author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. DAVID BOYD
    (AC 18167)
    Lavery, SchaUer and Hennessy, Js.

      Argued October 19, 1999
    officially released April 4, 2000

      Melvin A. Simon, special public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LAVERY, J.

The defendant, David Boyd, appeals from the judgments of conviction rendered following his conditional pleas of nolo contendere on consolidated informations to two counts’ of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53-202k, one count of assault in the second degree in violation of General Statutes § 53a-60 (2), two counts of illegal possession of a pistol or revolver in violation of General Statutes § 53a-217c, and one count of theft of a firearm in violation of General Statutes § 53a-212. The defendant claims that (1) he was unlawfully compelled by police coercion and duress to waive his fourth amendment right to be free from unreasonable searches and seizures, and (2) the trial court improperly denied the defendant’s motion to suppress. We affirm the judgments of the trial court.

The following facts are relevant to the determination of this appeal. On May 1, 1995, shortly after 9 a.m., the Hartford police learned that a robbery had been committed in a bank parking lot in Hartford. The victim described the assailant as a black male with a large build, wearing a dark coat with a bandanna around his face and brandishing a handgun. At the time of the robbery, the defendant was a suspect in six prior, unresolved robberies of a similar pattern, leading the police to conclude that the defendant might be a suspect in the current robbery.

Robert Garten, a detective with the crimes against persons division of the Hartford police department, learned of the robbery and contacted the defendant’s parole officer, Gary Hyman. Garten told Hyman to contact the defendant. Hyman called the defendant to remind him of a future appointment, and called Garten back. Hyman told Garten that the defendant sounded uncharacteristically winded, out of breath and upset.

Soon after, Thomas Grodecki, an officer with the Hartford police department, arrived at the defendant’s apartment building with three other officers. On Gar-ten’s request, Hyman telephoned the defendant again to inform him that police had surrounded his apartment, that they intended to question him regarding the robbery and that he should cooperate. Grodecki was aware that the defendant had a prior criminal history. Grodecki approached the apartment door with his gun drawn while another officer remained at the base of the stairwell, also with his gun drawn.

The defendant opened his apartment door without prompting. Grodecki, with his gun still drawn, explained why he was there and stated, “I’m not going to hurt you. I don’t want you to hurt me. I’m a grandfather. I’m about to retire.” The defendant then invited Grodecki into his apartment, and Grodecki patted him for weapons. Grodecki observed that the defendant was extremely polite and cooperative. Grodecki was given permission by the defendant for officers to look around the apartment for other people. While walking through the apartment, Grodecki observed a blue and black bandanna scarf that was placed on a radiator. After Grodecki completed his tour, the defendant agreed to let other officers into his apartment.

The defendant agreed to accompany another officer to police headquarters, and Grodecki remained at the scene to secure the apartment. Grodecki went to use the bathroom and saw a small portion of a Fleet Bank deposit slip floating in the toilet. Grodecki notified detectives, and the slip was removed from the toilet so it would not be destroyed.

Officers obtained a search warrant for the defendant’s apartment. The defendant’s apartment, in which he resided with his then girlfriend, was on the second floor of a three-story apartment building. The defendant’s apartment connected to a back porch with a railing in the rear of the apartment building. The defendant’s back porch was further connected by a stairwell to similar porches above and below the defendant’s apartment. A door on the ground floor, which was locked, provided access to the outside. A common staircase provides tenants access to all three floors. Each tenant has items stored on the particular porch area on his or her floor.

While executing the search warrant, an officer entered the second floor back porch of the defendant’s apartment and ascended the stairs to the third floor porch directly above the defendant’s porch. On the third floor porch, the officer saw a bank bag hanging off one of the shelves. The bag contained $3000 and a revolver, the serial number of which matched that of a revolver stolen in a prior robbery.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Citations omitted; internal quotation marks omitted.) State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).

I

The defendant contends that he was unlawfully compelled by police coercion and duress to consent to the search of his apartment. He claims that the officers’ encircling of the apartment building and approaching him with guns drawn created an impermissibly coercive environment vitiating the defendant’s consent. We disagree.

“A warrantless search is not unreasonable under the fourth amendment to the United States constitution when a person with authority to do so has freely consented. State v. Martinez, 49 Conn. App. 738, 743, 718 A.2d 22, cert. denied, 247 Conn. 934, 719 A.2d 1168 (1998). The question of whether a defendant has given voluntary consent to . . . search ... is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the . . . search. State v. Vargas, 34 Conn. App. 492, 496, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994). The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom. State v. Ortiz, 17 Conn. App. 102, 103-104, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988).” (Internal quotation marks omitted.) State v. Story, 53 Conn. App. 733, 737-38, 732 A.2d 785, cert. denied, 251 Conn. 901, 738 A.2d 1093 (1999). “ ‘Whether there was a valid consent to search is a factual question that will not be lightly overturned on appeal.’ ” State v. DaEria, 51 Conn. App. 149, 170, 721 A.2d 539 (1998).

The police did not exert an unduly coercive force over the defendant. Although the presence of drawn weapons is certainly a factor in determining voluntariness; United States v. Erwin, 155 F.3d 818, 823 (6th Cir. 1998) (stressing no weapons displayed in finding consent voluntary), cert. denied, 525 U.S. 1123, 119 S. Ct. 906, 142 L. Ed. 2d 904 (1999); State v. Reason, 263 Kan. 405, 415-16, 951 P.2d 538 (1997); it is not dispositive. The defendant was not greeted with a phalanx of weapons when he opened his apartment door for the police. Rather, one officer had his weapon drawn at the defendant’s door while another with his weapon drawn remained at the bottom of the apartment stairs. See United States v. Smith, 973 F.2d 1374, 1376 (8th Cir. 1992).

Further, the manner in which the police encountered the defendant minimized the potentially coercive effect of their brandished weapons. Here, the armed officers did not rouse the defendant out of bed in the middle of the night; cf. Harless v. Turner, 456 F.2d 1337, 1338 (10th Cir. 1972); break down the door to the defendant’s apartment in the early hours of the morning; cf. United States v. Mapp, 476 F.2d 67, 77-78 (2d Cir. 1973); or use threatening language. See Ex parte Tucker, 667 So. 2d 1339, 1344 (Ala.), cert. denied sub nom. Alabama v. Tucker, 516 U.S. 944, 116 S. Ct. 382, 133 L. Ed. 2d 305 (1995). Rather, the defendant’s parole officer warned him in advance that officers were coming and suggested that the defendant cooperate. Furthermore, Grodecki’s words when first encountering the defendant appear to show that Grodecki was more concerned with his own safety than with intimidating the defendant.

In addition, the defendant, through his words, acts and conduct, revealed that his consent to enter his apartment was given freely. See Poulos v. Pfizer, Inc., 244 Conn. 598, 609, 711 A.2d 688 (1998). The defendant opened his apartment door without the police having knocked first. The defendant was extremely polite and cooperative. The defendant was not taken by surprise— he knew why the police were there when the door opened, having spoken to his parole officer beforehand. After Grodecki began to explain the purpose of his presence, the defendant invited Grodecki inside the apartment. After Grodecki informed the defendant that he was a suspect in a robbery, Grodecki asked the defendant if he could look around the apartment for weapons, other people and contraband. The defendant responded, “I’ve got some problems. I don’t want to have any more problems. You can do whatever you want.” Detective Garten also noted the permission given to him by the defendant to walk through the apartment and stated that the defendant told him that he had nothing to hide. These facts reveal that throughout the time police were present, the defendant provided consent on repeated occasions and showed no signs of being placed under police coercion or duress.

Furthermore, the defendant was not a neophyte in dealing with the criminal justice system. See United States v. Webster, 162 F.3d 308, 333 (5th Cir. 1998) (court stressed defendant’s experience in police procedure), cert. denied, 528 U.S. 829, 120 S. Ct. 83, 145 L. Ed. 2d 70 (1999); United States v. Baker, 78 F.3d 1241, 1244 (7th Cir. 1996), cert. denied, 520 U.S. 1222, 117 S. Ct. 1720, 137 L. Ed. 2d 842 (1997). The defendant, who had previous experience with police criminal procedure and penal institutions, aided the police, cooperated with them, accompanied them into his apartment and treated them as his guests. See State v. Hanna, 150 Conn. 457, 472, 191 A.2d 124 (1963). He displayed the self-assurance of a man confident that such a course would dispel their suspicions and thereby best serve his interests.

As the court noted in its oral decision, “[t]he defendant’s consent was freely and voluntarily given . . . there’s no credible evidence that threats were made, or that cooperation was coerced, or that the defendant’s will was overborne by anyone or any conduct, particularly given his prior history and experience with the system.” We agree. The aforementioned facts, considered separately or cumulatively, do not rise to the level of unlawful police coercion impeding the defendant’s ability to refuse to consent to a search of the apartment.

II

The defendant also argues that the trial court failed to suppress evidence seized without a warrant arising from police entiy into the third floor porch because he had a reasonable expectation of privacy in the evidence seized. We disagree with the defendant, conclude that he possessed neither a subjective expectation of privacy nor an expectation of privacy that society would objectively find reasonable, and explain our reasoning below.

“The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994). Absent such an expectation, the subsequent police action has no constitutional ramifications. State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). In order to meet this rule of standing ... a two-part subjective/ objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . . This determination is made on a case-by-case basis. . . . Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances. . . . State v. Joyce, supra, 20. Furthermore, [t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing; State v. Callari, 194 Conn. 18, 23, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985); and the trial court’s finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law. State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989).” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 92-93, 675 A.2d 866 (1996).

A

The subjective prong of the reasonable expectation test has not received much attention regarding its individual significance and precise interpretation. 1 W. LaFave, Search and Seizure (3d Ed. 1996) § 2.1 (c), p. 388. The subjective test does not rest on the absolute subjective perception of the individual defendant. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); United States v. Taborda, 635 F.2d 131, 137 (2d Cir. 1980) (purely subjective criterion is not appropriate and is not called for by Katz); State v. Mooney, supra, 218 Conn. 94 (subjective inquiry focuses on “whether the individual has exhibited an actual subjective expectation of privacy”). For example, such an interpretation could, in extreme cases, permit the government to strip away subjective expectations of privacy merely by providing repeated warnings of a search or seizure. See Smith v. Maryland, 442 U.S. 735, 740 n.5, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); United States v. Kim, 415 F. Sup. 1252, 1256-57 (D. Haw. 1976); 1 W. LaFave, supra, § 2.1 (c), pp. 387-89.

Rather, a subjective expectation of privacy rests on finding conduct that has demonstrated an intention to keep activities or things private and free from knowing exposure to others’ view. United States v. Taborda, supra, 635 F.2d 137; see also State v. Mooney, supra, 218 Conn. 95. Accordingly, to meet this burden, a defendant must show facts sufficient to create the impression that (1) his relationship with the location was personal in nature, (2) his relationship with the location was more than sporadic, irregular or inconsequential, and (3) he maintained the location and the items within it in a private manner at the time of the search. United States v. Gerena, 662 F. Sup. 1218, 1235 (D. Conn. 1987); State v. Mooney, supra, 96-97 (citing similar considerations).

The defendant has not adduced facts sufficient to show any of those three factors. First, the defendant has not shown that his relationship with the location was a personal one. Only Robin Ruff, the defendant’s then girlfriend, was given permission to access the third floor porch area by the third floor tenants. Ruffs permission was limited to using a clothes dryer located there. For the most part, Ruff dried her clothes and then removed them from the third floor area when she was finished. The defendant provided no evidence that the defendant himself received any kind of permission to use the porch for any reason. Fourth amendment rights are personal rights that cannot be vicariously asserted. State v. Morrill, 197 Conn. 507, 540, 498 A.2d 76 (1985). At most, the defendant articulated a collective interest in the area, derived from Ruffs requests for permission to use the laundry dryer, from the third floor tenants. See United States v. Vicknair, 610 F.2d 372, 379-81 (5th Cir.) (interest must be personal in nature and not merely part of collective interest), cert. denied, 449 U.S. 823, 101 S. Ct. 83, 66 L. Ed. 2d 25 (1980). Such a derivative interest cannot sustain fourth amendment protection.

Second, any interest exhibited, if any such interest existed at all, by either the defendant or Ruff in the third floor porch was sporadic, irregular and inconsequential. The interest was sporadic in that it only possibly existed when Ruff was granted permission each time she wanted to use the clothes dryer. Ruff did not receive general peimission to use the clothes dryer, but asked for permission each time use was needed. The interest was irregular as it did not exist at all during nonwinter months when Ruff chose to diy her clothes on a clothesline. This is particularly significant in light of the fact that the search occurred on May 1, a spring day. The interest was inconsequential as it related to the use of a dryer and no other part of the porch area. See United States v. Garcia, 741 F.2d 363, 366 (11th Cir. 1984) (to sustain reasonable expectation of privacy, defendant’s privacy interest must be significant). Any possible interest that could arise from the defendant’s, or even Ruffs, activities regarding the third floor porch is negligible, if any interest existed at all.

Third, the defendant did not maintain the location and the items within it in a private manner at the time of the search. The bag was located on a shelf, in view of anyone present on the porch, including the officer who discovered the item. The defendant held no ownership interest in the third floor porch area. In sum, the defendant has not shown any evidence that manifests a subjective expectation of privacy in the third floor porch.

B

The second prong of the reasonable expectation of privacy focuses on an objective perspective. As noted previously, a reasonable expectation of privacy under this prong stems from a place where “society is prepared, because of its code and values and its notions of custom and civility, to give deference to a manifested expectation of privacy.” (Internal quotation marks omitted.) State v. Hill, supra, 237 Conn. 94. “The determination of what Connecticut citizens would consider reasonable in the present day ... is made on a case-by-case basis . . . [and] involves a fact-specific inquiry into all the relevant circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Bernier, 246 Conn. 63, 72, 717 A.2d 652 (1998).

Courts have used various factors to consider whether an objective expectation of privacy exists. “Such factors include 1) ownership of or other conventional property interests in the premises or its contents; 2) use of the location as a residence; 3) use of the premises on a regular basis for professional, religious, or business purposes; 4) presence at the time of the search, or at other times; 5) security measures undertaken by the defendant to ensure the privacy of the particular area searched; 6) a defendant’s authority over the premises; 7) a defendant’s ability or right to exclude others from the area; 8) use of the particular location as a repository for the defendant’s personal belongings; 9) a defendant’s subjective expectation that the premises would remain free from Government intrusion; and 10) whether any of the defendant’s interests or efforts taken to ensure privacy were in existence or were undertaken at the time of the search or seizure.” United States v. Gerena, supra, 662 F. Sup. 1253; see also State v. Mooney, 218 Conn. 95-97. Factors such as these “are, of course, relevant as helpful guides, but should not be undertaken mechanistically. They are not ends in themselves; they merely aid in evaluating the ultimate question in all fourth amendment cases—whether the defendant had a legitimate expectation of privacy, in the eyes of our society, in the area searched.” (Internal quotation marks omitted.) State v. Mooney, supra, 97.

Although these factors are not exhaustive, and not every factor is relevant to every consideration, examining these as a whole reveals that the defendant did not have a manifested expectation of privacy in the third floor porch that society would find reasonable. The defendant lacked any property interest in the third floor porch. He did not have permission to use the third floor porch as a storage area. The defendant placed the item in an easily viewable place that could be accessed by other tenants in the building and their guests. State v. Brown, supra, 198 Conn. 357 (expectations of privacy diminished in multiunit buildings because of areas used in common with other tenants); State v. DeFusco, 27 Conn. App. 248, 259, 606 A.2d 1 (1992) (privacy expectations vary according to location), aff'd, 224 Conn. 627, 620 A.2d 746 (1993); see also United States v. Holland, 755 F.2d 253, 255 (2d Cir.) (“established law of this Circuit that the common halls and lobbies of multitenant buildings are not within an individual tenant’s zone of privacy even though they are guarded by locked doors”), cert. denied, 471 U.S. 1125, 105 S. Ct. 2657, 86 L. Ed. 2d 274 (1985). No quantified amount of traffic need be shown through the area to conclude that such an area is outside a protected zone of privacy. Id. Furthermore, the defendant could not exclude others from the area as it was not under his exclusive control. See id., 255-56. The defendant had no objective expectation of privacy in the third floor porch where the bank bag was found.

Accordingly, we conclude that the defendant lacks standing to challenge the warrantless entry of police into the third floor porch area. The trial court, therefore, properly denied the defendant’s motion to suppress.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant was charged by information in two separate criminal cases with six charges related to two armed robberies. The cases were consolidated upon motion of the state.

       The defendant also argues that the conduct of the police in concert with the parole officer created a coercive environment that was overbearing on the defendant The authority cited by the defendant, United States v. Hallman, 365 F.2d 289, 292 (3d Cir. 1966), is distinguishable. In short, Hallman involved the police taking the defendant into custody at the request of his parole officer. Id., 290. Here, the parole officer did no more than call the defendant and tell him to cooperate with the police. No coercive instructions were given. The defendant’s contention thus holds no merit.

         Only after additional prompting by defense counsel did Ruff even claim that any articles were left in the third floor area at all after drying was complete. The trial transcript states:
      “[Defense Counsel]: And what arrangements did you have with [one of the third floor tenants] concerning [the third floor porch] area?
      “Robin Ruff: I asked her, ‘Can I use the facility [from] one time to another?’ She said, ‘Sure, that was okay.’ But I was comfortable enough to use it more than once.
      “Q. And did you ever leave any clothes up there?
      “A. Not really. For the most part, I would dry them, you know, get my items.
      “Q. But occasionally you might have?
      “A. Possibly, yeah.”


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    JACQUES ALL TRADES CORPORATION v. LAVERNE BROWN ET AL.
    (AC 18371)
    Schaller, Hennessy and Mihalakos, Js.

      Argued December 9, 1999
    officially released April 4, 2000

      Mark E. Anziano, with whom, on the brief, were Joseph C. Morelli and Stephen P. Bertucio, for the appellant-appellee (plaintiff).

      Seth Jacoby, with whom was George M. Purtill, for the appellee-appellant (named defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Jacques All Trades Corporation (Jacques), appeals from the judgment of the trial court awarding the named defendant, Láveme Brown, attorney’s fees on her counterclaim that alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., where the court concluded that Jacques had violated CUTPA but found that Brown did not suffer any actual damages. Brown, in turn, cross appeals, claiming that the court improperly (1) calculated attorney’s fees on her CUTPA counterclaim by not awarding fees for those claims that were novel and (2) denied her motion for attorney’s fees pursuant to General Statutes § 42-150bb.

This case is presently before us following a hearing in the trial court, held pursuant to a remand by this court; Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 132, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997); to determine whether Brown was entitled to attorney’s fees. The trial court awarded attorney’s fees to Brown, and Jacques appealed to this court. Brown subsequently filed a cross appeal challenging the denial of certain attorney’s fees. We affirm the judgment of the trial court as to Jacques’ challenge to the award of attorney’s fees on the CUTPA counterclaim and as to Brown’s claim that those fees were improperly calculated. We reverse the judgment as to Brown’s claim for attorney’s fees pursuant to § 42-150bb and remand the case for a hearing as to that issue only.

Jacques had sought to collect payment pursuant to two separate contracts for improvements made in the summer of 1988 to Brown’s home in Hartford. On August 10, 1988, Jacques and Brown entered into a contract (private contract) for certain work, in the amount of $6021, to be done on Brown’s second floor bathroom. On August 26, 1988, Jacques entered into another contract (city contract) for home improvements, which provided for certain work by Jacques to be funded by a rehabilitation program operated by the city of Hartford (city), the other defendant in this case, for the base amount of $20,150. Brown and Jacques were required to use the contract form provided by the city and could not use a private contract form drawn by the contractor. On September 6,1988, Brown agreed to the terms of the city contract.

A conflict arose regarding who would pay if any additional work had to be done to Brown’s home. The city contends that if Brown wanted any additional work done, she would have to pay out of her pocket and would need a written agreement signed by her and Jacques. Jacques alleged that it came to an agreement with Brown regarding additional work and that this agreement was the private contract.

Additional work was required for improvements on Brown’s house, including additional items Brown wanted that exceeded the terms of the city contract. In March, 1989, Jacques paid its subcontractors, and the work was inspected and approved by Brown and the city. Jacques was not paid for its services by Brown or the city.

Jacques brought an action for breach of contract against Brown and the city. On the first count of its complaint, Jacques sought to collect money from Brown for repair and remodeling services. The second count of the complaint was against the city, as stakeholder of certain funds. Brown, in turn, asserted a three count counterclaim, alleging that Jacques (1) breached the contract by failing to complete the work, (2) sought to collect money on a contract that was invalid under the Home Improvement Act (act), General Statutes § 20-418 et seq., and (3) violated the act by committing unfair trade practices pursuant to General Statutes § 42-110b. The trial court rendered judgment for Brown on the first count of Jacques’ complaint and against Brown on the counterclaim.

Both Jacques and Brown appealed from the court’s judgment. This court reversed the judgment and remanded the case for a new trial, concluding that the trial court had misconstrued count one of the complaint when it failed to consider Brown’s liability on the city contract as well as her liability on the private contract. It further concluded that absent the predicate liability of Brown to pay Jacques under the private contract, the city could not be liable to pay the claimed funds in its capacity as a stakeholder. See Jacques All Trades Corp. v. Brown, 33 Conn. App. 294, 635 A.2d 839 (1993).

Following the second trial, the court rendered judgment for Jacques and awarded Jacques the money held by the city, but not the additional damages that Jacques claimed were due under the private contract. The court also rendered judgment for Jacques on the breach of contract count in Brown’s counterclaim. Although the court found that Jacques had violated CUTPA, it declined to award damages to Brown.

Again, both Jacques and Brown appealed from the court’s decision. This court reversed the award to Jacques of the money held by the city and affirmed the denial of Jacques’ claim for additional damages. See Jacques All Trades Corp. v. Brown, supra, 42 Conn. App. 124. This court concluded that the city was not a party to the agreements between Jacques and Brown, that the agreements were not exempt from the act pursuant to General Statutes § 20-428, and that Jacques could not recover the funds held by the city because the agreements were not enforceable under the act. Id. This court also affirmed the trial court’s judgment in favor of Jacques on the breach of contract count in Brown’s counterclaim and affirmed the trial court’s decision not to award Brown damages on the CUTPA claim. Id. In addition, this court remanded the case with direction to the trial court to conduct an evidentiary hearing on the issue of whether Brown is entitled to attorney’s fees with regard to the CUTPA claim. Id.

Jacques petitioned for certification to the Supreme Court, which was granted. Our Supreme Court affirmed the decision of this court. Jacques All Trades Corp. v. Brown, 240 Conn. 654, 692 A.2d 809 (1997). On July 28, 1997, pursuant to our remand, Brown moved for an award of attorney’s fees pursuant to § 42-150bb.

The trial court, on October 18,1997, ruled that Brown was not entitled to attorney’s fees pursuant to § 42-150bb. The court further concluded that Brown was not entitled to attorney’s fees claimed in regard to her first counterclaim, but was entitled to reasonable and necessary attorney’s fees for services rendered solely to prosecute the CUTPA counterclaim in regard to the private contract. Furthermore, the court concluded that Jacques was not entitled to attorney’s fees expended in defending against Brown’s CUTPA claims regarding the first count of her counterclaim.

In February, 1998, an evidentiary hearing was held to determine the amount of attorney’s fees. By memorandum of decision, dated March 16, 1998, the court awarded Brown attorney’s fees in the amount of $19,413.50 for the work performed on the CUTPA counterclaim relating to the private contract. Jacques appealed and Brown cross appealed. Additional facts will be discussed when necessary.

I

Jacques claims that the court improperly awarded Brown attorney’s fees of $19,413.50 on her counterclaim alleging a CUTPA violation when, although the court concluded that Jacques violated CUTPA, it found that Brown did not suffer any actual damages. The plaintiff contends that the court misinterpreted the reasoning of a line of cases in its decision and abused its discretion in awarding fees to Brown in that it did not take into consideration all relevant factors. We do not agree.

“[T]he trial court has broad discretion in determining whether damages are appropriate. ... Its decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Elm City Cheese Co. v. Federico, 251 Conn. 59, 90, 752 A.2d 1037 (1999). General Statutes § 42-llOg (d) provides in relevant part that “[i]n any action brought by a person under [CUTPA], the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. ...”

This was already decided in Brown’s previous appeal to this court, where she claimed that the trial court improperly denied her motion for attorney’s fees without conducting a hearing on that motion. See Jacques All Trades Corp. v. Brown, supra, 42 Conn. App. 130. This court, in holding that Brown was entitled to an evidentiary hearing on the issue of attorney’s fees, stated that “the trial court is not precluded from exercising [its] discretion even if it finds that the plaintiff has not suffered ascertainable damages.” (Emphasis added.) Id., 131. Furthermore, this court went on to state that because “the awarding of attorney’s fees and punitive damages is not determined by the amount of the award or the type of relief granted, there may be some evidence that is collateral or irrelevant to the merits of a claim of CUTPA violation or proof of damages, but nonetheless may be relevant to proving whether attorney’s fees and punitiye damages are warranted. This is such a case.” Id.

This court then remanded the matter to the trial court for an evidentiary hearing to determine the amount of such an award, since the actual award of such fees rests entirely within the discretion of the trial court. Id., 132. In remanding the case, this court implicitly approved such an award under the facts of this case. Furthermore, this remand was upheld by our Supreme Court. See Jacques All Trades Corp. v. Brown, supra, 240 Conn. 657. Because we previously decided this issue, premised on the same facts, Jacques’ claim is without merit.

A

Jacques claims that the trial court improperly awarded Brown attorney’s fees because the trial court misinterpreted the reasoning in a line of cases. Jacques contends that the court mistakenly combined an award of attorney’s fees and punitive damages, which are contingent on different factors. We do not agree.

Section 42-1 lOg (d) provides in relevant part that “the court may award . . . costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .’’This statute clearly states that it is within the trial court’s discretion in deciding whether to award attorney’s fees and that the award is not to be based on the amount of the actual recovery to the party but rather on the work the attorney performed. Furthermore, the party “who establishes CUTPA liability has access to a remedy far more comprehensive than the simple damages recoverable under common law . . . including costs and attorney’s fees . . . and punitive damages. . . . In addition, if a court determines that a practice is unfair or deceptive under CUTPA, it may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief. . . . We have previously acknowledged the importance to the CUTPA scheme of the availability of attorney’s fees and punitive damages. . . . The significance of the broad equitable remedies authorized under CUTPA is underscored by the express language of § 42-110g (d), which, in affording the court discretion to order injunctive and other equitable relief in lieu of damages, contemplates [the party’s] judgments which do not include an award of money damages. . . . These comprehensive remedies, intended to create a climate in which private litigants help to enforce the ban on unfair or deceptive trade practices or acts . . . are significantly broader than those generally available at common law.” (Citations omitted; internal quotation marks omitted.) Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 160-61, 645 A.2d 505 (1994). It is clear from § 42-110g (d) and the controlling Connecticut case law that in this case, the court acted properly in awarding attorney’s fees to Brown because notwithstanding the lack of an award for monetary damages, Brown presented evidence demonstrating the legal work performed with regard to her CUTPA claim.

B

Jacques also argues that the court abused its discretion in awarding attorney’s fees to Brown by not taking into consideration all relevant factors. We do not agree.

When awarding attorney’s fees under CUTPA, the court must consider the following twelve factors: “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.” (Internal quotation marks omitted.) Steiger v. J. S. Builders, Inc., 39 Conn. App. 32, 38, 663 A.2d 432 (1995). “Awarding punitive damages and attorney’s fees under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Citations omitted.) Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987).

Here, the court conducted two hearings on the issue of attorney’s fees, reviewed memoranda of law, and considered documentary and testimonial evidence prior to reaching its conclusion. The court (1) considered the factors enumerated previously, (2) understood the complex nature and long history of the underlying proceeding, and (3) understood the amount in controversy and the time and labor required by counsel for both parties. The court, therefore, did not abuse its discretion in awarding attorney’s fees to Brown.

II

In her cross appeal, Brown first claims that the court improperly calculated her attorney’s fees on her CUTPA counterclaim by not awarding fees for those claims that were novel. She argues that she is entitled to all attorney’s fees that were incurred in the defense of Jacques’ action and the prosecution of her counterclaim. We disagree.

The awarding of attorney’s fees is within the discretion of the trial court, and its decision will not be interfered with unless there was an abuse of discretion. See id. Here, the court ordered Brown’s counsel to provide an itemized account of the time and expense required to litigate the CUTPA claim. Brown subsequently submitted a bill that totaled $19,413.50, a sum that Jacques’ counsel agreed was reasonable. The court awarded Brown $19,413.50 in attorney’s fees incurred in the pursuit of her CUTPA claim, but did not award fees on her other counterclaims.

Brown contends that she is entitled to all attorney’s fees incurred in the defense of Jacques’ action and the prosecution of her counterclaim, relying on § 42-1 lOg (d), which provides in relevant part that “[i]n any action brought by a person under this section, the court may award . . . costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .” This statute, however, relates solely to claims related to the prosecution of a CUTPA claim and not to all claims. In the absence of abuse of discretion, the court can award attorney’s fees under CUTPA only for those expenses that were related to the prosecution of a CUTPA claim. “[G]reat weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . .” Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252 (1983). We conclude that the court did not abuse its discretion.

Ill

Brown next claims on her cross appeal that her motion for attorney’s fees pursuant to § 42-150bb was timely filed and should have been granted. We agree.

Section 42-150bb provides in relevant part that “attorney’s fees shall be awarded as a matter of law to the [party] who successfully prosecutes or defends an action or a counterclaim based upon the contract . . . .” Our Supreme Court in Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 66, 689 A.2d 1097 (1997), held that a consumer who successfully defends against claims by a plaintiff on a contract covered under the act is entitled to attorney’s fees pursuant to § 42-150bb. Rizzo Pool Co. is directly on point with the issue in this case. In Rizzo Pool Co., the plaintiffs claimed that the defendant’s motion for attorney’s fees pursuant to § 42-150bb was untimely because it was not raised in the trial court and had not been preserved on appeal. Id., 61. Our Supreme Court dismissed the plaintiffs timeliness argument, stating that “because the defendants had not been successful [in the trial court], they had neither reason nor opportunity to seek such an award at that time. We do not generally require parties to engage in futile conduct.” Id., 63.

In this case, shortly after successfully defending against Jacques’ claims in our Supreme Court, which finally resolved this matter; see Jacques All Trades Corp. v. Brown, supra, 240 Conn. 654; Brown filed a motion for attorney’s fees pursuant to § 42-150bb. Had Brown filed her motion prior to our Supreme Court’s decision, when she had not yet successfully defended this matter, her motion pursuant to § 42-150bb would not have been proper. Brown’s motion, therefore, was in fact timely and proper. In accordance with Rizzo Pool Co. and the fact that Brown filed her motion after successfully defending against the claims raised by Jacques, we agree with Brown that the court’s decision denying her motion for attorney’s fees pursuant to § 42-150bb was improper. It is necessary, therefore, to remand this case for an additional hearing on Brown’s claim for attorney’s fees pursuant to § 42-150bb.

On the appeal, the judgment is affirmed. On the cross appeal, the judgment is reversed only as to the denial of attorney’s fees under § 42-150bb and the case is remanded for a hearing on the named defendant’s claim for attorney’s fees under that statute.

In this opinion the other judges concurred.

       General Statutes § 42-150bb provides: “Whenever any contract or lease entered into on or after October 1, 1979, to which a consumer is a party, provides for the attorney’s fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded as a matter of law to the consumer who successfully prosecutes or defends an action or a counterclaim based upon the contract or lease. Except as hereinafter provided, the size of the attorney’s fee awarded to the consumer shall be based as far as practicable upon the terms governing the size of the fee for the commercial party. No attorney’s fee shall be awarded to a commercial party who is represented by its salaried employee. In any action in which the consumer is entitled to an attorney’s fee under this section and in which the commercial party is represented by its salaried employee, the attorney’s fee awarded to the consumer shall be in a reasonable amount regardless of the size of the fee provided in the contract or lease for either party. For purposes of this section, ‘commercial party’ means the seller, creditor, lessor or assignee of any of them, and ‘consumer’ means the buyer, debtor, lessee or personal representative of any of them. The provisions of this section shall apply only to contacts or leases in which the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes.”

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       General Statutes § 20-428 provides in relevant part: “This chapter [pertaining to home improvement contractors] shall not apply to any of the following persons or organizations: (1) The government of the state, municipalities of the state or any department or agency of the state or such municipalities . . . .”

       The court, in its memorandum of decision dated March 16, 1998, stated: ‘■[Brown], at. said hearing, submitted an itemized attorney’s bill in the amount of $19,413.50 for the [private] contract .... The itemized bill consists of a fifteen page itemization of all of the hours and parts thereof by the seven lawyers and paralegals who worked on this claim, identifying each increment of time by the initials of the person who performed the work. The hourly rates ranged from $150 per hour from the then experienced attorneys, $100 per hour for associate attorneys and $55 per hour for paralegal work. The court accepts these hourly fees as fair, reasonable, and customary for such professionals in their respective capacities. . . . The court finds that the total amount of time devoted to the [private] contract, 160.12 hours at a charge of $19,413.50, is fair and reasonable. The total bill for all services rendered was $53,605.50. The court determines that [Brown] has clearly demonstrated the amount of fair and reasonable charges for the attorney’s fees for work performed in the [private] contract.....”


author: SPEAR, J. LANDAU, J.,

text:
    STATE OF CONNECTICUT v. RICARDO MILLS
    (AC 17986)
    Landau, Spear and Vertefeuille, Js.
    Argued October 21, 1999,
    officially released April 4, 2000

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Edward Ricciardi, senior assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Ricardo Mills, appeals from the judgment of the trial court, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and assault in the first degree in violation of General Statutes § 53a-59 (a) (3). The defendant claims that the court improperly (1) denied his motions for a mistrial and a new trial, which alleged prosecutorial misconduct in closing arguments and (2) denied his motion to suppress evidence seized pursuant to an allegedly unlawful warrantless arrest. We reverse the judgment of the trial court because of prosecutorial misconduct, affirm the ruling on the motion to suppress and remand the case for a new trial.

The jury reasonably could have found the following facts. On September 16,1996, the victim, Ralph Hickey, and several other persons were visiting Laura Blumberg and James Blumberg in Waterbury. At approximately 6:30 p.m. that evening, the defendant, who was known to the Blumbergs, knocked on the door of their apartment. The defendant, after being invited in by James Blumberg, walked straight over to the victim. After the defendant and the victim began arguing about an incident involving the defendant’s dog, the defendant punched the victim in the face and a scuffle ensued. During the struggle, the defendant picked up a knife and stabbed the victim several times.* *

Shortly after the fight, the victim left with Laura Blumberg to go to Southbury. During the trip, the victim began to suffer the effects of the several stab wounds, and he decided to drive into the Southbury Food Center parking lot in Southbury. Police and medical personnel were called, and they transported the victim to St. Maiy’s Hospital in Waterbury, where he died the next morning.

The jury found the defendant guilty of one count of manslaughter in the first degree and one count of assault in the first degree. This appeal followed.

I

The defendant first claims that the prosecutor made numerous improper statements during closing argument that were so egregious that they deprived him of his constitutional right to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut. We agree.

“ ‘[Our Supreme Court has] previously acknowledged that prosecutorial misconduct can occur in the course of closing argument.’ State v. Atkinson, 235 Conn. 748, 768-69, 670 A.2d 276 (1996).” State v. Satchwell, 244 Conn. 547, 564, 710 A.2d 1348 (1998). “Such argument may be, ‘in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact.’ State v. Fullwood, 194 Conn. 573, 585, 484 A.2d 435 (1984).” State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987).

To review a claim of prosecutorial misconduct during closing argument, “we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) Id. “In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, [our Supreme Court] in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) Id., 540. With these factors as a guide, we now review whether the prosecutor’s conduct denied the defendant a fair trial.

The record in this case discloses a pattern of misconduct during closing argument that was in no way invited by the conduct or argument of the defense. The severity and frequency of the conduct is demonstrated by the fact that the prosecutor continued on his improper course after successful objections by defense counsel. The state’s case in support of the original murder and assault charges was relatively weak. The numerous requests for reinstruction show that the jury had difficulty reaching its decision. Although the defendant was convicted of two lesser offenses, this does not excuse the prosecutor’s conduct.

The prosecutor’s actions were so severe that he was admonished by the court outside the hearing of the jury. In his misguided zeal to convict the defendant, the prosecutor improperly expressed his personal opinions, appealed to the passions and emotions of the jurors, and injected extraneous matters into the case.

A

Expression of Personal Opinion

The prosecutor may not express his opinion, directly or indirectly as to the defendant’s guilt. State v. Williams, supra, 204 Conn. 541. “Such expressions of personal opinion are a form of unsworn and unchecked testimony.” Id. Furthermore, it is not the state’s attorney’s right or duty to stigmatize a defendant. State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

In his closing and rebuttal arguments, the state’s attorney improperly gave his personal opinion on numerous occasions. First, he expressed his opinion that society would be in trouble if the defendant were not found guilty of murder. The prosecutor also attempted to stigmatize the defendant by constantly referring to his acts as vicious or heinous, and by suggesting that the word “back-stabber” was coined because of people such as the defendant. During his initial closing and again in his rebuttal, the prosecutor stated that justice would require a murder conviction. The prosecutor also emphatically gave his opinion that the police had done good work in getting their man.

“These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor. State v. Ferrone, [96 Conn. 160, 168-69, 113 A. 452 (1921)]. The jury is aware that he has prepared and presented the case and consequently, may have access to matters not in evidence; United States v. Modica, [663 F.2d 1173, 1178-79 (2d Cir. 1981), cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; which the jury may infer to have precipitated the personal opinions.” State v. Williams, supra, 204 Conn. 542-44. “As we stated in State v. Ferrone, [supra, 168-69,] ‘[b]y reason of his office, [the prosecutor] usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.’ ” State v. Couture, supra, 194 Conn. 564-65. The prosecutor is held in high esteem by the jury because “ ‘[h]e is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. . . .’ State v. Ferrone, [supra, 168-69].” State v. Williams, supra, 537-38.

The prosecutor’s repeated appeals to the jury that justice required a conviction coupled with the repeated vitriolic references to the defendant could reasonably have been a factor in the jury’s decision to convict. His opinion that society would be in trouble if the defendant were not convicted might also have played a part in the juiy’s decision to convict because of a fear1 that the defendant might strike again if acquitted.

B

Appeals to Emotion

“A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they have the effect of diverting the jury’s attention from [its] duty to decide the case on the evidence.” (Citations omitted; internal quotation marks omitted.) Id., 545. “When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” Id., 546.

In this case the prosecutor improperly appealed to the emotions and sympathies of the jury on several occasions. In one such appeal, he asked that the jury not victimize the victim again. Later in his rebuttal argument, he appealed to the jurors to convict so that evil would not triumph by their inaction. By using such dramatic words, the prosecutor was attempting to color the jurors’ minds with such emotion that they would consider it their duty to convict regardless of the evidence. On occasions throughout the prosecutor’s closing argument, he spoke the victim’s name with such repetition and used such strong, inappropriate language that it could only be inferred that his intent was to appeal to the sympathies and emotions of the jury.

C

Injection of Extraneous Matters

“[A] prosecutor should not inject extraneous issues into the case that divert the jury from its duty to decide the case on the evidence. ... It is improper for the prosecutor to encourage the jury to identify with the victim and to predict the effect of a not guilty verdict . . . .” (Citation omitted.) Id., 547. Although in Williams, the victim was not killed, the rationale for precluding such an appeal to the jury is the same and should not be countenanced.

In this case, the prosecutor consistently encouraged the jury to identify with the victim. He argued that “[y]ou [the jury] wake up, you’re in a cold sweat. What’s wrong, what’s wrong, what’s wrong? Had a nightmare? What was the nightmare? Being accosted by a knife-wielding assailant. There he is. That’s the nightmare that Mr. Hickey, Ralph Hickey, lived. The only difference is, you wake up from your nightmares. Ralph Hickey isn’t ever going to wake up from his, ever.” In his continuing effort to persuade the jury to identify with the victim, the prosecutor argued that the jury should not victimize him twice, that the victim wants justice, that the victim is not a “slab with a toe tag,” that he could not come today to court and tell his story, and that “justice requires for Ralph Hickey a conviction for murder.”

We have scrutinized the entire record of this case. There is no evidence suggesting that the prosecutor’s misconduct was invited by the defense conduct or argument. The errors were severe and frequent, and bore directly on the defendant’s guilt or innocence. The court did, however, give curative instructions directing the jury to disregard the improper argument.

While we do recognize that “[t]he jury, in the absence of a fair indication to the contrary, is presumed to have followed the instructions of the court. State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980); State v. Barber, 173 Conn. 153, 155-57, 376 A.2d 1108 (1977)”; State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); because of the severity and frequency of the offensive misconduct, this is not a case where we can rely on that presumption. See State v. Williams, supra, 204 Conn. 549. The strength of the court’s curative instruction in this case could not overcome the prosecutor’s assault.

In the court’s curative instruction, it suggested that the prosecutor, in his exuberance, misspoke. To misspeak in the excitement of a closing argument is not an inexcusable or uncommon occurrence; however, our constitution does not permit a state’s attorney to proffer a veritable plethora of offending remarks intended to incite an emotional response rather than rational reflection.

The state argues that the facts of this case square with State v. Wilson-Bey, 21 Conn. App. 162, 171, 572 A.2d 372, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990), where we noted that all but one of the prosecutor’s objectionable arguments referred to a charge of which the defendant was acquitted and held that, therefore, the defendant had not been prejudiced by the offensive remarks. The state claims that all of the objectionable statements in this case were aimed at the counts of intentional murder and intentional assault. The state then claims under Wilson-Bey that because the defendant was acquitted of these charges, he was not aggrieved and cannot meet his burden of showing prejudice. We disagree.

The state’s argument that all of the offensive remarks were aimed at the element of intent and did not affect the overall fairness of the trial misses the mark. First, in this case, we do not agree that all of the remarks can be attributed to the intent element of murder. We point especially to the prosecutor’s appeals to the emotions of the jury. See footnotes 12-14. Furthermore, as stated in State v. Williams, supra, 204 Conn. 543-44, the prosecutor in a criminal trial commands great influence on the jury by reason of his office. It is his influence that can lead the jury to decide the case, not on the evidence presented at trial, but on the jury’s reaction to the improper arguments.

In State v. Ubaldi, 190 Conn. 559, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983), our Supreme Court exercised its supervisory authority to order a new trial because of prosecutorial misconduct. The court’s words are also apropos where the misconduct deprives the defendant of a fair trial: “We are mindful of the sage admonition that appellate rebuke without reversal ignores the reality of the adversary system of justice. The deprecatory words we use in our opinions . . . are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice [of verbal criticism without judicial action]—recalling the bitter tear shed by the Walrus as he ate the oysters—breeds a deplorably cynical attitude towards the judiciary.” (Internal quotation marks omitted.) Id., 571. We conclude that a new trial is necessary.

II

Although we will remand this case for a new trial, we will address the defendant’s claim challenging the denial of his motion to suppress because that issue will undoubtedly arise in the new trial.

The defendant claims that it was improper for the court to deny his motion to suppress all evidence that was acquired as a result of an allegedly unlawful, warrantless arrest. The defendant concedes that probable cause for his arrest existed; however, he claims the warrantless arrest inside a private residence and the evidence flowing therefrom constitute an unconstitutional seizure in violation of his federal and state constitutional rights. U.S. Const., amends. IV, XTV; Conn. Const., art. I, § 7. After examining the totality of the circumstances, the court found that there were exigent circumstances permitting the police to act as they did. We agree.

After an evidentiary hearing, the court found the following facts. The Southbury police were summoned to assist the victim at the Southbury Food Center parking lot. The police arrived at approximately 7:45 p.m. and found the dying victim going into shock on the parking lot pavement. Before losing consciousness, the victim revealed that he had been stabbed in Waterbury on Angel Drive by a Jamaican male. Laura Blumberg, a witness to the altercation, was also present at the parking lot.

The police responded to the scene of the crime and seized evidence. The victim was transported to the hospital and taken immediately to the operating room. Waterbmy police officers first arrived at the hospital at about 8:35 p.m. The officers realized that the victim’s wounds were life threatening and subsequently spoke to two eyewitnesses to the stabbing. The two witnesses went immediately to the Waterbury police department, and both identified the defendant as the assailant from a photographic array.

After the identification, four officers proceeded to a Waterbuiy address that the defendant had given when he was arrested earlier that year-. At approximately 9:30 p.m., the police arrived at the Dorchester Avenue apartment. Officer Lawrence Smith and Sergeant Steve Flaherty positioned themselves at the front entrance, and Officer Michael Gugliotti and Sergeant Richard Brown went to the back door. Brown peered through a rear window and recognized the defendant from a photograph that he had observed earlier. When Smith and Flaherty knocked on the front door, Brown observed the defendant run upstairs.

The defendant’s sister, Lorna Mills, answered the door with a pit bull at her side, prompting the officers to draw their guns. The dog subsequently was restrained. The officers put their weapons back into their holsters and asked who had run upstairs. Mills responded by asking why the officers were there. Smith told her that Brown, who was at the back door, would explain if she let him in. She proceeded to the back door and let Brown into her home. After a short discussion, the officers determined that the defendant had gone upstairs. Mills allowed all the police officers to enter the premises.

Smith and Gugliotti proceeded to the second floor of the apartment to look for the defendant. There they saw a fully clothed woman standing in a running shower. She asked them to leave, but at that time the officers obseived the defendant’s leg sticking out at the bottom of the shower. The defendant, wearing only his boxer shorts, was crouched on the floor of the shower enclosure. Jeans belonging to the defendant also were lying on the shower floor. The defendant was taken into custody, transported to Waterbury police headquarters and read his Miranda rights. Later that evening, he gave a statement to police.

The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” “Since article first, § 7, of the state constitution is couched in the same language as the fourth amendment, it should be accorded the same interpretation. Hing Wan Wong v. Liquor Control Commission, 160 Conn. 1, 6 [273 A.2d 709 (1970), cert. denied, 401 U.S. 938, 91 S. Ct. 931, 28 L. Ed. 2d 218 (1971)]; State v. Mariano, 152 Conn. 85 [94-95, 203 A.2d 305 (1964), cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1965)].” Ajello v. Hartford Federal Savings & Loan Assn., 32 Conn. Sup. 198, 207, 347 A.2d 113 (1975). Accordingly, “[w]e have in the past . . . expressed the view that article first, § 7 of the Connecticut constitution provides the same protection as the fourth amendment. State v. Grotton, 180 Conn. 290, 293 [n.3], 429 A.2d 871 (1980); State v. Watson, 165 Conn. 577, 584, 345 A.2d 532 (1973) [cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974)].” State v. Guertin, 190 Conn. 440, 453-54, 461 A.2d 963 (1983).

“It is a fundamental principle of constitutional law that searches and seizures inside a house made without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Guertin, [supra, 190 Conn. 446], Absent exigent circumstances and probable cause for arrest, a person’s house may not be entered without a warrant. Payton v. New York, supra, 590; State v. Guertin, supra [446].” State v. Scott, 27 Conn. App. 403, 406-407, 606 A.2d 720, cert. denied, 222 Conn. 911, 608 A.2d 1184 (1992). “The phrase exigent circumstances refers generally to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. United States v. Campbell, 581 F.2d 22, 25 (2d Cir. 1978).” (Internal quotation marks omitted.) State v. Guertin, supra, 447.

Our Supreme Court has accepted the factors enumerated in Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en banc), as a sufficient test to justify a warrantless arrest on the basis of exigent circumstances. See State v. Scott, supra, 27 Conn. App. 410. Having recognized a number of practical problems with the Dorman factors, however, but without disapproving of their use, our Supreme Court has adopted the test for exigent circumstances enunciated by the Supreme Court of Appeals of West Virginia in State v. Canby, 162 W. Va. 666, 669, 252 S.E.2d 164 (1979). State v. Scott, supra, 409-10. “ ‘The test of exigent circumstances for the making of an arrest for a felony without a warrant ... is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. This is an objective test; its preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe.’ . . . State v. Canby, [supra, 669].” (Emphasis in original.) State v. Guertin, supra, 190 Conn. 453.

The court, following Guertin, found that exigent circumstances did exist. The defendant was accused of committing an assault, a violent crime. The knife used in the stabbing had not been located. Thus, the defendant might still have been armed with it. On the basis of identifications of the defendant by two eyewitnesses, there was probable cause to arrest the defendant. An officer also observed through an open window that the defendant was present in the apartment and that it was likely that he might escape through the open attics of the building. Finally, a family member allowed the police to enter the premises peaceably. Giving particular consideration to the above factors, the court further stated, on the basis of the totality of the circumstances, that there was a real danger of flight. Furthermore, the court stated that because the stabbing could have left blood on the clothing and body of the perpetrator, the defendant, given enough time, would have been able to destroy evidence. Addressing the final Guertin factor regarding the fear that the defendant might endanger the safety or property of others, the court stated: “Not knowing the other occupants of the apartment and knowing that there was probable cause for the arrest of an assault suspect in their midst, the police had the right, indeed, the duty to intervene. Had they not intervened and had an innocent tenant become harmed by the defendant, the police might even have been civilly liable.”

The totality of the circumstances, including evidence that satisfies the Dorman factors, would have led a reasonable police officer to reasonably believe that if an immediate arrest of the defendant were not made, he might escape capture, destroy evidence or harm others or their property. We conclude that the court properly found that the evidence satisfied the test adopted in Guertin. Because the entry was proper, based on exigency, the trial court properly refused to suppress the evidence that was seized as a result of the arrest.

The judgment is reversed, except as to the trial court’s ruling on the motion to suppress, and the case is remanded for a new trial.

In this opinion VERTEFEUILLE, J., concurred.

LANDAU, J.,

dissenting. Although I agree with the majority that the expressions used by the prosecutor during his closing argument were uncalled for, and this court does not want to encourage their use, I respectfully dissent because I do not think reversal is warranted when the standard concerning prosecutorial misconduct is applied to the facts of this case.

“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).” (Internal quotation marks omitted.) State v. Cosgrove, 186 Conn. 476, 488-89, 442 A.2d 1320 (1982). “The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982); State v. Gooch, 186 Conn. 17, 25, 438 A.2d 867 (1982); State v. Turcio, 178 Conn. 116, 143, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); see Practice Book § [42-43]. When a mistrial is sought on the ground that a prosecutor’s improper remarks violated the defendant’s constitutional right to due process of law the same standard applies. See State v. Cosgrove, [supra, 488-89]; State v. Hawthorne, 176 Conn. 367, 372, 407 A.2d 1001 (1978). The burden on the defendant is to show that the prosecutor’s remarks were prejudicial in light of the entire proceeding. See State v. Cosgrove, supra, 488-89; State v. Hawthorne, supra, 372; State v. Kinsey, 173 Conn. 344, 348-49, 377 A.2d 1095 (1977). The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. State v. Cosgrove, supra, 488-89, citing Smith v. Phillips, [supra, 219].” 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).

The following additional procedural facts are necessary to put this case in proper context. The defendant was charged, by way of a long form, substitute information, with murder in violation of General Statutes § 53a-54a, manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and (3), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3). Defense counsel argued to the jury that it could not find the defendant guilty of murder beyond a reasonable doubt. The jury acquitted the defendant of murder, manslaughter in the first degree in violation of § 53a-55 (a) (1) and assault in the first degree in violation of § 53a-59 (a) (1). The jury found the defendant guilty of manslaughter in the first degree in violation of § 53a-55 (a) (3) and assault in the first degree in violation of § 53a-59 (a) (3).

The majority relies on State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987), for the law concerning prosecutorial misconduct. Williams is a case in which our Supreme Court reversed the judgment of the trial court due to a pattern of prosecutorial misconduct. The facts of Williams are substantially different from the facts of this case. In Williams, the defendant was charged with assault in the first degree and risk of injury to a child. Id., 524. All of the evidence was circumstantial, and the credibility of the state’s witnesses was greatly in dispute; one of them was a child. Id., 550. Defense counsel did not preserve the error, and our Supreme Court heard the case pursuant to the second exceptional circumstance of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). State v. Williams, supra, 536.

The Williams court stated: “The record in this case discloses a pattern of misconduct, repeated and strident, by the assistant state’s attorney during both the cross-examination of the defendant and of his key defense witness, and during closing argument. This misconduct falls within at least four categories of proscribed behavior: (1) expressions of opinion by the prosecutor as to witness credibility and the ultimate issue of the defendant’s guilt; (2) suggestions that the jury draw inferences from facts not in evidence; (3) appeals to the passions and emotions of the jurors; and (4) injection of extraneous matters.” Id., 540-41.

The case before us now does not reveal a pattern of prosecutorial misconduct. The defendant’s claims relate to final argument only. Defense counsel objected to the prosecutor’s conduct and moved for a judgment of acquittal and a new trial based in part on the prosecutor’s misconduct. The claims were properly preserved for appellate review. Furthermore, in response to defense counsel’s objections, the court gave curative instructions at the time objections were made and during final argument. In her closing argument, defense counsel addressed the prosecutor’s comments, reminding the jury that the trial was about the defendant, not the victim, and that the defendant was innocent until proven guilty. Defense counsel’s closing argument acknowledges that there was an altercation between the defendant and the victim.

Perhaps the most important distinction between the facts here and in Williams is that the fight between the defendant and the victim was witnessed. None of the witnesses in this case saw a knife, but their testimony was not seriously called into question. There was expert testimony that the victim died as the result of stab wounds. The police captured the defendant fully clothed standing under a shower. The jury convicted the defendant of the lesser manslaughter and assault counts, not murder and the intentional manslaughter and assault counts. The conviction demonstrates that the jury listened to the evidence and to defense counsel. These facts do not demonstrate, in my opinion, that the defendant was not afforded a fair trial and that his constitutional due process rights were violated.

I concur with the majority that prosecutors hold an important position in our judicial system and that they have an obligation to abide unfailingly to our rules of law and practice. Although the prosecutor here may have lost sight of this paradigm in the heat of final argument, I do not believe the facts of this case present us with an appropriate occasion to reverse the judgment of conviction. For these reasons, I respectfully dissent.

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

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

       The defendant also claims that his conviction of reckless manslaughter in the first degree and reckless assault in the first degree violate his federal and state constitutional guarantees against double jeopardy. U.S. Const., amends. V, XIV; Conn. Const., art. I, § 9. We need not address this claim because (1) we do not know if the defendant will be convicted of either or both charges in the new trial and (2) even if he is again convicted of both charges, the state and the defendant agree that double jeopardy could be avoided by the trial court vacating one sentence and combining the conviction in accordance with State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

       None of the witnesses ever saw a knife being used during the fight. The defendant also testified that he did not know the victim was cut during the fight. The jury, however, reasonably could have found, on the basis of the medical examiner’s report, that the defendant did cut the victim. The report indicated that there were four stab wounds. The wounds were to the victim’s right lower chest, abdomen, right buttock and left upper back. The cause of death was certified as a “stab wound of the chest/abdomen.”

       The fifth amendment to the United States constitution provides in relevant part: “No person shall be . . . deprived of life, liberty, or property, without due process of law . . .
      The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”
      The constitution of Connecticut, article first, § 8, provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . .

       Defense counsel objected to improper statements on three occasions during the state’s initial closing argument and twice during the state’s rebuttal argument. The court sustained two of the first three objections and one of the two made during rebuttal argument. The court instructed the jury to disregard the particular arguments after two of the sustained objections. The court also gave a curative instruction during its charge to the jury. At the end of the state’s rebuttal argument, the defense made an oral motion for a mistrial, which the court denied. After trial, the defense again renewed the claim in a request for a new trial, and again this motion was denied.

       After closing arguments were completed and the jury was escorted out of the courtroom, counsel for the defense made an oral motion for a mistrial on the basis of prosecutorial misconduct. The court responded: “Well, I don’t know what’s in the water in Waterbuiy, but I have tried to tell prosecutors and people to be calm, reason, think about what they are saying. [The state’s attorney] on a few occasions, did approach that bridge.”

       The prosecutor stated: “It’s murder, murder based on an unprovoked attack of a man sitting at a table, minding his business. If we allow this to happen, we are all in trouble. If—we could be in somebody’s house and somebody—minding our business, somebody can come in and stab . . . .”

       The prosecutor stated: “This is Ralph Hickey. He had life, like you. He doesn’t have it now. This man took it. Took it in a cruel, vicious, heinous attack. You heard the term back-stabber. I guess we know where that comes from. This is a murder, intentional, heinous, knife-wielding, vicious attack.”

       First the prosecutor stated: “This case—-justice in this case requires a murder conviction and no less.”
      Next the prosecutor stated: “In this case, the state of Connecticut wants justice. And Mr. Hickey wants justice. I can’t go back there with you. But justice requires a conviction for murder.”
      Finally, in his rebuttal, the prosecutor stated: “State of Connecticut wants justice. Justice requires a conviction for murder. And I don’t say it lightly, but it does. And justice requires for Ralph Hickey a conviction for murder.”

       The prosecutor stated: “Police had a killer. They knew who it was. They had witnesses. And they did what they were supposed to do, exactly what they were supposed to do and no less. And we would demand no less. They knew what was done. They knew where it was done. They knew how it was done. And they knew who did it. And they went and apprehended him. It’s good police work. It’s damn, fine, good police work.”

       The prosecutor stated: “The fact that the victim didn’t go to the hospital or was negligent—even if you think he is negligent in not going to the hospital, it’s of no merit. Proximate cause, cause of death, stabbing. By who? Him, nobody else. So, don’t go back there and victimize Ralph Hickey twice . . . .”

       The prosecutor stated: “I want to say one thing in closing, closing/ closing, just paraphrase a little, all that it needs for evil to triumph is for good men and women—
      “[Defense Counsel]: Objection.
      “[Prosecutor]:—to do nothing.
      “The Court: Sustained, sustained. Disregard that particular argument, ladies and gentleman.'’

       The prosecutor stated: “Ralph Hickey, ladies and gentlemen, Ralph Hickey, Ralph Hickey, Ralph Hickey, Ralph Hickey. You know what happens in courts? Not in this court, not in this state’s attorney’s office, Ralph Hickey is not going to be a nameless, faceless, slab of meat on an autopsy table, forgotten. He is not. This is Ralph Hickey. He had life, like you. He doesn’t have it now.”
      The prosecutor later stated: “And the damn case is about Ralph Hickey. That’s another little thing we try to get done here, you know. Forget about the victim, just forget about him. Don’t forget about him. Damn it, don’t forget about him.”

       The court stated in relevant part during its charge to the jury: “There’s been some testimony that’s been excluded or stricken by me. You are not to consider that. In final arguments, I sustained objections or told you not to—or to ignore and strike certain parts of arguments. And you axe to do so. And I will remind you of what they were in just a moment. . . .
      “I have to take a moment now just to make some observations for you. [The prosecutor], in his final argument to you, was quite exuberant, shall we say. What happens when people become exuberant, they sometimes misspeak. I think, as you—frankly, some curse words were inappropriate. But there are other things that concern me a bit more. And I just want to make sure that you understand what the realities of this situation are.
      “Again, exuberance, sometimes people get carried away. He made some references that I want to repeat to you, so that you will not use them. Okay. He talked about a nightmare. Forget about that argument. In that analogy, it’s not appropriate in this particular case. He talked about the victim being victimized twice. That is inappropriate. He said it in exuberance, I am sure, but that’s not an argument to be made to you. You already know you have to make this decision based upon the evidence that you heard, not emotions, not sympathy, facts.
      “He also, perhaps, misspoke and said that justice requires conviction. Justice requires justice. And sometimes justice is a conviction and sometimes justice is not a conviction.
      “He also, at the very end of his argument, tried to use ... a quote [from the English statesman Edmund Burke] about evil, what will happen if people don’t do things. That’s totally inappropriate. And I am asking you to erase that from your minds and stay with the facts, and stay with calm and reason and not emotions in this case. . . .
      “That concludes all I have to say about the charges themselves. I made one omission earlier when I was referring to the final arguments of [the prosecutor], I neglected—also, there was another matter that I found to be improper and I direct you to ignore, and that was [that the prosecutor] was making argument that, with regard to this defendant . . . that there [are] going to be other defendants and so forth and so on. All of that is absolutely impermissible. This case is only about the case that you see in this particular courtroom. Okay.”

       The defendant requested that all the evidence seized from the bathroom of the apartment when he was arrested, the testimonial evidence about his flight up the stairs in the apartment and his subsequent statements to the police be suppressed as the fruit of an unlawful, warrantless entry and arrest.

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
      The constitution of Connecticut, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The test enunciated in Dorman v. United, States, 435 F.2d 385 (D.C. Cir. 1970) (en banc), is comprised of the following factors: “These are (1) that a grave offense is involved, particularly one that is a crime of violence; (2) that the suspect is reasonably believed to be armed; (3) that there is a clear showing of probable cause; (4) that, there is strong reason to believe the suspect is in the premises being entered; (5) that, there is a likelihood that the suspect will escape if not, swiftly apprehended; (6) that the entry, though not consented to, is made peaceably, although forcible entry may be justified in some instances. Another factor to be considered is (7) the time of entry. Id., 392-93. The latter factor may cut both ways. A night entry may, on the one hand, underscore the impracticability of securing a warrant and, at the same time, raise particular concern about its reasonableness.” State v. Guertin, supra, 190 Conn. 449-50.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person ... or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-59 (a) provides in relevant pari,: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such ii\jury to such person or to a third person by means of a deadly weapon or a dangerous instrument ... or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”


author: STOUGHTON, J.

text:
    TOWN OF MIDDLEBURY v. TEAMSTERS LOCAL UNION NO. 677
    (AC 18263)
    O’Connell, C. X, and Landau and Stoughton, Js.

    Argued December 6, 1999
    officially released April 4, 2000

      John T. Fuss ell, for the appellant (Teamsters Local Union No. 677).

      Robert W. Smith, for the appellee (town of Middlebury).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

STOUGHTON, J.

Teamsters Local Union No. 677 (union) appeals from the trial court’s judgment confirming an arbitrators’ award in favor of the town of Middlebury (town). The union claims that the court improperly (1) granted the town’s motion to confirm the award, (2) refused to find that the submission to the arbitrators was restricted and, thus, subject to de novo review, (3) found that the decision of the arbitrators conformed to the submission and (4) failed to find that the arbitrators exceeded their powers or so imperfectly executed them that a material, final and definite award on the subject matter was not made. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The grievant, Ronald Fayer, was employed by the town as the chief mechanic in the town garage. On December 11,1996, the town discharged the grievant, alleging insubordination and theft. On January 26,1998, a panel of three arbitrators, by majority decision, denied a grievance filed by the union on his behalf and concluded that the town had just cause to terminate the grievant. The trial court rendered judgment confirming the award, and the union filed this appeal.

The union and the grievant were parties to a collective bargaining agreement covering the town’s public works department employees. Article II of the agreement provides, in part, that “the management . . . manning . . . and direction of the working forces will vest solely in the employer, including the right . . . for proper cause to discipline and discharge . . . employees . . . .” Article IX describes the grievance procedure to be followed in the event of grievances or disputes between the parties. It provides, in part, that if a dispute as to the interpretation and application of clauses in the agreement is not otherwise resolved in accordance with the procedures set out in the agreement, either party may submit the matter for arbitration to the state board of mediation and arbitration according to its rules and regulations. Article XV provides, in part, that the employer may immediately discharge employees for theft.

The town offered as evidence of theft three invoices billed to the grievant but submitted to the town for payment, two prior invoices billed to the town for the grievant’s personal automobile parts, and approximately sixty invoices for missing parts and parts that could not be accounted for. The union claimed that (1) the termination was based solely on the three invoices, (2) the town, without prior notice, expanded its basis for termination and (3) the additional grounds were the subject of a prior arbitration in which the grievant had been exonerated. See footnote 3. It claimed further that it was common practice for the mechanics at the garage to order parts for their own use, which would be delivered to the town with an invoice identifying the mechanic as the customer. It claimed also that the payment by the town for parts delivered to the grievant resulted from an honest mistake and that the grievant paid for the parts when the mistake was discovered. In addition, the union contested the claims made by the town that the grievant received all invoices, and that his job description required inventory control and the use of work orders for most of the parts involved. A majority of the arbitration panel concluded, however, that the town had sustained its burden of proof and that it had just cause to terminate the grievant.

The trial court did not file a memorandum of decision but noted that the application to vacate the award was denied “pursuant to Garrity v. McCaskey, 223 Conn. 1 [612 A.2d 742] (1992),” and confirmed the arbitration award. On appeal, the union claims, inter alia, that the award does not conform to the submission. It claims specifically that the subject matter of the submission was the discharge of the grievant for theft, that the evidence of theft presented at the pretermination hearing related to three specific invoices and that the arbitrators were restricted to consideration of those three invoices. It claims further that despite this alleged restriction and without prior notice, the panel, in violation of principles of res judicata, considered two invoices relating to an earlier charge of theft against the grievant, which had been the subject of a previous arbitration between the parties in which the grievant was exonerated. The union claims that consideration of those two additional invoices by the arbitrators amounted to an egregious misperformance of duty. We do not agree.

“When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission.” (Citation omitted.) Id., 4.

We agree with the implicit finding of the trial court that the submission in this case was unrestricted. Accordingly, our review is limited to a comparison of the award with the submission; Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338-39, 555 A.2d 406 (1989); and the union is not entitled to de novo review. We do not review the evidence on the arbitrators’ decision of the legal questions involved. See Caldor, Inc. v. Thornton, 191 Conn. 336, 340-41, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985).

Here, the issue submitted to the panel of three arbitrators was: “Did the Employer have just cause to terminate [the grievant]? If not, what shall the remedy be?” A majority of the panel concluded that “the Town sustained its burden of proof. . . . We find that while there was a practice of mechanics’ ordering parts for their own use and . . . accepting delivery for those parts at the Town Garage, bills for those parts were not to be submitted to nor paid by the Town. The evidence indicates that the only person to submit such bills was the Grievant. It is further troubling that the Grievant had more than one opportunity to review the invoices before submitting them to the Town for payment. . . . [T]he Town had just cause to terminate the Grievant, and . . . the grievance should be denied.” Because we determine that the submission was unrestricted and the award conformed to the submission, we do not need to address the union’s other claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The caption in this case, which was taken from the application to vacate, incorrectly lists the applicant union as the defendant. We refer to the parties by their names in this opinion.

       The grievant had been discharged by the town previously, on April 3, 1996, for insubordination and theft. The grievant’s challenge to that discharge was arbitrated on August 9, 1996, and a decision on the theft charge was rendered in the grievant’s favor. Thereafter, the town was ordered to reinstate the grievant.