicting opinions of the location of the boundaries between the properties, and the impact of the boundary locations on ownership of triangular sections of land along those boundaries, especially between the Acton and Rocamora lots and between the Rocamora and Heaney lots. The parties stipulated to, among other items, the following: “The plaintiff asserts that there are boundary discrepancies between the 1919 . . . map, the metes and bounds description referenced in each of the parties’ chains of title, and the monuments on the ground.” According to the court, the dispute arose “because of the quality of the 1919 map and its lack of detail [and] the disparity between that map and the metes and bounds descriptions given in the deeds themselves.” Because of the dispute, each of the parties commissioned its own survey. Each expert prepared his own map depicting what he considered to be the accurate boundaries of all four lots. The plaintiffs surveyor and expert witness, Richard Meehan, placed on his map (Meehan map) the Rocamora/Acton boundary a few feet to the north of where the boundary was placed by the surveyor hired by Heaney and Acton, and placed the boundary with the Heaney lot slightly to the south of where it was placed by the surveyor hired by Heaney and Acton, with the result that the plaintiff would own the disputed triangular slivers along the northern and southern edges of her property. J. Robert Pfanner, the surveyor and expert witness hired by Heaney and Acton, placed the Rocamora/Acton boundary a few feet farther to the south on his map (Pfanner map), with the result that Acton would own the disputed triangular sliver there, and the Rocamora/Heaney boundary a few feet farther to the north, so that Heaney would own the disputed triangular sliver there. The amount of land in dispute increases as the boundaries approach the river, with the result that the Pfanner map assigns more land along the riverfront to the Acton and Heaney lots, and less to the Rocamora lot.

During a two day trial, the court heard testimony from Meehan and Pfanner regarding their respective opinions of where the boundaries lay as well as of the accuracy and reliability of the 1919 map. Each expert’s map was introduced into evidence, and each testified about the methodology he used to conduct his survey. Testimony about the reliability of the 1919 map included the following: it did not meet standards for a class A-2 survey; it contained ambiguities; it did not contain angles; it did not depict the reserve area mentioned in the deed; lines on the map did not agree with deed descriptions; it was “a very poor map, even for 1919”; and it could not be “scaled” accurately. The court also heard testimony from Elizabeth Acton, who testified to finding in a safe deposit box another survey map, prepared in 1920 by the firm Daboll & Crandall (1920 map). That map, also admitted into evidence, depicted substantially the same boundaries as those found by Pfanner. Michael Heaney also testified about the use by the Heaney family of land in the disputed area between the Heaney and Rocamora lots. In addition to the Pfanner, Meehan and 1920 maps, a survey map prepared in 2007 for the plaintiff by Lloyd Pearson, and which also substantially agreed with the Pfanner map, was introduced into evidence. Petrillo introduced into evidence a survey map prepared by another surveyors’ firm, the LRC Group, which depicts only the Petrillo lot, but shows approximately the same boundary between the Petrillo and Acton lots as does the Pfanner map. Only the 1919 map was recorded in the chain of title for any of the four lots.

In its memorandum of decision, the court credited the methodology used by Pfanner, whose survey relied on the metes and bounds descriptions in the deed and the monuments on the ground and found minimal discrepancy between the two. The court rejected the methodology used by Meehan, whose survey relied heavily on the lines on the 1919 map. Accordingly, the court rendered judgment that the titles and boundaries to the four lots in question were those as established in the Pfanner map. This appeal followed.

The plaintiff first claims that the court erred in failing to resolve the quiet title action in a manner consistent with intent of the original grantor and grantees. In support of this claim, the plaintiff argues that because Smith included in the four original deeds an express condition that the 1919 map determined the property boundaries, any lines or boundaries that do not agree with the map must be rejected. We begin with the relevant legal principles concerning the construction of deeds. “[T]he determination of the intent behind language in a deed, considered in the fight of all the surrounding circumstances, presents a question of law on which our scope of review is plenary. . . . The meaning and effect of the [language in the deed] are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the fight of the surrounding circumstances.” (Internal quotation marks omitted.) Simone v. Miller, 91 Conn. App. 98, 108, 881 A.2d 397 (2005).

“In the construction of a deed or grant, the language is to be construed in connection with, and in reference to, the nature and condition of the subject matter of the grant at the time the instrument is executed, and the obvious purpose the parties had in view. . . . [I]f the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity. . . . Furthermore, [a] reference to [a] map in [a] deed, [f]or a more particular description, incorporates [the map] into the deed as fully and effectually as if copied therein. . . . [T]he identifying or explanatory features contained in maps referred to in a deed become part of the deed, and so are entitled to consideration in interpreting the deed as though they were expressly recited therein.” (Internal quotation marks omitted.) Id., 109. “In construing a deed, a court must consider the language and terms of the instrument as a whole.” Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 511, 280 A.2d 877 (1971). This is so not just when the words in a deed are ambiguous, but also when the court determines that a map is unclear or ambiguous. Id.

As demonstrated by this court’s holding in Simone, descriptions on a map referred to in a deed are to be credited “as fully and effectually” as if they were words in the deed. Simone v. Miller, supra, 91 Conn. App. 109. It is true, as the plaintiff contends, that the relevant deeds all refer to the 1919 map and all contain a condition that the grantees agreed to the lines depicted on it. The plaintiff argues that this express condition renders the intent provided in the deed “clear and unequivocal.” It is also true, however, that each original deed contains, after the language of conveyance and immediately after the reference to the map, the words “and bounded and described as follows,” followed by a metes and bounds description of the property boundaries. Those descriptions, which include references to monuments, correspond to the locations of monuments found by Pfanner.

The plaintiff argues that because the deed descriptions do not match the 1919 map, and because of discrepancies in distance ranging from zero feet to two feet between some lines as described in the deed and the corresponding lines that Pfanner found by using monuments, the metes and bounds descriptions that disagree with the 1919 map must be the result of scriveners’ errors. There is no evidence in the record, however, other than the discrepancies themselves, that those descriptions were the result of scriveners’ errors. Additionally, Pfanner testified that the minor discrepancies between the deed descriptions and the monument locations were common at the time the property was originally conveyed by Smith. “[W]here the boundaries of land are described by known and fixed monuments which are definite and certain, the monuments will prevail over courses and distances.” (Internal quotation marks omitted.) Velsmid v. Nelson, 175 Conn. 221, 227, 397 A.2d 113 (1978).

The plaintiff has provided no authority for the proposition that terms and descriptions on a map, even when recorded or made a condition of a deed, take precedence over other descriptive terms or references to monuments in a deed. Instead, our law is clear on the proper method of resolving such discrepancies. “[W]hen a deed sets forth two different descriptions of the property to be conveyed, the one containing the less certainty must yield to that possessing the greater, if apparent conflict between the two cannot be reconciled.” (Internal quotation marks omitted.) Simone v. Miller, supra, 91 Conn. App. 109. “[W]here the testimony of witnesses as to the location of the land described in deeds is in conflict, it becomes a question of fact for the determination of the court which may rely upon the opinions of experts to resolve the problem and it is the court’s duty to accept that testimony or evidence which appears more credible.” (Internal quotation marks omitted.) Har v. Boreiko, 118 Conn. App. 787, 796, 986 A.2d 1072 (2010). “The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact. . . . [An appellate] court does not try issues of fact or pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Id., 795.

After our plenary review of the record, we conclude that the conflicting descriptions in the deeds between the map and the metes and bounds descriptions rendered the intent in the deed unclear, and therefore, the court was correct in considering “any relevant extrinsic evidence introduced by the parties”; (internal quotation marks omitted) Simone v. Miller, supra, 91 Conn. App. 109; to determine the intent expressed in the deed. Because the court’s determination of that intent was based largely on its assessment of each expert’s credibility, we will not overturn it on that basis.

With regard to the plaintiffs second claim, that the Pfanner map and the other unrecorded maps that were in evidence could not be used to determine title because they were not in the chain of title for any of the lots, the plaintiff misstates their relevance to this case. The court did not determine that any of those maps provided notice to the grantees of boundary lines or other elements of title, which was the determinative issue in the cases cited by the plaintiff. See Powers v. Olson, 252 Conn. 98, 109, 742 A.2d 799 (2000); Kulmacz v. Milas, 108 Conn. 538, 144 A. 32 (1928); Marshall v. Soffer, 58 Conn. App. 737, 743-44, 756 A.2d 284 (2000). Instead, the court noted those maps among the many sources of relevant evidence that supported Pfanner’s methodology, making his testimony more credible than that of Meehan. Because those maps were not used provide notice of title, the plaintiffs argument is, therefore, without merit.

The plaintiff next claims that the court erred in admitting the 1920 map, because as an unrecorded map outside the chain of title, it was irrelevant, and because it was hearsay that did not satisfy the requirements of a statement in an ancient document under Connecticut Code of Evidence § 8-3 or a hearsay statement of ancient private boundaries under § 8-6. We are not persuaded. In addition to our conclusion, discussed previously, that the 1920 map was not used to determine or give notice of title or boundaries, we note that our law gives the trial court wide discretion to admit relevant evidence. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on eviden-tiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing [by the party objecting to admission] of substantial prejudice or injustice.” (Citations omitted; internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 406, 880 A.2d 151 (2005). In admitting the 1920 map, the court was not, as the plaintiff argues, interpreting our code of evidence, but rather was determining whether the map met the standards in that code. The plaintiffs arguments in support of her claim challenge the court’s application of our code of evidence to the facts, not its interpretation of what our code requires. We review the admission of this evidence, therefore, for abuse of discretion.

We need not address whether the map properly satisfied either of the two hearsay exceptions under which the defendants sought to have it admitted, because even if the court erred in admitting the evidence, the party challenging its admission “bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) In re Galen F., 54 Conn. App. 590, 601, 737 A.2d 499 (1999). The plaintiff has not done so here. The plaintiffs entire argument for harmful error rests on two assertions, that the map bolstered Pfanner’s credibility and that the court’s reference to it shows “the extent to which the court gave weight to the Pfan-ner map’s agreement” with it. The court referred to the 1920 map only once in its analysis, mentioning it as one of several pieces of evidence that supported Pfanner’s determination of the proper boundaries in question. Pfanner, upon whose testimony the court relied in rendering its judgment, testified that he did not use the 1920 map in conducting his survey, because it had not been discovered yet. The plaintiff has failed to demonstrate that the court’s admission of, and minimal reliance on, the 1920 map created a substantial prejudice or injustice, or, given the other evidence available to the court, that it was harmful at all. Accordingly, we will not overturn the court’s decision to admit it.

Finally, the plaintiff claims that the court erroneously determined that the 1919 map could not be scaled, because Meehan testified that it could be scaled, and because on cross-examination Pfanner admitted that it could be scaled. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 1016, 126 S. Ct. 659, 163 L. Ed. 2d 526 (2005). Although the court did hear testimony that it was possible to scale the map, it also heard the previously mentioned testimony that it could not be scaled accurately or at all. On the entire evidence presented, we are not persuaded that a mistake was committed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court granted a motion to consolidate two quiet title actions commenced by the plaintiff. We refer in this opinion to the defendants in the first action, Peter H. Heaney, Patricia Heaney Parr, Helen Heaney, and Michael K. Heaney, collectively, as Heaney.
      The named defendant in the second action was Elizabeth Acton. At trial, the parties stipulated on the record that Patricia Acton and Marilyn Moss were the real parties in interest and they were substituted as defendants. We refer in this opinion to Patricia Acton and Marilyn Moss, collectively, as Acton.
      The court also approved, with the consent of all parties, the addition of defendants John P. Petrillo, Jr. and Gail Petrillo as trustees of the Petrillo Real Estate Trust, whose property was conveyed by the same owner as the other parties’ property as part of a four-lot subdivision of a single parcel.

       We refer in this opinion to John P. Petrillo, Jr., and Gail Petrillo, collectively, as Petrillo. Sometime after the original conveyances from Smith, Petrillo acquired additional land to the north of their lot that was not part of the original conveyance and not included in the Petrillo lot on the 1919 map.

       The dispute also involved ownership of a reserve area between the four lots and the Niantic River that was conveyed as a common ownership area to the four original grantees by Smith. The parties stipulated that each property owner would have exclusive ownership of that part of the common area adjacent to each owner’s lot, with the boundaries determined by extending to the Niantic River whatever line the court determined to be the boundary between each of the lots.

       A class A-2 survey is one that meets certain standards for linear and angular precision and accuracy as specified in Regs., Conn. State Agencies § 20-300b-ll.

       The surveyors testified in detail about their efforts to “scale” the map, demonstrating in the courtroom the act of measuring a distance on the map and using the distance scale on the map to calculate the actual distance that it depicted.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    VALERIE O’HALPIN v. JAMES O’HALPIN
    (AC 34485)
    DiPentima, C. J., and Gruendel and Alvord, Js.
    Argued April 9
    —officially released August 6, 2013

      James H. Lee, with whom, on the brief, was Valerie O’Halpin, self-represented, for the appellant (plaintiff).

      Samuel V. Schoonmaker TV, with whom, on the brief, was Wendy Dunne DiChristina, for the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Valerie O’Halpin, appeals from the judgment of the trial court dissolving her marriage to the defendant, James O’Halpin. The plaintiff claims that the court improperly (1) failed to hold the defendant accountable for his discovery misconduct, (2) refused to admit evidence of the defendant’s dissipation of marital assets prior to their separation and (3) modified the property award postjudgment by ordering the sale of the former marital residence at a reduced price. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the plaintiffs appeal. The parties were married in New York City on. May 7, 1989. It was the second marriage for the plaintiff and the defendant, and both had grown children from their prior marriages. The defendant retired from his own business in 2004, and the parties traveled extensively from 2004 until their separation in 2009 when the defendant left the marital home. During that period of time, the parties lived largely in excess of their means. The plaintiff commenced this dissolution action on July 2, 2009, and nearly all of the marital assets had been spent by the time the case came to trial in October, 2011. The primary asset remaining was the marital residence located in Stamford.

While this action was pending between July, 2009, and October, 2011, the parties filed numerous pendente lite motions, including, inter alia, motions for compliance and motions for contempt. A discovery master was appointed by the court on June 29, 2010. A few months prior to the scheduled dissolution trial, several motions remained outstanding. The court, Malone, J., was to rule on the discovery issues before the trial commenced, and he heard evidence pertaining to those issues on June 30, August 19, September 30, and the morning of October 4, 2011. After Judge Malone issued his rulings on, inter alia, discovery, the matter immediately proceeded to trial before the court, Emons, J. The trial on the remaining financial issues concluded on October 18, 2011. The parties were afforded the opportunity to submit posttrial briefs, and, on February 28, 2012, the court rendered judgment dissolving the parties’ twenty-two year marriage.

In its memorandum of decision, the court found that the marriage had broken down irretrievably, and the court attributed fault to both parties. The court ordered, inter alia, that no alimony was to be awarded to either party and that each party was responsible for his or her own counsel fees. With respect to the marital residence in Stamford, the court directed that the property was to be listed for sale immediately and that the property was to be sold as soon as practicable. Further, the court ordered the parties to accept the real estate broker’s advice as to the initial listing price and to accept a bona fide offer from any unrelated third party that was within 5 percent of the current listing price. The court additionally specified that “[t]he parties shall reduce the listing price no less than 3 [percent] every forty-five (46) days until such time as the property is sold.” (Emphasis omitted.) The court expressly retained jurisdiction over the sale of the marital residence.

After the plaintiffs motion for reargument and reconsideration was denied by the court, the plaintiff filed her appeal on April 4, 2012. On May 24, 2012, the defendant filed a postjudgment motion that requested that the court reduce the current listing price of the marital residence. At the hearing on this motion, the defendant’s counsel stated that the motion related directly to the court’s order in the dissolution judgment with respect to the sale of the real property. The plaintiff countered that reducing the purchase price would be an impermissible modification of the initial property award. The court responded that, in its February 28,2012 memorandum of decision, it had provided for reducing the fisting price in forty-five day increments until the marital residence was sold. After the court confirmed with the parties that the property had not been sold, the defendant’s counsel called the fisting broker to the witness stand. During her testimony, the broker recommended that the listing price be reduced from $1,259,000 to $999,000.

Following the evidentiary hearing, the court ordered that the fisting price immediately was to be reduced to $1,100,000. The court further ordered that if the marital residence did not sell within thirty days, the fisting price was to be reduced to $999,000, and, thereafter, the fisting price was to be reduced every forty-five days by 3 percent until the property sold. The plaintiff subsequently amended her appeal, claiming that the court’s July 23, 2012 ruling was an improper modification of the initial property award.

I

The plaintiffs first claim is that the trial court abused its discretion by failing to hold the defendant accountable for his discovery misconduct. She claims that she incurred “extraordinary” legal expenses in seeking mandated discovery information from the defendant. She further argues that she filed several motions pertaining to these discovery issues that were not addressed by Judge Malone during the proceedings prior to trial or by Judge Emons during the trial. According to the plaintiff, the corut should have ordered the defendant to pay her attorney’s fees because of his egregious discovery misconduct. See Berzins v. Berzins, 306 Conn. 651, 658, 51 A.3d 941 (2012); Ramin v. Ramin, 281 Conn. 324, 351, 915 A.2d 790 (2007).

The defendant maintains that there are no court orders or determinations that would support an award of attorney’s fees for discovery misconduct. Furthermore, the defendant claims that Judge Malone addressed the plaintiffs allegations of discovery noncompliance during the four day hearing conducted prior to the trial. The defendant argues that Judge Emons properly refused to rehear the issues resolved by Judge Malone. The plaintiff, during the trial before Judge Emons and at oral argument before this court, disagreed with that representation. She insists that Judge Malone did not address all of her discovery claims.

The plaintiff did not order transcripts of the proceedings held before Judge Malone on June 30, August 19 and September 30, 2011. Without those transcripts, it is impossible for us to determine exactly what issues were resolved by Judge Malone over the course of the four day hearing on discovery issues. “It is an appellant’s duty to provide an adequate record for our review, including the transcript and an electronic version of the transcript. See Practice Book §§ 61-10 [and] 63-8 . . . .” Perez v. D & L Tractor Trailer School, 117 Conn. App. 680, 691, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). Without the transcripts of the entire four day hearing before Judge Malone, we are unable to discern the content of the prior proceedings or to conduct a meaningful review of the plaintiffs first claim on appeal. See State v. Germain, 142 Conn. App. 805, 807-808, 65 A.3d 536 (2013).

II

The plaintiffs next claim is that the trial court improperly refused to admit evidence that she offered to prove the defendant’s dissipation of the marital assets prior to their separation. The plaintiff claims that she had intended to show, by documentary evidence and her testimony, that the defendant had closed their joint savings and checking accounts, cashed in two life insurance policies and sold shares of Prudential stock. She argues that he diverted the marital income and savings into new accounts held solely by him or jointly with his daughter in anticipation of the separation and divorce. The defendant claims that Judge Malone addressed the plaintiffs dissipation of marital assets claim; the plaintiff disagrees and claims that Judge Emons improperly refused to consider her evidence during the trial.

We are unable to address this claim of the plaintiff for the same reason set forth in part I of this opinion. Without the transcripts of June 30, August 19 and September 30, 2011, we cannot discern what issues were resolved by Judge Malone with respect to the plaintiffs dissipation claims. Accordingly, we cannot conduct a meaningful review of the plaintiffs second claim on appeal. See State v. Germain, supra, 142 Conn. App. 807-808.

Ill

The plaintiffs final claim is that the court improperly granted the defendant’s postjudgment motion to reduce the listing price of the marital residence. She argues that the court’s ruling was an improper modification of the initial property award. We disagree.

As previously discussed, the court provided for the sale of the marital residence in its memorandum of decision issued February 28, 2012. The court, anticipating that the property might not sell at the price preferred by the parties, ordered that it be fisted at the price advised by the broker and specified that the initial price was to be reduced “no less than 3 [percent] every forty-five (45) days until such time as the property is sold.” (Emphasis omitted.) The court expressly retained jurisdiction over the sale of the marital residence.

We conclude that the court’s July 23, 2012 ruling was an effectuation of the court’s original distribution of the marital property rather than an improper postjudgment modification. “A modification is [a] change; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. ... In contrast, an order effectuating an existing judgment allows the court to protect the integrity of its original ruling by ensuring the parties’ timely compliance therewith.

“Although the court does not have the authority to modify a property assignment, a court, after distributing property, which includes assigning the debts and liabilities of the parties, does have the authority to issue postjudgment orders effectuating its judgment. . . . Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged. . . . Thus, if the . . . motion . . . can fairly be construed as seeking an effectuation of the judgment rather than a modification of the terms of the property settlement, this court must favor that interpretation.” (Citations omitted; internal quotation marks omitted.) Fewtrell v. Fewtrell, 87 Conn. App. 526, 531-32, 865 A.2d 1240 (2005).

“[W]e have recognized that it is within the equitable powers of the trial court to fashion whatever orders [are] required to protect the integrity of [its original] judgment.” (Internal quotation marks omitted.) Buehler v. Buehler, 138 Conn. App. 63, 76, 50 A.3d 372 (2012). In comparing the provisions of the original judgment with respect to the sale of the marital residence with the July 23, 2012 ruling reducing the listing price; see Stechel v. Foster, 125 Conn. App. 441, 447, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011); we conclude that the court’s postjudgment ruling effectuated rather than modified the original property distribution.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff was represented by counsel for nearly two years. On May 6,2011, the plaintiff became self-represented. She represented herself during the proceedings before Judge Malone and during the trial before Judge Emons. She continued to represent herself at the time that she filed her appeal, her initial appellate brief and her reply brief. The issues on appeal, as set forth in this opinion, are as framed in the plaintiff’s briefs. On April 5, 2013, Attorney James Lee was granted permission to file an appearance on behalf of the plaintiff, in addition to the plaintiff’s appearance already on file, and he argued the appeal before this court on April 9, 2013.

       The record reflects that the plaintiff did order a transcript of the October 4, 2011 hearing before Judge Malone. That was the last day, however, of a four day hearing on the outstanding motions addressed to discovery issues.

       During tiie trial before Judge Emons on October 4, 2011, when the plaintiff and the defendant disagreed as to what dissipation claims had been addressed by Judge Malone, Judge Emons asked the plaintiff: “Well, are you requesting that I read the transcript [from Judge Malone’s proceedings] because if I have to go read the transcript and delay this trial and find out that [the defendant’s] counsel is correct, you are going to find one pretty angry judge sitting up here.” The plaintiff responded: “Well then—no, I don’t want—I certainly don’t want that.”

       We do note that Judge Malone expressly found, at the conclusion of the October 4, 2011 hearing, that the defendant properly expended $340,000 claimed as marital assets by the plaintiff.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. EDWARD NELSON
    (AC 33691)
    Robinson, Keller and Bishop, Js.

      Argued May 15
    —officially released August 6, 2013

      Edward Nelson, self-represented, the appellant (defendant).

      Margaret Gaffney Rodionovas, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Nancy Dolinsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Edward Nelson, appeals from the judgment of conviction, rendered following a jury trial, of one count of interfering with an officer in violation of General Statutes § 53a-167a and one count of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). The defendant claims that the trial court improperly (1) denied two motions to dismiss concerning (a) the statute of limitations pursuant to General Statutes (Rev. to 2007) § 54-193 (b), and (b) the unreasonable delay in prosecution in light of General Statutes (Rev. to 2007) § 54-142a (c); (2) rejected his motion in limine to preclude a police officer from testifying regarding testimonial hearsay statements in violation of Crawfordj and (3) violated his due process rights when it rejected his request to charge the jury concerning a “common-law privilege to resist unlawful police conduct” and self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 22, 2006, at approximately 12:39 a.m., Officer David Dogali was patrolling Greenwich Avenue in Stamford in a marked police vehicle when he was flagged down by Anthony Hinton, a security staff employee at Café Bahia, a nearby nightclub. Hinton informed Dogali that a black male had punched a black female in the face during an argument nearby. Hinton then pointed out the defendant to Dogali.

Dogali stopped the defendant and asked him if he had been arguing with a female. The defendant immediately began loudly yelling to Dogali that Dogali had no business talking to him, that he was a law student who knew his rights, and that he did not have to talk to Dogali. Despite Dogali’s attempts to calm the defendant and to explain his reasons for stopping him, the defendant remained enraged and uncooperative, and began to walk away and leave the area. Dogali informed the defendant that he could not allow him to leave the area until he had investigated what had happened. Dogali then asked the defendant to place his hands on a nearby vehicle, but the defendant continued to yell, scream, and resist Dogali.

The defendant’s wife, Patricia Nelson, suddenly charged at Dogali while pointing at the defendant, screaming that she wanted him arrested and that she was pressing charges. The defendant continued to struggle while Dogali informed him that he was under arrest. Because the defendant did not comply with Dogali’s request to put his hands behind his back, Dogali grabbed the defendant’s right arm, placed it behind his back, and attempted to apply handcuffs. Despite Dogali’s repeated commands to stop resisting, the defendant continued to scream that Dogali had no right to arrest him and that he was going to sue Dogali.

Sergeant Thomas Scanlon arrived at the scene while Dogali was still struggling with the defendant. Both Dogali and Scanlon instructed the defendant to stop resisting and Scanlon warned that if he did not comply, he was going to use the Taser gun on him. As the defendant continued to refuse to cooperate, Scanlon used the Taser gun, shocking the defendant on his left leg. The officers were then able to handcuff the defendant and place him in the backseat of a patrol car.

Once in the patrol car, the defendant continued to scream that he was going to sue Dogali, that Dogali’s job was as good as gone, and that he had no business arresting him. Subsequently, when Dogali attempted to process the defendant at the police station, the defendant would not comply physically. He refused to give his address, and, when asked to remove his shirt, he threw it at another officer’s face. The defendant was then handcuffed again before requesting medical attention for his leg.

On his arrest, the defendant was charged with interfering with a police officer, breach of the peace in the second degree, and assault in the third degree. The initial information, dated October 23, 2006, charged the defendant with interfering with an officer and two counts of breach of the peace in the second degree. The state later amended the original information on April 5, 2011, by eliminating one count of breach of the peace in the second degree, on April 19, 2011, by changing the language in one of the charges, and again on May 18, 2011, by adding more details concerning the location of the arrest to the information. The operative information dated May 23, 2011, charged the defendant with one count of interfering with an officer in violation of § 53a-167a, and two counts of breach of the peace in the second degree in violation of § 53a-181 (a) (1). The court instructed the jury, among other things, regarding interfering with an officer and breach of the peace. After deliberations, the jury found the defendant guilty of one count of interfering with an officer and one count of breach of the peace in the second degree. After accepting the jury’s verdict, the court rendered judgment in accordance with the verdict and sentenced the defendant to a total effective sentence of one year incarceration, execution suspended, and one year of probation with conditions imposed, $3000 in fines, and court costs. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant’s first two claims assert that the court improperly denied his two motions to dismiss, filed separately on April 13 and May 3, 2011, on different grounds. Both arguments lack merit.

The following additional procedural history is relevant to our resolution of these claims. After being released on a $2500 bond, the defendant appeared in court for arraignment on October 23, 2006, at which time the state filed an unsigned information setting forth the charges against the defendant. The defendant then appeared in court on November 30, 2006, where he elected to proceed to trial as a self-represented litigant and refused to enter a plea. The court recorded the plea as not guilty and noted a jury trial election. On January 25, 2007, the parties appeared in court for a scheduled pretrial, but the state requested a continuance so it could contact a witness. In response, the court continued the matter to March 16,2007. On March 15, 2007, the state offered to enter a nolle prosequi if the defendant agreed to attend counseling with his wife, but the defendant opted instead to proceed to trial. In response, the court placed the case on the one hour notice trial list. Thereafter, there was no activity in the case from March 15, 2007, until March 31, 2011, when the court canvassed the defendant regarding his decision to proceed without counsel. The record reveals no reason for the four year gap in proceedings. Shortly thereafter, the defendant filed two motions to dismiss on different grounds. In the first motion, dated April 13, 2011, the defendant claimed that a nolle prosequi had entered by operation of law pursuant to General Statutes (Rev. to 2007) § 54-142a (c). The court concluded that § 54-142a (c) was only triggered by the continuation of a case at the request of the prosecution and as the record did not show that the delay was attributable to the prosecution, the court denied the defendant’s first motion to dismiss. In the second motion, filed May 3, 2011, the defendant argued that the prosecutor’s failure to sign the original information rendered the information defective such that the prosecution of his case did not begin within the one year statute of limitations. The court also denied the defendant’s second motion noting that the state had filed a short form information, albeit unsigned, the day after the defendant was arrested. In an articulation filed by the court on May 10, 2012, the court stated that it “did not dismiss the case because it determined that the prosecuting authorities’ failure to sign the information did not deprive the trial court of subject matter jurisdiction.” (Internal quotation marks omitted.)

“[This court’s] review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. . i . Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable legal standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Citation omitted; internal quotation marks omitted.) State v. Golodner, 305 Conn. 330, 338-39, 46 A.3d 71 (2012).

A

The defendant asserts that the court improperly denied his May 3, 2011 motion to dismiss, in which he claimed, among other things, that the prosecutor’s failure to sign the original information, dated October 23, 2006, rendered the information defective such that the prosecution of his case did not begin within the one year statute of limitations as required by General Statutes (Rev. to 2007) § 64-193 (b).

At the outset, we note that a warrantless arrest constitutes the commencement of a criminal prosecution against an arrestee for statute of limitation purposes. See State v. Thrall, 39 Conn. Supp. 347, 350, 464 A.2d 854 (1983). Accordingly, the defendant’s warrantless arrest on the same day as the offenses are alleged to have been committed by him was a “timely prosecution of the defendant” within the one year statute of limitations. See id. Secondly, whether the original information was signed by the prosecutor is irrelevant for purposes of determining whether a prosecution had been timely commenced. Although Practice Book § 36-11 states that an information “shall be signed by the prosecuting authority,” the absence of a required signature on an information is a “waivable, nonjurisdictional defect.” Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 580, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). In reaching that conclusion in Blakeney, this court noted as well that the central purpose of a signature on an information is authentication. Id. In the present case, however, the defendant makes no claim that the prosecuting official lacked authority to prosecute criminal charges against him. Moreover, the prosecutor’s act of pursuing the charges against the defendant “authenticated the information even more effectively than his signature could have done.” Id., 581. Therefore, the court properly concluded that the defect of the unsigned initial information did not affect the statute of limitations and properly denied the defendant’s first motion to dismiss.

B

The defendant also contests the court’s denial of the April 13,2011 motion to dismiss, in which the defendant claimed that because, as of the March 31, 2011 court date, he had not been in court since March of 2007, a nolle prosequi had entered by operation of law pursuant to General Statutes (Rev. to 2007) § 54-142a (c).

General Statutes (Rev. to 2007) § 54-142a (c) provides in relevant part: “Whenever any charge in a criminal case has been continued at the request of the prosecuting attorney, and a period of thirteen months has elapsed since the granting of such continuance during which period there has been no prosecution or other disposition of the matter, the charge shall be nolled as of the date of termination of such thirteen month period and such erasure may thereafter be effected or a petition filed therefor, as the case may be, as provided in this subsection for nolled cases.”

In denying the defendant’s motion, the court noted that General Statutes (Rev. to 2007) § 54-142a (c) was only triggered by the continuation of a case at the request of the prosecution and that the present case had not been delayed on that basis. The record amply supports the court’s conclusions. As the trial court noted, the “nolle clock” is triggered by the prosecution’s request for a continuance. Here, there is nothing in the record to indicate that the four year gap in proceedings is attributable to the prosecuting attorney. Although the prosecution requested a continuance from January 25, 2007, until March 15, 2007, both parties agreed to the continuance because each wanted to further prepare for the case. This request for a continuance has no bearing, however, on the defendant’s claims since the statutorily mandated thirteen month period had not elapsed by the defendant’s next court appearance.

On March 15, 2007, after the defendant elected to proceed to trial, the court placed the case on the “one hour list.” There is nothing in the record to indicate that the delay in proceedings between March 15, 2007, and March 30,2011, was attributable to the prosecution. As the state argues, “it seems unlikely that this statute was intended to punish the prosecutor by extinguishing criminal prosecutions because of delay attributable to Judicial Branch court administration.” Furthermore, our Supreme Court has held that the meaning of “at the request of’ within the statute indicates that the request for a continuance “must be explicit, that is, the overt act of asking for a continuance . . . which [also] reflects an affirmative action by the court that is responsive to some overt action by the state.” (Emphasis in original; internal quotation marks omitted.) State v. Winer, 286 Conn. 666, 678, 945 A.2d 430 (2008). Here, there was no such explicit request by the prosecution nor was there an affirmative action by the court in response.

In sum, there is nothing in the record to indicate that the delay was attributable to the prosecution. We find no error with the court’s conclusion that the provisions of General Statutes (Rev. to 2007) § 54-142a (c) were inapplicable or with the court’s denial of the defendant’s motion to dismiss on that basis.

II

The defendant next claims that the court improperly denied his motion in limine to bar “the prosecution from using any and all testimonial hearsay statements that violate the Confrontation Clause in the Sixth Amendment” and which are contrary to the holding of Crawford. This claim is without merit.

The following additional procedural facts are relevant to our resolution of this claim. The defendant filed a motion in limine on April 13, 2011, requesting that the court prohibit the state from eliciting testimonial hearsay statements from Dogali concerning Hinton’s statements on the night of the incident. The defendant argued that because Dogali would likely testify as to Hinton’s statements, such statements would constitute inadmissible hearsay since Hinton was unavailable for cross-examination at trial. The court denied the motion in limine but stated that it would address any objection raised dining trial and would consider whether limiting instructions to the jury would be appropriate. When Dogali testified at trial, he stated that Hinton had flagged him down, reported an assault, and pointed the defendant out to Dogali. The court admitted Dogali’s testimony over the defendant’s objection, not to prove the truth of anything Hinton may have said to Dogali but simply to explain the basis for Dogali’s subsequent actions. In overruling the defendant’s objections, the court gave two limiting instructions to the jury during Dogali’s testimony, informing the jury that it could not use Hinton’s statements for the truth of the matter asserted, but only as evidence of what Dogali was thinking at the time these events occurred and the circumstances surrounding the events that occurred at that time.

The applicable standard of appellate review concerning a court’s determination of “whether a statement is testimonial and, therefore, subject to the admissibility restrictions of Crawford ... is subject to plenary review.” State v. Kirby, 280 Conn. 361, 378, 908 A.2d 506 (2006). “Although we defer to atrial court’s determination of historical facts and credibility, we review a constitutional legal ruling, i.e. whether a statement is testimonial or nontestimonial, de novo. This is particularly so because the legal ruling of whether a statement is testimonial under Crawford is determined by the standard of an objectively reasonable declarant standing in the shoes of the actual declarant.” (Internal quotation marks omitted.) Id., 379.

In Crawford, the United States Supreme Court held that “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common-law required: unavailability and a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Although the United States Supreme Court declined to explicitly define “testimonial evidence,” it did state that testimonial hearsay is not barred when offered for a purpose other than establishing the truth of the matter asserted. Id., 59 n.9.

It is well settled that statements offered not for the truth of the matter asserted, but for the effect on the listener, are not testimonial hearsay statements. C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 8.8.1, p. 471 (“[statements of others that show effect on the hearer or reader are not hearsay on such issues as notice, intent, reasonableness or good faith on the part of the hearer or reader”); see also State v. Cruz, 212 Conn. 351, 356, 562 A.2d 1071 (1989) (“An out-of-court statement is hearsay when it is offered to establish the truth of the matters contained therein. ... A statement offered solely to show its effect upon the hearer [however] is not hearsay.” [Citations omitted; internal quotation marks omitted.]); State v. Gonzales, 186 Conn. 426, 429, 441 A.2d 852 (1982) (statements made by police officers over police radios were properly admitted to show their effect on listeners).

Hinton’s statements to Dogali on the night of the incident were admitted not for their truth, but solely for their effect on Dogali. As the court instructed the jury, “Mr. Hinton is not here to testify. Any evidence that I allow Officer Dogali to testify to, is not to be used to prove that what Mr. Hinton said happened actually happened. ... You may, however, consider evidence . . . about what Mr. Hinton told [Officer] Dogali as evidence as to what Officer Dogali was thinking at the time that these events occurred.” Because Dogali’s testimony concerning Hinton’s statements was not admitted to prove the truth of the matter asserted, they are not hearsay statements, and, therefore, the testimony raised no legitimate confrontation clause issue. Crawford v. Washington, supra, 541 U.S. 59 n.9. The court thus properly denied the defendant’s motion in limine.

Ill

The defendant finally claims that the court violated his due process rights when it improperly rejected his request to charge concerning a “common-law privilege to resist unlawful police conduct” and self-defense. The defendant’s argument fails.

The following additional procedural facts are necessary for our resolution of this claim. On May 24, 2011, the defendant filed a request to charge, asking the court to charge the jury on the defenses of a “common-law privilege to resist certain types of unlawful police conduct,” self-represented defendants, and self-defense. After the court denied the defendant’s request as to the common-law privilege and self-defense, the defendant excepted to the court’s denial.

“We begin with the well established standard of review governing the defendant’s challenge to the trial court’s jury instruction. Our review of the defendant’s claim requires that we examine the [trial] court’s entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction. . . . While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request. ... If a requested charge is in substance given, the [trial] court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Additionally, we have noted that [a]n [impropriety] in instructions in a criminal case is reversible . . . when it is shown that it is reasonably possible for [improprieties] of constitutional dimension or reasonably probable for nonconstitutional [improprieties] that the jury [was] misled.” (Internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 454-55, 10 A.3d 942 (2011).

The defendant asserts that Dogali was not acting in the “proper performance of his duties,” an essential element of the interference with an officer statute, and that the force used during the arrest, was “excessive and unlawfully applied.” As such, the defendant claims that due process required the court to instruct the jury both on a common-law privilege to resist certain types of arrest, as well as self-defense, where the evidence at trial established that an officer used excessive force.

Our Supreme Court has recognized a limited common-law privilege to challenge an unlawful entry by the police into one’s home “to the extent that a person’s conduct does not rise to the level of a crime.” State v. Brocuglio, 264 Conn. 778, 794, 826 A.2d 145 (2003). In the present case, there was no warrantless entry into the defendant’s home and thus, the defendant was not entitled to an instruction related to this limited common-law privilege. State v. Jackson, 304 Conn. 383, 423, 40 A.3d 290 (2012) (“a trial court should instruct the jury in accordance with a party’s request to charge [only] if the proposed instructions are reasonably supported by the evidence” [internal quotation marks omitted]).

Under our self-defense statute, General Statutes § 53a-23, the illegality of an arrest is not a defense to a charge of interfering with an officer pursuant to § 53a-167a. State v. Davis, 261 Conn. 553, 567, 804 A.2d 781 (2002). “[A] defendant charged with violating § 53a-167a (a) . . . is not entitled to a self-defense instruction. In effect, a detailed instruction that the state must establish that the police officer had been acting in the performance of his duty and that a person is not required to submit to the unlawful use of physical force during the course of an arrest, whether the arrest itself is legal or illegal, stands in lieu of a self-defense instruction in such cases.” Id., 571.

In order to prove a violation of interfering with an officer under § 53a-167a, however, the state must prove that the officer was acting “in the performance of his official duties . . . .” (Internal quotation marks omitted.) Id., 566. Accordingly, the court should instruct the jury to apply General Statutes § 53a-22 (b), which provides the standard for when an officer is justified in using physical force upon another to the extent he reasonably believes it to be necessary. Id., 570. In addition, an instruction regarding reasonable force is required because reasonable force is an essential component in determining whether an officer was in fact acting in the performance of his duties. State v. Baptiste, 133 Conn. App. 614, 627, cert. granted, 304 Conn. 921, 41 A.3d 661 (2012). The question of whether the police officer was in fact acting in the performance of his official duties constitutes a “factual [question] for the jury to determine on the basis of all the circumstances of the case and under appropriate instructions from the court.” (Internal quotation marks omitted.) State v. Davis, supra, 261 Conn. 566.

Here, the record reveals that the trial court did instruct the jury on the requirement that an officer must be acting “in the performance of his official duties” when arresting a suspect pursuant to § 53a-167a. The court instructed the jury in relevant part as follows: “The second element is that the conduct of the defendant occurred while the officer was in the performance of his duties. ... In determining whether the officer was acting in performance of his duties, you must consider another provision of our law that justifies the use of physical force by officers in making an arrest. The statute provides that an officer is justified in using physical force upon another person when and to the extent he reasonably believes such to be necessary to effect an arrest of a person whom he reasonably believes to have committed an offense unless he knows that the arrest or custody is unauthorized. An officer’s use of force to effect the arrest is justified only so far as he reasonably believes that a person has committed an offense. ... A reasonable belief that a person has committed an offense means a reasonable belief in facts or circumstances which if true would in law constitute an offense. If the reasonably believed facts and circumstances would not in law constitute an offense, for example the officer was mistaken that the actions of a person constituted an offense, the officer would not be justified in the use of physical force to make an arrest. It is no defense that the arrest was wrongful as long as the officer reasonably believed that the defendant had committed an offense, that is a person is not permitted to use physical force to resist being arrested even if the person sincerely believes that the arrest is unwarranted by a reasonably identifiable officer. ... If you find that the force used by an officer was not reasonable, you will find that that officer was not acting within the performance of his official duties while attempting to arrest the defendant.” On the basis of our review of the entire charge, we conclude that the court’s jury instructions properly framed the issues and thus, sufficiently protected the defendant’s rights to due process. The defendant’s final claim, therefore, must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

        Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

       The defendant’s wife also was arrested in connection with the same incident for interfering with an officer and breach of the peace.

       It is a common occurrence for the court, in criminal matters, to place a pending case on the trial list with the understanding that the case may be called for trial on short notice.

       The defendant incorrectly asserts that the prosecution began only with the filing of the amended information, dated April 5, 2011. The defendant also claims that the state improperly added additional charges to an amended information pertaining to a different victim without notice to him. This argument has no merit. “Once prosecution of a criminal case has commenced within the time period allowed by the appropriate statute of limitations, the prosecutor has broad discretion in determining what crime or crimes to charge in any particular situation.” (Internal quotation marks omitted.) State v. Thrall, 39 Conn. Supp. 347, 355, 464 A.2d 854 (1983). The defendant has also briefed this claim separately under the guise of a justiciability issue. The defendant also argues that because the statute of limitations had expired, the state was not “aggrieved” and did not have “standing” to bring the case, that no “case or controversy” ever materialized during the one year period before the statute of limitations had expired, and that the “controversy . . . could not be abdicated by judicial power because the legislature prohibited the State from pursuing the prosecution of the defendant beyond one (1) year after defendant’s arrest, [and] there is no relief that the State can obtain as the one (1) year statute of limitations . . . had expired years before the prosecution sought to amend its information on April 5, 2011.” Because we reject the claim that the statute of limitations had expired, we need not address each additional claim individually.

       General Statutes (Rev. to 2007) § 54-193 (b) provides in relevant part: “No person may be prosecuted for any offense ... for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense . . . except within one year next after the offense has been committed.”

       The court noted for the defendant that the appropriate remedy would have been for him to file a motion for a speedy trial, which the defendant did not file until April 5 and April 8, 2011.

       The defendant additionally claims that because Dogali did not personally witness the altercation, the defendant’s wife recanted her assault accusation, and the state subsequently decided not to proceed with the assault charge, Dogali could not have been acting in the proper performance of his duties when he arrested the defendant. Accordingly, the defendant argues that he was entitled to a jury instruction on common-law privilege to resist an unlawful arrest. Because we conclude that there is no common-law privilege to resist an unlawful arrest in this case, this argument also has no merit.

       The defendant’s request to charge on the “common-law privilege to resist certain types of unlawful police conduct” stated the following: “Common-law privilege to resist certain types of unlawful police conduct is a legal defense when an officer’s conduct is egregious. Officer Dogali’s conduct was egregious when he used physical force during his investigation without a reasonable belief that Edward Nelson had committed the crimes of breach of peace and interfering with an officer charges.” The defendant’s request to charge concerning self-defense encompasses standard language concerning self-defense and thus, need not be reproduced here.

       In the written request to charge, the defendant cited no authority to support the notion of a common-law privilege “to resist unlawful police conduct” and cited only State v. Vilchel, 112 Conn. App. 411, 963 A.2d 658, cert. denied, 291 Conn. 907, 969 A.2d 173 (2009), in a footnote with reference to the self-defense portion of the request to charge. Although the defendant provided no statutory authority in support of either request to charge, we refer to General Statutes § 53a-23, which is the self-defense statute, as it is relevant to our analysis.

       We note that in Baptiste, our Supreme Court has granted certification to appeal on the question of whether this court properly concluded that the jury instructions regarding the charge of assault of a peace officer were inadequate in that case. See State v. Baptiste, supra, 304 Conn. 921.


author: SHELDON, J.

text:
    LANCE WARGO v. COMMISSIONER OF CORRECTION
    (AC 33222)
    Robinson, Sheldon and Keller, Js.

      Argued May 20
    —officially released August 6, 2013

      Christopher Y. Duby, assigned counsel, for the appellant (petitioner).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Erika L. Brookman, assistant state’s attorney, for the appellee (respondent).
   Opinion

SHELDON, J.

The petitioner, Lance Wargo, appeals from the judgment of the habeas court denying his petition for a writ of habeas coipus challenging his confinement by the respondent commissioner of correction pursuant to judgments of conviction for murder, arson in the first degree, risk of injury and tampering with evidence on the ground of ineffective assistance of counsel. On appeal, the petitioner contends that the habeas court improperly rejected his claims that his trial counsel was ineffective because (1) trial counsel had a conflict of interest in representing him both on his claim for insurance proceeds in connection with the fire that gave rise to certain of his criminal charges and at his underlying trial on those charges, and (2) his trial attorney did not effectively cross-examine the state’s expert as to the cause and origin of the subject fire. We affirm the judgment of the habeas court.

The following facts, as recited by our Supreme Court, in upholding this court’s affirmance of the petitioner’s conviction on direct appeal, are relevant to our resolution of the petitioner’s claims on appeal. “On November 19, 1994, at approximately 3:19 a.m., Ronald McClain and Sheila McClain, neighbors who lived across the street from the [petitioner] [on Hillside Avenue in Plymouth], awoke to screams from the [petitioner’s] children. Ronald McClain observed an orange glow coming from the left side of the [petitioner’s] house. He also observed the [petitioner’s] two children on the roof of the front porch, a ladder against the front porch and the [petitioner] standing at the bottom of the ladder. [Ronald] McClain called 911 and went downstairs to let the [petitioner and his children] into [McClain’s] home. The children were screaming that their house was on fire and that they could not find their mother [Wendy Wargo]. The [petitioner] stated that his wife was in the house, that he could not get her out and that he did not know if she had come home. The children remained at the McClain home while the [petitioner] and Ronald McClain returned to the burning house. The [petitioner] again stated that he did not know if his wife had come home that evening.

“The firefighters arrived a few minutes later and found the [petitioner] outside the house, confused and attempting to put water on the fire with a garden hose. The [petitioner] told the firefighters that he did not know his wife’s whereabouts. Later, the [petitioner], while he pointed to the den, told fireman Frederick Telke, ‘Yes, she’s in here, she’s in here.’ When asked if he was sure, the [petitioner] walked to the driveway and pointed to his wife’s car.

“Firefighters entered the home and approached the den, where the fire was concentrated, but were unable to remain due to the high temperatures, heavy smoke and unstable floor. The body of the victim . . . was later found in this area. Firefighters also entered the second floor of the house and found only smoke damage. They did not hear any smoke detector alarms.

“Several horns later, Officer Gerald Allain of the Plymouth police department questioned the [petitioner]. The [petitioner] stated that the victim smoked cigarettes and that he recalled the smoke alarms going off. He stated that the thick smoke forced him to his knees [and that] he took the children to the porch roof.

“On November 19, 1994, the [petitioner] gave a signed, written statement to the police. He indicated that the victim slept on the couch because their marriage was ‘on the rocks.’ That same day, the [petitioner] told the victim’s uncle, James Castiola, that he knew what had happened. He stated that the victim had come home, and had lain down on the couch, [near] approximately fifty videotapes. While on the couch, the victim had lit a cigarette and had fallen asleep. The [petitioner] told Castiola that the fire had been accelerated by the videotapes, which cannot be put out when they catch fire.

“State Trooper Kevin McGurk was assigned to determine the cause and origin of the fire. He examined the Wargo home the following morning and determined that the fire originated in the den. McGurk discovered a pour pattern leading up to the area of origin, which indicated that an accelerant had been used. On the basis of his observations, McGurk concluded that the fire had been intentionally set. Other officers executed a search warrant on the Wargo home and retrieved an empty bottle of bleach from the basement and a can of acetone from the storage shed. Joseph Cristino, a forensic analysis engineer, examined the two smoke detectors retrieved from the Wargo home. [Cristino found that it was ‘highly improbable’ that the first floor smoke detector was working at the time of the fire and that, had the battery been connected to the second floor detector, there was a high probability that it would have worked at the time of the fire.]

“A notebook also was seized from the [petitioner’s] bedroom dresser. The parties stipulated that the notes contained therein were written in the [petitioner’s] handwriting. The [petitioner] was a member of the fire brigade at work and had received training in chemical fires and hazardous materials. The [petitioner] was familiar with spontaneous combustion caused by the combination of alkalies and acids. The [petitioner] admitted writing various phrases in the notebook, such as ‘lock box in shed,’ ‘tool box,’ ‘acetone,’ ‘alcohol clorox,’ ‘aim foil,’ ‘dry run,’ ‘rope kds drs,’ ‘straps,’ ‘pillow,’ ‘oil in can,’ ‘rid of stuff,’ ‘glvs,’ ‘hat,’ ‘shirt,’ ‘cigs,’ and ‘ldr.’ The [petitioner] stated that these abbreviations could have been a camping list, but that he did not know why he wrote these abbreviations.” State v. Wargo, 255 Conn. 113, 117-19, 763 A.2d 1 (2000).

The petitioner was convicted of one count of murder in violation of General Statutes § 53a-54a (a), two counts of arson in the first degree in violation of General Statutes § 53a-lll (1) and (4), one count of tampering with physical evidence in violation of General Statutes § 53a-155 (a) (1), and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. As noted, the petitioner’s conviction was affirmed by this court and our Supreme Court.

On July 25, 2005, the petitioner filed this action seeking a writ of habeas corpus on the following bases: (1) that he is actually innocent of the crimes for which he was convicted; (2) that the testimony regarding the cause of the victim’s death was false and unreliable; (3) that his trial attorney provided ineffective assistance because he had a conflict of interest in representing him in a civil contingent fee matter against his homeowner’s insurance carrier and in the criminal matter giving rise to the present habeas petition; and (4) that his trial attorney was ineffective in his cross-examination of the witnesses who testified as to the cause of the victim’s death and the fire science evidence.

By memorandum of decision dated January 20, 2011, the habeas court rejected all of the petitioner’s claims and denied his petition. The habeas court thereafter granted the petitioner’s petition for certification to appeal to this court and this appeal followed. Additional facts will be set forth as necessary.

On appeal, the petitioner challenges only the habeas court’s rulings on his ineffective assistance of counsel claims. “Our standard of review of a habeas corut’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction. . . . That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . .

“To satisfy the performance prong of the Strickland test, the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . .

“With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. ... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citations omitted; internal quotation marks omitted.) Streater v. Commissioner of Correction, 143 Conn. App. 88, 102-104, 68 A.3d 155 (2013).

I

The petitioner first claims that the habeas court erred in rejecting his claim that his trial attorney had a conflict of interest due to the fact that he represented the petitioner in a civil contingent fee matter against his homeowner’s insurance carrier and in the criminal matter giving rise to this habeas petition. Specifically, he contends that his attorney failed to advise him not to cooperate with the insurance investigation in light of the risk that such cooperation posed to the petitioner’s criminal defense, and that his attorney should have moved to suppress certain evidence that was obtained by the insurance company and later forwarded to the state. He further claims that the alleged conflict of interest affected his attorney’s performance in plea negotiations, for it made his attorney less likely to seek a favorable plea offer from the state or to persuade the petitioner to plead guilty because, by so doing, he would have diminished the likelihood that the firm would recover a contingent fee on the claim for insurance proceeds. We disagree.

The habeas court made the following factual findings related to this claim. “On or about November 21, 1994, two days after the fire, the petitioner, on his own, filed a claim under his homeowner’s insurance for fire damage. The next day the petitioner retained Attorney Martin Gold for representation in both the criminal investigation of the fire and the petitioner’s insurance claim. Within several weeks, [M. Hatcher] Norris, of the same firm of Butler, Norris & Gold, became lead counsel on both matters. During this time, the petitioner entered into a contingency agreement with the law firm that provided for the firm to receive a certain percentage of the proceeds of any insurance recovery. Norris had significant experience in trying arson and murder cases. Earlier that year, he was lead counsel in the landmark trial of State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), an arson case in which our Supreme Court later held that a trial court should consider the validity of the methodologies underlying proffered scientific evidence in determining the admissibility of that evidence. Norris was board certified nationally both as a criminal and a civil trial advocate.

“Norris thoroughly and repeatedly advised the petitioner of the risks of going forward with the insurance claim. In particular, Norris informed the petitioner that, to maintain his claim, he would have to give a statement to the insurance company under oath and allow the company to inspect his property, and that anything the petitioner said or provided could be shared with the state and admitted in any future criminal trial. Although Norris did not specifically instruct or advise the petitioner not to pursue the insurance claim, Norris did inform him that it was not in his best interests to do so, and that ordinarily he would not permit any client under investigation for a crime to speak to anyone other than his lawyer.

“The petitioner was adamant, however. He strongly maintained his innocence and insisted on pursuing his insurance claim. Norris did not see any conflict of interest because in both matters the petitioner sought to establish his innocence. Accordingly, at his client’s request, Norris notified the insurance company that it could inspect the petitioner’s house and conduct an examination of the petitioner under oath. The insurance company accomplished these matters between late November, 1994, and February, 1995.

“During its inspection, the insurance company discovered the notebook that contained the petitioner’s writings. The company asked the petitioner about it during the examination under oath. In late 1994 and early 1995, the company turned over all items it obtained from its inspection, as well as transcripts of the examination under oath, to the state fire marshal’s office, at the latter’s request pursuant to General Statutes § 38a-318. . . .

“The petitioner was arrested on March 7, 1995. The petitioner entered into a new retainer agreement with Norris for the criminal case. Meanwhile, the insurance company had not paid the claim as of November, 1995, which was shortly before the one year limitations period would run. Although Norris advised the petitioner against filing suit, the petitioner insisted that he do so. Norris thereupon obtained another contingency fee agreement with the petitioner and filed a timely suit against the insurance company.” (Footnotes omitted.)

On the basis of these facts, the habeas court rejected the petitioner’s ineffective assistance of counsel claims. The habeas court found that Norris had, in fact, advised the petitioner as to the risks associated with cooperating with the insurance company, but that the petitioner had insisted on pursuing his claim for the insurance proceeds. The habeas court concluded that, even if a conflict of interest did exist, there was no legal basis for the suppression of the notebook that was found by the insurance company. The habeas court also found that the petitioner failed to prove that a conflict of interest prevented Norris from effectively engaging in plea negotiations with the state. The habeas court credited Norris’ testimony that he had conveyed the state’s offer of forty-five years incarceration to the petitioner and had explained to the petitioner the strengths and weaknesses of the state’s case. The habeas court found: “Given the petitioner’s resolute opposition to a plea, however, there was nothing else that Norris could reasonably have done to induce a plea.”

On the basis of our review of the record, we conclude that the habeas court’s factual findings and legal conclusions are supported by the record and, thus, that it did not err in concluding that the petitioner was not deprived him of his constitutional right to effective assistance of counsel due to the existence of an alleged conflict of interest.

II

The petitioner also claims that Norris was ineffective in not properly cross-examining the state’s expert as to the cause and origin of the fire. The respondent contends, and the record confirms, that the petitioner has abandoned his claim that Norris ineffectively cross-examined the state’s fire expert. Indeed, the petitioner concedes that Norris’ cross-examination was in conformance with the law as it existed at the time of the petitioner’s criminal trial. The petitioner argues, however, that the holding of State v. Porter, supra, 241 Conn. 57, which was decided a few months after the conclusion of his criminal trial, established new guidelines governing the admissibility of scientific evidence that should apply retroactively to his case. Because a claim that new law should apply retroactively to a criminal trial cannot possibly have any bearing on the effectiveness of counsel's performance during that earlier trial, such a claim cannot be vindicated via a habeas petition claiming ineffective assistance of counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner does not challenge the habeas court’s rejection of his claim that his criminal trial counsel, M. Hatcher Norris, was ineffective in his cross-examination of the medical examiner regarding the victim’s cause of death.

       The petitioner asks this court to adopt a rule providing for the suppression of evidence obtained as a result of an ethical violation by counsel. Because we do not conclude that such a violation existed in this case, we decline the petitioner’s invitation.

       We also note that the petitioner did not raise this Porter issue in his petition and, thus, the habeas court did not address this issue. It is axiomatic that a claim raised for the first time on appeal is not properly before this court.