text:
    State of Connecticut v. Carlton Woodard
    (5282)
    Hull, Daly and Bieluch, Js.
    Argued May 13
    decision released July 14, 1987

      John W. Watson, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, was Thomas Miaño, former assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant appeals from his conviction after a jury trial of the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). He raises three claims of error: (1) the court’s refusal to charge as requested on the lesser included offense of criminally negligent assault in the third degree in violation of General Statutes § 53a-61 (a) (3); (2) the insufficiency of the evidence to prove that the defendant caused the plaintiff serious physical injury; and (3) the court’s refusal to exclude a part of the defendant’s prior felony record.

The jury could reasonably have found the following facts. In January, 1982, the defendant spent most nights at the apartment of his girlfriend, Meta Gaston, at 150 Earle Street, Hartford. On January 18, 1982, Gaston’s brother, Russell Arnold, and a friend, Kenneth Smith, visited Gaston and the defendant at her apartment. An argument ensued between the defendant and Smith. Smith and Arnold then went to the basement laundry room to check on Smith’s clothing. The defendant went to the basement laundry room carrying a bat. The defendant repeatedly announced that he was going to kill Smith. The defendant pulled a gun from his pocket and told Smith, “I’m just going to kill you.” He then shot Smith and within seconds shot the motionless Smith again.

Smith was treated at Mount Sinai Hospital in Hartford. One bullet struck him in the upper left arm, emerged from the rear of the arm, grazed his rib cage and came to rest in his navel. A one-half inch scar remained at the time of the trial. Another bullet hit Smith in the rear of his right shoulder and remained in his body. As a result of this wound, Smith sustained a lytic defect in the scapula and a series of metal fragments remained lodged in the soft tissue of that shoulder. The attending physician, Dario Perez, testified that the wounds were both painful and incapacitating. Smith underwent surgery on his right shoulder to look for possible bullet fragments. None were found.

Smith’s right arm remained in a sling for several months. He underwent physical therapy for an extended period of time. At the time of trial Smith could not lift his right arm fully, and it continued to hurt.

The defendant filed a written request to charge on “Assault in the Third Degree under Section 53a-61.” He did not specify subsection (3) of that statute concerning a defendant acting with criminal negligence. The court declined to charge on this statute and stated that it did not charge on intentional assault in the third degree because the element distinguishing the lesser from the greater (the causation of the injury by a deadly weapon) was not sufficiently in dispute.

Defense counsel argued that the jury could have found criminal negligence causing injury “by means of a deadly weapon or dangerous instrument . . . .’’The trial court responded: “Well, that certainly is not a lesser included. The only section or subsection of assault in the third degree would be with intent to cause physical injury, and he caused physical injury, and the element that is—would differentiate third degree from second degree would be the fact that the physical injury was caused by a deadly weapon and that was not in dispute in this case.”

A defendant is entitled to instructions on a lesser offense only if an appropriate instruction is requested by either the state or the defendant. State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). The state requested no such instruction. Such a request must be sufficiently specific to advise the court of “ ‘the precise point to which the defendant wished to call attention.’ ” State v. McIntosh, 199 Conn. 155, 161, 506 A.2d 104 (1986). Although the defendant’s written request to charge referred only to “assault in the third degree under Section 53a-61,” his counsel’s later comments to the court sufficiently alerted the court that the defendant was requesting a charge specifically on General Statutes § 53a-61 (3). The request to charge, however, violated Practice Book § 854, which provides that a request to charge state “the citation of authority upon which it is based, and evidence to which the proposition would apply. ” (Emphasis added.) Compliance with this rule is especially important in this case because the defendant did not admit that he shot Smith. Had the court been properly alerted to the defendant’s present claim that he merely intended to intimidate Smith or that the gun discharged accidentally during a struggle, the court would then have been in a position to give the defendant’s request to charge more deliberate consideration.

“The very short request to charge failed to contain ‘such a complete statement of the essential facts as would have justified the court in charging in the form requested.’ Michaud v. Gagne, 155 Conn. 406, 410, 232 A.2d 326 (1967), quoting Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925); see also Practice Book [§ 854].” State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984). The court’s refusal to charge as requested was justified. State v. Johnson, 188 Conn. 515, 528, 450 A.2d 361 (1982).

The defendant’s second claim of error is that the evidence was insufficient as a matter of law to establish that the victim sustained “serious physical injury” as set forth in General Statutes § 53a-3 (4). That section defines “serious physical injury” as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” The court’s charge limited the jury’s consideration of the seriousness of the injury to “serious loss or impairment of the function of any bodily organ.” The defendant claims that the evidence was insufficient to prove (1) that the victim’s injuries met the statutory definition of “serious physical injury,” and (2) that any serious physical injury was caused by the defendant’s assault rather than by the surgery on Smith’s shoulder.

“The degree of the injuries suffered by [the victim] was a proper question for the jury to decide if sufficient evidence were introduced.” State v. Jeustiniano, 172 Conn. 275, 281, 374 A.2d 209 (1977). While “the distinction between ‘serious physical injury’ and ‘physical injury’ is elusive”; id., 282; “[t]he determination as to whether the victim’s injuries were ‘serious physical injuries’ was properly a question for the jury.” State v. Robinson, 174 Conn. 604, 606, 392 A.2d 475 (1978). State v. McCulley, 5 Conn. App. 612, 615, 501 A.2d 392 (1985); see also State v. Dickson, 10 Conn. App. 462, 523 A.2d 935 (1987).

The defendant’s claim that the evidence was insufficient to prove the defendant caused any serious physical injury suffered by the victim, because it was caused by unnecessary surgery, merits no discussion. It is a speculative claim at best, with no basis whatsoever in the evidence. Even if this claim were substantiated, our Supreme Court held as far back as in 1877 that “[i]f one person inflicts upon another a dangerous wound ... he is none the less responsible for the result although it may appear that the [victim] may have recovered if he had taken proper care of himself, or . . . improper treatment aggravated the wound . . . .” State v. Bantley, 44 Conn. 537, 540 (1877). The record in this case clearly shows that the jury was presented with sufficient evidence to support a finding of “serious physical injury” as defined in General Statutes § 53a-3 (4).

The defendant’s final claim of error refers to the trial court’s admission of “prior conviction” evidence on the issue of credibility. He claims that the relevancy of the state’s impeaching him through the use of his prior convictions was far outweighed by its prejudicial effect.

Certain factors have usually been identified as of primary importance in considering whether a former criminal conviction is to be admitted. These include “the extent of the prejudice likely to arise” and “the significance of the commission of the particular crime in indicating untruthfulness.” State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982); State v. Marquez, 160 Conn. 47, 52, 273 A.2d 689 (1970). The balancing of these factors is, of course, committed to the trial court’s discretion and, in the exercise of that discretion, the trial court must determine whether the prejudicial effect of the evidence far outweighs its probative value. State v. Geyer, 194 Conn. 1, 11, 480 A.2d 489 (1984); State v. DelVecchio, 7 Conn. App. 217, 219, 508 A.2d 460, cert. denied, 201 Conn. 801, 513 A.2d 697 (1986); State v. Kuritz, 3 Conn. App. 459, 461, 489 A.2d 1053 (1985).

When judged against these general principles, the narrow scope of the defendant’s claim becomes apparent. Indeed, he does not dispute the fact that some of his prior convictions fall within that class of offense that “imply a general disposition towards dishonesty” and as such “bear heavily on the credibility of one who has been convicted of them.” State v. Geyer, supra, 12; State v. Carter, 189 Conn. 631, 643, 458 A.2d 379 (1983). Rather, the primary question presented to this court concerns whether the trial court abused its discretion in ruling that the probative value of the proffered evidence sufficiently outweighed its prejudicial effect on the defendant. In particular, the defendant challenges use of his prior conviction for carrying a dangerous weapon.

There is, of course, “no per se rule prohibiting impeachment of a defendant by proof of a prior conviction of a crime similar to that for which he is being tried when that prior conviction is offered to attack his credibility.” State v. Keiser, 196 Conn. 122, 132, 491 A.2d 382 (1985); State v. Binet, 192 Conn. 618, 622, 473 A.2d 1200 (1984). Moreover, “[tjhe trial court, because of its intimate familiarity with the case, is in the best position to weigh the relative merits and dangers of any preferred evidence.” State v. Geyer, supra, 13; State v. Bitting, 162 Conn. 1, 10, 191 A.2d 240 (1971). In balancing the probativeness and prejudice of such evidence, the trial judge must recognize that “the danger of unfair prejudice is far greater when the accused, as opposed to other witnesses, testifies, because the jury may be prejudiced not merely on the question of credibility but also on the ultimate question of guilt or innocence.” United States v. Martinez, 555 F.2d 1273, 1275 (5th Cir. 1977); State v. Binet, supra, 623; State v. Sergi, 7 Conn. App. 445, 453, 509 A.2d 56, cert. denied, 201 Conn. 806, 515 A.2d 380 (1986). This court will upset a trial court’s order denying such a motion to exclude a witness’ prior record, offered to attack his credibility, only if the lower court has abused its discretion. State v. Binet, supra; State v. Kuritz, supra. “The test used in determining if the court abused its discretion is whether the court could reasonably conclude as it did, and every reasonable presumption will be made in favor of the correctness of its action.” State v. Johnson, 4 Conn. App. 672, 673, 496 A.2d 522 (1985).

We have carefully reviewed the record in this case and, in light of the proper admission of other convictions, we do not find that the prejudicial impact of the conviction in question outweighed its probative value.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-59 provides in pertinent part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another .person, he causes such injury to such person . . . by means of a deadly weapon . . . .”

       General Statutes § 53a-61 provides in pertinent part: “(a) A person is guilty of assault in the third degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person ... or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”
      General Statutes § 53a-3 (14) provides: “(14) A person acts with ‘criminal negligence' with respect to a result or to a circumstance described by a statute defining an offense when he failsto perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable, person would observe in the situation . . . .”


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    In re Jose C.

    (5586)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 2
    decision released July 14, 1987

      Robert B. Katz, for the appellant (respondent mother).

      Heather Wilson, assistant attorney general, with whom were Jane S. Scholl, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Robert W. Garvey, assistant attorney general, for the appellee (petitioner).

      James F. Kane, for the minor child.

       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.

   Dupont, C. J.

The underlying action of this appeal is a petition by the commissioner of children and youth services for the termination of the parental rights of the respondent parents, alleging that their child was uncared for and neglected. General Statutes §§ 17-43a; 46b-120. After a hearing on the petition, pursuant to General Statutes § 45-6 If, the trial court granted the petition. At that hearing, the trial court also heard evidence relevant to the posttermination disposition of the child. The respondent mother claims that the trial court erred in allowing evidence relevant to both the termination of parental rights and to the posttermination disposition of the child in one hearing.

The respondent asserts that she made a motion to bifurcate the proceeding which should have been granted, in order that the adjudication of whether to terminate the parental rights upon proof of “clear and convincing evidence” would not be contaminated by consideration of the dispositional standard of “the best interests of the child.” The respondent claims specifically that the testimony of the child’s foster mother about her desire to adopt the child “tainted the perceptions of the court.” She has conceded, however, that the bifurcation of the proceedings lies solely within the discretion of the court. See In re Migdalia M., 6 Conn. App. 194, 198-99 n.6, 504 A.2d 532, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

The claim that the court should have bifurcated this proceeding is thus necessarily that the court abused its discretion in not so doing. “In reviewing claims that the trial court abused its discretion ‘the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness; the ultimate issue is whether the court could reasonably conclude as it did .... ’ Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); see Maltbie, [Conn. App. Proc.] § 59.” Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252 (1983). The trial court in this case concluded, on the respondent’s motion for bifurcation made at the hearing, that it could properly distinguish the evidence presented on the distinct issues, and make its determination of whether to grant the petition in accord with the statutory standard of proof.

The respondent has not challenged the sufficiency of the evidence which supports the trial court’s granting of the petition to terminate her parental rights, nor has she claimed that the findings made would have differed if the motion had been granted. Our review of the trial court’s memorandum of decision reveals a thoroughly considered determination in accordance with the statutory mandates. There is no evidence in the record of any abuse of discretion in denying the motion for bifurcation of the proceedings.

There is no error.

In this opinion the other judges concurred.


author: Satter, J.

text:
    Mary Louise Gallagher v. John L. Gallagher
    (4211)
    Dupont, C. J., Borden and Satter, Js.

      Submitted on briefs May 6
    decision released July 14, 1987

      Joseph Mitchell Kaye, Maureen D. Dennis and William M. Sullivan, Jr., filed a brief for the appellant (plaintiff).
    C. IanMcLachlan and William T. FitzMaurice filed a brief for the appellee (defendant).
   Satter, J.

This is an appeal from orders entered on two postjudgment motions heard at the same time in a domestic relations matter. On one motion, the trial court, Novack, J., found that the defendant husband was not in contempt of court for failing to pay a specified amount of college expenses of the parties’ children “forthwith,” as previously ordered by another judge, Gerety, J., and allowed the defendant additional time to pay the balance due. On the second motion, the trial court ordered the defendant to pay an additional $5000 in two installments toward the children’s college expenses.

The plaintiff appeals on the grounds that the trial court erred (1) in rescinding the order of another judge that the defendant pay college expenses “forthwith,” (2) in not requiring that the defendant pay an amount for college expenses that was more commensurate with his financial ability and at a time when those expenses would be incurred, and (3) in failing to consider evidence concerning the defendant’s earnings in prior years. We conclude that none of these claims of error has merit.

The facts are as follows: The dissolution judgment, entered on May 20,1980, incorporated by reference a separation agreement between the parties which provided that “the Husband shall provide college education for the children of the marriage, if he is financially able .... In the event any question arises as to his financial ability, the court shall determine the same.” The agreement recited that the defendant then had an annual income of $80,000.

On June 20,1984, the parties stipulated to an order that the defendant contribute $5000 for college expenses in 1984 based on his income of $120,000. The order further provided: “In 1985, he is also to make a contribution in the same amount providing his income does not exceed $135,000 in 1984. If it exceeds $135,000, plaintiff reserves the right to petition for a higher contribution . . . for the 1985 calendar year.”

When the defendant had not paid the $5000 contribution for 1985 by March of that year, the plaintiff filed a motion that requested the court set when and how much the defendant should pay for the 1985 college expenses. On April 29, 1985, the court, Gerety, J., ordered that the defendant pay the minimum commitment of $5000 “forthwith.” Two days later, the plaintiff filed a motion for contempt. That motion, along with the plaintiff’s motion that the defendant make an additional contribution for college education, came before Judge Novack on May 24, 1985.

The court heard extensive evidence concerning the defendant’s income and financial condition. As to the contempt motion, it found that the defendant had already paid $2000, leaving a balance of $3000 owed on Judge Gerety’s order. It further found that “the defendant’s inability to obey the court’s order was without fault on his part and, therefore, the court did not find the defendant to be in contempt.” The court did, however, order the defendant to pay the $3000 by July 15, 1985, on the basis of its conclusion that the defendant would be financially able to do so by that date.

As to the motion to increase the defendant’s obligation to pay for college expenses in 1985, the court found that the defendant’s 1984 income exceeded by $12,000 the base amount of $135,000, stated in the June, 1984 order, and consequently ordered that the defendant pay an additional $5000. Taking into account when the defendant would receive his salary, commissions, and bonuses, the court ordered that the $5000 be paid half in September and half in December, 1985.

I

The plaintiff’s first claim of error is that Judge Novack improperly rescinded Judge Gerety’s order of April 29,1985, that the $5000 be paid “forthwith,” by allowing the defendant to pay the balance of $3000 on July 15,1985. The plaintiff asserts that Judge Gerety’s order was a final judgment; since the defendant had made no motion to reopen, set aside or modify it, the court could not do so on its own initiative. The plaintiff relies principally on Connolly v. Connolly, 191 Conn. 468, 464 A.2d 837 (1983), and Costello v. Costello, 186 Conn. 773, 443 A.2d 1282 (1982).

In Connolly, the court held that when the motion before it was to increase alimony, the court could not terminate alimony. In Costello, the court held that when a trial court had approved a separation agreement, it could not, sua sponte, modify the provisions of the agreement.

The motion before Judge Novack was to hold the defendant in contempt for failing to comply with Judge Gerety’s order. The issue was whether or not there was a “wilful disobedience” of the order. Connolly v. Connolly, supra, 483. The court heard evidence of the defendant’s financial condition and concluded that the defendant’s inability to comply was without fault on his part. “It is within the sound discretion of the court to deny a claim for contempt when there is a factual basis to explain the failure to honor the court’s order.” Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985). The power of a domestic relations court to act equitably “is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975).

Judge Novack did not reduce the amount that Judge Gerety ordered to be paid. Rather, finding the defendant unable to fully pay it forthwith, Judge Novack allowed the defendant the reasonable period of three weeks to do so. This is the typical way contempt matters are handled in domestic relations cases. It is consistent with the equitable character of such proceedings.

. II

The plaintiffs second claim is that the trial court erred in ordering the defendant to pay only an additional $5000 toward the 1985 college expenses when his 1984 net income was $147,000.

In reviewing alimony awards we recognize that trial courts have a distinct advantage over an appellate court in perceiving the demeanor and attitudes of the parties and all the surrounding circumstances. Tutalo v. Tutalo, 187 Conn. 249, 251, 445 A.2d 598 (1982). The ultimate issue for an appellate court is whether or not the trial court could have reasonably concluded as it did. Pasquariello v. Pasquariello, supra, 584. In that regard, every presumption is given in favor of the correctness of its action. Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981).

The 1984 order, entered by stipulation of the parties, provided that the defendant could be required to make an additional contribution in 1985 if his 1984 income exceeded $135,000. That order was not appealed. The court was thus required to focus on an increase in his income above $135,000. The court found that the defendant’s 1984 income was $147,000. It balanced the $12,000 excess against the defendant’s expenses and concluded that he was “financially able to contribute an additional $5000.”

The trial court also ordered that that sum be paid in two equal installments, in September and December, 1985. Although the plaintiff claimed tuition payments were due in early August, 1985, the court set the payment dates based on when the defendant received his salary, commissions and bonuses. We conclude that on all facts before the trial court, it could reasonably have determined as it did.

III

Finally, the plaintiff claims that the trial court erred in not considering evidence as to the defendant’s past earning capacity and prior years income. The court’s rulings on this issue “fall within its broad discretionary power to determine the relevancy or remoteness of evidence.” Hardisty v. Hardisty, 183 Conn. 253, 257, 439 A.2d 307 (1981).

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Gloria DeBrizzi v. Nicholas J. Georgette et al.
    (4366)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued April 1
    decision released July 14, 1987

      David M. Abbamonte, for the appellant (plaintiff).

      Richard Emanuel, with whom was Frank J. Riccio, for the appellees (defendants).
   Daly, J.

The plaintiff instituted this action to compel the defendants, the record title holders of certain real estate, to convey to her a one-half interest in those premises. The plaintiff also sought to enjoin the defendants from otherwise disposing of their interest in that property. The plaintiff appeals from the judgment rendered in favor of the defendants. The plaintiff claims that the judgment is erroneous since it is based only on the trial court’s review of the transcript of the hearing previously held before a factfinder. We find no error.

The plaintiff claimed that the named defendant and his wife held title to said premises for the plaintiff and her former husband pursuant to an oral agreement. The matter was heard by a factfinder-on two separate days during the fall of 1984. The only witnesses who appeared were the plaintiff and the named defendant. The factfinder failed to render a decision within 120 days of the completion of the hearing as required by Practice Book § 546G, and the parties refused to waive this limitation. The parties did agree, however, to have a Superior Court judge read a transcript of the hearing held before the factfinder, and to render a decision based on such reading. The trial court thereafter rendered judgment for the defendants on all issues.

The court found that the plaintiff and her former husband were married in April, 1964. In August of that year, the defendants purchased the premises at 275 Oceanview Terrace as a business investment. The court found further that the defendants rented the premises to the plaintiff and her former spouse in consideration of their paying the monthly mortgage installments, insurance, taxes and cost of repairs. There was no written agreement between the parties.

The plaintiff challenges only the trial court’s conclusion that “[t]he evidence presented in this case makes it substantially more likely than not that the defendants’ version of the agreement between the parties was correct. The plaintiff did not sustain her burden of proof.”

On appeal, the plaintiff claims that the trial court was not entitled to render judgment based on an evaluation of the credibility of the witnesses since they did not appear before it, but only before the factfinder. The plaintiff claims further that the court erred in rejecting her uncontradicted testimony regarding an oral agreement with the defendant Frances Georgette since Frances Georgette did not testify.

The defendants argue that by allowing a Superior Court judge to read the transcript and render a decision thereupon, the plaintiff has waived any claim of error.

We agree with the defendant that the plaintiff cannot be heard to complain about the procedure followed since that procedure was agreed upon and stipulated to by her counsel. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Cassidy, 3 Conn. App. 374, 387, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). We therefore will not review the plaintiffs claim that the trial court was not entitled to render judgment based on the credibility of the witnesses as gleaned from the transcript of the factfinder’s proceedings.

We also reject the plaintiff’s claim that the court erred in rejecting her uncontradicted testimony regarding an oral agreement with the named defendant’s wife. The trier is free to accept or reject, in whole or in part, the testimony offered by either party. State v. Haddad, 189 Conn. 383, 389, 456 A.2d 316 (1983); Filosi v. Hawkins, 1 Conn. App. 634, 641, 474 A.2d 1261 (1984).

There is no error.

In this opinion the other judges concurred.

       We note that there is a reference to a mistrial on the docket sheet in the trial court file of this case. Neither the trial court’s memorandum of decision nor the judgment rendered refers to a mistrial.
      The cover sheet of the trial court file states: “To be decided by Jacobson, J. on transcript & briefs per stipulation of F. Riccio and D. Abbamonte.” Both parties acknowledged in their briefs and at oral argument in this court that they had agreed to submit the transcript to the trial court judge for decision.

       The trial court's conclusions included inter alia the following:
      “(7) The alleged agreement between the parties was never put in writing.
      “(8) The alleged agreement would be in violation of the Statute of Frauds.

        “(9) There was no resulting trust.
      “(10) There was no constructive trust.
      “(11) There was no promissory estoppel.”
      The plaintiff does not challenge any of those findings on appeal.
      In addition, while there was some indication that the defendants had quit-claimed their interest in the premises to the plaintiff’s former husband in 1978 on condition that the deed would be recorded only upon the payment by him of defendants’ investment in the premises, plus expenses and a reasonable profit on the investment, that is not part of the findings or conclusions of the trial court.


author: Borden, J.

text:
    Andrew Howat, Administrator (Estate of Robert Scott Kelley) v. Michael Passaretti et al.
    (4180)
    Hull, Bouden and Daly, Js.

      Argued May 6
    decision released July 14, 1987

      Christopher F. Droney, with whom was Maurice T. FitzMaurice, for the appellant (plaintiff).

      Joseph Adinolfi, Jr., with whom, on the brief, were Joseph C. Morelli and John D. Miletti, for the appellee (defendant Orthopedic Service of Manchester, P.C.).
   Borden, J.

In this medical malpractice case, the plaintiff, the administrator of the estate of Robert Scott Kelley, appeals from the judgment rendered for the defendant, Orthopedic Service of Manchester, P.C., after a jury trial. The plaintiff claims that the court erred (1) in its charge to the jury limiting the jury’s consideration of the plaintiff’s claim of negligence to certain employees of the defendant, and (2) in excluding evidence of the refusal of the named defendant, Michael Passaretti, to answer certain questions at his deposition. We find no error.

Certain facts were undisputed. On May 7,1978, the decedent fractured his left ankle in a softball game, and was treated at the hospital by Passaretti, an orthopedic surgeon employed by the defendant. Passaretti applied a short cast to the decedent’s leg. On May 19, 1978, Passaretti examined the decedent at the office of the defendant, and told him to return in four weeks for removal of the cast. On May 23, 1978, the decedent’s father called Passaretti, and reported that the decedent was having pain in his leg. Passaretti advised that the decedent keep his leg elevated and call back if the pain persisted. On June 1,1978, the decedent died as a result of massive pulmonary emboli.

The critical disputed facts concerned whether the decedent made two additional telephone calls to the defendant’s office between May 19,1978, and June 1, 1978. The plaintiff introduced evidence that the decedent made those calls and was told by the defendant’s receptionists to keep his leg elevated, take aspirin and keep his next appointment. The defendant denied receiving any such calls, and denied that any of its employees gave such advice. The plaintiff’s claim of liability against the defendant was that the failure of the defendant properly to respond to those telephone calls was a breach of the applicable standard of care and resulted in the death of the decedent. Specifically, the plaintiff’s expert testified that, if the calls were made the defendant should have told the decedent to come in for an examination, and that such an examination would have timely revealed the presence of thrombophlebitis. Thus, the plaintiff’s case depended on establishing that between May 19, 1978, and June 1, 1978, those two additional telephone calls were made to the defendant’s office and were responded to by receptionists of the office as indicated.

The jury returned a verdict for the defendant. The court denied the plaintiff’s motion to set aside the verdict. This appeal followed.

I

The plaintiff first claims that the trial court erred by charging the jury that its consideration of the plaintiff’s claim of negligence was limited to certain employees of the defendant. We disagree.

This claim arises out of the following procedural context. The plaintiff’s original complaint, filed in 1979, was against both Passaretti and his employer, the defendant. The plaintiff’s allegation of negligence relevant here was that Passaretti failed to respond properly to the decedent’s complaints. In depositions, Passaretti and Lilia Barbero, the defendant’s office manager, named only two receptionists who were working at the office during the period in question, namely, Doris Stoltenberg and Marilyn Stavnitsky.

On the day of trial, January 16, 1985, the plaintiff sought to amend his complaint to allege that the death of the decedent was caused by the negligence of Passaretti “or persons under his direct supervision and control,” and by the negligence of the defendant “and its agents, servants and employees,” in failing, inter alia, to respond properly to the decedent’s complaints. The court permitted the amendment over the defendants’ objection. In response to the defendants’ request for specification by the plaintiff of the names of the employees of the defendant whom the plaintiff claimed were negligent, however, the court permitted the defendants to pose oral interrogatories in court to the plaintiff. The defendants thereupon orally asked the plaintiff to name the employees under Passaretti’s control who allegedly failed to respond properly to the decedent’s complaints. The plaintiff thereupon orally responded in court to the defendants’ interrogatories by naming four physicians, namely, Peter Gram, Paul Henrys, Dudley Ferrari and Andrew Thomas, and three office employees, namely, Stavnitsky, Stoltenberg and Barbero. On the next day the parties reduced the defendants’ interrogatories and the plaintiff’s responses thereto to writing and filed them with the court.

At the conclusion of the plaintiff’s case, the court granted Passaretti’s motion for a directed verdict in his favor, without opposition by the plaintiff, leaving Orthopedic Service of Manchester, P.C., as the sole remaining defendant. The defendant began its case by stipulating with the plaintiff in the presence of the jury “that interrogatories were filed to the substituted complaint in which the defendant asked who does the plaintiff claim are the person or persons who acted or failed to act in the manner claimed in . . . the plaintiff’s substituted complaint .... And, in answer to that interrogatory, an answer to that interrogatory was filed ... by the plaintiff” naming Gram, Henrys, Ferrari, Thomas, Stavnitsky, Stoltenberg and Barbero. After the plaintiff indicated his agreement to the stipulation, the court stated: “All right. In other words, the jury will consider that as evidence proven in this proceeding. In other words, the stipulation is an agreement of what it purports to say.”

During the course of the defendant’s case, Barbero, Stavnitsky and Stoltenberg testified. Barbero testified that the two receptionists in the office who took telephone calls were Stavnitsky and Stoltenberg, and that if a patient called in, the receptionist would record the call and the patient’s complaint on a message slip which would go into the plaintiffs chart. She denied receiving any calls from the decedent, and she testified further that a search of the office did not yield any telephone message slips indicating any such calls.

Stavnitsky testified on the next trial day. She denied ever telling a patient to take aspirin and elevate his leg, she had no recollection of having contact with the decedent in May, 1978, and she testified that a search for telephone message slips regarding the decedent did not yield any such slips. She also testified, however, that an additional receptionist, Rosalie Coffin, was working in May, 1978. The defendant’s counsel stated that Coffin would testify the next day.

The next day, Coffin testified that she worked part-time as a receptionist in May, 1978. She denied ever telling a patient to elevate his leg and take aspirin, or telling a patient who complained of pain to wait until his next appointment. She did not recall any conversation with the decedent in May, 1978.

Stoltenberg testified that she did not recall receiving any calls from the decedent. She denied ever telling a patient to take aspirin and elevate his leg, and she denied ever telling any patient, who called to complain of pain in a casted leg, to keep his next appointment. Stoltenberg also testified, however, that another substitute receptionist in May, 1978, was Lettie Glenn.

Lettie Glenn testified that in May, 1978, she was a substitute receptionist who filled in for Stavnitsky, Stoltenberg and Coffin. She denied ever telling a patient to take aspirin and elevate his leg, or telling a patient who called in with a complaint of pain in a casted leg to keep his next appointment. She had no recollection of the decedent or of having spoken with him.

With respect to the testimony that the decedent made one or two telephone calls to the defendant’s office in the period between May 22, 1978 and May 26, 1978, complaining of pain and requesting an appointment, the plaintiff filed the following request to charge: “the plaintiff has not attempted to prove which particular employee of [the defendant] received this additional call or calls. However, the law imposes a liability upon [the defendant] for any negligent acts of any of its employees. Thus, if any employee of [the defendant] failed to properly handle [the decedent’s] telephone call or calls, [the defendant] is liable for that employee’s negligence . . . . ” (Emphasis added.) The plaintiff filed a second request to charge as follows: “if you find that the employees of [the defendant] performed negligently in responding to the claimed telephone calls by [the decedent], and that such negligence was the proximate cause of [the decedent’s] death, then [the defendant] is liable for this negligence . . . .” (Emphasis added.)

The court did not charge as requested by the plaintiff. It charged instead that the “plaintiff also has the burden of proving that [the defendant] through its agents, Lilia Barbero, Lynne Stavnitsky and Doris Stoltenberg failed to exercise reasonable care in the discharge of their duties as office manager and receptionists, respectively.” (Emphasis added.) It also specifically called the attention of the jury to the plaintiff’s stipulation “that in answer to an interrogatory . . . which requested . . . ‘Who does the plaintiff claim are the person or persons who acted or failed to act’ ” improperly in responding to the decedent’s telephone calls, the plaintiff named “Dr. Peter Gram, Dr. Paul Henrys . . . Dr. Dudley Ferrari, Dr. Andrew Thomas, Miss Lynne Stavnitsky, Miss Doris Stoltenberg and Miss Lilia Barbero. They are the agents, servants and employees of [the defendant] whose conduct you will consider in reviewing [the plaintiffs] allegations of negligence. ” (Emphasis added.)

The plaintiff excepted to the court’s limitation in the charge to the seven persons named in the stipulation, and correspondingly excepted to the court’s exclusion of Coffin and Glenn from the jury’s consideration. The plaintiff also moved to correct the stipulation by adding the names of Coffin and Glenn. The court denied the motion.

The plaintiff argues that the court erred in excluding Coffin and Glenn from consideration by the jury because it treated the stipulation of the parties as a judicial admission, and thus conclusive on the plaintiff, rather than as an evidentiary admission which could be contradicted by other evidence. See General Statutes § 52-200 (responses to discovery requests are not conclusive, but may be contradicted by other testimony); Piantedosi v. Floridia, 186 Conn. 275, 278, 440 A.2d 977 (1982); C. Tait & J. LaPlante, Connecticut Evidence §§ 6.5 through 6.8.

It is true that ordinarily a response to a discovery interrogatory is not a judicial admission, and is not, therefore, conclusive on the party making it. Piantedosi v. Floridia, supra. A judicial admission, however, has a different status. “A party is bound by a judicial admission unless the court, in the exercise of a reasonable discretion, allows the admission to be withdrawn, explained or modified.” Hirsch v. Thrall, 148 Conn. 202, 206-207, 169 A.2d 271 (1961).

Judicial admissions may be expressed in different forms, such as a formal pleading; Piantedosi v. Floridia, supra; C. Tait & J. LaPlante, supra, § 6.7a; or a written stipulation. C. Tait & J. LaPlante, supra, § 6.7c. They may also be expressed informally and may take the form of an admission “ ‘in open court’ ”; Piantedosi v. Floridia, supra; by counsel as to “ ‘the issues in dispute, and the like . . . . ’ ” Pyne v. New Haven, 177 Conn. 456, 464, 418 A.2d 899 (1979). In such a case, the court is “ ‘justified in proceeding with the case upon the basis afforded by them, although it may in a proper case disregard them.’ ” Id. Thus, a stipulation entered into by an attorney during the trial may constitute a judicial admission, as long as it is clear that this was its intended purpose. C. Tait & J. LaPlante, supra, § 6.7 (d).

We recognize that the question of whether the action of the plaintiff’s counsel in this case constituted a judicial admission is close. This is because the stipulation entered into by the plaintiff’s counsel in open court, read narrowly and literally, is, on the one hand, subject to an interpretation that it was no more than an in-court repetition of the plaintiff’s response to the defendant’s interrogatory. On the other hand, the Circumstances preceding and surrounding the stipulation lead us to conclude that the court did not err in considering it, instead, as a judicial admission and therefore conclusive on the plaintiff.

First, the stipulation followed and was clearly linked to the plaintiff’s successful but belated amendment of his complaint expanding the individual targets of his claim of negligence. That expansion led directly to the court’s establishment of the unusual oral, in-court discovery process on the first day of trial. The court permitted the plaintiff at the last moment to expand his complaint, required the defendant to defend against the expanded complaint aided by that discovery process, and heard the plaintiff respond that his claims of negligence were aimed at the seven named persons. The court was justified, therefore, in understanding the plaintiff’s in-court stipulation to have the intended purpose of constituting an informal judicial admission which limited the scope of the plaintiff’s claim, much as if he had filed a formal pleading to the same effect. See Pyne v. New Haven, supra; C. Tait & J. LaPlante, supra.

Second, the fact that the parties actually stipulated in open court is highly significant. The defendant could have simply introduced as evidence its written interrogatory and the plaintiff’s written response, but it did not. Instead, the parties took the pains to stipulate in the jury’s presence that the plaintiff answered the defendant’s interrogatory regarding the persons claimed by the plaintiff to have been negligent, by naming the seven individuals involved, and the court told the jury to consider this stipulation “as evidence proven in these proceedings. In other words, the stipulation is an agreement of what it purports to say.” (Emphasis added.) This record is sufficiently clear that the court and the parties understood the stipulation to be more than an evidentiary repetition of the discovery process. They understood it to constitute an in-court, informal judicial admission setting a definite boundary on “ ‘the issues in dispute.’ ” Pyne v. New Haven, supra.

The plaintiff argues that even if the stipulation is considered as a judicial admission, it should not have been conclusive as to him because it concerned matters not within his personal knowledge and was the product of mistaken information. See, e.g., King v. Spencer, 115 Conn. 201, 205, 161 A.2d 103 (1932). He claims that his response to the defendant’s interrogatory upon which the stipulation was based, was dependent on the names of the receptionists supplied to him through the depositions of Passaretti and Barbero.

It is true that, had the plaintiff made a timely request to the court to modify the stipulation based on the evidence that Coffin and Glenn were also employees, the court could well have exercised its “reasonable discretion”; Hirsch v. Thrall, supra, 207; and permitted him to modify it. We cannot, however, find that the court abused its discretion in declining to do so. The plaintiff did not, prior to the closing arguments and the court’s charge to the jury, sufficiently alert the court that he wished to go beyond the stipulation and include Coffin and Glenn as targets of his claim of negligence. His request to charge did not name Coffin and Glenn, and it was so broadly worded that it would have included, not only Coffin and Glenn, but any other employee of the defendant. In addition to the testimony of Coffin and Glenn, and in addition to the seven employees named in the stipulation, the defendant had produced testimony from seven other employees, all of whom denied ever taking telephone messages or recalling any calls from the decedent. The plaintiff’s request to charge, therefore, would have expanded the plaintiff’s targets to sixteen, from the seven named in the stipulation. We cannot say that the court, faced with the overbroad and unspecific request to charge, erred by submitting the case to the jury on the basis of the in-court stipulation and by declining to charge the jury in accordance with the plaintiff’s request.

Nor did the court err in declining to recharge the jury in accordance with the plaintiff’s exception, which did, for the first time, focus on Coffin and Glenn. At that point, not only had all the evidence been produced, but the closing arguments of counsel had been presented, and the jury had been charged in accordance with the judicial admission of the plaintiff. We cannot say that the court abused its discretion in concluding, as it may well have, that the plaintiffs request to modify the judicial admission came too late.

Moreover, even if we were to determine that the court erred in considering the stipulation as a judicial, rather than an evidentiary admission, the plaintiff has not persuaded us that the error was harmful. Under the plaintiffs theory of liability, the critical issue was whether the decedent had made the telephone calls in question and received.the improper advice from the telephone personnel to elevate his leg, take aspirin and wait until his next appointment. The jury had before it, in opposition to the plaintiffs evidence, the testimony of Barbero, Stavnitsky and Stoltenberg. Their testimony was consistent in either denying, or denying recollection of, any such telephone calls, was consistent with respect to the absence of any telephone message slips reflecting such calls, and was consistent in denying that they ever gave any such advice to anyone, including the decedent. In addition, there was testimony of the seven other clerical personnel of the defendant which essentially corroborated the testimony of Barbero, Stavnitsky and Stoltenberg.

Both Coffin and Glenn denied ever having given any such advice to anyone. The jury could not, even if it disbelieved that denial, infer its opposite. Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); Milano v. Sayers, 6 Conn. App. 491, 492-95, 506 A.2d 162, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986). Both Coffin and Glenn denied having any recollection of talking with the decedent. Under these circumstances, we cannot conclude that, even if the jury had been permitted to consider Coffin’s and Glenn’s testimony, it is likely that the result would have been different.

II

The plaintiff’s second claim of error requires little discussion. It involves his unsuccessful attempt to introduce into evidence Passaretti’s failure to answer a number of medical questions asked of him.by the plaintiff at his deposition before trial. The plaintiff sought to use Passaretti’s failure to answer as a basis for an adverse inference. Passaretti’s failure to answer was based on his counsel’s objection to the questions and direction to Passaretti not to answer them.

It is not necessary to detail the procedures which followed the deposition, either pretrial or surrounding the plaintiff’s offer at trial.. Suffice it to say that we have fully examined the deposition questions. None of them had any bearing on the plaintiff’s theory of liability against the sole defendant on this appeal, namely, that the decedent made two telephone calls and received improper advice from someone in the employ of the defendant. A directed verdict was entered in favor of Passaretti, without opposition by the plaintiff. Under these circumstances, we agree with the defendant that this claim of the plaintiff is not properly before us on this appeal, and we decline to review it.

There is no error.

In this opinion the other judges concurred.

       At the conclusion of the plaintiff’s case, the court, without opposition by the plaintiff, directed a verdict for the named defendant, Michael Passaretti. The judgment rendered upon that directed verdict is not before us on this appeal. We refer herein to Orthopedic Service of Manchester, P.C., as the defendant.

       In this connection, we note that the plaintiff did not in the trial court and does not in this court make any claim of bad faith regarding the belated discovery that Coffin and Glenn were also receptionists, that the names should have been disclosed to him earlier, or that he was prejudiced by the timing or process of that discovery and disclosure. The record does not indicate, nor does the plaintiff claim, that the defendants’ counsel knew about Coffin and Glenn when the stipulation was made. We note also that the plaintiff had not deposed either Stavnitsky or Stoltenberg prior to trial. He does not complain about the fact that he did not learn about Coffin and Glenn until the trial testimony of Stavnitsky and Stoltenberg.


text:
    Brian J. Foley v. Southport Manor Convalescent Center, Inc., et al.
    (5062)
    Dupont, C. J., Borden and Daly, Js.

      Argued March 6
    decision released July 14, 1987

      Dwight F. Fanton, with whom were James P. White and, on the brief, Christopher S. Rode, for the appellants (defendant).

      Louis R. Pepe, with whom were James G. Green, Jr., and, on the brief, Jeanine M. Dumont, for the appellee (plaintiff).
   Borden, J.

The defendant Albert A. Garofalo appealed from the judgment of the trial court holding him in contempt of court and imposing sanctions therefor. The trial court’s judgment of contempt followed an earlier stipulated judgment arising out of a contract pursuant to which the defendants agreed to sell a nursing home to the plaintiff. Garofalo claims that the court erred in holding him in contempt of court for his failure to obey the court’s order that he seek a zoning variance or change of zone as to the property. We find error.

The relevant facts are undisputed. On September 30, 1984, the parties entered into a contract whereby the defendants agreed to sell their one hundred forty bed nursing home, located in the town of Fairfield, to the plaintiff for $5,250,000. The plaintiff paid a $5000 deposit, and was obligated by the contract to make an additional deposit of $150,000 on or before October 15, 1984. The contract provided for a closing date of October 30, 1984. Although the nursing home was located on a 10.09 acre tract of land, the contract provided for the sale of only 3.74 acres of that tract. The smaller tract carved out of the larger tract that portion of the land essentially occupied by the buildings and parking area of the nursing home. The contract obligated the seller to convey marketable title, free from encumbrances “except for the following: (1) any and all provisions of any ordinance, municipal regulation and public or private law, building, building line and zoning restrictions of the town in which the Premises are located . . . . ”

A dispute arose between the parties concerning the performance of the contract. The plaintiff claimed, inter alia, that the defendants were in breach for failure to give notice of the sale to the state health department. The defendants claimed, inter alia, that the plaintiff was in breach for failure to make the additional deposit of $150,000. The plaintiff sued the defendants seeking, inter alia, specific performance of the contract and injunctive relief restraining the defendants from conveying the property.

On November 9,1984, the trial court held a hearing on the plaintiff’s motion for a temporary injunction to restrain the defendants from selling or encumbering the real estate pending the trial of the plaintiff’s action. After a partial hearing, the parties stipulated to a judgment which the court rendered orally as follows: “What I’ll do is right now enter by stipulation, I’ll enter a reformation of the contract, and the only reformation will be an extension of time for the down payment. And the reformation will further state that the notice to the State of Connecticut Health Department will be simultaneous with the payment of the $150,000 down payment. The time for both of those acts is extended to November 16th, 1984, and the closing will take place on this premises on or before December 30th. I will extend the October 30th date to December 30th. Now, that’s all I am going to do. I’m going to reform the contract to that extent. Are you in agreement with it?” The parties indicated their agreement. The court’s judgment file provides in part: “The Court, having heard the parties on the stipulation, finds that judgment should be entered in accordance with the stipulation. Whereupon it is adjudged that a reformation of the purchase and sale agreement is ordered with November 16, 1984, set as the date that the plaintiff purchaser is to make an additional deposit of $150,000 simultaneously with the defendant seller delivering to the plaintiff the appropriate letter notifying the Connecticut Health Department of the impending sale and that the new closing date be on or before December 30,1984.” The plaintiff made the additional deposit and the defendant delivered to the plaintiff the appropriate letter addressed to the state health department.

In preparing for the closing, the plaintiff’s attorney discovered that a zoning problem existed: because after the sale the nursing home would be located on the 3.74 acre tract rather than the 10.09 acre tract, the town of Fairfield would consider the nursing home to be in violation of certain zoning regulations. The plaintiff offered several solutions to the zoning problem, including a long term ground lease of the 3.74 acre tract, rather than a conveyance in fee. The defendants rejected the plaintiffs suggestions. The defendants maintained that they could not close the transaction because they could not deliver marketable title, and they offered to refund the plaintiffs deposit.

Thereafter, the plaintiff moved to hold the defendants in contempt of court for their alleged failure to comply with the judgment. On September 23, 1985, after a hearing in which no testimony was offered but in which the attorneys for the parties made representations to the court, the court entered the following orders: “I’m ordering [the defendants] to do everything possible to effect the sale, whatever zoning is required. ... I think Mr. Garofalo and Mrs. Toth have an obligation to cooperate to the maximum in order to enforce the contract. ,. . . I’m not going to hold anyone in contempt, but I’m going to order that they make an application for a variance and take whatever steps are necessary to comply with the intent of the contract.” After further colloquy among the court and the attorneys, the defendants’ attorney stated: “We’ll agree to apply for the variance on a hardship basis for the 3.74 acres that we agreed to sell. Now, anything beyond that, we cannot agree to, Your Honor.” The court then continued the case to December 16, 1985.

The defendants did not thereafter apply for a zoning variance or for a change of zone. They justified their failure to take these actions on the basis that, as a result of discussions with local town officials, it became apparent to them that such applications would either be denied, would be vulnerable to challenge on appeal, or would involve great expense and delay and would not be feasible.

Ultimately, on March 21 and 31,1986, an evidentiary hearing was held on the plaintiffs motion for contempt. The court adjudged Garofalo in contempt of court because of his bad faith failure to apply for the variance or zone change which the court, on September 23, 1985, had ordered him to seek. It is clear from this record that the court viewed the stipulated judgment of November 9, 1984, as a judgment of specific performance of the contract between the parties, and was acting to protect the integrity of that judgment. The court imposed sanctions of $1774.31 per day, to be held in abeyance for sixty days during which period Garofalo could purge himself by either (1) entering into a long term ground lease of the 3.74 acres to the plaintiff, or (2) reforming the contract further by agreeing to sell the entire 10.09 acres to the plaintiff based on a price to be set by three independent appraisers. This appeal followed.

Garofalo raises several arguments on appeal, two of which we find equally and independently dispositive. We therefore need not consider his other claims.

Garofalo argues that the stipulated judgment of November 9,1984, was not a judgment of specific performance of the contract and that, therefore, the court erred in holding him in contempt of court for failure to obey its order, which was issued incident to that judgment and which was aimed at specific performance of the contract. We agree.

Although on appeal from a judgment of civil contempt, our scope of review is technically limited to jurisdictional questions such as whether the court had authority to impose the penalty inflicted and whether the conduct penalized could constitute a contempt, that scope of review is sufficiently broad to encompass many claims of error which are not facially jurisdictional. Barbato v. J. & M. Corporation, 194 Conn. 245, 250-51, 478 A.2d 1020 (1984). We conclude that our scope of review encompasses Garofalo’s claims of error on this appeal.

The judgment of November 9,1984, both as rendered orally by the court and as reflected in the judgment file, was a judgment reforming the contract only. It was not a judgment ordering specific performance of the contract. The court’s language was quite clear. “What I’ll do is right now enter by stipulation, I’ll enter a reformation of the contract, and the only reformation will be an extension of time for the down payment. And the reformation will further state that the notice to the State of Connecticut Health Department will be simultaneous with the payment of $150,000. . . . Now, that’s all I’m going to do. I’m going to reform the contract to that extent.” After some further colloquy in which the plaintiff expressed some dissatisfaction with the fact that the down payment would not be held in escrow by his attorney, the court stated further: “It was a mutual misunderstanding. I’ll state that. You [the plaintiff] misunderstood and they [the defendants] misunderstood. And I’m trying to reform the contract so everybody will comply.” The judgment file, consistent with the court’s oral judgment, provides: “Whereupon it is adjudged that a reformation of the purchase and sale agreement is ordered . . . . ”

Although a stipulated judgment is in the nature of a contract, it is as conclusive as if it had been rendered as an adjudication on the merits of contested facts. Lee v. Tufveson, 6 Conn. App. 301, 303, 505 A.2d 18, cert. denied, 199 Conn. 806, 508 A.2d 31 (1986). Although the court has the power to issue orders necessary to protect the integrity of a stipulated judgment, it may not enlarge the scope of that judgment. Id; see also Owsiejko v. American Hardware Corporation, 137 Conn. 185, 187-88, 75 A.2d 404 (1950).

In this case, the court enlarged a stipulated judgment of reformation of the contract into a judgment of reformation and specific performance. The stipulated judgment of reformation left the parties to their own private behavior in carrying out the contract; it did not add the power of the court to that process. Further judicial proceedings were required in order to secure a judgment of specific performance. Neither the plaintiff nor the court could shortcut that process by the contempt proceedings in this case.

By ordering Garofalo to apply for a zoning variance or zone change, and then by holding him in contempt for his failure to do so, the court went beyond issuing orders to protect the integrity of its judgment of reformation. It in effect issued orders to protect the integrity of a judgment of specific performance which had not been rendered.

The plaintiff argues that the record establishes that the stipulated judgment of November 9, 1984, was a judgment of both reformation and specific performance. It is true that, despite the clear limitation of the language of the judgment, as noted above, the parties and the court considered it to be such a dual judgment. Indeed, the record in the. trial court and in this court is replete with statements and acknowledgments by the defendants indicating that they understood the judgment as such. This brings us to the second argument of Garofalo which is equally dispositive of this appeal.

Even if we assume, without deciding, that the stipulated judgment ordered specific performance of the contract, the court’s subsequent order that Garofalo apply for a variance or zone change was invalid. Thus, Garofalo could not properly be held in contempt for failure to obey that order.

“It is hornbook law that courts do' not rewrite contracts for the parties.” Heyman v. CBS, Inc., 178 Conn. 215, 227, 423 A.2d 887 (1979). The contract between these parties contained no provision, either explicit or implicit, requiring Garofalo to apply for any zoning approval as to the 3.74 acres. Indeed, zoning restrictions were specifically excepted from Garofalo’s contractual obligation to deliver marketable title free from encumbrances. The trial court did not conclude, nor on this record can we, that the risk of zoning violations should fall on Garofalo because he knew or should have knowm of the zoning infirmity inherent in the proposed sale. The only evidence on that issue was to the effect that the zoning restriction being enforced by the town had not been made apparent when Garofalo built the nursing home in 1970. The trial court’s order that Garofalo apply for relief from zoning restrictions enlarged his obligations beyond those, authorized by the concept of specific performance of the contract. Thus, the court’s order in effect rewrote the contract in favor of the plaintiff and to the detriment of the defendants.

Nor is this a case in which Garofalo failed to alert the trial court to his position with respect to the scope of the court’s authority until sanctions were imposed. He consistently took the position that his obligations were defined by the contract and that the court had no power to order him to go beyond its terms.

We are not persuaded by the plaintiffs reliance on the principle that a vendee entitled to specific performance “ ‘may compel the vendor to convey his defective title or deficient estate, and at the same time have a just abatement out of the purchase price for the deficiency of title, quantity, or quality of the estate to compensate for the vendor’s failure to perform the contract in full.’ ” Botticello v. Stefanovicz, 177 Conn. 22, 33, 411 A.2d 16 (1979), quoting Schneidau v. Manley, 131 Conn. 285, 289, 39 A.2d 885 (1944). Specifically, the plaintiff claims that his willingness to accept a long term ground lease, as opposed to a conveyance in fee, of the 3.74 acres, a solution which the trial court endorsed, comes within that principle. Although we do not quarrel with that principle, we conclude that it does not apply to this case.

The court did not order Garofalo to enter into such a ground lease and did not hold him in contempt for his failure to do so. The court ordered him to apply for zoning relief, and held him in contempt of court for his failure to do so. It is that order and that judgment of contempt which is before us on this appeal. The court then ordered that Garofalo could purge himself of contempt by either entering into such a ground lease or by selling the entire 10.09 acres to the plaintiff. Thus, we have no need to decide whether an order requiring him to enter into such a ground lease would have been proper.

As to the defendants Southport Manor Convalescent Center, Inc., and Anne P. Toth, the appeal is dismissed. As to the defendant Albert A. Garofalo, there is error, the judgment of contempt of court is set aside and the case is remanded with direction to deny the plaintiff’s motion to hold the defendant in contempt of court.

In this opinion the other judges concurred.

       The three defendants are Southport Manor Convalescent Center, Inc. (Southport); Anne P. Toth, the secretary of Southport; and Albert A. Garofalo, the president of Southport and the owner of the real estate involved in this case. Although all three defendants purported to appeal, the trial court’s judgment held only Garofalo in contempt of court. We therefore dismiss the appeal as to Southport and Toth.

       In this connection, the court found that “the true problem” was that “Garofalo made a bad deal. It was a bad business judgment.” Thus, the court implicitly found that Garofalo did not exercise good faith. Because of our disposition of this appeal, we need not decide whether the evidence supports these findings.

       The court specifically declined, however, to find that it was probable that any such applications would have been successful. See Budney v. Ives, 156 Conn. 83, 239 A.2d 482 (1968).

       We note that when a stipulated judgment requires that the parties take direct action, as for example when specific performance is agreed upon, it may be enforced by a contempt proceeding. We do not, however, by this decision foreclose the plaintiff from now attempting further proceedings in this case in order to secure a supplemental judgment of specific performance of the reformed contract. Nor do we foreclose the defendants from raising any defense or claim in opposition to such an attempt. We need not decide that issue at this time.

       In this connection, we do not attach particular significance, to the fact that, after the court issued its order, the defendants’ attorney indicated their “agreement” to apply for a variance. At that point, the court had already issued the order. Under these circumstances, the defendants’ “agreement” to comply with the order which the court had already made hardly adds anything to the plaintiff’s claim for contempt.


author: Hull, J.

text:
    State of Connecticut v. Edward L. Reagan
    (4774)
    Hull, Daly and Bieluch, Js.
    Argued May 14
    decision released July 14, 1987

      M. Hatcher Norris, with whom, on the brief, was Stephanie Clarke, for the appellant (defendant).

      CarolynK. Longstreth, deputy assistant state’s attorney, with whom, on the brief, was Robert D’Andrea, assistant state’s attorney, for the appellee (state).
   Hull, J.

The defendant appeals from his conviction of the crimes of sale of a narcotic substance in violation of General Statutes § 2 la-277 (a), and illegal possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-279 (a). The conviction followed his conditional pleas of nolo contendere which was entered, pursuant to General Statutes § 54-943/ after the trial court denied his motion to suppress. The defendant claims on appeal that the trial court erred in denying that motion.

At the hearing on the defendant’s motion to suppress, the trial court found the following relevant facts. In the spring of 1985, the defendant and his wife moved into a house on Pettee Street in Lakeville, Connecticut. The defendant’s home was next door to a residence occupied by Rosina Rossier. Within one week of the defendant’s arrival, Rossier noticed an increase in traffic on the dead end street. She witnessed many cars and a few trucks stop by the Reagan house for approximately five to ten minutes. This activity, combined with discussions concerning the same with neighbors, led Rossier to believe that Reagan was “dealing with drugs.” Rossier subsequently reported her suspicions to the first selectman of Lakeville, who in turn contacted the Connecticut state police.

On May 24, 1985, the state police began a surveillance operation of the defendant’s home. At approximately 7:30 p.m., they observed a car pull into the driveway. Its occupant stayed at the home a short time before leaving. Soon thereafter, a second car pulled into the driveway. An individual later identified as David Earl Jones entered the home after knocking. A short time later, both Jones and the defendant left the house and walked to the back yard. The defendant reached into his pocket and pulled out a small packet, which he handed to Jones. Jones in turn handed a slip of paper to the defendant, which the state trooper identified as a check, and then left the house. Before the officers left their post outside the defendant’s house, a third car pulled up, a young woman went into the house and then left after less than one minute.

Another state trooper was notified by radio of the activities, and subsequently conducted a stop and search of Jones’ car at a nearby gas station. Jones was found to have marihuana in his car and a half gram of cocaine in a cigarette pack. He was then placed under arrest.

During the search and arrest of Jones at the gas station, one person was standing next to Jones, and three others were watching from a distance of approximately ten feet. The trooper testified that he also noticed the woman whose car he had seen at the defendant’s home, stopped at the corner, watching the proceedings.

After the arrest, application for a search and seizure warrant was made. One of the troopers, Sergeant Brian Acker, testified, however, that he knew it would take at least three hours to obtain the warrant. He decided that there was a significant risk the defendant would be notified of Jones’ arrest and would destroy any incriminating evidence. He testified that “it had been my experience that in a community such as [this] there is a great deal of conversation on the streets as to incidents such as this taking place.” Acker consequently decided that it was necessary to enter and secure the defendant’s residence until the warrant could be obtained.

Acker and Trooper John Merullo, both in plainclothes, drove up to the house in an unmarked car and knocked on the back door. The defendant’s wife came to the door. Acker testified that, after he asked if “Ed” was in, she responded “come on in” and led them upstairs.

At the top of the stairs, the defendant’s wife stopped in Acker’s way so he could proceed no further. Acker “just worked, kind of pushed [his] way by gently and went into that bedroom.” Upon entering the bedroom, Acker saw the defendant with his back to the door. He testified that he observed a bowl on a small table in the corner of the room which contained a powdery white substance. He told the defendant not to move, that he was under arrest.

Everyone in the home was ordered to the first floor while Acker awaited the search warrant. After the warrant arrived, a search was conducted and the trooper seized $573 in cash, the white substance and some drug paraphernalia.

Prior to trial, the defendant moved to suppress all the evidence obtained during the search as fruit of an unlawful warrantless search and arrest. The trial court denied the motion, finding that the warrantless entry was justified by exigent circumstances. The state claims in this appeal that the warrantless search of the house was also justified as a consensual search, and under the inevitable discovery doctrine. Although neither party addressed the issues of consensual entry or inevitable discovery at the suppression hearing, the trial court noted in its memorandum that the defendant’s wife had admitted the police into the house voluntarily.

I

The defendant claims that no consent was given to permit the warrantless entry of his home. He contends that his wife did not give free and voluntary consent to Acker in that (1) she did not know he was a police officer, and (2) he forced his way into the bedroom “after she attempted to delay or prevent his entry into the bedroom.”

It is well recognized that a valid consent to enter and search a home is an exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Jones, 193 Conn. 70, 78-79, 475 A.2d 1087 (1984); State v. Harris, 10 Conn. App. 217, 224, 522 A.2d 323 (1987). To be valid, consent must be voluntarily given, not the product of coercion or acquiescence to a claim of lawful authority. State v. Zindros, 189 Conn. 228, 243-44, 456 A.2d 288 (1983); State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986). In order for a third party’s consent to a search to be valid, the consenting party must have common authority over the premises to be entered or searched. State v. Jones, supra, 80.

We are faced with three subissues in this consent claim. The first is whether the consent by the defendant’s wife was invalid in light of the fact that she was not aware that the persons to whom she gave consent to enter were policemen. The second question concerns the scope of her consent to search. The third question is whether her consent terminated by her action at the top of the staircase.

Our courts have recognized the legitimate need for law enforcement officials to conceal their identities at times. Lewis v. United States, 385 U.S. 206, 209-10 nn.5 and 6, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966). In situations where a plainclothes police officer, engaged in a criminal investigation, fails to disclose his identity and is voluntarily admitted into a home, courts find such entries consensual. Lewis v. United States, supra, 210- 12; United States v. Shigemura, 682 F.2d 699, 706 (8th Cir. 1982); United States v. Ressler, 536 F.2d 208, 211-12 (7th Cir. 1976). In Shigemura, the police suspected that the defendant had stored stolen meat in his basement. An officer went to the house, knocked on the door and told the person who responded that “Eddie” (the defendant) had sent him to see the “stuff’ in the basement. The officer was thereafter admitted to the house, and the eighth circuit upheld the consent as valid.

United States v. Ressler, supra, is factually similar to the present situation. In that case, plainclothes officers went to the defendant’s home believing that he was illegally in possession of firearms. One of the officers asked for the defendant by his nickname, “Cory,” thereby gaining admittance to the house where they received information later used to obtain a warrant. The seventh circuit upheld the entry, stating that “[a] person is expected to recognize his acquaintances and any information revealed to one who claims to be an acquaintance, but who in fact is not one, must be viewed as exposed at the suspect's risk. . . . Furthermore, the type of misrepresentation here involves less deception on the part of the agent than the misrepresentations sanctioned in Lewis and in Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963), where the agents obtained information by appearing to be participants in illegal transactions.” (Citation omitted.) Id., 212.

Further, in Lewis, Chief Justice Warren, writing for the court, thought it relevant that the defendant had transformed his home into a “commercial center,” where illegal buying and selling took place. The Supreme Court stated, without elaboration, that in such a situation, the defendant was not entitled to the same fourth amendment protections as he would be had he not been running a business from his home. Lewis v. United States, supra, 211. That language was cited approvingly in both Shigemura and Ressler. As in these three cases, the defendant in the present case had converted his home into a “commercial center” where unlawful business was transacted; therefore, his home was not entitled to greater sanctity than other places of business. See Lewis v. United States, supra, 211; United States v. Shigemura, supra, 706.

The defendant’s wife invited the officers inside without asking who they were or why they wanted to see the defendant. They did not misrepresent their identities and did not coerce their way into the house. The police clearly obtained a voluntary consent to enter the defendant’s house.

The remaining question concerns the limits of that consent. As a preliminary matter, we find that the entry into the bedroom was clearly within the scope of the consent given. From the limited record we have before us, we discern no explicit or implicit limits to the consent the defendant’s wife gave the officers. See Mason v. Pulliam, 557 F.2d 426, 428-29 (5th Cir. 1977); State v. Gonzales, 48 Wash. App. 388, 395, 731 P.2d 1101 (1986). To the contrary, the police were impliedly given consent to see “Ed,” and that is all they did. Their action inside the house cannot be said to have exceeded the scope of the consent.

The final question is whether the fact that the defendant’s wife stopped at the top of the stairs was an effective end to the valid consent. We find that it was not.

Whether a search remained within the boundaries of the consent is a question of fact to be determined from the totality of all the circumstances. United States v. Sierra-Hernandez, 581 F.2d 760, 764 (9th Cir.), cert. denied, 439 U.S. 936, 99 S. Ct. 333, 58 L. Ed. 2d 333 (1978). Acker testified that the defendant’s wife stopped at the top of the stairs so that he had to pass by her to reach the bedroom. There was no other testimony regarding that incident. The defendant made no claim, either at trial or on appeal, that his wife’s consent to enter the house was withdrawn. With no other testimony in the record, we find no withdrawal of consent simply because she stopped at the top of the stairs and Acker had to “push his way by gently.” This is not a clear withdrawal of consent, as is seen in Mason v. Pulliam, supra, 428 (wherein the defendant stated “[t]he search is over. I am calling off the search”); or in United States v. Bily, 406 F. Sup. 726, 728, (E.D. Pa. 1975) (wherein the defendant stated, after giving consent to search: “ ‘[tjhat’s enough. I want you to stop.’ ”). We will not infer, absent some positive indication of withdrawal, that there was such a withdrawal. See State v. Cobbs, supra, 658-59. As we have determined that there was valid consent for the entry into the defendant’s house, any plain view observations made were also justified. See State v. Salz, 8 Conn. App. 125, 135-36, 512 A.2d 921, cert. denied, 201 Conn. 807, 515 A.2d 380 (1986); State v. DiStefano, 7 Conn. App. 726, 730, 510 A.2d 995 (1986).

The defendant’s remaining claims are that the warrantless search was not justified by exigent circumstances or under the inevitable discovery doctrine. In light of the fact that we have found the search justified as consensual, we need not reach the alternate grounds presented. See Pepe v. New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987); Payne v. Robinson, 10 Conn. App. 395, 404, 523 A.2d 917 (1987).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The defendant contends that he was operating an auto parts business out of his house.

       This was the only testimony regarding the incident. Neither the defendant nor his wife took the stand at the suppression hearing.

       There was also testimomy at the suppression hearing that Mrs. Reagan voluntarily invited the officers into the house.

       The question of authority to consent to the search is not an issue in this case. We note only that the house and room were under the common authority of both the defendant and his wife. See State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984); State v. Harris, 10 Conn. App. 217, 225, 522 A.2d 323 (1987).


text:
    Cynthia DiMauro v. Gerald Natalino
    (4373)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 4
    decision released July 21, 1987

      William F. Dow III, for the appellant (defendant).

      Stephen J. McGovern, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (plaintiff).
   Daly, J.

The defendant appeals from the judgment rendered after a jury found that he is the father of the plaintiffs child. In a separate proceeding, the trial court then ordered him to pay monthly support until that child’s eighteenth birthday, as well as arrearages to the state of Connecticut, attorney’s fees and costs. On appeal, the defendant claims the trial court erred (1) in denying his motions for a directed verdict and to set aside the verdict because of insufficient evidence, and (2) in refusing to instruct the jury as requested. We find no error.

In September, 1981, the plaintiff instituted a paternity action against the defendant alleging that he was the father of the child born to her on November 28, 1979. The defendant denied having had sexual relations with the plaintiff at any time in 1979 and specifically denied having them during the time of conception. He acknowledged that a sexual relationship had existed between the two during the “warmer months” of 1978. He further claimed that the plaintiff had admitted to having sexual relations with another man prior to, during and following the time of conception. The plaintiff testified that she had not had sexual intercourse with anyone other than the defendant during the period of conception, although on cross-examination she made one statement which contradicted her earlier testimony. .

Paternity actions are civil proceedings and the general rules governing civil actions apply. Robertson v. Apuzzo, 170 Conn. 367, 372, 365 A.2d 824, cert. denied, 429 U.S. 852, 97 S. Ct. 142, 50 L. Ed. 2d 126 (1976). Thus, “the plaintiff in a paternity proceeding need only prove her case by a fair preponderance of the evidence. Terrasi v. Andrews, 3 Conn. Cir. Ct. 449, 453, 217 A.2d 75, cert. denied, 153 Conn. 729, 214 A.2d 130 (1965).” Lavertue v. Niman, 196 Conn. 403, 407, 393 A.2d 213 (1985). A determination that a defendant is the father of a child is factual and may be rejected on appeal only if it is clearly erroneous or otherwise contrary to law. See Practice Book § 4061; Schaffer v. Schaffer, 187 Conn. 224, 225, 445 A.2d 589 (1982).

The record in this case, like most paternity cases, reveals conflicting testimony of the parties and of their witnesses. During cross-examination, the plaintiff was asked an isolated question regarding whether she had had sexual relations with anyone other than the defendant during the time that the child was conceived. She responded, “Yes, I did.” When viewed in isolation, this testimony appears damaging to the plaintiffs case. This question was asked, however, in the midst of cross-examination regarding the surname of the woman with whom the plaintiff was sharing an apartment at the time of conception. It would not have been unreasonable for the jury to conclude, therefore, that the plaintiff was confused when she answered this particular question. Moreover, at four separate times during the trial, the plaintiff denied having had sexual relations with anyone other than the defendant at the time of conception. Thus, the jury was presented with one inconsistency within the plaintiffs testimony, and it was incumbent upon them to weigh her testimony as a whole.

The plaintiffs older sister testified that the plaintiff had stated to her that the defendant was the father of the child. A former boyfriend with whom the plaintiff had lived for approximately one year testified, however, that he had had sexual relations with the plaintiff during the time of conception. He also testified that the plaintiff told him that he was the father of her child. Thus, there was testimony buttressing both the testimony of the plaintiff and of the defendant. “Nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony.” Schaffer v. Schaffer, supra, 227. Thus, it was up to the jury to weigh the testimony of the various witnesses and to reach a conclusion based on all the evidence. We will not retry the facts.

I

The defendant claims that the inconsistencies in the plaintiff’s testimony and the conflicting testimony of others rendered the evidence insufficient to support the jury’s verdict. He asserts, therefore, that he was entitled to a directed verdict and the granting of his motion to set aside the verdict.

Directed verdicts are not favored and should be granted only when the jury could not reasonably and logically reach any other conclusion. In considering a trial court’s refusal to direct a verdict, we must review its action in the light most favorable to the plaintiff. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982).

The defendant mistakenly relies on Yarmark v. Strickland, 193 So. 2d 212, 213 (Fla. 1967), cited in Gelinas v. Nelson, 165 Conn. 33, 35, 327 A.2d 565 (1973). In Yarmark, the plaintiff unequivocally admitted having had sexual intercourse with another man as well as with the defendant during the medically recognized time in which conception occurred, yet judgment entered for the plaintiff. The Appellate Court of Florida reversed, stating that since the plaintiff admitted having intercourse with a man other than the defendant, it was improper for the trier to guess which of the two men was the father and to determine parentage based on such speculation. Yarmark v. Strickland, supra. In this case, however, the plaintiff repeatedly denied having relations with anyone other than the defendant during the time of conception. Thus, proof that she had sexual relations with any other man rested upon the testimony of the defense witnesses and the jury’s weighing of the conflicting evidence. In situations such as this, it is proper for the case to go to the jury. Thus, the defendant’s reliance on Yarmark is misplaced, and it was proper for the trial judge to deny the motion for a directed verdict and to let the case go to the jury.

As to the defendant’s claim that the trial court erred in refusing to set aside the verdict, there is no demonstration on the record that the jury was swayed by prejudice, passion, mistake or corruption. The jury must determine the credibility of the witnesses and weigh it accordingly. When there are issues on which there can be a reasonable difference of opinion, the jury’s conclusion must stand, even if we might have concluded differently. Trzcinski v. Richey, 190 Conn. 285, 298-99, 460 A.2d 1269 (1983). The jury in this case, after weighing the evidence and finding facts, could have found by a preponderance of the evidence that while the plaintiff had been intimate with another man prior to and subsequent to the period of conception, the defendant was the only one with whom she had had sexual intercourse during the period of conception. The trial court did not abuse its discretion in refusing to set aside the verdict.

II

The second issue is whether the court erred in refusing to charge the jury in accordance with the defendant’s request to charge. This issue can be broken into three parts: (1) the charge on inconstancy of accusation; (2) the charge on impeachment by a prior inconsistent statement; and (3) the charge on sexual relations with others at the time of conception.

The defendant requested the following charge: “If you find, for example, that the plaintiff has been inconsistent in her claims that Gerald Natalino is the father of the child and that she has sometime in the past claimed that another is the father, you can consider that fact in passing on the credibility of the complainant.” The trial court’s actual charge was: “If you find from all the evidence that a witness who has appeared before you at this trial gave testimony which is inconsistent with their prior statement, you may consider that fact in determining the weight you will give to the testimony of that witness.”

The test of a proper jury charge is whether it fairly presents the case to the jury, in such a way that injustice was not done under the rules of law to either party. Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977). A trial judge need not charge in the exact words requested as long as the charge is stated correctly and adequately states the law. Tripp v. Anderson, 1 Conn. App. 433, 438, 472 A.2d 804 (1984). The charge as given clearly informed the jury that any inconsistencies in a witness’ testimony could be considered as a factor when assessing that witness’ credibility.

The defendant’s supplemental request to charge was captioned “impeachment by prior inconsistent statement” and related to alleged prior inconsistent statements made by the plaintiff on her sworn answers to interrogatories. We note that the prior inconsistent statement of the plaintiff referred to by the defendant in his supplemental request to charge would have been harmful to the defendant had it been considered by the jury as substantive evidence as well as for its impeachment value. Although the defendant’s supplemental request to charge stated that he wished the prior inconsistent statement to be used “both in evaluating the credibility of the witness, and as evidence of any fact contained in the prior statement,” (emphasis added) the claim on appeal is limited to the use of the statement for impeachment purposes. Clearly, this statement could have been considered substantively, yet this is not the defendant’s claim on appeal. The defendant claims only that the court erred in refusing to charge the jury pertaining to its “right to consider those inconsistencies as they affected her credibility.” We conclude that the trial court’s charge on the use of prior inconsistent statements properly informed the jury as to its right to consider the plaintiff’s prior inconsistent statements as they affected her credibility.

Finally, the defendant challenges the court’s refusal to charge the jury that “if you find that the plaintiff . . . had sexual relations with men other than the defendant at or about the time she claims to have conceived the child, in the absence of other evidence, it would be improper to find that Gerald Natalino is the father.” (Emphasis added.) There was substantial evidence in this case that contradicted the defendant’s contention that the plaintiff had had sexual relations with others at the time of conception, and it was within the province of the jury to weigh that evidence. This charge, therefore, was inapplicable. See Yarmark v. Strickland, supra.

There is no error.

In this opinion the other judges concurred.

       The state of Connecticut is also a plaintiff in this action. The state’s involvement is derived from requirements imposed on it by the federal government. See 42 U.S.C. § 602 (a) (26) (b). The mother of a child receiving public assistance is required to identify the child’s father and, in the event that he does not acknowledge paternity, to bring an action against him. General Statutes §§ 46b-160, 46b-169. If the paternity action is successful and results in an order of support, as in this case, the moneys so awarded are paid directly to the state because the mother of a child on public assistance must assign her rights of support to the state. General Statutes § 17-82b; see DeMace v. Whittaker, 196 Conn. 413, 414-15, 493 A.2d 219 (1985); Lavertue v. Niman, 196 Conn. 403, 406-407, 493 A.2d 213 (1985); see also General Statutes § 46b-162.

       On cross-examination, the plaintiff also testified as follows:
      “Q. Now with respect to [another man], is it your claim that you did not have sexual relations with him during the months of February and March of 1979?
      “A. Yes. . . .
      “Q. Just so that everybody is clear, it is your testimony that you did not have sexual relations with [another man] during February of 1979, is that correct?
      “A. Yes, it is.”
      On direct examination of the plaintiff, the following exchange took place:
      “Q. During that period of time, we are talking about the middle of February to the middle of March of 1979, were you having sexual relations with any man?
      “A. Just one.
      “Q. Just one man?
      “A. Yes.”
      Later, this exchange occurred:
      “Q. And it is your testimony during that period of time you only had sexual relations with the defendant.
      “A. Right.
      “Q. No one else?
      “A. No.
      “Q. Do you know that you are under oath and that there are penalties for lying?
      “A. Yes
      “Q. You only had sex with Gerald Natalino during that time?
      “A. Yes.”

       The supplemental request was as follows:
      “Impeachment by Prior Inconsistent Statements.
      “Where the testimony of a witness at trial is inconsistent with a prior statement of the witness, and that prior statement was given under oath, subject to the penalty of perjury at another trial or at a hearing, deposition or other proceeding, you may consider the prior statement both in evaluating the credibility of the witness, and as evidence of any fact contained in the prior statement. Should you find the prior statement to be inconsistent with the witness’s testimony, you may consider the statement in determining what credence to be given to the witness’s present testimony in court. Should you find the prior statement to be truthful, you may consider it as evidence in this case.”
      The trial court’s charge was as follows: “Now I will explain to you the rule as to inconsistent statements of witnesses. If you find that a witness is proven or admits having made a statement out of court which is inconsistent with his or her testimony on the stand you can consider their statement not as evidence of the truth of what is said but as evidence which shows an inconsistency between the claim of the particular witness at the time of the statement was made and his or her claim when he or she took the stand. That you should consider as bearing upon his or her credibility.
      “If you find from all the evidence that a witness who has appeared before you at this trial gave testimony which is inconsistent with their prior statement, you may consider that fact in determining the weight you will give to the testimony of that witness.”

       The prior inconsistent statement at issue was the plaintiff’s answer to an interrogatory. That question and answer are as follows:
      “22. Did you state to any person since you became pregnant that a person other than the defendant was the father of this child.
      “A. No.”
      The use of this statement as substantive evidence would have harmed the defendant because it would have weakened his claim that the plaintiff was inconsistent in her accusation that he was the father of the child.

       The plaintiffs answer to the interrogatory could have been admitted as substantive evidence as a prior inconsistent statement of a party who is a witness in the proceeding; State v. Whelan, 200 Conn. 743, 749 n.5, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); or as a “prior written inconsistent statement, signed by the declarant, who has persona] knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” Id., 753. Here, the plaintiff signed the answers to the interrogatories, clearly had personal knowledge of the facts stated therein, and testified and was cross-examined at trial.