author: Landau, J.

text:
    Lafayette Bank and Trust Company v. Charles Szentkuti et al.
    (10271)
    Norcott, Landau and Heiman, Js.

      Argued January 16
    decision released March 10, 1992

      Norman J. Voog, with whom, on the brief, vías Allen Gary Palmer, for the appellants (named defendant et al.).

      Edward R. Scofield, with whom, on the brief, was Alfred J. Jennings, Jr., for the appellee (plaintiff).
   Landau, J.

This is an appeal from a judgment of foreclosure by sale. The defendants claim that the trial court abused its discretion by rendering a judgment of foreclosure by sale rather than a judgment of strict foreclosure with a lengthy law day as had been requested by the plaintiff and the defendants. The defendants also claim that the trial court judge who presided over the two valuation hearings should have disqualified himself from the second hearing. We affirm the judgment.

The following facts are relevant to this appeal. The plaintiff bank instituted the present foreclosure action against the defendants. In March, 1991, the court conducted a hearing to determine the value of the subject property. Counsel for the defendants, although aware of the hearing, was not present. In his absence, the court concluded that the value of the property was $775,000, rendered a judgment of foreclosure by sale and set a sale date approximately six months later. The defendants filed a motion to open and vacate the judgment, which was granted by the court. A new hearing was ordered. Upon the second valuation hearing, the same court again found that the value of the property was $775,000, although the defendants’ appraiser had testified that the property was worth more than this amount. The court rendered a judgment of foreclosure by sale, setting the sale date at just over five months later.

It is well settled in Connecticut that “whether a mortgage is to be foreclosed by sale or by strict foreclosure is a matter within the sound discretion of the trial court.” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 184, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985); General Statutes § 49-24; see also Fidelity Trust Co. v. Irick, 206 Conn. 484, 488, 538 A.2d 1027 (1988). The defendants point us to nothing in either the record or the transcript that supports their claim that the trial court abused its discretion in rendering a judgment of foreclosure by sale, nor did our independent review reveal any abuse of discretion. Moreover, critical to the determination of whether the trial court has abused its discretion in rendering judgment of foreclosure by sale rather than strict foreclosure is whether there is substantial equity in the subject property, and whether the sale would generate enough cash to satisfy the junior creditors. See Fidelity Trust Co. v. Irick, supra. Here, the court valued the subject property at $775,000. The debt owed the foreclosing mortgagee was $517,125. The amount owed the two senior mortgagees amounted to approximately $48,000. Thus, the amount remaining after payment to the above creditors totaled approximately $200,000. The remaining debts owed to the junior encumbrancers included $545,000 owed to the defendant Connecticut National Bank (CNB). CNB, however, previously had attached property owned by the defendants that was valued at over $2,000,000. Thus, there was no doubt that the $200,000 remaining from the sale, about 36 percent of the total debt owed to CNB, along with any proceeds from the sale of the other attached properties, would generate sufficient cash to satisfy the debt owed CNB.

The determination as to the fair market value of the premises rests within the sound discretion of the trial court; Hartford Federal Savings & Loan Assn. v. Tucker, supra, 183; as do all of the decisions regarding the terms of the judgment of foreclosure. Fidelity Trust Co. v. Irick, supra, 490-91; Connecticut Savings Bank v. Burger, 23 Conn. App. 192, 195-97, 579 A.2d 1097 (1990). “[Njothing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” (Internal quotation marks omitted.) Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 621, 495 A.2d 1006 (1985). With respect to the value of the property, the testimony of the plaintiff’s appraiser amply supports the court’s adoption of his testimony. The court, therefore, did not abuse its discretion in crediting the testimony of the plaintiff’s appraiser. With respect to the court’s determination as to the sale date, we similarly find no abuse of discretion.

The defendants also claim, relying on General Statutes § 51-183c, that the judge who presided over the first valuation hearing should have disqualified himself from the second hearing on the same matter. The defendants argue that, although it was never raised below, § 51-183d authorizes us to review this claim. We disagree.

The defendants’ reliance on General Statutes §§ 51-183c and 51-183d is misplaced. Section 51-183c unambiguously applies exclusively to “trials,” as distinguished from pretrial or short calendar matters. Section 51-183d applies in cases where it is undisputed that the trial court judge has been disqualified from presiding over a case, not where the issue is whether he should have been disqualified.

Statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law. Bannon v. Schwartz, 215 Conn. 633, 577 A.2d 1025 (1990); Shortt v. New Milford Police Department, 212 Conn. 294, 302, 562 A.2d 7 (1989); Commissioner v. Freedom of Information Commission, 204 Conn. 609, 621, 529 A.2d 692 (1987); Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 134, 479 A.2d 231 (1984); State v. Murtha, 179 Conn. 463, 466, 427 A.2d 807 (1980); Doe v. Institute of Living, Inc., 175 Conn. 49, 58, 392 A.2d 491 (1978). If two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both. Hirschfeld v. Commission on Claims, 172 Conn. 603, 607, 376 A.2d 71 (1977).

In accordance with these guidelines, we conclude that the valuation hearing did not constitute a “trial” as interpreted by our courts. Thus, General Statutes § 51-183c is inapplicable and the judge need not have disqualified himself from presiding over the second valuation hearing. The term “trial” is defined in a criminal case as a “judicial proceeding at which the guilt or innocence of the defendant to the offense or offenses charged is to be determined.” Practice Book § 1021 (11). No parallel definition exists with respect to civil cases. We, therefore, look to the General Statutes and the rules of practice to deduce what the term encompasses in the context of a civil case.

The legislature’s use of the term “trial” in General Statutes § 51-183c, rather than the more general term “proceeding,” as used in § 51-183d, must be viewed as intentional in light of the presumption that the legislature is aware of the existence of the rules of practice and other legislation and intended to create a consistent body of law. In order to construe these two statutes as consistent with each other we must accord each term a different meaning. The organization of the rules of procedure in civil cases; Practice Book §§ 8 through 591; is illustrative in our attempt to determine what the legislature envisioned the term “trial” to embrace. The rules of practice address pretrial matters; Practice Book § 262 et seq.; short calendar matters; Practice Book § 205 et seq.; and trial matters; Practice Book § 283 et seq.; separately. It is, therefore, reasonable to conclude that the legislature, aware of the judicially enacted rules of practice, intended that each type of proceeding be treated separately. It is apparent that the legislature intended General Statutes § 51-183c to apply solely to trials and not to all types of adversarial proceedings. The term “trial” was not intended to include either pretrial or short calendar proceedings. The valuation hearing was a short calendar proceeding governed by the rules applicable to such proceedings, not a trial governed by the rules applicable to trial proceedings. The presiding judge, therefore, was not required to disqualify himself from conducting the second hearing on the same matter. Because the presiding judge was not required to disqualify himself under § 51-183c, he is not a “disqualified judge” as embodied in § 51-183d, and thus § 51-183d is inapplicable.

The failure to raise a disqualification issue at trial will bar its review on appeal except in the exceptional circumstance where such “an accusation of actual prejudice has been made against a judge, striking at ‘the very core of judicial integrity’; Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 501, 101 A.2d 500 (1953) . . . .” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 517, 508 A.2d 415 (1986). No such accusation has been made here.

The judgment is affirmed.

In this opinion the other judges concurred.

       The property in question is owned by the named defendant and the defendant Vija Szentkuti. They gave the plaintiff a mortgage on their property to secure their guarantee of a loan to the defendant C. V. Construction Company. Connecticut National Bank and the law firm of Gladstone, Schwartz, Baroff and Blum claim interests in the property by virtue of a certificate of attachment and a mortgage deed respectively. In this opinion, we 'will refer to the appellants, the named defendant, the defendant Vija Szentkuti and the defendant C. V. Construction Company, as the defendants.

       Both the plaintiff and the defendants requested that the court render a judgment of strict foreclosure. One of the defendants, Connecticut National Bank, requested that the court render a judgment of foreclosure by sale.

       If the trial court had accepted the defendants’ testimony of the value of the property, an even greater amount would have been available to pay the remaining creditors.

       General Statutes § 51-183c provides: “No judge of any court who tried a case without a jury in which a new trial is granted, or in which the judgment is reversed by the supreme court, may again try the case. No judge of any court who presided over any jury trial, either in a civil or criminal case, in which a new trial is granted, may again preside at the trial of the case.”

       Genera! Statute § 51-183d provides: “If a judge acts in any legal proceeding in which he is disqualified, the proceeding shall not by reason thereof be void, but such action shall constitute an irregularity of which advantage may be taken on appeal or, where no appeal lies, by proceedings in error.”

       See Practice Book § 206.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Lynn Goytizolo v. Trudy Moore
    (9798)
    Dupont, C. J., Lavery and Landau, Js.
    Argued November 1, 1991
    decision released February 28, 1992

      Trudy Moore, pro se, the appellant (defendant).

      Kevin P. Thornton, with whom was Michele A. Caul-field, for the appellee (plaintiff).
   Dupont, C. J.

The defendant, Trudy Moore, appeals from a judgment of the trial court ordering her to convey certain real property to her daughter, the plaintiff, Lynn Goytizolo. The issues of this appeal are (1) did the defendant create an irrevocable trust for the benefit of the plaintiff, (2) was the defendant’s husband an indispensable party, (3) did the trial court abuse its discretion in weighing the credibility of certain testimony and in making certain evidentiary rulings, (4) did the trial judge’s illness during trial cause a delay that prejudiced the defendant’s right to a fair trial, and (5) did the trial court’s memorandum of decision evidence bias and prejudice against the defendant.

On June 23,1955, the defendant purchased a parcel of real estate located in Southbury for $1500, which was deeded to her in fee simple absolute. She purchased the land with her own funds. Two months later, on August 12,1955, she conveyed by quitclaim deed that same property to her mother, Bergliot Holm-Hansen, “in trust for Lynn Holm-Hansen also known as Mary Lou Dietrich.” Both deeds were recorded on the land records of the town of Southbury. The plaintiff is the granddaughter of Bergliot Holm-Hansen and is the beneficiary named in the latter deed. At the time of the conveyance, she was a minor. She is now known as Lynn Goytizolo.

On June 29, 1973, Bergliot Holm-Hansen conveyed the same real estate by quitclaim deed to the defendant “in trust for Lynn Holm-Hansen also known as Mary Lou Dietrich” and further “for herself reserve[d] a right to use the property so long as she may live.” See footnote 3, infra. This deed was also recorded and the plaintiff was informed of the conveyance shortly thereafter. At the time of this deed, the defendant was known as Trudy Holm-Hansen Moore.

On August 12, 1987, the defendant, “both individually and as trustee for Lynn Holm-Hansen now known as Lynn Goytizolo,” executed a quitclaim deed to the defendant’s husband, Jesse G. Moore, making no mention of the trust in favor of the plaintiff. In a second deed, recorded immediately thereafter, Moore conveyed the property back to the defendant, again making no mention of the trust.

The plaintiff filed a complaint on May 17,1988, seeking to have the 1987 deeds conveying the property from the defendant to Moore and back to the defendant declared null and void. The defendant’s husband was neither named in the complaint nor was he joined in the action.

The trial court found that the August, 1955 deed had created an enforceable trust in favor of the plaintiff and ordered the defendant to deed the property to the plaintiff and voided the 1987 deeds. The court, in reaching its conclusions, found that the basic elements of a passive or dry trust existed, and that the defendant’s intent to create a trust was manifested in the conveyance itself, the circumstances surrounding it, and in the defendant’s subsequent affirmations and actions.

The principal questions presented are whether a conveyance of real estate by a deed that describes particular real estate and simply states that the real estate is held “in trust for” a beneficiary, and names a trustee, is sufficient for the establishment of a trust by the grantor of the real estate, and, if so, whether the settlor-grantor of such a trust has the power to revoke it. Specifically, we must decide if the defendant by her execution of the August, 1955 deed established a trust for the benefit of the plaintiff and, if so, could the trust be revoked by the defendant’s execution of the 1987 deeds.

Some of the subordinate facts found to support the trial court’s conclusion that a trust was created were that the defendant had consistently stated to the plaintiff that the property belonged to the plaintiff and that the defendant conveyed the property in trust in 1955 so that the plaintiff would have security. The court found that until 1987 the defendant had affirmed that the real estate was in trust for the benefit of the plaintiff. The court noted that the defendant claimed at trial that the 1955 conveyance was made because she was driving without insurance and could lose the property if she was sued. Some of these findings, of course, rest on the credibility of the witnesses as determined by the trial court, which has within its province that responsibility, unfettered by appellate overview. Other findings were that the defendant’s father erected two prefabricated cottages on the land, that, between 1955 and 1970, the defendant paid the real estate taxes, and that, between 1981 and 1987, the plaintiff and her husband made repairs to the cottages costing between $40,000 and $50,000.

A trust requires three basic elements: (1) a trust res; (2) a fiduciary relationship between a trustee and a beneficiary requiring the trustee to deal with the trust res for the benefit of the beneficiary; and (3) the manifestation of an intent to create a trust. See 1 Restatement (Second), Trusts § 2; see also Marzahl v. Colonial Bank & Trust Co., 170 Conn. 62, 64, 364 A.2d 173 (1976); Colonial Bank & Trust Co. v. Matoff, 18 Conn. App. 20, 28, 556 A.2d 619 (1989). “[A] simple conveyance of property to one upon trust for another, without further specifications or directions” is a simple trust. Cone v. Dunham, 59 Conn. 145, 157, 20 A. 311 (1890). “In such case the law regulates the trust, and the [beneficiary] has the right of possession and of disposing of the property, and he may call upon the trustee to execute such conveyances of the legal estate as are necessary.” Id.

“Trusts in which no duties recognized as active are imposed on the trustee, or trusts which serve no purpose that could not equally be served without the trust, have been held to be simple, passive, or dry, and, although the most express words of trust are used, no estate or interest passes to the trustee other than at most a mere naked legal title which may be terminated on application to the court by the [beneficiary].” 90 C.J.S. Trust § 178 (1955). Section 46 of Restatement (Second) of Trusts deems that type of conveyance sufficient to satisfy the statute of frauds if “it sets forth with reasonable definiteness the trust property, the beneficiaries and the purposes of the trust.” Comment a to § 46 further states that “[i]f the owner of the property . . . transfers it ‘in trust’ for a named person without specifying further the purpose of the trust, the writing sufficiently designates the purpose of the trust since it is a declaration of a passive trust of the property for the intended beneficiary.”

We agree with the trial court that the August, 1955 deed contained language sufficient for the establishment of a trust and that, on the basis of facts found by it, the defendant intended to create a trust.

The next question that we must answer is whether the trust was revocable or irrevocable. Although the defendant does not expressly raise the issue of revoca-bility, she does so impliedly. She argues that she established a trust in order to shelter her real estate property only until such time as she had automobile insurance coverage, and that once that purpose no longer existed, she would be able to regain title. The defendant became insured under Moore’s policy in 1962 but from 1962 to 1987, there was no deed executed or recorded on the land records that did not contain trust language. The land records do not indicate any attempt to disavow or revoke the trust over a thirty-two year period, after which the defendant conveyed the real estate to her husband.

The trial court made no express findings regarding the revocability of the trust. General principles of trust construction require an express reservation of the right to modify, amend, or revoke a trust. 2 Restatement (Second), Trusts § 330. One exception to this rule is in cases where the settlor mistakenly omitted the power to revoke the trust. See 2 Restatement (Second), Trusts § 332. Certain factors are relevant in determining whether the settlor intended to reserve the power to revoke a trust and by mistake omitted such a power in the trust instrument. Some of these factors are: “(1) the fact that the creation of the trust without reserving power of revocation would be an improvident act of the settlor; (2) the fact that the settlor when he created the trust did not have independent legal advice; (3) the relationship between the settlor and the beneficiaries; (4) the reasons which induced the settlor to create the trust . ...” 2 Restatement (Second), Trusts § 332, comment (a).

In this case, there was no reservation of the right to revoke the trust. Nor was there anything to indicate that the defendant mistakenly omitted the right to revoke. Nothing suggests that the creation of the trust without a power of revocation was an improvident act. The defendant-settlor consulted an attorney who drafted the August 1955 deed. The relationship between the settlor and the beneficiary as mother and daughter is a factor in favor of the creation of a trust, and the enduring nature of that relationship ordinarily belies the need to revoke a trust for the benefit of either. Even if the defendant’s testimony regarding her reasons for creating the trust were true, many years elapsed after the defendant became insured during which period nothing was recorded on the land records that attempted to revoke the trust. We conclude that the trial court was correct in finding that the deeds to the defendant’s husband and from the husband to the defendant were void. This finding impliedly rests on a finding that the trust could not be revoked. We, therefore, agree with the court’s judgment that the defendant convey the real estate to the plaintiff.

The defendant alleges that her husband was an indispensable party to the action because, at the time Ber-gliot Holm-Hansen deeded the property to her in 1973 she was living in Texas, a community property state. She asserts that the laws of Texas would give her husband an interest in the real estate, and that he should have been a party. The defendant held title to the real estate as trustee in 1973, and had no beneficial interest in it. Her spouse cannot, therefore, acquire rights in real estate she holds as a fiduciary even in a community property state. The 1987 deed is insufficient to vest him with the status of either an indispensable or necessary party. See Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 439, 572 A.2d 951 (1990); Biro v. Hill, 214 Conn. 1, 5-6, 570 A.2d 182 (1990).

The defendant contends that the trial court abused its discretion by considering the unsworn statement of Veb Holm-Hansen, the defendant’s brother, dated July 24,1988, because his statements were inherently unreliable and inadmissible. The record reveals that the statement was one of eleven items marked as court exhibits by agreement of the parties. It was never referred to again by any party or witness, or the court in its decision. Since the exhibit was entered with the consent of the defendant, the trial court would not have abused its discretion, even if it did consider it.

The defendant raises several objections to the admission of evidence at trial. These claims were not properly preserved and we need not consider them. Practice Book § 4185.

The defendant also claims that she was prejudiced because of a delay in the trial from May 3, 1990, to June 9, 1990, that was caused by the judge's illness. The defendant neither objected to the resumption of the trial nor sought to disqualify the trial judge because of her illness. The trial recessed on May 3, 1990, during direct examination of the plaintiff. When the trial resumed on June 19, 1990, the defendant attempted to prevent the plaintiff from continuing direct testimony. The court denied the motion. The defendant clarified her objection, stating that the plaintiff’s testimony should be limited to “new testimony,” and that she should be prevented from elaborating on matters she forgot to testify to previously. Upon review of the six questions the plaintiff answered after the defendant’s motion, we find that there was no abuse of discretion by the trial court.

The defendant alleges that various findings in the memorandum of decision evidence the trial court’s bias against her. Upon review of the statements claimed to be offensive, we conclude that no such bias is present.

The judgment is affirmed.

In this opinion the other judges concurred.

       2 Restatement (Second), Trusts § 330 provides: “Revocation of Trust by Settlor (1) the settlor has power to revoke the trust if and to the extent that by the terms of the trust he reserved such a power. (2) Except as stated in §§ 332 and 333, the settlor cannot revoke the trust if by the terms of the trust he did not reserve a power of revocation.”

       2 Restatement (Second), Trusts § 332 provides: “Power of Revocation or Modification Omitted by Mistake (1) If a trust is created by a written instrument and the settlor intended to reserve a power of revocation but by mistake omitted to insert in the instrument a provision reserving such a power, he can have the instrument reformed and can revoke the trust. (2) If a trust is created by a written instrument and the settlor intended to reserve a power to modify the trust but by mistake omitted to insert in the instrument a provision reserving such a power, he can have the instrument reformed and can modify the trust.”

       The court did not specifically mention the life estate reserved in the 1973 deed. The trial court impliedly recognized that the reservation of the life estate was of no effect. Bergliot Holm-Hansen, as trustee, had no power to modify the trust because the 1955 deed to her gave no power to modify the trust and because there was no necessity for a modification in order to effectuate the purposes of the trust. 1 Restatement (Second), Trusts § 186.


author: Freedman, J.

text:
    Rodney Richmond v. Frank Longo, Sr.
    (10396)
    Dupont, C. J., O’Connell and Freedman, Js.
    Argued January 22
    decision released March 10, 1992

      John D. Palermo, for the appellant (defendant).

      Wesley W. Horton, with whom were Mona E. Herman and, on the brief, Herbert Watstein, for the appellee (plaintiff).
   Freedman, J.

The defendant appeals from the judgment of the trial court, rendered after a jury trial, awarding the named plaintiff $80,000 in damages for injuries and losses caused by the defendant’s negligence. On appeal, the defendant first argues that the trial court improperly precluded the defendant from cross-examining the plaintiff’s expert witness about (1) the alleged suspension of his surgical privileges at area hospitals, (2) the alleged restrictions on the witness’ medical license, and (3) the results of an alleged investigation, conducted by an area hospital, calling into question the witness’ medical practices, surgical procedures and medical judgments. The defendant next argues that the trial court prohibited him from eliciting, on cross-examination, evidence of the plaintiff’s witness’ bias and prejudice against the defendant’s expert witness. We reverse the judgment of the trial court, and remand the case to the trial court for a new trial.

The jury could reasonably have found the following pertinent facts. On July 24,1986, the plaintiff and the defendant were involved in an automobile accident that occurred after the defendant failed to stop at a stop sign. The plaintiff, who at the time of the accident was employed by a telephone company as a line repairman, suffered injuries to his back and neck. The plaintiff was examined and treated by a neurosurgeon, Guy Owens. Owens diagnosed the plaintiff as having a 10 percent permanent partial disability due to neck injuries caused by the accident.

Prior to trial, the plaintiff filed a motion in limine requesting that “in any examination of Dr. Guy Owens any questions, reference, testimony or evidence of any kind concerning Dr. Owens’ controversies with the State of Connecticut concerning his medical licensure and issues concerning his privileges at and relationship with hospitals in the State of Connecticut not be permitted at trial.” The plaintiff suggested that such testimony or evidence is irrelevant and would be highly prejudicial to the plaintiff’s case. The trial court neither requested nor received any evidence, testimonial or otherwise, concerning Owens’ “controversies.” Eather, the trial court listened to brief arguments of counsel. Then, ruling from the bench, the trial court granted the plaintiff’s motion “within the narrow confines under which it is made, and that is that any examination of Doctor Owens, any questions, reference, testimony or evidence of any kind concerning his controversies with the State of Connecticut, concerning his medical licensure and issues concerning his privileges at and relationship with area hospitals in the State of Connecticut not be permitted at trial.” The defendant excepted to the trial court’s ruling.

At trial, the central issue was the extent and permanence of the plaintiff’s injuries. The outcome of the trial, therefore, hinged in large part on the testimony and credibility of the parties’ expert witnesses. The defendant’s expert witness, William Druckemiller, a neurosurgeon, testified prior to Owens, the plaintiff’s expert. Druckemiller testified that he graduated from Yale Medical School and performed his internship in general surgery as well as his residency in neurosurgery at the University of Minnesota. He testified that in his examination of the plaintiff he found no objective signs of injury to, or disability in, the plaintiff’s neck, and stated that he would not place the plaintiff under any physical restrictions or limitations. On cross-examination, Druckemiller testified that any injury that lasts more than six months is chronic and is likely to continue. The doctor did not, however, identify any degree of permanent disability of the plaintiff caused by his alleged injury. Druckemiller acknowledged that it is possible for two doctors to have differing opinions about the same injury. The doctor also acknowledged that there are subjective signs of injury, such as complaints of pain, without any objective signs of any injury.

The plaintiff then called Owens to testify regarding his treatment and diagnosis of the plaintiff. The plaintiff first elicited from Owens testimony concerning Owens’ medical education, training and general background. Owens testified that he graduated from Tufts University and Harvard Medical School. He served as an intern, and then as a resident, at Vanderbilt University Hospital in Nashville, Tennessee. He described himself as a “specialist” in neurology. He also testified that he was “board certified in neurosurgery,” and that to receive such certification one must spend two years in surgical education and an additional four years in neurosurgical training, practice an additional two years, and then take and pass an examination.

Owens testified on the basis of his examination, evaluation and treatment of the plaintiff, as well as his experience in neurosurgery, that the plaintiff suffered from a 10 percent permanent partial disability due to the injury to his neck, which was caused by the collision with the defendant. He testified on the basis of his experience as a neurosurgeon that the plaintiff will experience pain in the future, and that he will not be able to enjoy some activities of life that the average healthy person is able to enjoy. Finally, he testified that the plaintiff “does not have evidence, however, of a surgically correctable problem . . . .”

On cross-examination, Owens again stated that “as of this juncture [the plaintiff is] not a surgical candidate. It may well be that two years from now he may require it.”

While the jury was out of the courtroom, the defendant renewed his objection to the trial court’s granting of the plaintiff’s motion in limine regarding the examination of Owens. The defendant requested an opportunity to voir dire Owens outside the presence of the jury. The trial court denied the request. Instead, the trial court instructed the defendant to state for the record “what you claim an examination of those issues would produce.” The defendant objected and argued for permission to question Owens, but the trial court overruled the objection and asked the defendant to go forward with his offer of proof.

The defendant indicated that he would like to ask Owens, at a minimum, certain questions. First, the defendant informed the court that he would like to ask Owens whether “he has any surgical privileges in the state of Connecticut.” The defendant indicated that he believed the answer to that question would be relevant. The defendant then proposed to ask “the circumstances under which those privileges were terminated . . . .” The defendant also proposed to ask whether the termination of his surgical privileges was based, at least in part, on evidence of any improper surgical procedures performed by Owens. The defendant further stated to the court that “without asking the specific questions, without eliciting an answer, I don’t think an appellate court, a reviewing court, has any idea whether or not these matters are relevant.” The trial court then stated that its ruling was the same as it was with respect to the motion in limine and an exception was noted.

The defendant then submitted two exhibits to the court, for identification purposes only. One was a photocopy of a newspaper article which indicated that Owens had been reprimanded by the state of Connecticut, and that he had admitted mishandling cases involving two of his patients. The article also indicated that, in 1986, Owens had lost his privileges to practice at New Britain General Hospital, and, further, that he does not have surgical privileges at any hospital in the state. The other exhibit introduced by the defendant was a photocopy of a portion of a transcript of a deposition of Owens taken in relation to another proceeding. The transcript of the deposition indicated that he had been under investigation by the staff executive committee of New Britain General Hospital, and that the investigation included an inquiry into approximately 150 cases of surgical procedures performed by Owens between 1982 and 1985. Owens also stated in the deposition that a report prepared for the staff executive committee, which summarized the findings of the investigation, indicated that the hospital would require Owens to get second opinions from other doctors before performing surgical procedures at the hospital. The trial court again repeated its previous ruling and an exception was again noted.

The trial then proceeded to conclusion and the jury-returned its $80,000 verdict for the plaintiff, which was accepted by the court over the defendant’s objection.

The defendant claims that the trial court impermis-sibly limited his cross-examination of Owens. The cross-examination was originally limited pretrial by the court’s granting of the plaintiff’s motion in limine. The motion in limine is not formally recognized by our statutes or rules of practice, and has generally been used in Connecticut courts to invoke a trial judge’s inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial. C. Tait & J. LaPlante, Connecticut Evidence (1988) § 2.6.1, p. 30. When the determination of the admissibility of evidence hinges on other necessary facts that can properly be determined only during the trial after the necessary prerequisite testimony has been presented, such determination is more appropriately made after such prerequisite testimony has been presented.

In the present case, the plaintiff’s motion was made prior to the commencement of trial, and thus prior to the direct testimony of Owens. The trial court took no evidence before ruling on the motion, and thus the trial court had no way of knowing whether, in fact, the allegations were true, or whether the alleged controversies actually involved the propriety of medical judgments of Owens. More important, the trial court had no way of knowing whether the controversies might become relevant after Owens’ direct testimony.

Although we do not believe the trial court should have granted the motion in limine as it did, for the precise reasons stated above, this is not to say that we disapprove of the use of the motion in limine in all circumstances. In the present case, the motion in limine could have been properly used to request that after Owens testified, the jury be excused and a hearing be held to determine the scope of the defendant’s permissible cross-examination. The trial court then would be in a much better position to determine both the relevance and the prejudice of the proposed cross-examination, and the defendant could not ask a potentially prejudicial question in front of the jury before the plaintiff could object or the court could prevent its being asked.

Although we believe that the trial court should not have granted the motion in limine pretrial, it did have a second opportunity, after Owens’ direct testimony, to consider the defendant’s proposed cross-examination when the defendant renewed his objection to the granting of the motion in limine and requested permission to conduct a voir dire of Owens outside the presence of the jury. The trial court refused to permit the voir dire and reiterated its ruling on the motion in limine. Because the trial court refused to permit the defendant’s proposed cross-examination a second time, it is this ruling of the trial court that must withstand our scrutiny. We now consider, therefore, whether the trial court, after Owens’ direct testimony, improperly limited the defendant’s right to cross-examine Owens, and, if so, whether that limitation was prejudicial to the defendant so as to warrant a new trial.

The defendant does not argue that Owens was not qualified as an expert witness in this case. Rather, the defendant argues that the proposed line of questioning goes to the witness’ qualifications and skill as a surgeon, and thus to his credibility as a witness. The defendant suggests that the alleged termination of Owens’ surgical privileges and the restrictions on his license to practice medicine are relevant and proper for jury consideration. Finally, he argues that the preclusion of that evidence in this case, in which the outcome would turn largely on which of the two experts the jury believed, was prejudicial to his case and therefore requires reversal and a new trial.

Cross-examination is an indispensable means of eliciting facts that may raise questions on the credibility of witnesses. Cross-examination “ ‘is a substantial legal right which may not be abrogated or abridged at the discretion of the court to the prejudice of the cross-examining party.’ ” Pickman v. Pickman, 6 Conn. App. 271, 277-78, 505 A.2d 4 (1986); B. Holden & J. Daly, Connecticut Evidence § 10c. One of the proper purposes of cross-examination of an expert is to test the expert’s qualifications and credibility, and the trial court has broad discretion in determining whether a given question satisfies this purpose. Hyatt v. Zoning Board of Appeals, 163 Conn. 379, 386, 311 A.2d 77 (1972); Floyd v. Fruit Industries, Inc., 144 Conn. 659, 666, 136 A.2d 918 (1957). When dealing with the testimony of expert witnesses, “[o]nce the threshold question of usefulness to the jury has been satisfied, any other questions regarding the expert’s qualifications properly go to the weight, and not the admissibility, of his testimony.” Davis v. Margolis, 215 Conn. 408, 417, 576 A.2d 489 (1990). Thus, questions regarding the expert’s qualifications and skill go to the expert’s credibility.

“ ‘[T]he credibility of expert witnesses is a matter to be determined by the trier of fact.’ ... In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert’s ‘expertise, his opportunity to observe the [plaintiff] and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them.’ ” (Emphasis added; citations omitted.) In re Juvenile Appeal (Docket No. 9268), 184 Conn. 157, 170, 439 A.2d 958 (1981).

We believe that the trial court abused its discretion in the way that it ruled that mention of Owens’ controversies would be prohibited. “Evidence that is inad-missibly prejudicial is not to be confused with evidence that is merely damaging. . . .All evidence adverse to a party is, to some degree, prejudicial. To be excluded, the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted.” (Citations omitted.) Chouinard v. Mar-jani, 21 Conn. App. 572, 576, 575 A.2d 238 (1990).

Owens’ direct testimony may have opened the door to questions on cross-examination concerning the alleged termination of his surgical privileges in Connecticut. Owens testified that he was a “board certified neurosurgeon.” He stated that to be board certified he had to complete a certain number of years in the practice of neurosurgery. On two occasions, he stated that, in his expert medical opinion, the plaintiff did not require surgery. He also stated that the plaintiff may require surgery in the future. It was Owens, therefore, who initially put before the jury the question of his medical judgment involving surgical procedures. Having opened the door to this area of inquiry on direct examination, the defendant may have had a right to question further on cross-examination concerning the matters precluded by the court depending on the substance and nature of such matters, which could be determined only by a voir dire of the witness outside the presence of the jury. The court’s refusal to permit such cross-examination without having full knowledge of what such cross-examination might elicit was improper.

When a party has not been permitted “ ‘fair and full cross-examination of a witness upon the subjects of his examination in chief . . . [the] denial of this right is . . . prejudicial’” and requires reversal by this court. Fahey v. Clark, 125 Conn. 44, 47, 3 A.2d 313 (1938). The central issue in the trial court was the extent and permanence of the plaintiffs injuries. Resolution of that issue revolved largely around the testimony of the experts, whose opinions differed in significant respects. Although the plaintiff testified about the extent of his injuries, the plaintiff was not competent to testify concerning the permanence of those injuries. The credibility of the neurosurgeons, therefore, was of critical importance in this case because it was from their testimony that the jury could determine the degree of permanence, if any, of the plaintiff’s injuries. The jurors should have had before them all relevant evidence that would help them consider and weigh the testimony of the experts. To deny the defendant the right to cross-examine the plaintiff’s expert on issues relating to his credibility without first allowing the defendant an opportunity to demonstrate the relevance and significance of the testimony the defendant wished to adduce was to deny the defendant his right to a fair trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Because we agree with the defendant on the first issue and thus reverse the judgment of the trial court and remand for a new trial, we need not address the defendant’s second issue.

       Owens described neurology as the “diagnosis and treatment of diseases of the central nervous system and surgical correction of those disorders.”

       These exhibits were submitted by the defendant in his attempted offer of proof. Offers of proof are allegations by the attorney that he represents to the court he could prove if granted an evidentiary hearing. Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979). We acknowledge that the exhibits offered by the defendant are not evidence, but we rely on them here to indicate the nature of the voir dire that the defendant wanted to conduct.

       We take judicial notice of the fact that at the time the trial court considered the plaintiffs motion in limine concerning the cross-examination of Owens, Owens had a pending law suit against New Britain General Hospital in which he sought damages and other relief because the hospital had terminated his surgical privileges. In that case, judgment entered in favor of the hospital, and an appeal by Owens taken from that judgment is currently before this court. “A court has the power to take judicial notice of a file in another pending court case. State v. Bunkley, 202 Conn. 629, 648, 572 A.2d 795 (1987).” State v. Speers, 17 Conn. App. 587, 601, 554 A.2d 769, cert. denied, 211 Conn. 808, 559 A.2d 1142, cert. denied, 493 U.S. 851, 110 S. Ct. 150, 107 L. Ed. 2d 108, cert. denied sub nom. George v. Connecticut, 493 U.S. 893, 110 S. Ct. 241, 107 L. Ed. 2d 192 (1989); see also Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 317, 455 A.2d 1332 (1983).

       “In limine” has been defined as “[o]n or at the threshold; at the very beginning; preliminarily.” Black’s Law Dictionary (6th Ed.).


text:
    Wayne T. Bell v. Zoning Board of Appeals of the Town of Newington et al.
    (10442)
    Dupont, C. J., Landau and Freedman, Js.
    Argued January 9
    decision released March 10, 1992

      Thomas P. Byrne, for the appellant (plaintiff).

      Frank R. Borowy, with whom, on the brief, was David L. Griffith, for the appellee (named defendant).

      Vincent F. Sabatini, for the appellees (defendant Elsie Yawin et al.).
   Landau, J.

The plaintiff, Wayne T. Bell, the Newing-ton zoning enforcement officer, appeals from the judgment of the trial court affirming the decision of the defendant Newington zoning board of appeals reversing his denial of the application of the defendant Elsie Yawin and her son, Robert Yawin, for a building permit to erect a single-family residential dwelling. The plaintiff claims that the trial court improperly failed to find that § 5.1.1.B of the zoning regulations of the town of Newington provides for an automatic merger of nonconforming lots. We agree with the trial court.

The following facts are pertinent to our resolution of this appeal. In 1924, prior to the adoption of the zoning regulations in the town of Newington, the area in which the land in question is located was subdivided into approximately 225 lots, the majority of which had fifty feet of frontage. The defendants Elsie Yawin and Robert Yawin are owners of three contiguous lots in that subdivision (lots 115, 116, and 117), each with a fifty foot frontage, collectively known as 225 Marlborough Street. Elsie Yawin purchased lot 116 on December 9, 1931, lot 117 on April 6,1949, and lot 115 on April 12, 1949. The three lots have been treated as one parcel of land by the tax collector. In 1952, a single-family residence was built on lots 116 and 117. Lot 115 remained vacant. In April, 1986, Elsie Yawin conveyed her interest in these three lots by quitclaim deed to her son Robert. On the same day, Robert conveyed a life estate in the property by quitclaim deed to Elsie Yawin. In each conveyance, the lots were referred to by their original numbers. The assessor’s card indicated that the property consisted of lots 115-117 and that lot 115 could be sold separately.

When the zoning regulations were adopted, the three lots became nonconforming for building purposes. They are all located in an R-12 zone, which requires that lots have an area of 12,000 square feet and a frontage of 80 feet in order to be used for residential purposes. Lot 115 has an area of 5500 feet and a frontage of 50 feet. Lots 116 and 117, on which the residential dwelling is located, have a total area of 11,000 square feet and a frontage of 100 feet. On September 20,1989, the town of Newington adopted an amendment to its zoning regulations. At some time after the effective date of the amendment, Elsie Yawin and Robert Yawin applied to the zoning enforcement officer for a zoning permit to construct a single-family dwelling on lot 115. The zoning enforcement officer denied their application on the ground that lot 115 did not conform to the lot area and width requirements of the zoning regulations. The Yawins appealed the decision to the Newington zoning board of appeals. After a hearing, the board reversed the decision of the zoning enforcement officer. It found that there was no adjacent land that may be or could have been added to lot 115 to make it conforming. The board further found that the three lots had not merged.

The plaintiff appealed the board’s decision to the Superior Court. He argued that the board had incorrectly interpreted § 5.1.1 and that the amendment permitted an owner to build on a nonconforming lot only if the owner owns no adjacent land. The crux of the plaintiff’s argument was that, because the Yawins own adjacent land, they are required to add that land to lot 115 in an attempt to conform lot 115 to the zoning regulations. The defendants argued that, because there is a house on lots 116 and 117, there is no land available to add to lot 115 to make it conform to the zoning regulations and that taking land from lots 116 and 117 and adding it to lot 115 would render the donor lots more nonconforming, contrary to the intent of the newly amended § 5.1.1.

The trial court made the following factual findings: (1) lot 115 is a separate and distinct building lot on a deed and certified map, (2) no land could have been used to make this a conforming lot, (3) lot 115 was established as a separate lot in 1924 and complied with all then existing zoning requirements, and, therefore, the lots never merged. The court concluded that the board did not act in an unreasonable, arbitrary and illegal fashion in determining that there was no merger of the land and that the Yawins owned no land that could have been added to lot 115. The court dismissed the plaintiffs appeal and granted the Yawins permission to build on lot 115.

The plaintiff claims that the trial court improperly found that lots 115, 116 and 117 had not merged by operation of law because there was no adjacent property that could have been added to lot 115 to make it conform with the zoning regulations. We disagree.

“Zoning boards of appeal are entrusted with the function of deciding, within prescribed limits and consistent with the exercise of legal discretion, whether a regulation applies to a given situation, and the manner of its application. Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). In discharging this responsibility, a board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. Id.” Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 165, 556 A.2d 1049 (1989). “ ‘Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing.’ (Citations omitted.)” Iannucci v. Zoning Board of Appeals, 25 Conn. App. 85, 88-89, 592 A.2d 970 (1991). When a zoning board of appeals has stated the reasons for its action, a reviewing court may determine only whether the reasons given are supported by the record and are pertinent to the decision. Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 50, 484 A.2d 483 (1984).

The board stated that its reason for reversing the plaintiff’s decision was that there had been no merger of the subject properties because there was insufficient land to add to lot 115 to make it conform with the existing zoning regulations. Thus, the trial court was restricted to a determination of whether the board’s finding that there was no available adjacent land that could have been added to the lot and, therefore, that there had been no merger, was reasonably supported by the record and whether that finding was a pertinent basis on which to grant the defendant’s application. Horn v. Zoning Board of Appeals, 18 Conn. App. 674, 677, 559 A.2d 1174 (1989).

Contiguous land owned by the same person does not necessarily constitute a single lot. Schultz v. Zoning Board of Appeals, 144 Conn. 332, 338, 130 A.2d 789 (1957); Marino v. Zoning Board of Appeals, 22 Conn. App. 606, 609, 578 A.2d 165, cert. denied, 216 Conn. 817, 580 A.2d 58 (1990). A merger can occur by operation of law. The one occasion this court has found where merger may occur by operation of law is that found in some zoning regulations that may require, either expressly or implicitly, that under certain conditions a nonconforming lot merges with contiguous land owned by the same owner. See Neuman v. Zoning Board of Appeals, 14 Conn. App. 55, 60, 539 A.2d 614, cert. denied, 208 Conn. 806, 545 A.2d 1103 (1988); Torsiello v. Zoning Board of Appeals, supra, 48 n.2; but see Schultz v. Zoning Board of Appeals, supra. Whether the zoning ordinance requires that two commonly owned and adjacent lots be merged does not depend on the presence or absence of a merger clause. Whether such a requirement exists can best be ascertained from an examination of the ordinance itself. Neuman v. Zoning Board of Appeals, supra.

In order to prevent a merger by operation of law, all of the conditions of § 5.1.1 must be met. Specifically, there must be (1) a lot clearly shown or described as a separate and distinct building lot on a map or deed filed in the town clerk’s office, (2) a certified copy of the map must be filed with the application for a building permit, (3) no owner of the lot at any time since it became nonconforming shall have owned adjacent property that may or could have been included as part of the lot in question, (4) the lot must have been created or established as a separate building lot before the adoption of the zoning regulations, or must, at the time of its creation, have complied with the then existing zoning regulations, and (5) the lot fronts on an accepted street. The only requirement the zoning enforcement officer challenges is the third, whether there exists adjacent property which may or could have been included as part of the lot in question, lot 115. On the record, we cannot say that the trial court acted unreasonably, arbitrarily or illegally in concluding that there was no merger because there was no adjacent property that could have been added to lot 115.

As applied to this case, § 5.1.1 requires neither an express nor an implied merger by operation of law. Section 5.1.1.B provides that “[n]o owner of such lot or lots at any time since it became non-conforming shall have owned adjacent land which may be or could have been included as part of the lot in question. Said lot was created or established as a separate building lot prior to the adoption of Zoning in the Town of Newington or, at the time of its creation or establishment as a separate building lot, complied with all lot [width] and area requirements then in effect.” (Emphasis added.) The italicized language, as applied in the present case, precludes a finding of merger by operation of law. This portion of the amendment indicates that only if there is land that “may be” or “could have been” included as part of the lot in question will such land merge by operation of law. Here, the zoning board of appeals and the trial court found that no such land existed. Where 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. See McClintock v. Rivard, 219 Conn. 417, 426-27, 593 A.2d 1375 (1991); Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 723, 563 A.2d 1339 (1989); Koepke v. Zoning Board of Appeals, 25 Conn. App. 611, 616, 595 A.2d 935, cert. denied, 220 Conn. 932, 599 A.2d 382 (1991). We conclude that the trial court’s conclusions are legally and logically correct.

Adding property to lot 115 from lots 116 and 117, as the plaintiff suggested, could not result in making lot 115 conform to the present zoning requirements without reducing the combined area of lots 116 and 117, already below the minimum requirement, and rendering them more nonconforming. In addition, the most that can be taken from lots 116 and 117 without making them nonconforming as to road frontage would be twenty feet, which is still not enough to make lot 115 conforming in that regard. Because the intent of the amendment was to prevent the creation of nonconforming lots whenever possible, the board and the trial court correctly concluded that the adjacent land was not land that “may be” or “could have been” included in the property in question, and, therefore, that there was no merger by operation of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       All purchases were properly recorded in the Newington land records.

       Those interests were also properly recorded in the Newington land records.

       The record contains nothing indicating the date the zoning regulations were adopted.

       The new regulation as amended provides:
      “5.1.1 Non-Conforming Lot of Record
      A dwelling unit or a non-residential building may be erected on a lot of less width or area or both than required provided that:
      A. The lot is clearly shown or [described] as a separate and distinct building lot on a map or in a deed or other instrument duly recorded in the Town Clerk’s Office. A certified copy of such map, deed or other instrument shall be filed with the application for the building permit.
      B. No owner of such lot or lots at any time since it became non-conforming shall have owned adjacent land which may be or could have been included as a part of the lot in question. Said lot was created or established as a separate building lot prior to the adoption of Zoning in the Town of Newing-ton, or at the time of its creation or establishment as a separate building lot, complied with all lot [width] and area requirements then in effect.
      C. The lot fronts on an accepted street, a proposed street in an approved subdivision for which surety has been posted in accordance with 7.3., or on a private street constructed in accordance with the minimum standards of the Town of Newington, unless specifically permitted subject to the appropriate standard as set forth in these regulations.
      D. All other requirements are met.”

       The second introductory paragraph of the amendment to § 5.1.1 provides: “It is the intent of this regulation to permit these non-conformities to continue until they are removed, but not to encourage their survival. Such uses are declared by this regulation to be incompatible with permitted uses in the zones involved. It is further the intent of this regulation that non-conformities shall not be enlarged upon, extended or expanded if such a change increases the non-conformity, or be used as grounds for adding other structures or uses prohibited elsewhere in the same district.”
      The third introductory paragraph concludes as follows: ‘“[NJothing in this regulation shall be deemed to require a change in the plans, construction or designated use of any structure on which actual construction was lawfully begun prior to the effective date of this . . . regulation.”

       A merger can also occur if the owner of contiguous parcels of land intends to form one tract. The owner’s intent “may be inferred from his conduct with respect to the land and the use which he makes of it.” Molie v. Zoning Board of Appeals, 18 Conn. App. 159,169, 556 A.2d 1049 (1989). Intent is an inference of fact and is not reviewable unless it was one that the trier could not reasonably make. See Hoagland v. Zoning Board of Appeals, 1 Conn. App. 285, 290, 471 A.2d 665 (1984).
      The evidence presented at the public hearing was that the property owners never intended to merge the three lots. In the original subdivision plan the lots appear separately. Each of the three lots was purchased separately, through three separate deeds, and each was recorded separately. No portion of the house on lots 116 and 117 was constructed on lot 115. In the conveyances from Elsie Yawin to Robert and from Robert back to Elsie, the lots were referred to by their original numbers and the assessor’s card indicated that the property was composed of lots 115-117 and that lot 115 could be sold separately. Moreover, even though the lots were treated as one piece of property for tax purposes, the Molie court recognized that no authority exists for the proposition that an owner must be deemed to have merged contiguous lots simply because the town taxes his land as one tract. Molie v. Zoning Board of Appeals, supra.

        In Neuman v. Zoning Board of Appeal, 14 Conn. App. 55, 60, 539 A.2d 614, cert, denied, 208 Conn. 806, 545 A.2d 1103 (1988), this court recognized that although some zoning regulations refer specifically to the merger doctrine, use of the talismanic word “merger” is not necessary; that in order for a merger to occur, a zoning regulation need not specifically state that under its provisions a merger of two parcels takes place. A merger can, therefore, occur by implication as well as by express authority.

       By building a house on lots 116 and 117 the property owners exhibited sufficient evidence to support an inference that it was their intent that these two lots merge.

       The frontage on lot 115 would become seventy feet and the total area would become 7700 square feet.


author: Foti, J.

text:
    In re Adalberto S.

    (10265)
    Dupont, C. J., Foti and Freedman, Js.

      Argued January 6
    decision released March 10, 1992

      Jon L. Schoenhorn, with whom, on the brief, was Patricia J. Sloan, for the appellant (respondent).

      Bruce A. Tonkonow, state’s advocate, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   Foti, J.

After a trial by the court, the respondent was adjudicated delinquent on two counts:

(1) interfering with a police officer in violation of General Statutes § 53a-167a; and (2) use of a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b. The respondent appeals from the adjudication of delinquency, claiming (1) his seizure and detention violated his state and federal constitutional rights, (2) the arresting officer did not have probable cause to arrest him, (3) there was insufficient evidence to find him guilty beyond a reasonable doubt of using a motor vehicle without the owner’s permission, (4) there was insufficient evidence to find him guilty beyond a reasonable doubt of interfering with an officer, and (5) the court improperly restricted the respondent from presenting evidence rebutting the charge of interfering with a police officer. We agree with the respondent’s third and fifth claims.

At trial, the respondent stipulated that he did not have the owner’s permission to use the car. The state’s entire case-in-chief consisted of the testimony of a Hartford police officer, Achilles Rethis. The court could have reasonably found the following facts. On February 6, 1991, at 10 a.m., Rethis was dispatched to investigate a report of a suspicious vehicle parked at 71 Warren-ton Avenue in Hartford. When he arrived at that address, he observed a late model Buick Park Avenue parked in the driveway with the engine running. The vehicle’s four occupants appeared to the officer to be very young. Moments after Rethis arrived, the occupants exited the vehicle and ran away. The respondent exited the vehicle from the back seat on the right side. Rethis then exited his vehicle, yelled, “Police; stop.” The officer radioed for assistance and pursued the respondent; several other officers joined the pursuit. Rethis testified that as he chased the respondent, the respondent jumped over some bushes and landed in soft mud; he was scratched by the bushes. Four officers other than Rethis apprehended the respondent. Rethis observed the respondent struggling with the officers as they attempted to handcuff him. Rethis testified that as the other officers tried to restrain the respondent, he was “struggling, fighting, and trying to wrestle free from them.”

After the respondent was arrested, Rethis returned to the vehicle and discovered that the steering column had been broken and chipped on the left side. He also noticed that although the engine was running, there was no key in the ignition and the ignition was in the locked position. The officer recovered a screwdriver on the ground a short distance from the vehicle.

I

We first address the respondent’s claim that there was insufficient evidence to justify the trial court’s finding that the respondent was guilty beyond a reasonable doubt of use of a motor vehicle without permission of the owner in violation of General Statutes § 53a-119b (a). The appellate standard of review of sufficiency of the evidence claims is well established. “Whether we review the findings of the trial court or the verdict of a jury, our underlying task is the same. . . . We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Citations omitted). State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991).

“A person is guilty of using a motor vehicle without the owner’s permission when . . . [h]e operates or uses, or causes to be operated or used, any motor vehicle unless he has the consent of the owner . . . .” General Statutes § 53a-119b (a). “ ‘It is axiomatic that the state’s burden of proof beyond a reasonable doubt applies to each and every element comprising the offense charged.’ ” State v. Williams, 220 Conn. 385, 398, 599 A.2d 1053 (1991). In this case, the respondent stipulated to the fact that he did not have the owner’s permission to use the vehicle. Despite this stipulation, the burden rested with the state to prove that no other occupant of the car had the owner’s permission to use the car, and that the defendant knew that such permission was lacking. Clearly, a passenger in a car has not violated § 53a-119b (a) merely because he does not have the owner’s permission to be in the car. “A passenger may be completely unaware that the vehicle in which he or she is riding is stolen or is being used without the owner’s consent. Motor vehicles are part of our every day life. It is commonplace to accept a ride from a friend or acquaintance. We cannot conceive that the Legislature intended that an innocent passenger has committed a criminal offense by mere presence in a vehicle which later is shown to be stolen or taken without the owner’s consent.” State in Interest of N.L., 69 N.J. 342, 346, 354 A.2d 286 (1976).

The state asserts that it met its burden of proving this element by presenting evidence from which the trial court could infer that the respondent knew or reasonably should have known that the car was being used without the owner’s permission. We do not agree. “Ordinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen.” State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961); State v. Hobson, 8 Conn. App. 13, 25, 511 A.2d 348 (1986). Mere proximity to criminal activity is not sufficient to establish knowledge, however. See State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); State v. Kas, 171 Conn. 127, 131-32, 368 A.2d 196 (1976).

In this case, the respondent was seated in the rear of the vehicle on the right side. The steering column was damaged on its left side. Thus, the respondent did not necessarily have an opportunity to view the damage to the steering column from his seat in the car. The state offered no evidence that the respondent observed the damage to the steering column or that he was aware of the absence of a key in the ignition. Furthermore, the screwdriver allegedly used to tamper with the ignition was recovered a short distance from the car. Thus, the respondent may not have known of its existence, or have seen it being used to tamper with the car. The state points to the respondent’s flight as evidence of his consciousness of guilt. Although evidence of unexplained flight, when considered together with all of the facts of the case, may justify an inference of guilt, it does not create a presumption of guilt. State v. Piskorski, 177 Conn. 677, 722-23, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d (1979); State v. Reid, 22 Conn. App. 321, 328, 577 A.2d 1073, cert. denied, 216 Conn. 828, 582 A.2d 207 (1990). “[T]he probative value of evidence of flight is, in large part, dependent upon facts pointing to the motive which prompted it.” State v. Piskorski, supra, 723. In this case, the state did not offer any evidence to connect the respondent’s flight to consciousness of guilt on this particular offense. The respondent could have fled for any number of reasons.

“A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984); State v. Salz, 26 Conn. App. 448, 460, 602 A.2d 594 (1992). “Proof of guilt must exclude every reasonable supposition of innocence.” State v. Englehart, 158 Conn. 117, 121, 256 A.2d 231 (1969); State v. Salz, supra. Although the court may draw reasonable, logical inferences from the facts proven, it may not resort to speculation or conjecture. State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). After reviewing the evidence in the light most favorable to sustaining the trial court’s judgment; State v. Owens, 25 Conn. App. 181, 192, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991); we conclude that all of the facts, even when considered together, were insufficient to justify a conclusion that the respondent knew the car was being used without the owner’s permission. The state’s failure to prove that none of the occupants had the owner’s permission to use the car and that the respondent knew that this was the case, precludes a finding that the respondent was guilty beyond a reasonable doubt of use of a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b.

II

We next address the respondent’s claim that the state failed to produce sufficient evidence to prove beyond a reasonable doubt that he interfered with a police officer in violation of General Statutes § 53a-167a. The respondent argues that the evidence was insufficient because the state failed to establish that he was assaul-tive, that his efforts were directed at the officers, or that he intended to interfere with the officers’ duties. He asserts that evidence that he fled and then struggled with the arresting officers is not enough to establish that he interfered with the police in the performance of their duties. We do not agree.

A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers a police officer in the performance of his duties. General Statutes § 53a-167a. Intent is a necessary element of this offense. State v. Pagano, 23 Conn. App. 447, 449-50 n.1, 581 A.2d 1058, cert. denied, 217 Conn. 802, 583 A.2d 132 (1990); State v. Flynn, 14 Conn. App. 10, 18, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). Section 53a-167a is broad in scope; State v. Beckenbach, 1 Conn. App. 669, 679, 476 A.2d 591 (1984); and encompasses acts of physical resistance. State v. Williams, 205 Conn. 456, 471, 584 A.2d 230 (1987). In enacting § 53a-167a, the legislature sought to prohibit behavior that hampers the activities of the police in the performance of their duties. State v. Beck-enbach, supra. The statute’s purpose is to ensure orderly compliance with the police during the performance of their duties; any act intended to thwart this purpose violates the statute. Id.

In this case, Rethis testified that when the respondent was apprehended after a foot chase, he struggled, fought and tried to wrestle free from the officers who were attempting to handcuff him. By physically resisting the officers, the respondent obstructed them in achieving their objective, which was to handcuff him and take him into custody. Although his actions may have been limited to fleeing and struggling, they nonetheless constituted physical resistance. Thus, we conclude that the trial court could have reasonably found that the evidence presented at trial was sufficient to establish the respondent’s guilt beyond a reasonable doubt.

Ill

Although the evidence was sufficient to support a finding of guilt, we must address whether the respondent was improperly denied the right to present a defense. The respondent claims that the trial court improperly restricted him from presenting evidence of an alleged beating he sustained at the hands of the police when they apprehended him. According to the respondent, the purpose of this evidence was to raise the defense of justification to the charge of interfering with a police officer. He claims that his struggling was merely an attempt to ward off an assault by the officers. The evidence proffered by the respondent consisted of a medical report, photographs, and the testimony of an investigator for the public defender’s office, all relating to the respondent’s physical condition after his arrest. The court admitted the medical report for the sole purposes of impeachment and credibility, and excluded the rest of the evidence on the basis of relevancy. The respondent claims that the trial court’s refusal to admit this evidence deprived him of his right to present a defense. We agree with the respondent.

At the outset, we note that we will set aside a trial court’s evidentiary ruling only where there has been a clear abuse of discretion. State v. Fritz, 204 Conn. 156, 167-68, 527 A.2d 1157 (1987). “To the extent that evidence offered in defense is relevant and mitigates a crime charged, it should not be excluded from the fact-finder.” State v. Duhan, 38 Conn. Sup. 665, 671-72, 460 A.2d 496 (1982). When defense evidence is excluded on evidentiary grounds, such exclusion may give rise to a claim of denial of the right to present a defense. Chambers v. Mississippi, 410 U.S. 284, 289-90, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). A defendant is bound by the rules of evidence in presenting a defense, however. State v. Kelly, 208 Conn. 365, 375-76, 545 A.2d 1048 (1988); State v. Watson, 26 Conn. App. 151, 156, 599 A.2d 385 (1991), cert. denied, 221 Conn. 907, 600 A.2d 1362 (1992). If the proffered evidence is not relevant, it is properly excluded. State v. Kelly, supra, 376. It is well established that, “[e]vidence is relevant if it has a tendency to establish the existence of material facts . . . .” Jacobs v. Thomas, 26 Conn. App. 305, 316, 600 A.2d 1378 (1991). “Evidence is not rendered inadmissible simply because it is not conclusive. It is admissible if it tends to support a relevant fact even in a slight degree . . . .” State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985).

In this case, evidence of an alleged beating at the hands of the arresting officers is clearly relevant to rebut the charge of interfering with a police officer. The evidence, if admitted and found credible by the trial court, would have supported the respondent’s contention that he struggled with the officers in an attempt to ward off an assault. It also would have negated an intent to interfere with the officers on the part of the respondent. The state correctly asserts that a person is not justified in resisting arrest by a police officer even if the arrest is unlawful. General Statutes § 53a-23. This rule, however, is not ironclad. See State v. Gallagher, 191 Conn. 433, 442, 465 A.2d 323 (1983). For example, an unlawful warrantless intrusion into the home creates a privilege to resist arrest. See id. The use of reasonable physical force to defend oneself against an assault by an arresting officer may also be justified. See General Statutes § 53a-19.

In order for a defendant to be found guilty of interfering with a police officer in violation of General Statutes § 53a-167a, the police officer must be acting in the performance of his duties. State v. Biller, 5 Conn. App. 616, 620, 501 A.2d 1218 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146, cert. denied, 478 U.S. 1005, 106 S. Ct. 3296, 92 L. Ed. 2d 711 (1986). In other words, the officer must be “ ‘acting under a good faith belief that he is carrying out [his] duty, and ... his actions are reasonably designed to that end ....’” Id. Although the legality of a police officer’s conduct is not an element of the crime of interfering with a police officer, police misconduct is relevant to a determination of whether a person violated § 53a-167a. Id.; State v. Privitera, 1 Conn. App. 709, 722, 476 A.2d 605 (1984). Whether a police officer was in fact acting in good faith in the performance of his duties is a question for the factfinder, in this case the trial court. State v. Privitera, supra. We conclude that the trial court improperly excluded as irrelevant the proffered evidence of an alleged beating. The trial court should have admitted the evidence in order to determine whether the respondent was justified in resisting the police officers.

Finally, we have reviewed the record and the parties’ briefs regarding the constitutionality of the respondent’s seizure and detention and the existence of probable cause to arrest; we find the respondent’s claims on these issues to be without merit.

The judgment is reversed and the case is remanded with direction to adjudicate the respondent not guilty of the crime of using a motor vehicle without the owner’s permission, and for a new trial on the charge of interfering with a police officer.

In this opinion the other judges concurred.