author: VERTEFEUILLE, J. STOUGHTON, J.,

text:
    LISA COVILLE v. LIBERTY MUTUAL INSURANCE COMPANY
    (AC 18425)
    Spear, Vertefeuille and Stoughton, Js.
    Argued October 26, 1999
    officially released April 11, 2000

      Matthew J. Forstadt, with whom were Daniel M. Young and, on the brief, Howard C. Kaplan, for the appellant (plaintiff).

      Edward J. Holahan, Jr., with whom, on the brief, were Kevin J. Gumpper and John M. Rowan, for the appellee (defendant).
   Opinion

VERTEFEUILLE, J.

The plaintiff, Lisa Coville, appeals from the judgment for the defendant, Liberty Mutual Insurance Company, rendered after a jury trial in this action to recover underinsured motorist benefits. She contends that the trial court improperly (1) failed to charge the jury in accordance with the 2 Restatement (Second), Torts §§ 314Aand 324 (1965), and (2) charged the jury that it might consider whether the plaintiff was negligent in exiting the vehicle in which she was riding while that vehicle was moving. We reverse the judgment of the trial court and remand the case for a new trial.

The plaintiff brought this action against the defendant pursuant to an automobile liability policy issued to her parents. The defendant did not dispute coverage. The jury reasonably could have found the following facts. On December 4, 1991, the plaintiff was a passenger in a pickup truck driven by her boyfriend, James Beddington. She suffered permanent brain injury, including traumatic epilepsy, when she fell from the truck during the early morning hours. On the previous evening, December 3, Beddington picked up the plaintiff from her parents’ home at approximately 9 p.m. They then went to a bar in Stamford, where they remained until approximately midnight. At the bar, the plaintiff consumed several drinks, and Beddington drank at least eight beers. Neither of them had anything to eat. Both the plaintiff and Beddington became intoxicated. At times after becoming intoxicated, the plaintiff was semiconscious and unable to care for herself. Around midnight, Beddington wanted to leave to take the plaintiff home, but the plaintiff wanted to visit a friend who resided across the street from the bar. The plaintiff and Beddington quarreled, and the plaintiff told him that she did not want to leave with him because he had had too much to drink and was intoxicated. Outside the bar, the plaintiff ran from Beddington, up an embankment to the top of a seawall fifteen to twenty feet above street level. Beddington ran after her and caught her.

The plaintiff continued to protest Beddington’s effort to take her home. Nevertheless, he put his arms around her, dragged her down the hill and hoisted her up into the cab of his truck. He did not fasten the plaintiffs seat belt or lock the plaintiffs door. The plaintiff was angry at Beddington and kicked at the windshield. Beddington began to drive the plaintiff home. When the truck was stopped on Grove Street, the plaintiff suddenly opened the door. Beddington reached over, closed the door and resumed driving. As the truck approached a traffic signal at Grove Street and Strawberry Hill Avenue, the plaintiff opened the door a second time. Again, Beddington closed the door. After the truck passed the traffic signal, the plaintiff opened the door a third time. Beddington reached over to close the door with his right hand, keeping his left hand on the steering wheel. The truck suddenly swerved to the right toward a utility pole. Beddington then put both hands on the steering wheel and turned the truck back to the left. As the truck straightened, he heard the door close and realized that the plaintiff was not in the vehicle. Through his rearview mirror, Beddington saw the plaintiff lying in the road. He backed up the truck, picked up the plaintiff and took her to a hospital.

At trial, the defendant did not contest its obligation to compensate the plaintiff for injuries for which Beddington, as the operator of an underinsured vehicle, was liable. The jury returned a verdict finding the plaintiff 65 percent negligent, and, therefore, the trial court rendered judgment in favor of the defendant.

I

The plaintiff first claims that the court improperly failed to charge the jury in accordance with §§ 314A and 324 of the Restatement (Second) of Torts. We agree.

Jury instructions are adequate if they give the jury a clear understanding of the issues in the case and proper guidance in deciding those issues. Tomczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981). “The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established .... When reviewing the court’s instruction, our role is to determine whether, taken as a whole, [it] fairly and adequately presents] the case to a jury in such a way that injustice is not done to either party under the established rules of law. . . . [A] request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given . . . .” (Citations omitted; internal quotation marks omitted.) Glucksman v. Walters, 38 Conn. App. 140, 157, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995).

In her request to charge, the plaintiff requested that the following charge be given pursuant to 2 Restatement (Second), supra, § 314A (4), p. 118: “One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his or her normal opportunities for protection is under a special duty to the other. . . . It is for you to determine whether James Beddington voluntarily took custody of [the plaintiff] under such circumstances as to deprive her of her normal opportunities for protection so as to create a duty on the part of James Beddington to protect her. ... It is for you to determine whether James Beddington placed [the plaintiff] in his pickup truck against her wishes and involuntarily and whether or not by doing so he assumed a special relationship toward her wherein he would be required to fasten her seat belt, lock the door, stop the truck upon her request, or permit her to call her parents and/or to otherwise get a ride home from someone else. . . .” (Citations omitted; internal quotation marks omitted.)

The plaintiff further requested the following charge pursuant to 2 Restatement (Second), supra, § 324, p. 139, and McDonough v. Buckeye S.S. Co., 103 F. Sup. 473, 475 (N.D. Ohio 1951), aff'd, 200 F.2d 558 (6th Cir. 1952), cert. denied, 345 U.S. 926, 73 S. Ct. 785, 97 L. Ed. 1357 (1953): “One who voluntarily takes charge of a helpless person must exercise reasonable care for [her] welfare and safety. . . . You have heard the testimony of the parties and must determine whether or not James Beddington voluntarily assumed custody over [the plaintiff] by placing her in his motor vehicle against her wishes.” (Citations omitted; internal quotation marks omitted.)

The court failed to give either charge and instead charged the jury with respect to the customary duty owed by a motor vehicle operator to his passenger. The plaintiff contends that both requested charges were relevant to the issues of the case and accurately stated the law, and that the court therefore should have given the charges as requested. We agree.

The Restatement of Torts is a “statement of the general common law of the United States . . . 1 Restatement, Torts, introduction, p. viii (1934). The periodic revision of the Restatement provides the opportunity to update the Restatement in light of changes in decisional law. 1 Restatement (Second), Torts, introduction, p. ix (1965).

Section 314A of the Restatement (Second) states an exception to the general rule that a person who realizes or should realize that he or she needs to act to protect another is not necessarily obligated to do so. That section explicitly recognizes the duties of common carriers, innkeepers and possessors of land to protect their passengers, guests and members of the public, respectively, from unreasonable risk of physical harm. Additionally, § 314A (4) provides that “[o]ne . . . who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to [protect] the other.” 2 Restatement (Second), Torts § 314A, p. 118 (1965). Comment (b) to § 314A explains that “[t]he duties stated in this Section arise out of special relations between the parties, which create a special responsibility, and take the case out of the general rule. The relations listed are not intended to be exclusive, and are not necessarily the only ones in which a duty of affirmative action for the aid or protection of another may be found. . . . The law appears, however, to be working slowly toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence.” Id., p. 119.

Section 324 of the Restatement (Second) provides in relevant part that “[o]ne who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge . . . .” Id., p. 139. The emphasis in this section is on the fact that “the plaintiff is in a helpless position . . . .” Id., § 324, comment (a), p. 140. Comment (b) to § 324 states that “[t]he rule stated in this Section is applicable whenever one takes charge of another who is incapable of taking adequate care of himself. It applies equally where the other is rendered helpless by his own conduct, by the tortious or innocent conduct of the actor, or by other causes, as where the actor takes charge of one who is ill, drunk, or made helpless by the act of a third person or a force of nature.” Id., § 324, comment (b), p. 140.

The duties described in these two sections of the Restatement (Second) are well recognized in leading treatises on the law of torts. Prosser and Keeton acknowledge the trend to extend liability where a person by his or her conduct assumes a duty to protect another. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 56. They explain that this duty arises particularly in special relationships where “the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiffs welfare.” Id., p. 374. The treatise concludes that a person who takes charge of an intoxicated party “is regarded as entering voluntarily into a relation which is attended with responsibility.” Id., p. 378. Another leading tort treatise, citing § 314A of the Restatement (Second) of Torts and case law, also endorses the legal principle that special relationships can give rise to an affirmative duty to protect others from harm. 3 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 18.6, pp. 723-24 n.25.

Although neither of Connecticut’s appellate courts has adopted §§ 314A or 324, the duties set forth in those sections are consistent with the recognized principle of Connecticut law that one who gratuitously undertakes an act will be liable for performing it negligently. “If one undertakes to perform an act and performs it negligently ... it makes no difference whether . . . the act was performed gratuitously . . . .” Zatkin v. Katz, 126 Conn. 445, 450, 11 A.2d 843 (1940). One who gratuitously undertakes a service that he has no duty to perform must act with reasonable care in completing the task assumed. See id.

The defendant contends that the requested jury charges were not statements of the law in this state solely because neither has been adopted or approved by the appellate courts of this state. We find that the defendant’s approach is too constricted. The sections of the Restatement (Second) in question describe reasonable legal duties applicable in certain limited factual circumstances. The defendant points to no controversy among legal commentators concerning these duties. To the contrary, the duties described in §§ 314A and 324 are recognized in leading tort treatises. Furthermore, they are consistent with established principles of Connecticut tort law. Under these circumstances, the court should have instructed the jury in accordance with the requested charge.

The defendant further claims that neither of the requested charges is applicable to the facts of this case and that the charge given adequately instructed the jury. We do not agree.

The defendant contends that the only duty Beddington owed the plaintiff was the ordinary duty of a motor vehicle operator to his passenger and that the court properly charged the jury in that regard. For example, the court charged the jury that it should consider whether Beddington failed to exercise reasonable care in failing to fasten the plaintiffs seat belt or lock her passenger side door. The defendant’s contention, however, wholly disregards the evidence that Beddington took physical custody of the plaintiff against her will by physically taking her to his truck, lifting her inside and forcing her to remain by closing the door each time she opened it. This evidence could provide the basis for a duty to protect the plaintiff rather than a duty of reasonable care. The jury could have found further that the plaintiff was helpless in that she was intoxicated to the point of being semiconscious and was unable to take care of herself. This evidence also could provide the basis for a duty to secure the plaintiffs safety.

We conclude that there was an adequate factual basis for the jury charges requested by the plaintiff. We conclude further that the charge given, limited as it was solely to the customary duty of reasonable care from a driver to his passenger, did not provide adequate guidance to the jury on the facts of this case, which facts provided the basis for finding additional duties to protect the plaintiff or secure her safety. The charge given failed to give the jury any guidance with respect to the plaintiffs claim that Beddington had taken custody or charge of her.

The defendant also claims that the requested instructions were outside the issues as framed in the pleadings, contending that the plaintiff had failed to plead a “special relationship” between herself and Beddington. We disagree.

The plaintiffs one count complaint alleged negligence by Beddington in various respects. She alleged that her injuries were caused by Beddington’s negligence in forcing her to enter his vehicle and to remain there against her wishes, and that his driving ability was impaired by his intoxication. Practice Book § 10-4 provides that “[i]t is unnecessary to allege any promise or duty which the law implies from the facts pleaded.” In Murphy v. Wakelee, 247 Conn. 396, 399 n.2, 721 A.2d 1181 (1998), our Supreme Court concluded that a count in the complaint alleged a claim of breach of fiduciary duty where the defendant was a conservator and there was no specific allegation of fiduciary duty. In this case, the duty to protect, as set forth in Restatement (Second), §§ 314A and 324, is appropriately implied from the factual allegations of the plaintiffs complaint.

The defendant contends that the plaintiff waived her claim with respect to the request to charge under § 324 of the Restatement (Second). We do not agree.

The defendant’s claim is based on the following facts. After receiving requests to charge from the parties, the trial judge prepared a draft of his charge and provided copies to both counsel to be reviewed. Counsel were given the morning to review the charge and to prepare possible changes. In the afternoon, the court held a charge conference on the record, stating that the court and counsel would resolve any parts of the charge that were not agreed to. Counsel for the plaintiff did not mention his request to charge pursuant to § 324 of the Restatement (Second) during the charge conference and, although he took exception during the conference to the court’s decision not to charge under § 314A of the Restatement (Second), he did not take a similar exception with respect to the charge under § 324.

Pursuant to Practice Book § 16-20, a party may preserve appellate review of a written request to charge without taking an exception to the court’s failure to charge as requested. Our rules of practice do not require that a party must take exception to the court’s failure to charge in accordance with a written request to charge. State v. Angell, 237 Conn. 321, 329, 677 A.2d 912 (1996). Waiver is the intentional relinquishment of a known right. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 561, 316 A.2d 394 (1972). There is no sufficient showing here that the plaintiff intentionally relinquished her request to charge pursuant to § 324 of the Restatement (Second).

II

The plaintiff next contends that the court improperly charged the jury that in considering whether the plaintiff was negligent, it might consider whether she exited the vehicle in which she was riding while the vehicle was moving. It is highly unlikely that the evidence on this question will change in any significant way in the new trial, making it likely that this issue will arise again. We therefore will review the plaintiffs claim. The plaintiff claims that there was no evidence from which the jury could find that she voluntarily left Beddington’s truck. We disagree.

“[Tjriers of fact must often rely on circumstantial evidence and draw inferences from it.” Blados v. Blados, 151 Conn. 391, 395, 198 A.2d 213 (1964). “Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.” Id.

The defendant concedes that there was no direct evidence that the plaintiff intentionally exited the truck, but contends that the jury could properly have inferred that she exited the vehicle while it was moving on the basis of her testimony that she earlier had opened the truck door twice to leave the vehicle. The plaintiff counters that the truck was stopped at both of the earlier times that she opened the door and, therefore, an inference that she left the vehicle while it was moving would be unwarranted.

A review of the transcript of the testimony of both the plaintiff and Beddington shows contradictory testimony concerning whether the truck in fact was stopped when the plaintiff opened the door the second time. The plaintiff testified that she twice opened the door to leave at the red traffic signals. Beddington, however, testified that he thought, but was not sure, that on the second occasion when the plaintiff opened the door, the signal turned from red to green as he approached it so that he did not actually stop the truck. At another point in his testimony, he stated that he had stopped the truck for the traffic signal, but then started again when the plaintiff opened the door the second time.

Given Beddington’s testimony that the truck was not stopped when the plaintiff opened the door the second time, we conclude that there was sufficient evidence, if believed, from which the jury could infer that on the third occasion when the plaintiff opened the door, she exited the truck while it was moving. The court, therefore, properly instructed the jury in this respect.

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

In this opinion SPEAR, J., concurred.

STOUGHTON, J.,

dissenting. Because I believe that the trial judge properly charged the jury on the duty owed by James Beddington to the plaintiff, a passenger in his motor vehicle, I respectfully dissent from the opinion of the majority.

This is not the case of a bystander who, under no duty to protect a stranger from risk of harm, takes the stranger into his custody and thereby may assume a duty arising out of that special relationship to use whatever degree of care may be reasonable under the circumstances to protect the stranger from risk of harm. Neither is it the case of a volunteer who takes a person who is helpless to protect himself into his charge and thereby may assume a duty of reasonable care to secure the safety of that person. This is a case, not unique in our times, of a couple out for the evening, each of whom had consumed too much alcohol, with the unhappy result described in the majority opinion. The duty owed by Beddington to the plaintiff was the duty to exercise reasonable care for her safety under the circumstances, and the trial court so instructed the jury. The duty arose because the plaintiff was a passenger and Beddington was the driver, not because she was intoxicated and Beddington wanted to drive her home against her wishes. I believe that the plaintiffs condition affected the degree of care expected under the circumstances, but it did not itself create the duty to exercise reasonable care for her safety.

There was evidence from which the juiy might reasonably have found the facts recited in the majority opinion. After the plaintiff had recovered damages from Beddington’s liability insurance carrier, she brought this action as an insured under the uninsured motorist provisions of her father’s automobile insurance policy. She alleged that Beddington was underinsured and that she had sustained injuries through his negligence. The court charged, as agreed by the parties, that by virtue of its policy the defendant had agreed to pay damages that an insured is legally entitled to recover from an operator of an underinsured motor vehicle, and that the operator’s liability for those damages must arise out of the negligent operation of the motor vehicle.

After charging that the defendant admitted coverage for damages caused by the negligence of Beddington, the court defined negligence and the duty of a driver to his guest. It defined reasonable care and instructed the jury that care must be proportionate to the danger. It then discussed the specifications of negligence in the complaint, the plaintiffs claim that Beddington had placed her in a perilous situation and that he had failed to exercise reasonable care for her safety as alleged in the specifications of negligence. These included her claim that Beddington compelled her to enter and remain in his vehicle, that he refused to stop and let her get out, that he failed to lock the passenger side door or fasten her seat belt when he knew she was not in any condition to do so herself, and that he drove while his faculties and judgment were impaired. The court then discussed proximate cause, damages and contributory negligence as alleged by the defendant.

By answers to interrogatories, the jurors stated that they had found both the plaintiff and Beddington guilty of negligence, which was a substantial factor in producing the plaintiffs injuries, and that they had assigned responsibility at 35 percent to Beddington and 65 percent to the plaintiff.

In my judgment, the court adequately defined and explained the issues for the jury. “Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so.” Dean v. Hershowitz, 119 Conn. 398, 407-408, 177 A. 262 (1935). “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). This was not a case in which it was asserted that Beddington owed no duty of care. The issues were whether the duty was breached and whether the plaintiff herself was negligent.

I do not believe that either of the sections from the Restatement (Second) of Torts, cited by the plaintiff in her request to charge, had any application to this case. Section 314 of the Restatement (Second) of Torts states that a duty to aid or protect another does not arise merely out of awareness of the necessity for action. The Restatement (Second) points out in § 314A that special relations between the parties may give rise to such a duty as an exception to the general rule that one who realizes or should realize that he or she needs to act to protect another is not necessarily obligated to do so. The four special relations stated under this exception are (1) the duty of a common carrier to its passengers, (2) the duty of an innkeeper to his guests, (3) the duty of a landowner who invites the public onto his land and (4) the duty of one who is required by law or who voluntarily takes custody of another under circumstances such as to deprive the other of his normal opportunities for protection. 2 Restatement (Second), Torts § 314A, p. 118 (1965). I do not believe that Beddington took custody of the plaintiff under circumstances such as to deprive her of her normal opportunities for protection when he was simply trying to take her to her home. Moreover, even if this exception were to be found applicable, comment (e) to § 314A states that the duty that arises is “only one to exercise reasonable care under the circumstances.” Id., p. 120. This is precisely the duty described in the jury charge as given.

Section 324 of the Restatement (Second) of Torts states that “[o]ne who, being under no duty to do so, takes charge of another who is helpless adequately to . . . protect himself is subject to liability to the other for any bodily harm caused to him by [inter alia] (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge . . . .” Id., p. 139. I do not believe that the jury could have found from the evidence that the plaintiff was in such a condition that she was helpless to protect herself adequately. To the contrary, there was evidence that she did not want to be driven home and struggled against Beddington’s efforts to do so. The concept of reasonable care as measured by the circumstances was adequately presented and explained to the jury in the charge as given. Comment (d) to § 324 states that the care required is “only that which the recipient of gratuitous services is entitled to expect”; id., p. 141; that is to say, reasonable care under the circumstances, and that is precisely what the court charged.

Because I do not believe that the principles cited from the Restatement (Second) in the plaintiffs request to charge were applicable to this case, and because I believe that the charge as given adequately instructed the jury as to the law to be applied to the facts, I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL SMITH
    (AC 18260)
    Foti, Landau and Mihalakos, Js.
    Argued January 19
    officially released April 11, 2000

      William B. Westcott, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary W. Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Michael Smith, appeals from the judgment of conviction, rendered after a trial to the court, of robbery in the first degree in violation of General Statutes § 53a-134, assault of a victim sixty or older in the first degree in violation of General Statutes § 53a-59a and assault of a victim sixty or older in the second degree in violation of General Statutes § 53a-60b. He claims that the evidence presented by the state was insufficient to sustain his conviction. He also claims that the court abused its discretion in denying his motion to waive his presence in the courtroom during the testimony of eyewitnesses. We affirm the judgment of the trial court.

On the basis of the evidence adduced at trial, the court reasonably could have found the following facts. On December 9, 1996, at approximately 5:30 p.m., the victim, Jean Deich, an eighty-four year old woman, was to have attended a Christmas party at a restaurant on Blake Street in New Haven. Deich weighed 105 pounds and stood four feet, eleven inches tall. As she exited a vehicle at the sidewalk in front of the restaurant, the defendant grabbed her pocketbook, punched her in the pelvis, causing her to fall, and dragged her until he pulled the purse from her.

At about the same time that the victim was getting out of the car, Donna Diaz, a nurse employed at the Hospital of St. Raphael was driving one of her daughters home from school when she stopped at a red light at the intersection of Blake and Valley Streets. On her left was the restaurant on Blake Street.

While waiting at this intersection, Diaz observed the defendant start to run across the street, behaving in a nervous manner. Diaz characterized the defendant as nervous because “he was looking around and he was running across the street,” and she stated that he “ran directly across the street to where the lady was.” Diaz then observed the defendant grab the purse from the victim, who offered no resistance. After he was in possession of the purse, he punched the victim in the pelvis and then she fell down and could not get up. After the defendant ran away with the victim’s purse, Diaz instructed her daughter to lock the car doors and she proceeded to assist the victim.

Andre Pender also witnessed the robbery and assault. Pender was operating a van and had stopped at the red light at the intersection of Blake and Valley Streets directly behind Diaz’s vehicle. He observed the defendant run across the street toward the victim. He observed that the victim’s pocketbook was on her right shoulder, and that she was facing the car when the defendant “snagged the pocketbook” and “yanked [the victim] to the ground.” Pender observed that the defendant “had a problem when he yanked the pocketbook from her; it didn’t come off real easy, and he pulled her to the ground.” When the defendant pulled the victim to the ground, “he was dragging her.”

Pender was holding a glass bottle of soda in his hand when he witnessed the crime. As the defendant attempted to escape by running toward a bridge, Pender got out of his car and hit the defendant on the side of the face with the bottle. He then chased the defendant to a nearby bridge trying to get the pocketbook. When Pender caught the defendant, he grabbed the pocketbook and slipped and fell because of ice on the ground. The defendant ran away. Pender returned the pocketbook to the victim, who was still on the ground. The victim was admitted to a hospital and was diagnosed as having a fractured hip. Her treating physician, John Shine, explained that the victim’s injury “was a more serious” type of hip fracture. It could not be repaired with steel pins. Instead, he had to take out the ball of her femur, the round ball of the bone, and put in a prosthesis. The victim remained at the hospital for approximately one week, after which she was transported to a nursing home. Shine also explained that the risk of death to a person sustaining a hip fracture and going through hospitalization was in the realm of 2 to 3 percent.

Later that same night, Russell See, a sergeant with the New Haven police department, observed the defendant, whom he believed fit the description of the person alleged to have committed the crimes, at the McConoky Terrace housing project, which was just under one mile away from the restaurant on Blake Street. See knew the defendant from prior incidents. The defendant first identified himself to See using the alias “Ivan Thompson,” but when confronted, the defendant subsequently admitted that his name was Michael Smith. The defendant denied that he had been in the area of the crime. He was released at that time.

Two days later, on December 11, 1996, Pender was contacted by a member of the New Haven police department and asked to view a photographic array. The array contained ten photographs, one of which depicted the defendant. When shown the array, Pender selected the defendant’s photograph as that of the person who had committed the crimes. He said he was 100 percent sure of his identification. He had no trouble selecting the defendant’s photograph, and there was no doubt in his mind that the person depicted in the photograph was the person who had committed the crimes. During the trial, Pender also identified the defendant in court as the person who had committed the crimes.

On December 12, 1996, Diaz was shown the same array of ten photographs. She could not be 100 percent sure about any particular photograph. She was, however, able to narrow the photographs down to two, one of which depicted the defendant. Diaz testified at trial that “the two [photographs] that were remaining on the table were too similar for me to eliminate one of them. The two individuals looked too much alike to me.” She further explained, however, that “it [was] definitely one of these two guys.” During the trial, Diaz also was given an opportunity to make an in-court identification. When shown the defendant, she testified, “I think it is the man. Very well dressed now compared to then. Very well nourished now compared to then. With a nice suit on and clean shaven and a nice haircut.” She further testified that “[t]o the best of [her] ability,” she thought the defendant was the person who committed the crimes and that she was “90 percent” certain of the identification. She testified that “this individual is very well nourished compared to the individual I saw that night. This individual is well dressed compared to the individual that night. But the face is the face, it is the same, and the height is the same.”

I

The defendant contends that there was insufficient evidence in the record to support the court’s conviction in violation of his right to due process under the federal constitution and article first, § 8, of our state constitution. He argues that the state failed to present sufficient evidence to prove his identity as the person who committed the crimes. He also contends that the evidence was insufficient to sustain his conviction of assault in the first degree of a victim sixty or older because the state did not prove that he acted recklessly or that he evinced an extreme indifference to human life. We do not agree.

“Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993); State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).” (Internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).

“In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995).

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 617, 682 A.2d 972 (1996). Moreover, “[i]n evaluating evidence that could yield contrary inferences, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence.” State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). “As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty. ” (Citation omitted; internal quotation marks omitted.) State v. DeJesus, supra, 196; see State v. Sivri, supra, 231 Conn. 134.

A

The issue of identification is a question of fact to be resolved by the trier of fact and may be shown by circumstantial evidence as well as by direct evidence. State v. Vasquez, 53 Conn. App. 661, 665, 733 A.2d 856, cert. denied, 250 Conn. 922, 738 A.2d 662 (1999). Moreover, “[i]n considering the evidence introduced in a case [the trier of fact is] not required to leave common sense at the courtroom door . . . nor . . . expected to lay aside matters of common knowledge or [its] own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that [its] action may be intelligent and [its] conclusions correct.” (Internal quotation marks omitted.) State v. Sparks, 39 Conn. App. 502, 517, 664 A.2d 1185 (1995).

The evidence presented to the court, which it accepted as credible, was that Pender made a positive identification from a fairly presented photographic identification procedure, and that Diaz made an honest partial identification of the defendant as the perpetrator of the crime. The trier of fact, in this case the court, has the sole and absolute responsibility to determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992). Pender, while seated in his van, observed the defendant during the commission of the crime from a distance of less than twenty-five feet. Pender then chased the defendant, caught up with him, retrieved the victim’s pocketbook, and was able to get a close look and a good look at the defendant’s face. Two days later, he picked the defendant’s photograph out of an array of ten photographs and was absolutely positive of his identification. Pender also made a positive in-court identification of the defendant as the person who committed the crimes. Even if the court had discounted all other evidence of the defendant’s identity, the evidence was sufficient for conviction based solely on Pender’s testimony to permit the trial court to find that it was the defendant who committed the crimes charged.

We conclude that the court had sufficient evidence to identify the defendant as the perpetrator.

B

The defendant next argues that the evidence was insufficient to sustain his conviction for assault in the first degree of a victim sixty or older. He contends that the evidence, on the basis of the contradictory testimony of the two eyewitnesses, could not demonstrate that he acted recklessly or that he evinced an extreme indifference to human life.

It is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376, cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541 (1996). The evidence, viewed in the light most favorable to sustaining the judgment, shows that during the robbery the 190 pound defendant punched the four feet, eleven inch, 105 pound, eighty-four year old victim in her pelvis, causing her to fall and fracture her hip, and then dragged her until he pulled her purse from her person.

A person acts recklessly with respect to a particular result or a circumstance described by statute “when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. ...” General Statutes § 53a-3 (13). The state of mind constituting recklessness may be inferred from conduct. State v. Bunkley, 202 Conn. 629, 645, 522 A.2d 795 (1987). In this case, recklessness can be inferred from the defendant’s brutal conduct as can an extreme indifference to human life.

We conclude that sufficient evidence was presented by the state to sustain the defendant’s conviction for assault in the first degree of a victim sixty or older.

II

The defendant next claims that the court abused its discretion in denying his motion to waive his presence in the courtroom during the testimony of the state’s eyewitnesses.

The facts relevant to our analysis are not disputed. The defendant filed a motion prior to trial requesting that he be permitted to waive his presence during portions of the trial. The defendant requested the following: “[T]hat he be absent from the courtroom during the direct and cross-examinations of Andre Pender and Donna Diaz. The defendant agrees to be present in the courtroom during any in-court identification procedure by either Mr. Pender or Ms. Diaz, but only after their descriptions of the perpetrator in the case at bar is fully described on direct and cross-examinations.”

During oral argument on this motion, the defendant explained that before the state called Diaz or Pender to testify, he wanted to be permitted to leave the courtroom. Thereafter, the state would be required to limit its direct examinations of these witnesses. Under the defendant’s proposal, the prosecutor could ask the witnesses to explain what they observed when the crime took place and to describe the perpetrator of the crime, but would be prohibited from asking questions regarding the out-of-court photographic array identifications or attempting in-court identifications. After the state had completed its limited direct examination of these witnesses, the defendant would then be given the opportunity to cross-examine them regarding their observations of the crime and descriptions of the perpetrator. Only after the defendant had completed his cross-examination of Diaz and Pender would the state be permitted to return to its direct examination of each witness and ask questions regarding the out-of-court photographic array identifications and attempt in-court identifications.

The court denied the defendant’s motion, ruling, “I have read the cases and, of course, this setting is suggestive, but it has been determined that it is not unnecessarily suggestive and, therefore, your request that the defendant be absent throughout the entire testimony, start to finish, of the witnesses is denied. The state is entitled to establish that—well, [it is] entitled to have an in-court identification and I am going to allow it.” The court also observed that although the rules of practice allow the defendant to waive his presence during all or part of his trial, case law allows the court “some discretion in that regard. [The defendant] doesn’t have an absolute right.” Finally, the court observed that as the case law points out, “[y]our main weapon in this regard is cross-examination, and I expect your—you are a skilled attorney, I expect you to cover this area as to what is the basis of their in-court identification. So, your request is denied.”

The defendant then made an alternative request that he be permitted to waive his presence during the direct examinations of Diaz and Pender until such time as the state was prepared to conduct its in-court identification procedure. Under this procedure, the state would not be required to bifurcate its direct examinations of the witnesses. The court agreed to this alternative procedure.

The court stated: “The appellate courts have acknowledged that the setting is necessarily suggestive. In an effort to deal with that, I have allowed the defendant to sit outside the view of the identification witnesses until the point of identification. In an effort to increase the reliability and fairness of this necessarily suggestive identification procedure, I have asked the prosecutor and the prosecutor has agreed not to show the photos to the prospective identification witnesses, and he has agreed to do that and they have not seen these photos. I intend to allow extensive cross-examination on the basis of the in-court identification.”

After the court granted the defendant’s alternative request, the defendant withdrew his motion for an in-court lineup.

During the trial, the defendant removed himself from the courtroom when Diaz and Pender were called to testify. He appeared only when the state was prepared to attempt an in-court identification. Before the state called Pender to testify, however, the defendant renewed his original request. In again rejecting the defendant’s original request, the court stated, “I think there has to be a balance struck between allowing the state to present [its] case in the order that [it is] entitled to and the rights of the defendant, and I think quite frankly I have landed on the side of the rights of the defendant as I should. It is a court trial and you have the right to cross-examination. I will deny your motion, note your exception and we will follow the same procedure.” The court further observed that “at some point during the direct examination, I am going to ask [the defendant] to come out for purposes of viewing for possible in-court identification. Defendant’s rights are protected by cross-examination, so that is the rule.”

“[T]he manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial corut. ... In such cases, the defendant’s protection against the obvious suggestiveness in any courtroom identification confrontation is his right to cross-examination ... or other practical procedures designed to lessen the degree of suggestiveness.” (Citations omitted; internal quotation marks omitted.) State v. Reddick, 224 Conn. 445, 470, 619 A.2d 453 (1993).

The defendant made no claim that the out-of-court identification procedure was unnecessarily suggestive or unreliable. Therefore, any procedure utilized for an in-court identification is left to the sound discretion of the trial court, including an in-court lineup; State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986); or allowing the defendant to sit among the spectators in the courtroom. State v. Cubano, 9 Conn. App. 548, 555, 520 A.2d 250 (1987).

The court, after denying the defendant’s motion to waive his presence and require the state to bifurcate direct examinations of Pender and Diaz, granted the defendant’s alternative motion, which allowed the defendant to be absent from the courtroom until an in-court identification was to be attempted. The defendant then withdrew his motion for an in-court lineup and failed to request or even suggest a less suggestive in-court identification procedure. Under these circumstances, we find it impossible to conclude that the court abused its discretion in denying the defendant’s initial motion. The defendant’s right to cross-examine fully and effectively Pender and Diaz was in no way impinged upon by the procedure employed, nor was the state deprived of its right to present its case in a logical fashion without being forced to bifurcate its direct examinations of witnesses. In the proper exercise of its discretion, the court accepted the defendant’s alternative request and employed an in-court confrontation procedure that did not diminish the defendant’s ultimate right of cross-examination.

The defendant has failed to sustain his burden of demonstrating that the court abused its discretion in denying his motion to waive his presence during substantial portions of the testimony of the two eyewitnesses.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime: (1) Causes serious physical injury to any person who is not a participant in the crime; or (2) is armed with a deadly weapon; or (3) uses or threatens the use of a dangerous instrument; or (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.
      “(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-59a provides: “(a) A person is guilty of assault of a victim sixty or older in the first degree, when he commits assault in the first degree under section 53a-59 (a) (2), 53a-59 (a) (3) or 53a-59 (a) (5) and the victim of such assault has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf.
      “(b) No person shall be found guilty of assault in the first degree and assault of a victim sixty or older in the first degree upon the same incident of assault but such person may be charged and prosecuted for both such offenses upon the same information.
      “(c) Assault of a victim sixty or older in the first degree is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-60b provides: “(a) A person is guilty of assault of a victim sixty or older in the second degree when he commits assault in the second degree under section 53a-60 or larceny in the second degree under section 53a-123 (a) (3) and the victim of such assault or larceny has attained at least sixty years of age or is blind or physically disabled, as defined in section 1-lf.
      “(b) No person shall be found guilty of assault in the second degree or larceny in the second degree under section 53a-123 (a) (3) and assault of a victim sixty or older in the second degree upon the same incident of assault or larceny, as the case may be, but such person may be charged and prosecuted for all such offenses upon the same information.
      “(c) Assault of a victim sixty or older in the second degree is a class D felony and any person found guilty under this section shall be sentenced to a term of imprisonment of which two years of the sentence imposed may not be suspended or reduced by the court.”

       The area in front of the restaurant was well illuminated.

       The defendant has not claimed that the photographic array was either suggestive or that the procedures followed were improper.

       The defendant argues on appeal, having withdrawn the motion before the trial court without explanation, that “[placing the defendant in an in-court lineup after the state’s witnesses . . . had just seen photographs of the defendant would have been ill-advised.” The record is silent as to whether the court would have allowed an in-court lineup after the state was first allowed to review the photographic array, or whether the court would have allowed, had the defendant requested, that the in-court lineup be conducted prior to the witnesses being shown the photographic arrays. The state noted that to ensure a reliable in-court identification, and at the court’s request, the witnesses were not shown the photographs in the array, including the defendant’s, and that they had not seen the photographs during the ten months between the date of the out-of-court identification and the date they testified at trial.


author: PER CURIAM.

text:
    AARON SLOAN v. COMMISSIONER OF CORRECTION
    (AC 19646)
    Foti, Landau and Schaller, Js.
    Argued January 10
    officially released April 11, 2000

      Avery S. Chapman, for the appellant (petitioner).

      Richard F. Jacobson, special assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Aaron Sloan, appeals from the judgment of the habeas court denying the relief requested and dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly dismissed his claim of ineffective assistance of counsel. We have reviewed the record and briefs, and conclude that the petitioner has failed to make a substantial showing that he was denied a state or federal constitutional right.

The petitioner was convicted, after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-54a and 53a-49, and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On direct appeal, we affirmed the trial court’s judgment. State v. Sloan, 38 Conn. App. 908, 658 A.2d 607, cert. denied, 234 Conn. 921, 661 A.2d 99 (1995).

The petitioner alleged, before the habeas court, that he was denied effective assistance of counsel both at trial and on appeal. The petitioner claims that trial counsel failed to pursue adequately his claim that he was so intoxicated at the time of the shooting that he could not form the requisite intent and that counsel failed to take exception “adequately” to the court’s jury instructions. He claims that counsel rendered ineffective assistance on appeal by failing to assist and consult the petitioner in the preparation of the appeal.

The incident that gave rise to the charges for which the petitioner was convicted occurred in Bridgeport on August 17, 1991, when a fourteen year old male, Louis Reed, Jr., was shot. Reed survived and at trial identified the petitioner as the person who shot him. The defense was based on a claim that someone else had shot Reed. The petitioner did not testify at trial. The only evidence regarding intoxication came before the jury as a result of a single question the prosecutor asked a state’s witness regarding how the petitioner looked and was acting at the time of the shooting. The reply was, “[D]runk.”

The habeas court concluded that “the defense chosen and pressed by trial counsel had a rational basis and was supported by significant evidence adduced at trial; that counsel reasonably concluded that the introduction by him of two inconsistent defenses would be harmful to his client’s interests; that the defense strategy chosen, that someone other than the petitioner was the shooter, was agreed upon . . . [and] that, once the state introduced evidence suggesting that the petitioner was intoxicated at the time of the shooting, trial counsel made a competent effort to utilize such evidence in his client’s favor.” The habeas court also concluded that the petitioner’s claims regarding trial counsel’s failure “adequately” to take exception to the trial court’s jury instructions were “unfounded.” As to the claim that ineffective assistance of counsel was rendered on appeal, the habeas court found that the petitioner had failed to establish that he was prejudiced by counsel’s acts or omissions on appeal.

In reviewing a claim of ineffective assistance of trial counsel, we indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; it is the petitioner’s burden to overcome the presumption that his attorney’s actions or inactions were not, in fact, sound trial strategy. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985); Larkin v. Commissioner of Correction, 45 Conn. App. 809, 818, 699 A.2d 207 (1997). We also must make every effort to evaluate the challenged conduct from counsel’s perspective at the time. Magnotti v. Meachum, 22 Conn. App. 669, 674-75, 579 A.2d 553 (1990).

We conclude that the petitioner did not overcome the presumption that under the circumstances, trial counsel employed sound trial strategy. See Hull v. Warden, 32 Conn. App. 170, 175-76, 628 A.2d 32, cert. denied, 227 Conn. 920, 632 A.2d 691 (1993). The petitioner failed to sustain his burden of proving that counsel’s performance was deficient and that the petitioner suffered actual prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The habeas court properly concluded as it did.

The judgment is affirmed.

       The petitioner also claimed that the court abused its discretion when it denied his petition for certification to appeal from the dismissal of the petition for a writ of habeas corpus. The record clearly indicates, and the parties agreed at oral argument, that the court granted the petition for certification to appeal.

       Attorney Barry A. Butler, a public defender, served both as trial and appellate counsel.

       On direct appeal, the defendant challenged the trial court’s refusal to instruct the jury with regard to the issue of intoxication in accordance with the defendant’s request.

       While at the hospital, Reed told someone that a Martin Moore had shot him and also told this to the police, later explaining that he had believed that Moore had instructed the petitioner to shoot him. A defense witness testified that Moore and someone named Herman were shooting at Reed.

       “[T]o show prejudice, the petitioner must establish that there exists a reasonable probability that the result of the trial would have been different but for counsel's ineffective assistance. Levine v. Manson, [supra, 195 Conn. 640]. A reasonable probability is a probability sufficient to undermine confidence in ihe verdict.” Dontigney v. Commissioner of Correction, 42 Conn. App. 304, 305, 679 A.2d 55, cert. denied, 239 Conn. 918, 682 A.2d 999 (1996).


text:
    GEORGE VELEZ v. COMMISSIONER OF CORRECTION
    (AC 19309)
    Foti, Landau and Daly, Js.
    Argued February 24
    officially released April 11, 2000

      Vicki H. Hutchinson, for the appellant (petitioner).

      Michael L. Regan, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, George Velez, appeals from the judgment rendered by the habeas court, dismissing his amended petition for a writ of habeas corpus and denying his petition for certification to appeal to this court. The petitioner claims that he was denied his constitutional rights to effective assistance of trial counsel.

We have fully reviewed the records and briefs and considered the oral arguments. We conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, that he has failed to sustain his burden of persuasion that the denial of certification to appeal from the dismissal of his petition for a writ of habeas corpus was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . [Simms v. Warden, supra, 230 Conn. 616], quoting Lozada v. Deeds, [supra, 498 U.S. 432].” (Emphasis in original; internal quotation marks omitted.) Tatem v. Commissioner of Correction, 39 Conn. App. 813, 816, 667 A.2d 1295 (1995), cert. denied, 236 Conn. 904, 670 A.2d 1305 (1996).

The petitioner’s claim was that he was not properly represented because his trial counsel failed to do a thorough investigation and was unprepared for trial. The habeas court conducted a factual review of the petitioner’s claim and determined that he had failed to rebut the “strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).

We cannot, in a habeas corpus appeal, disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993). The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony. Beasley v. Commissioner of Correction, 47 Conn. App. 253, 262, 704 A.2d 807 (1997), cert. denied, 243 Conn. 967, 707 A.2d 1268 (1998). Accordingly, we conclude that the habeas court did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       The petitioner also alleged that he was denied the effective assistance of appellate counsel. This claim appears to have been abandoned as inadequately briefed and was withdrawn, with permission of the petitioner, by his counsel during oral argument.

       The habeas court found that contrary 1 o the claims made by the petitioner, "[t]he evidence discloses the fact that [trial counsel] interviewed and called the witnesses as disclosed by the petitioner and completed an appropriate investigation.” The habeas court also concluded that the petitioner, in addition to failing to demonstrate any deficient performance by trial counsel; see Strickland v. Washington. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); also failed to present any evidence showing that he was prejudiced. The court also found that “[n]o evidence was submitted that would indicate that any further investigation by [trial counsel] would produce anything of importance or anything that would have been considered as exculpatory.”


text:
    EDWIN ROSS v. COMMISSIONER OF CORRECTION
    (AC 18700)
    Spear, Hennessy and Mihalakos, Js.
    Argued December 3, 1999
    officially released April 11, 2000

      James A. Shanley, Jr., special public defender, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, was Patricia A. Swords, state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

In the underlying criminal proceeding, the petitioner, Edwin Ross, pleaded guilty to manslaughter in the first degree and two charges of robbery in the first degree, and received a total effective sentence of thirty years incarceration. In his amended petition for a writ of habeas corpus, the petitioner alleges that trial counsel was ineffective in assisting him in that he failed (1) to inform the petitioner that he could not be convicted of the crime of felony murder if he had not participated in the commission of the underlying felony of robbery, (2) to investigate the case adequately in that his codefendant, Ebony Casey, would have provided testimony that would have exonerated the petitioner, (3) to inform the petitioner that he had a right to testify on his own behalf and (4) to provide the petitioner adequate time to consider his plea and, therefore, coerced him into pleading guilty. The habeas court denied the petition and the petitioner’s petition for certification to appeal.

The habeas court’s denial of the petitioner’s petition was predicated on a factual review of the petitioner’s claim and a determination that trial counsel was more credible than the petitioner and Casey. The court concluded that the petitioner had failed to rebut the strong presumption that “counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).

After a review of the record and briefs and after hearing oral arguments, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, that he has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.


text:
    DANIEL KARP ET AL. v. CITY OF NEW BRITAIN ET AL.
    (AC 18462)
    Foti, Mihalakos and Zarella, Js.
    Argued January 26
    officially released April 18, 2000

      George C. Springer, Jr., for the appellants (plaintiffs).

      Mary Pokorski, with whom, on the brief, were Brendan T. Flynn and Lewis K. Wise, for the appellees (defendants).

      Mark S. Baldwin, for the appellee (substitute defendant).
   Opinion

FOTI, J.

The plaintiffs appeal from the judgment of the trial court dismissing their zoning appeal. They claim that the court improperly (1) dismissed their appeal for lack of compliance with General Statutes § 8-8 (e) and (2) held that § 8-8 (q) could not be invoked to reinstate the appeal. We remand the matter to the trial court for further factual findings relative to the issue of mootness.

The record and briefs disclose the following facts and procedural history. This case involves property in New Britain that the city plan commission and common council voted to rezone from an A-l residential use to a B-2 commercial use. The purpose of the zone change was to allow the planned construction of a Target store on the site of an existing commuter parking lot. The plaintiffs are adjoining property owners who filed an appeal pursuant to § 8-8.

The plaintiffs had the summons and administrative appeal seived on the town clerk of the city of New Britain. On July 31, 1997, the defendants moved to dismiss the appeal on the ground that service was not made in accordance with § 8-8 (j) because the clerk or chairman of the common council for the city of New Britain was not named in the citation and was not seived. The court granted the defendants’ motion on December 22, 1997, concluding that the plaintiffs had not served the appeal in accordance with § 8-8 (e).

Thereafter, on January 9, 1998, the court provided an articulation, stating that the failure to name the chairman or clerk and the failure to serve one of them created jurisdictional defects. The plaintiffs then served and filed an amended citation and an amended appeal, which corrected the defects. Subsequently, the plaintiffs filed a petition for certification to appeal from the court’s dismissal of the original appeal. We granted the petition for certification on May 6, 1998.

On February 17, 1998, the defendants moved to dismiss the amended appeal that remained pending with the trial court, claiming that § 8-8 (q) permits an amended appeal only where failure of service was due to unavoidable accident or the default or neglect of the sheriff on the service. The court granted the defendants’ motion, concluding that § 8-8 could not be invoked to amend an appeal that was a nullity in the first instance. The plaintiffs filed a petition for certification, which we dismissed. The plaintiffs were directed to amend their previously certified appeal to incorporate any claims regarding the dismissal of their amended appeal.

Certain other allegations are as follows. The owner of the rezoned property transferred his interests in it to NB-BTMC, LLC (developer), which was substituted as a party in this case on September 29,1999. Thereafter, construction of a new commuter parking lot was begun on the property as a replacement for the lot lost to the Target construction. The plaintiffs sought a cease and desist order from the New Britain zoning enforcement officer, claiming that a commuter parking lot is in contravention of the uses allowed for both A-l and B-2 zoned properties. In response, the city of New Britain notified the plaintiffs that the developer had conveyed, by quitclaim deed, its interests in the property to the city of New Britain and that under city zoning ordinance number 40-10-50, property owned by the municipality is exempt from land use regulations. Therefore, the issue of mootness arises.

The plaintiffs, by letter of counsel dated October 14, 1999, contend that there is no record of passage of such an ordinance and that even if such an ordinance was passed, the city of New Britain has not met the requirements set forth in the ordinance. It can be argued that if the subject property is owned by the city of New Britain, and if city ordinance 40-10-50 has been properly enacted, and if the city of New Britain has fully complied with the requirements set forth in the ordinance, then the appeal may be moot because no practical relief would be available to the plaintiffs. Also to be determined is whether the city of New Britain took temporary title to the subject property to facilitate the construction of the commuter parking lot, and what effect, if any, that would have regarding ordinance 40-10-50 and the rights of the plaintiffs.

Because we, as an appellate court, may not make factual findings, we must remand this pending matter to the trial court for the resolution of factual issues as discussed in this opinion. See Practice Book § 60-2 (9).

The matter is remanded to the trial court for an evidentiary hearing for the purpose of making the requisite factual findings in compliance with this opinion.

In this opinion the other judges concurred.

       The plaintiffs are Daniel Karp and Lauriann M. Della Bernarda.

       In addition to the named defendant, (he city of New Britain, the defendants are the New Britain common council, the New Britain committee on zoning and John Cippola.

       The plaintiffs cited the city of New Britain, the common council for the city of New Britain, the committee on zoning for the city of New Britain and John Cippola, who had obtained the change of zone for the property adjacent to the plaintiffs. The sheriff served the city of New Britain by serving Peter DeNuzze, the town (Jerk He served the committee on zoning by service on Aime Broehu, whom he described as chairman of the zoning board. He served the New Britain common council by service on Mark II. Bernacki, described as president pro tem for the city. The sheriff also served Cippola. DeNuzze also is clerk of the common council. He was cited and served only as town clerk. General Statutes § 8-8 (e) requires that service be made on the chairman or clerk of the board and the clerk of the municipality. The common council is the zoning authority for the city of New Britain.

       The record fails to disclose whether that action is still pending.

       Section 40-10-50 of the New Britain zoning ordinances provides: “Municipal property shall not be subject to the Use Regulations prescribed in the Zoning Ordinances.
      “No action shall be taken by any Municipal Agency regarding Use of Land until and unless the general location, character and extent thereof has been submitted to the City Plan Commission for a report. The Commission shall, within a reasonable time, report its actions to the Common Council which shall have power to overrule such action by a vote of not less than two-thirds (2/3) of the entire membership of the Common Council.”

       “Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 230, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997). Our Supreme Court has consistently held that “[appellate courts] do not render advisory opinions. If there is no longer an actual controversy in which [the appellate court] can afford practical relief to the parties, [the court] must dismiss the appeal.” Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988); see Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488, 497, 736 A.2d 851 (1999).

       The parties were notified on December 29, 1999, to be prepared to discuss, at oral argument, the possible mootness of this appeal.

       We note that even if the factual issues to be determined lead to the conclusion that the appeal is moot because no practical relief is available, the appeal may nevertheless be heard under an exception that the issues on appeal are capable of repetition, yet evading review. See Loisel v. Rowe, 233 Conn. 370, 388, 660 A.2d 323 (1995). We conclude that this is not a case requiring a review of what would otherwise be moot, if indeed it is moot. We recognize that a decision to rezone property is not by its very nature of a limited duration, and it is unlikely that the substantial majority of cases raising the issue of the validity of a change of zoning would become moot before appellate litigation could be concluded. See id., 382.