text:
    State of Connecticut v. Pablo Rivera
    (7830)
    Daly, O’Connell and Cretella, Js.
    Argued October 4
    decision released December 11, 1990

      Gary A. Cicchiello and Christine M. Hawks, certified legal interns, with whom were Michael R. Sheldon and, on the brief, ToddD. Fernow and Timothy H. Everett, and Sandra L. MacVicar, Marjorie M. Selig and Jennifer L. Wrinn, certified legal interns, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda N. Howe, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of possession of a narcotic substance with intent to sell by a non-drug-dependent person in violation of General Statutes § 21a-278 (b). The defendant raised four separate issues as possible grounds for this court to vacate his conviction. He claims that (1) the evidence used to convict him was illegally seized, (2) the state’s use of a peremptory jury challenge was racially discriminatory, (3) the trial court improperly instructed the jury on the presumption of non-drug-dependency, and (4) there was insufficient evidence to sustain the conviction.

I

Motion to Suppress

The court could reasonably have found that at about 10:30 on the night in question three Bridgeport police officers were on patrol in that city in a marked cruiser in Father Panik Village, a high crime area frequented by drug dealers. The officers were there to observe a drug sale that they reasonably believed would occur in a courtyard between buildings thirty-one and thirty-two. To effect their observation, they drove the cruiser partially onto the sidewalk, so that the front wheels were on the sidewalk and the rear wheels remained in the street. The cruiser’s headlights were on but not its flashing lights and siren. Prior to their arrival, the officers had no reason to expect a group of people to be standing on the sidewalk about fifteen feet from where they stopped. Upon noticing these people, however, one officer left the cruiser and walked toward them. The officer and the defendant made brief eye contact and the defendant began to walk away. This departure focused the officer’s attention on the defendant and he followed him approximately ten feet at which point the defendant threw a brown paper bag into some bushes. The officer then ordered the defendant to stop until the bag’s contents were investigated. The contents eventually proved to be narcotics.

The defendant argues that he was illegally seized from the time the officer left the cruiser and followed him and that the discarding of the bag was his response to this unlawful police action. The court found that when the defendant discarded the bag, he did not know he was being followed and, therefore, he could not claim to have been seized prior to that point. A person is seized if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 553-54,100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); State v. Brown, 199 Conn. 47, 53, 505 A.2d 1225 (1986). Because the defendant did not testify at the suppression hearing, we lack the benefit of his impression of whether he felt free to leave.

A fleeing defendant’s fourth amendment rights are not implicated until the pursuing police officer first issues a command to halt. Michigan v. Chesternut, 486 U.S. 567, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). “Our own case law brings us to the same result. ‘We know of no Connecticut case . . . that holds that merely following another, absent any show of force or authority or direction to halt, constitutes a stop within the meaning of the fourth amendment.’ ” State v. Oliver, 17 Conn. App. 108,110-11, 550 A.2d 316 (1988), quoting State v. Rodriguez, 14 Conn. App. 574, 577, 542 A.2d 342 (1988).

The officer, while lawfully walking behind the defendant in an area known for a high level of drug activity, was justified in detaining the defendant to investigate the bag’s contents at the moment he saw him throw the bag into the bushes because it was at that time the officer first had a reasonable, articulable suspicion that criminal activity was afoot. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In determining the reasonableness of the officer’s suspicion we may consider the fact that this was an area noted for a high level of drug activity. State v. Rodriguez, supra, 578.

The defendant’s argument that he was seized as soon as the officer left the cruiser is not supported by the record. The officer did not cut the defendant off, block his path, use his flashing lights or siren, draw his pistol or otherwise engage in any conduct that would communicate to a reasonable person that he was seized and not free to leave. The only contact between the officer and the defendant was the momentary eye contact when the officer approached the group. If simple eye contact with a police officer communicates to a person that he is not free to leave, a large portion of the population would be under seizure at any given time.

Whether the officer ordered the defendant to stop before or after he discarded the bag was a disputed question of fact that the trial court resolved against the defendant. It is axiomatic that we do not retry the facts nor pass on the credibility of witnesses. Bowman v. Williams, 5 Conn. App. 235, 238, 497 A.2d 1015 (1985) , cert. dismissed, 201 Conn. 366, 516 A.2d 1351 (1986) .

In summary, because the officer did not order the defendant by word or act, to halt before the bag was discarded, there was no unlawful seizure and consequently no subsequent unlawful search. The motion to suppress was properly denied as was the motion to dismiss which was based on the claim of an illegal search.

II

Racial Discrimination in Jury Selection

The defendant, who is a black Puerto Rican, argues that the trial court violated his state and federal constitutional rights to equal protection of the law by failing to find that the state’s use of a peremptory challenge to prevent a black venireperson from serving on the jury amounted to purposeful racial discrimination. The defendant objected to the state’s use of a peremptory challenge during jury selection to remove a black potential juror. The objection was based solely on the grounds that because the defendant was a black Puerto Rican, the removal of the black venireperson constituted purposeful racial discrimination by the state.

It is well established that a state’s attorney may not “challenge potential jurors solely on account of their race or on the assumption that . . . jurors [of the defendant’s race] as a group will be unable impartially to consider the State’s case against [the] defendant.” Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We recognize that the unlawful exercise of a peremptory challenge could constitute a prima facie case of discrimination even if other jurors of the same race sit on the jury. United States v. Clemons, 843 F.2d 741, 747 (3d Cir.' 1988). Thus, our analysis cannot end simply because other black jurors were accepted for the jury without challenge by the state.

To prevail on a purposeful racial discrimination claim, the defendant was required to follow the guidelines established in Batson v. Kentucky, supra. See State v. Holloway, 209 Conn. 636, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989). “Procedurally, the defendant bears the burden of persuading the trial court by a preponderance of evidence that the state’s use of the peremptory challenge was tainted by purposeful racial discrimination. . . . Once the defendant has established a prima facie case of purposeful racial discrimination, the burden shifts to the state to advance a neutral explanation for the venireperson’s removal. . . . The defendant is then afforded the opportunity to demonstrate that the state’s articulated reasons are insufficient or pretextual.” (Citations omitted.) Id., 640-41.

We must first determine whether the defendant established a prima facie case of racial discrimination. Three elements must be satisfied in order to raise an inference of purposeful racial discrimination. “ ‘[T]he defendant first must show that he is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second . . . that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” . . . Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.’ . . .” Id., 641.

In the present case, the defendant to prove that he was a black Puerto Rican and then took advantage of the presumption that the peremptory challenge process is a system that can be used to discriminate racially. This is not enough. The defendant offered no evidence of other relevant factors in this particular case that would raise an inference that the state had used the peremptory challenge process to exclude potential jurors because of their race. In short, he satisfied the first two Batson prongs but totally failed to satisfy the third prong. The court properly concluded that the defendant failed to establish a prima facie case and therefore the state’s attorney was not required to state a neutral reason for the challenge.

At oral argument before this court, the defendant argued that if the trial court had a suspicion that the state had exercised a peremptory challenge for racially discriminating reasons, it should have ordered the state’s attorney to recite a neutral reason for the record. We do not agree. Mere suspicion is not sufficient to require an articulation. The standard of proof is that the defendant must establish by a preponderance of the evidence relevant circumstances from which the court may reasonably infer that the state’s attorney unlawfully exercised a challenge. Id., 640-41. The trial court properly concluded that the defendant failed to meet this standard.

The defendant further contends that the trial court precluded him from fully presenting his argument on the prima facie issue. A footnote in the defendant’s brief quotes from a portion of the transcript that appears to indicate abrupt action by the trial court summarily cutting off his argument on that point. This sixteen line quotation, however, is only a small part of a colloquy covering nine pages of transcript. It becomes apparent from our review of those nine pages that the defendant was under the mistaken impression that by simply proving his race, he could require the state, to explain the reasons for the challenge. Reference to the transcript also discloses that the defendant had ample opportunity to argue fully his position and to develop any relevant circumstances. The defendant did not do so, but instead erroneously chose to rely on his argument that a showing of race plus the undisputed fact that peremptory challenges were a possible device for discrimination were enough.

We conclude that the defendant did not establish a prima facie case that the state’s use of a peremptory challenge to remove the prospective juror in question from the venire was racially motivated. The trial court’s ruling was, therefore, correct.

Ill

Drug Dependency

We will consider the defendant’s third and fourth claims together because they both relate to the drug dependency aspect of the case.

The defendant argues that the trial court should not have permitted the jury to make the initial determina: tion of drug dependency. Subsequent to trial of the present case, this court decided State v. Luca, 19 Conn. App. 668, 563 A.2d 752 (1989), holding that it is the duty of the court and not the jury to decide if the defendant has introduced sufficient evidence of drug dependency to put the burden on the state of proving non-drug-dependency. In light of the Luca decision, the state concedes that the jury instructions on this point were erroneous. It argues, nevertheless, that the error was harmless because the defendant failed to present sufficient evidence to satisfy his burden. We do not agree.

After Luca, this court decided State v. McNeil, 21 Conn. App. 519, 574 A.2d 1314 (1990), holding that the trial court is limited to determining whether the defendant has introduced sufficient evidence if credited by the jury to raise a reasonable doubt as to non-drug-dependency. It is the trial court’s duty to weigh all the evidence and to determine whether that evidence, if believed by the jury, would permit a reasonable jury to entertain a reasonable doubt that the defendant was not drug-dependent at the time of the alleged crime.

In the present case, the defendant offered evidence of drug dependency through David Hunt, an emergency medical technician employed in the medical unit of the Bridgeport jail, who had examined the defendant the day after his arrest. Hunt testified, without objection by the state, that the defendant had admitted that he was a drug addict with a $200 a day heroin, cocaine and crack cocaine habit and that he had last used drugs the previous day. Hunt , also testified that he had observed that the defendant was suffering from nausea, rhinitis and slightly elevated vital signs, all of which are consistent with drug usage. As a consequence of this examination, Hunt started the defendant on a drug detoxification program resulting in his receiving medication on four occasions.

The state now attempts to attack Hunt’s credentials. There are two answers to the state’s position. First, the evidence was introduced without objection, thereby becoming part of the record in the case. Any argument concerning Hunt’s qualifications at this point is untimely. Second, McNeil does not require testimony of a medical expert; all that is necessary is substantial evidence of drug dependency. The trial court’s only duty is “to assure that the burden of proving [non-drug-dependency] is not put on the state where there has been only a tangential, casual, or frivolous mention of the defendant’s possible [drug dependency].” Id., 522.

The state countered with evidence from the booking officer that at the time of the defendant’s booking (1) no narcotic paraphernalia were found among the items removed from his pockets, (2) the defendant did not appear in need of hospitalization at that time, and (3) the officer had no difficulty obtaining general information from him during the booking process. We are not persuaded that the state’s evidence was sufficient to defeat a finding that the defendant’s evidence, if credited by the jury, was sufficient to raise a reasonable doubt as to non-drug-dependency.

We conclude that the defendant introduced substantial evidence of drug dependency, thus putting the burden on the state of proving beyond a reasonable doubt that the defendant was non-drug-dependent. The state did not meet its burden. We conclude, however, that the state offered sufficient evidence to justify a conviction of the lesser included offense of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). See State v. McNeil, supra, 523.

The judgment of conviction of possession of a narcotic substance with intent to sell by a person who is not drug-dependent, in violation of General Statutes § 21a-278 (b), is reversed. The case is remanded with direction to render a judgment of acquittal on that charge, to render a judgment of conviction of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a), and to resentence the defendant in accordance with that conviction.

In this opinion the other judges concurred.

       Six jurors and three alternates were selected from a panel of fifty venirepersons, eight of whom were black. Two of the selected jurors were black, one was Puerto Rican and one alternate was black. The state removed five potential jurors for cause, one of whom was black and another Cuban. The defendant removed nine for cause, one of whom was black. The state exercised five peremptory challenges, which excluded three black venirepersons. The defendant exercised two peremptory challenges both of which excluded white jurors. The result was a nine member jury (including alternates), four of whom were either black or Puerto Rican.

       In State v. Holloway, 209 Conn. 636, 646 n.4, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989), the Supreme Court recommended a procedure for future cases that is substantially different from that which is appropriate in the present case.

       As to the second element, the defendant is entitled to rely on the fact that “peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’. . .” (Citation omitted.) Batson v. Kentucky, 476 U.S. 79, 96,106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

       Our Supreme Court has suggested some relevant factors that may be taken into consideration in determining whether the defendant has satisfied his burden of making a prima facie showing of a discriminatory peremptory challenge. “These include (1) whether ‘the prosecutor failed to question the challenged juror or only questioned him or her in a perfunctory manner’. . . (2) whether ‘prospective jurors of one race were asked a question to elicit a particular response that was not asked of other jurors’. . . (3) whether ‘persons with the same or similar characteristics but nQt the same race as the challenged juror were not struck'. . . and (4) whether ‘the prosecutor used a disproportionate number of peremptory challenges to exclude members of one race.’ ” (Citations omitted.) State v. Holloway, 209 Conn. 636, 643, 553 A.2d 166, cert. denied, 490 U.S. 1071,109 S. Ct. 2078,104 L. Ed. 2d 643 (1989), quoting State v. Gonzalez, 206 Conn. 391, 399, 538 A.2d 210 (1988).
      These suggested factors were originally set forth in State v. Gonzalez, supra, as relevant to the question of whether the prosecutor’s explanation of the use of a peremptory challenge was neutral. They are equally relevant, however, to a determination of whether the defendant has established a prima facie showing of discrimination.

       The court asked the state’s attorney if she would voluntarily state neutral reasons for exercising the challenge. She responded that under guidelines from the chief state’s attorneys office she would not state her reasons unless the court first made a finding of a prima facie case of purposeful discrimination.
      Although a trial court’s request that a prosecutor state neutral reasons for a challenge may be construed as an implied ruling that the defendant has raised a reasonable question of discrimination; State v. Graham, 21 Conn. App. 688, 712, 575 A.2d 1057 (1990); the facts of the present case clearly rebut any such implied ruling here. The trial court preceded its request that the state give neutral reasons by expressly stating, “I am in no way indicating that any discrimination has been shown, I think out of an abundance of caution, I will call on you to articulate neutral reasons, if you have any, for striking this juror.” (Emphasis added.)


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. Kevin C. Burns
    (7897)
    Dupont, C. J., Foti and Lavery, Js.

      Argued October 9
    decision released December 11, 1990

      Christopher J. Hug, special public defender, with whom, on the brief, was Robert M. Appleton, special public defender, for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, after a jury trial, of possession of cocaine with intent to sell in violation of General Statutes § 21a-277 (a), and possession of cocaine in violation of General Statutes § 21a-279 (a). The defendant claims that the trial court improperly (1) denied his motions to sever his trial from that of his codefendant, (2) failed to suppress evidence in violation of his state and federal constitutional rights, and (3) admitted certain evidence despite an insufficient chain of custody. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On October 31, 1987, at approximately 8 p.m., Officer Edward Kendall of the New Haven police department was driving an unmarked police van northbound on Hamilton Street. Kendall was accompanied in the van by Officer Joseph Pettola, who sat in the front passenger’s seat, and by two other officers. At the intersection of Hamilton Street and Ives Place, the officers observed the defendant, Kevin Burns, and the codefendant, Angelo Reyes, leaving a discotheque and walking toward a white Buick Riviera that was double parked facing north on Hamilton Street. The codefendants entered the car, which belonged to Reyes’ girl friend. The officers recognized both Burns and Reyes. Reyes started the car, and Kendall pulled the van along the driver’s side of the Buick. Pettola addressed Reyes through the window of the van asking him for his license, registration and insurance card, and informing him that double parking was illegal.

Burns was seated next to Reyes in the front passenger’s seat of the car, and Kendall was able to observe him from behind the wheel of the van, because Reyes had turned on the car’s interior lights. Kendall saw Burns lean forward and place something under the front seat. Pettola also noticed Burns lean forward. Kendall, concerned for the officers’ safety, walked around the rear of the vehicles to the passenger’s side of the Buick and asked Burns to get out. Kendall also beckoned to the two officers in the rear of the van for assistance.

Kendall was aware that Burns had a prior criminal record involving assault and therefore feared that he might have secreted weapons under the seat when he bent over. As Burns walked to the rear of the Buick, Kendall scanned the interior of the car for weapons and saw a brown paper bag protruding from under the front passenger’s seat. He retrieved the bag, felt a hard substance therein, opened the bag and discovered two plastic bags. One bag contained ten small plastic bags, each knotted and containing a white powder and rock substance. The second bag held four similar bags each containing a white substance. Kendall arrested Burns and directed Petolla to place Reyes under arrest. Bums was searched incident to the arrest and was found to possess an additional quantity of cocaine and $1192.

While Kendall was looking under the seat for the paper bag, he observed a man sitting behind the front passenger’s seat, who was subsequently identified as Gordon Farrell. He was slumped down attempting to conceal himself. Once Burns and Reyes were in custody, Kendall opened the driver’s door to get Farrell out of the car, and observed a .25 caliber automatic pistol on the floor between the door and the driver’s seat. The gun, later found to be loaded, was seized by Kendall. Kendall then removed Farrell from the car, patted him down, interviewed him and released him. Neither the defendants nor Farrell had a permit to carry the weapon located in the car.

I

Burns’ first claim is that the trial court improperly-denied his motions to sever that were made during the trial. The following additional facts are relevant to this claim. Prior to trial and jury selection, the state moved for joinder of the defendants’ cases. Reyes did not object, but Burns objected claiming that the defenses were going to be antagonistic. The court stated that mutual denial of ownership of the weapon and the drugs would not constitute antagonistic defenses, but defendant Burns indicated that he feared that Reyes would claim that the drugs found in the car belonged to him. Reyes’ attorney, however, responded to this concern: “Your Honor, representing Mr. Reyes I can tell you right now he has no knowledge of the drugs. He can’t say who they belong to.” The state’s motion for joinder was granted.

Burns maintains that Reyes’ trial strategy was to show that the cocaine belonged to Burns. Burns alleged that Reyes’ trial counsel attempted to show that Burns was the true owner of the cocaine on two occasions during the trial. The first occurred on cross-examination of Pettola.

“Q. Mr. Reyes got out of the car and handed you his paperwork?

“A. That’s correct.

“Q. And you looked at the paperwork?

“A. Yes.

“Q. You were also conversing with Mr. Reyes?

“A. Yes.

“Q. When you were conversing with Mr. Reyes were you looking at Mr. Reyes?

“A. Mr. Reyes.

“Q. At any time did Mr. Reyes make any furtive movements in the car like he was putting something on the floor of the car?

“A. Not that I saw, no.

“Q. And when you were talking to Mr. Reyes you weren’t looking at Mr. Burns?

“A. No.

“Q. Burns could have been doing anything at the time you were looking at the paperwork or talking to Mr. Reyes and you wouldn’t know it.

“A. I wouldn’t know.

“Q. But you did happen to see Mr. Burns bend over. That you caught.

“A. Yes.”

Then during cross-examination of Gordon Farrell, a witness offered by Burns, Reyes’ counsel inquired whether Farrell had kept Burns under constant surveillance from the back seat of the car. After Farrell responded in the negative, Reyes’ counsel asked: "So you can’t say for a fact that Mr. Burns didn’t do anything wrong during that time.”

Farrell replied, “I don’t know.”

Following the answer, Burns objected, and the jury was excused. Counsel argued and the court sustained the objection by the defendant because it called for speculation by Farrell.

The trial court enjoys wide latitude in determining whether substantial injustice is likely to result unless a separate trial is accorded. State v. Vinal, 198 Conn. 644, 648-49, 504 A.2d 1364 (1986). Our Supreme Court has stated that “[o]n appeal, we will reverse a trial court’s ruling [denying severance] only where the trial court commits an abuse of discretion that results in manifest prejudice to one or more of the defendants.” Id., 649.

A separate trial should be ordered where the defenses are antagonistic, or evidence will be introduced against one that would not be admissible against the codefendant, and it is clear that a joint trial will probably be prejudicial to the rights of one or more of the defendants. State v. Smith, 201 Conn. 659, 669, 519 A.2d 26 (1986); see State v. Haskins, 188 Conn. 432, 449-50, 450 A.2d 828 (1982). The test is whether substantial injustice is likely to result if a separate trial is not afforded. State v. Varricchio, 176 Conn. 445, 448, 408 A.2d 239 (1979). Because there is no claim that the court abused its discretion when it ordered the trials of Burns and Reyes to be consolidated, our inquiry must determine whether a joint trial resulted in manifest prejudice or substantial injustice, as the evidence was presented. State v. Smith, supra, 671.

Although testimony by one codefendant against another, and evidence admitted against one codefendant that would be inadmissible against another are not the only grounds necessitating a severance, the defendant seeking the severance bears the burden of showing that the defenses had become antagonistic during the course of trial. See State v. King, 187 Conn. 292, 309, 445 A.2d 901 (1982).

There is no claim that evidence had been or was about to be introduced against one codefendant that was inadmissible as to the other, nor any claim of inculpatory statements. The defendant asks us to examine the entire record and to conclude that antagonistic defenses existed.

The record shows that both of the defendants employed substantially identical defenses. They each asserted that the state could not prove who owned the contraband beyond a reasonable doubt. Although Reyes chose to testify and Burns did not, there was no showing that the defenses were even incompatible, not to mention, antagonistic. See State v. Vinal, supra, 652.

The defendant relies heavily upon State v. Delarosa, 16 Conn. App. 18, 547 A.2d 47 (1988). In Delarosa, the police arrested three men who were riding in a car containing narcotics. At trial, each of the defendants denied possession of the contraband. In the course of presenting their defenses, two of the codefendants adduced substantial evidence linking the remaining defendant to the narcotics. On appeal, this court found substantial prejudice to that defendant and remanded for a separate trial.

Unlike Delarosa, this case does not contain any prejudice to the defendant. Although Reyes denied any knowledge of the cocaine, he did not adduce any evidence linking Burns to the cocaine. The closest Reyes’ counsel might have come to adducing evidence of a nexus between Burns and the contraband was during the direct examination of Farrell. Farrell was asked whether he could say for a fact that Burns did not do anything wrong while in the car. Although the answer “I don’t know” came before the objection, the court sustained the objection and disallowed that line of questioning.

The jury acquitted both defendants of the conspiracy charge and Burns of the gun charge. It cannot be argued that the verdict itself shows a substantial injustice. There was no conflict in the defenses so as to cause the jury to infer unjustifiably that this conflict alone demonstrates that both are guilty; nor does the record demonstrate that Burns’ convictions were in any way a result of his codefendant’s success in urging the jury to accept his testimony allegedly exculpating himself but inculpating Burns. See, e.g., State v. Taylor, 21 Conn. App. 244, 247, 572 A.2d 1045, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990).

After a careful examination of the record, we conclude that the trial court properly denied the defendant’s motion to sever.

II

Burns’ second claim is that the court improperly failed to suppress evidence found in the automobile and on his person. He argues that his actions demonstrate an expectation of privacy in the car and, therefore, give him standing to assert a violation of his constitutional rights. Burns conceded that he was neither the owner nor the operator of the car but merely a passenger, so the court found that he did not demonstrate standing to object to the search of the Buick. The court further found that he was legally arrested, which made the search of his person a lawful search incident to that arrest. We agree with the trial court that Burns did not have standing to challenge the search of the vehicle because he had no reasonable expectation of privacy regarding the search of Reyes’ girl friend’s car and the seizure of the paper bag containing cocaine.

“ ‘A person may not object to the introduction of evidence resulting from an illegal search unless he first proves that he was a victim of that search. . . . One is a victim of a search when it violates his reasonable expectation of privacy in the area searched. . . . Therefore, the first question that must be answered in any suppression case is whether the individual who seeks suppression had a reasonable expectation of privacy in the area searched.’ ” (Citations omitted.) State v. Manson, 13 Conn. App. 220, 222, 535 A.2d 829 (1988), quoting State v. Daay, 5 Conn. App. 496, 498, 500 A.2d 248 (1985). An individual has a reasonable expectation of privacy if he subjectively believes that the area will remain private, and that belief is one that society is willing to recognize as reasonable. State v. Haynes, 7 Conn. App. 550, 552, 509 A.2d 557 (1986).

“A passenger in a motor vehicle, who fails to demonstrate a possessory interest in the car itself or in any of the seized evidence, has no reasonable expectation of privacy in the area of the vehicle searched, and thus, he is precluded from contesting the validity of the search. State v. Manson, 13 Conn. App. 220, 223, 535 A.2d 829 (1988).” State v. Delarosa, supra, 32. The defendant acknowledges that he was merely a passenger and that mere passengers in an automobile are generally regarded as lacking a legitimate expectation of privacy in that car. Having failed to assert a possessory interest in the car, Burns also failed to claim a possessory interest in the paper bag found under the seat, because his defense was a disclaimer of the knowledge of its existence.

The defendant argues that his affirmative action of placing the bag under the seat demonstrated an expectation of privacy. Although this action may arguably show a possible subjective expectation of privacy, there was no evidence to show such expectation was reasonable. As we have held previously, “the defendant did not show that he subjectively believed that the bag would remain hidden either by introducing direct evidence of his belief, or by introducing circumstantial evidence from which the trial court could have inferred such a belief. Nor did he introduce evidence showing that any subjective expectation of privacy that he had was reasonable. He did not, for example, claim that he owned the bag, although he could have done so without running the risk of having that testimony used to prove his guilt of the possession charge. Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968).” State v. Haynes, supra, 553.

Accordingly, because Burns has not been able to establish an expectation of privacy in the area of the automobile that was searched, he has no standing to challenge the constitutionality of the search. Because Burns is unable to challenge the search of the vehicle, he cannot challenge the arrest or the search made incident to it.

Ill

The defendant claims that the trial court improperly allowed the envelope and its contents into evidence as the state had failed to establish a sufficient chain of custody.

After Kendall had discovered the bag and had examined its contents, he closed it and returned it to its original location where it was photographed. He then took the bag and its contents to police headquarters where he observed Pettola field-test the powder. Kendall placed his initials on the paper bag and also on the two plastic bags found therein. These were then placed inside a plastic evidence bag that, in turn, was placed in a large manilla envelope on which was written Kendall’s name, the date, the case number, the names of the defendants, and a description of the contents. The small plastic bag found on the defendant’s person was also initialed and placed in the evidence envelope. The envelope was then placed in a safe in the police department property room. Kendall testified that the paper bag and the two plastic bags appeared to be in the same condition at trial as when he placed them in the evidence envelope, which also appeared unchanged except that it had been unsealed.

Charles Reading, a state toxicologist, identified the evidence envelope, recognizing it by its distinctive evidence number and by the red tape that he had initialed and used to seal the envelope. After opening the envelope, Reading examined the contents and explained how each was marked. After looking at the lab report, Reading indicated that the items had been transported from the police station to the lab by his courier on November 5, 1987. On cross-examination, Reading explained that although the report stated that Officer Mark Corporale had delivered the evidence to the lab, Corporale had in fact delivered it to the courier, who brought it to the lab. After its arrival at the lab, the envelope was opened by the evidence clerk and was checked to ensure that the material signed for was actually received. The envelope was then sealed and placed in a vault. Reading removed the envelope from the vault and conducted qualification tests to determine the purity of the cocaine. His assistant conducted the other tests on the drugs and returned them to Reading at the end of the day. The evidence was returned to the vault where it was kept until April 12,1988, when it was turned over to an investigator from the office of the state’s attorney. The only persons having access to the vault were Reading, two other toxicologists and the vault custodian.

Burns alleges a break occurred in the continuity of the chain of custody during the transport of the evidence and that, without testimony from Corporale, a missing link exists that is compounded by the missing testimony of the courier. Burns also alleges that there were improper gaps in the chain of custody while the evidence was being tested at the state lab on November 13, 1987, and while the lab had possession of the substances. He claims that the state must prove that the possibility of tampering with the evidence was not likely and that it did not do so.

The court has broad discretion in this evidentiary issue; State v. Johnson, 162 Conn. 215, 233, 292 A.2d 903 (1972); and it may not be overturned except for a clear abuse of discretion. State v. Pollitt, 205 Conn. 61, 88, 530 A.2d 155 (1987). “ ‘The state’s burden with respect to chain of custody is met by a showing that there is a “reasonable probability” that the substance has not been changed in important respects. State v. Jones, 167 Conn. 228, 239-40, 355 A.2d 95 (1974); State v. Johnson, [supra, 232], “The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it State v. Piskorski, 177 Conn. 677, 697, 419 A.2d 866, cert, denied, 444 U.S. 935,100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).’ State v. Nieves, 186 Conn. 26, 31 n.4, 438 A.3d 1183(1982) . . . .” (Citation omitted.) State v. Greene, 209 Conn. 458, 479, 551 A.2d 1231 (1988).

There is no hard and fast rule that the state must exclude or disprove all possibility that the article or substance has been tampered with. State v. Johnson, supra. An object must be shown to be in substantially the same condition as when the crime was committed. State v. Pollitt, supra.

No evidence was presented indicating that the evidence in this case was tampered with. The court was well within the limits of its discretion in reasonably concluding that the evidence was not tampered with, either during transportation or while at the state lab where it would be highly unlikely that “intermeddlers” would tamper with the evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of two additional charges, conspiracy to sell cocaine in violation of General Statutes §§ 53a-48 (a) and 21a-277 (a), and carrying a dangerous weapon in a motor vehicle in violation of General Statutes § 29-38.

       The codefendant, Angelo Reyes, was charged with the same offenses as was Burns. Following a joint trial, Reyes was convicted only of carrying a dangerous weapon in a motor vehicle in violation of General Statutes § 29-38.

       Although the defendant herein excepted to the overruling of his objection on the state’s motion for joinder, he made it clear during oral arguments before this court that his first claim goes only to the denials of his motions to sever during the trial that were made during the cross-examinations of Gordon Farrell and Joseph Pettola. He had also moved to sever the cases during jury selection, which is also not part of his claim on appeal. During the trial, Burns moved to sever during Kendall’s testimony on cross-examination by Reyes’ attorney relative to the gun found. Since Bums was acquitted of the gun charge, he acknowledges that the denial of his motion to sever at that point was not prejudicial and, therefore, is also not including it as part of this claim.

       The court instructed that the evidence presented by the state had to be separately considered in arriving at separate verdicts as follows: “Actually, you have been trying two separate cases and I am sure you are aware of that. One of these is the state of Connecticut against Kevin Burns and the other is the state of Connecticut against Angelo Reyes. There are two separate files and two separate informations and you will have each information with you in the jury room. Now in the interest of time and convenience these cases have been tried together. This is due to the fact that the evidence offered by the state at least in some respects and in most respects overlaps in both cases so that the accuseds, who may also be referred to as the defendants, have been presented and their cases tried simultaneously. You are instructed that your findings in one case do not in and of themselves establish a basis of a similar finding in the other case. For all practical purposes the defendants are to be considered by you as on trial separately. That is to say, one may be found guilty of one or more of the offenses that he is charged with and the other may be found not guilty of one or more of those same offenses, or both may be found not guilty or guilty according to however you find the evidence and the facts to be and the law as I explain it to you. Each defendant is to be considered as if he was on trial alone for the various offenses with which each one of them stands charged. You will be required therefore to render separate verdicts upon each defendant as to each count which means in effect you will be required to render eight separate verdicts because we have four counts directed at each defendant. The four counts being the same criminal charges.”


author: Daly, J.

text:
    State of Connecticut v. Alton Woods
    (8621)
    Dupont, C. J., Daly and Foti, Js.

      Argued October 2
    decision released December 11, 1990

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Bradford J. Ward, senior assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, after a jury trial, of escape from custody in violation of General Statutes § 53a-171. The defendant claims that the trial court improperly refused to charge the jury on the defense of necessity and failed to instruct the jury on an element of escape from custody. We disagree and affirm the trial court’s judgment.

The jury could have reasonably found the following facts. On August 12,1988, the defendant was arrested in New Jersey and eventually brought to the Middle-sex county jail in Connecticut. He was transferred to the New Haven correctional center where he was punched by some inmates during a fight. As a result, he was transferred to the Hartford correctional center where he was threatened by some inmates. He was then returned to New Haven on October 2, 1988, and there he was surrounded by several inmates and slashed on the arm and stomach. The defendant attributed these incidents to three brothers who were dealing drugs in front of his mother’s house over his objections. The defendant asserted that these three brothers had threatened him.

The next day, the defendant was brought to the Waterbury courthouse lockup for pretrial proceedings involving a felony charge. While the defendant was in the lockup, several inmates overcame and subdued the deputy sheriffs, thereby escaping. The defendant was among the three inmates who escaped, but he denied having an active role in obtaining the lockup keys. The defendant fled, later testifying that “he hoped to get [the three brothers] before they got [him].” The defendant was arrested two days later when police found him hiding in an apartment closet.

The defendant first claims that the trial court should have charged the jury on the defense of necessity. The defendant objected and excepted to the trial court’s decision not to instruct the jury on this defense and thus has preserved this claim for appeal. The common law defense of necessity, although not statutorily sanctioned, is available to Connecticut defendants in certain limited circumstances. State v. Messler, 19 Conn. App. 432, 437, 562 A.2d 1138 (1989); State v. Drummy, 18 Conn. App. 303, 308, 557 A.2d 574 (1989). The defendant is required to make a preliminary showing through an offer of proof before the necessity defense may be submitted to the jury. State v. Drummy, supra, 309-10. Therefore, as a threshold question of law, the trial court must determine whether a necessity defense is warranted under the facts presented by the defendant. Id. If the court determines that there is sufficient evidence available to support the defense of necessity, then a defendant is entitled as a matter of law to a defense of necessity instruction. See State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979).

Here, the trial court found that the defendant failed to present legally sufficient evidence to warrant a jury charge on the defense of necessity. The defendant challenges the legal standard used by the court when it decided this issue, namely, whether the court should have applied the factors utilized in State v. Drummy, supra, 309, rather than those it did apply, found in People v. Lovercamp, 43 Cal. App. 3d 823, 831-32,118 Cal. Rptr. 110 (1975), and in In re Juvenile Appeal, 184 Conn. 157, 165 n.10, 439 A.2d 958 (1981). Thus, the dispositive issue in this claim is what legal standard should a trial court apply to judge the sufficiency óf a defendant’s offer of proof for the defense of necessity in a case of escape from custody.

In State v. Drummy, supra, the defendants were arrested during a protest demonstration and convicted of criminal trespass in the first degree. The defendants sought to introduce the necessity defense to justify their resorting to criminal trespass. The Drummy court held that the defense of necessity generally required a showing by the defendant (1) that there was no third and legal alternative available, (2) that the harm to be prevented was imminent, and (3) that a direct causal relationship may be reasonably anticipated to exist between the defendant’s action and the avoidance of harm. Id. In the present case, the trial court chose not to apply the general Drummy factors but rather applied the five specific factors from Lovercamp, a case dealing with an escape from custody, analogous to the case at bar.

In Lovercamp, the California court held that, in the context of criminal escape, a limited defense of necessity is available if: “(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) there is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory; (3) there is no time or opportunity to resort to the courts; (4) there is no evidence of force or violence used towards prison personnel or other ‘innocent’ persons in the escape; and (5) the prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.” People v. Lovercamp, supra. Thus, the Lovercamp test is more stringent than Drummy.

The Lovercamp test has been cited, with approval by the federal courts; United States v. Bifield, 702 F.2d 342, 346 (2d Cir.), cert. denied, 461 U.S. 931, 103 S. Ct. 2095, 77 L. Ed. 2d 304 (1983); United States v. McCue, 643 F.2d 394 (6th Cir.), cert. denied, 451 U.S. 992, 101 S. Ct. 2334, 68 L. Ed. 2d 853 (1981); United States v. Boomer, 571 F.2d 543, 545 (10th Cir.), cert. denied sub nom. Heft v. United States, 436 U.S. 911, 98 S. Ct. 2250, 56 L. Ed. 2d 411 (1978); and has been cited by the Connecticut Supreme Court. In re Juvenile Appeal, supra. The Lovercamp test has also been employed, either verbatim or with minor variations, by some states that have allowed the defense of necessity in escape cases. See State v. Alcantaro, 407 So. 2d 922, 925 (Fla. Dist. Ct. App. 1981); State v. Horn, 58 Haw. 252, 566 P.2d 1378 (1977); State v. Urquhart, 105 Idaho 92, 96, 665 P.2d 1102 (1983); State v. Stuit, 176 Mont. 84, 88, 576 P.2d 264 (1978); Jorgensen v. State, 100 Nev. 541, 544, 688 P.2d 308 (1984); Commonwealth v. Kaminski, 349 Pa. Super. 78, 87, 502 A.2d 1281 (1985); State v. Henderson, 298 S.C. 331, 332-33, 380 S.E.2d 817 (1989); State v. Miller, 313 N.W.2d 460, 463 (S.D. 1981); see generally annot., 69 A.L.R.3d 678.

The rationale for applying more specific and stricter standards to the necessity defense in escape cases is to balance the public’s interest in preventing escapes from legitimate detentions with the escaping prisoner’s individual exigencies. “In a humane society some attention must be given to the individual dilemma. In doing so the court must use extreme caution lest the overriding interest of the public be overlooked. The question that must be resolved involves looking to all the choices available to the defendant and then determining whether the act of escape was the only viable and reasonable choice available. . . . However, before Lovercamp becomes a household word in prison circles and we are exposed to the spectacle of hordes of prisoners leaping over the walls screaming ‘rape,’ we hasten to add that the defense of necessity to an escape charge is extremely limited in its application. This is because of the requirement that upon attaining a position of safety from the immediate threat, the prisoner must promptly report to the proper authorities.” People v. Lovercamp, supra, 827-31.

To maintain order in state correctional facilities and court lockups, and to avoid an invitation for facile excuses to attempt escapes from custody, the application of the necessity defense to criminal escapes must be strictly interpreted. Therefore, we hold that the Lovercamp approach is the appropriate and proper test in cases of escape from custody when the defendant seeks to invoke the necessity defense.

In applying the Lovercamp factors to the defendant’s case, the trial court correctly concluded that the defendant had failed to show sufficient evidence to meet the test of necessity. The defendant testified that he had no intention of turning himself over to authorities after he reached a position of safety from the alleged danger. On the contrary, the defendant stated his intent was “to get the [three brothers],” and the police found the defendant hiding when he was apprehended forty-eight hours after his escape. There was no credible evidence of an immediate threat to the defendant while the defendant was in the Waterbury lockup. Additionally, there was no evidence that the defendant’s complaints were futile. In fact, the trial court found that the only complaint the defendant had made resulted in his transfer to another facility. The defendant had access to authorities that could have remedied any threat against him. Moreover, there was evidence that force or violence was employed in the escape. On the basis of these findings, the trial court correctly decided that the defendant had not made the preliminary showing sufficient for the defense of necessity to go before the jury.

The defendant next claims that the trial court failed to charge the jury on an essential element of escape from custody. General Statutes § 53a-171 provides: “(a) A person is guilty of escape from custody if he escapes from custody, (b) If a person has been arrested for, charged with or convicted of a felony, escape from custody is a class C felony . . . .” The defendant asserts that the court did not properly instruct the jury on subsection (b) of the statute, and that the state must prove beyond a reasonable doubt that the defendant was being held on a felony charge at the time of his escape. Because the pendency of a felony charge is an essential element of the crime, the trial court was obligated to instruct the jury concerning it. State v. Golding, 213 Conn. 233, 238, 567 A.2d 823 (1989).

In its charge, the trial court pointed out that the assistant court clerk had testified that the defendant was being held on the day of his escape because of an arrest on a felony charge. The court also called the jury’s attention to exhibit B, the bill of particulars that charged the defendant with escaping while charged with a felony. Although this instruction indicated the factual basis for the jury to conclude that the defendant was charged with a felony when he escaped, it did not instruct the jury that it must find beyond a reasonable doubt that the defendant was being held because of a felony arrest.

To begin our analysis, it should be noted that the defendant failed to submit a requested written instruction or except to this portion of the instruction and requests review under the Evans-Golding criteria. See State v. Golding, supra, 239-40. The trial court’s omission of an instruction on an essential element of a crime charged raises a claim of a constitutional violation and warrants review. State v. Golding, supra, 238.

In the absence of a request or an exception, reversal is warranted only if the charge failed to provide the jury with the essential elements of the offense on which the conviction rests or the case must invoke plain error requiring such result in the interests of justice. State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). An error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Anderson, 212 Conn. 31, 38, 561 A.2d 897 (1989). An erroneous instruction on an element of the offense can be harmless beyond a reasonable doubt, if, given the factual circumstances of the case, the jury could not have found the defendant guilty without making the proper factual finding as to that element. United States v. Doherty, 867 F.2d 47, 58 (1st Cir.), cert. denied, 492 U.S. 918, 109 S. Ct. 3243, 106 L. Ed. 2d 590 (1989).

Our review of the charge as a whole leads us to conclude that the jury was not misled. The state offered clear evidence that the defendant was being held on a felony charge and the trial court so indicated to the jury. The defendant never disputed that he was being held on a felony charge. On the basis of this unequivocal evidence, the jury correctly found the defendant guilty of escape from custody while charged with a felony. Thus, the trial court’s omission of instruction on this element was harmless beyond a reasonable doubt and did not contribute to the jury’s verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The common law defense of necessity, preserved under a savings statute, General Statutes § 53a-4, is available to the same extent as the statutorily defined defenses of Chapter 951, particularly the affirmative defenses of justification in General Statutes §§ 53a-16a through 53a-23 and § 53a-48. State v. Messler, 19 Conn. App. 432,439 n.5, 562 A.2d 1138 (1989).

       It should be noted that the same result would have been reached had the Drummy test been applied.

       The trial court charged as follows: “Now, in the second count of the information the defendant is charged with the crime of escape from custody in violation of Connecticut General Statutes § 53a-171 which reads in pertinent part as follows: ‘a person is guilty of escape from custody if he escaped from custody.’ Custody means restraint by a public servant pursuant to an arrest or court order. The word ‘escape,' you should apply its natural and ordinary meaning. The concept of escape is one of voluntarily leaving or departing from the place where the defendant was being held in custody.
      “Now, it’s my recollection that Mrs. Capuano testified that she was the assistant clerk of this court, that her records reflected that on October 3, 1988, the defendant was being held in lieu of bond because of his arrest on a felony charge. It’s my recollection also that she testified that Exhibit B was the court order under which the defendant was being held in custody.
      “If you find beyond a reasonable doubt that the defendant was in custody, as I have defined that term to you, and he escaped from that custody, then the state would have satisfied its burden of proof with respect to the charge of escape from custody and you may then find the defendant guilty of that offense. If, on the other hand, you do not find that the state has proven that the defendant was in custody as I have defined that term to you or if you find that the state has not proven that the defendant escaped from custody, then you must find the defendant not guilty of that offense as charged.”


author: Norcott, J.

text:
    Jimmy Lee Brown v. Housing Authority of the City of New Haven
    (8816)
    Norcott, Lavery and Landau, Js.
    Argued November 2
    decision released December 18, 1990

      Terence S. Hawkins, for the appellant (plaintiff).

      James J. Giulietti, with whom, on the brief, was

      Louis M. Federici, for the appellee (defendant).
   Norcott, J.

The plaintiff appeals from the decision of the trial court granting the defendant’s motion for summary judgment. He claims that the trial court improperly (1) denied his request for production of material in the defendant’s personnel files, and (2) granted the defendant’s motion for summary judgment. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this case. On June 22, 1984, the plaintiff and Sam Jones, a maintenance mechanic employed by the defendant, were involved in an altercation on Park Street in downtown New Haven. The incident began when the plaintiff asked Jones, who was driving a van owned by the defendant to a job site, to move his vehicle, which was blocking traffic. The two men exchanged words. When Jones refused to move the van, the plaintiff drove around it. Jones followed the plaintiff down Park Street in the van, rear-ending the plaintiff’s car several times. The plaintiff stopped his car at the corner of Park Street and Edgewood Avenue and got out to speak with Jones. Jones also exited his vehicle, grabbed a hammer, chased the plaintiff around the car and struck him on the chest with the hammer. As a result of this attack, the plaintiff, who has a pacemaker, suffered a ruptured blood vessel and was hospitalized for several months.

The plaintiff brought the present action under the theory of respondeat superior seeking damages for the assault and battery committed by the defendant’s employee. The trial court, J. Flanagan, J., granted the defendant’s motion for summary judgment, finding no support for the suggestion that Jones was doing anything in furtherance of the defendant’s business when he assaulted the plaintiff.

I

The plaintiff first challenges the trial court’s denial of his request for production. On June 14, 1989, the plaintiff filed the following request: “1. The entire personnel file of Sam Jones. 2. All documents setting forth Sam Jones’ job duties or job description. 3. Any and all documents reflecting or recording instances in which Sam Jones engaged in violent or assaultive conduct; or any and all documents relating to a recording, or reflecting your investigation of the incident that is the subject matter of this case; and 4. Any and all documents reflecting, recording, or related to other instances in which employees of the New Haven Housing Authority have been involved in assaults, fights, episodes of verbal abuse, or other assaultive conduct during the course of their employment during the years 1974 to 1984.”

The defendant, in its objection to the plaintiff’s request for production, agreed to supply only a manual detailing Jones’ job duties. The defendant claimed that the remainder of the plaintiff’s requests were both overbroad and irrelevant to the issues remaining in the plaintiff’s action. The trial court, Cretella, J., sustained the defendant’s objections on November 13, 1989.

“The granting or denial of a discovery request rests in the sound discretion of the court.” Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983); Kiessling v. Kiessling, 134 Conn. 564, 568, 59 A.2d 532 (1948). That discretion applies to “decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party’s knowledge, possession or power . . . .” Standard Tallow Corporation v. Jowdy, supra, 59-60.

The trial court in the present case did not abuse its discretion when it denied the plaintiffs request for production. The plaintiff had withdrawn the third count of his complaint, in which he had alleged negligence by the defendant in its recruitment, hiring, training, discipline and supervision of Jones, almost two years before filing his request for production. The only issue remaining in the case, therefore, was whether Jones was acting within the scope of his employment when he assaulted the plaintiff. With the exception of the plaintiff’s request for materials describing Jones’ job duties, which the defendant agreed to provide, none of the plaintiff’s requests were directed to the discovery of material relevant to this sole remaining issue. Therefore, the trial court properly sustained the defendant’s objections to the plaintiff’s request for production.

II

The plaintiff next challenges the trial court’s granting of the defendant’s motion for summary judgment. He claims that he was entitled to have a jury determine whether Jones was acting within the scope of his employment at the time of the assault. We disagree.

“Summary judgment may be rendered if it is shown that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Practice Book § 384; Orenstein v. Old Buckingham Corporation, 205 Conn. 572, 574, 534 A.2d 1172 (1987).” Gutierrez v. Thorne, 13 Conn. App. 493, 496, 537 A.2d 527 (1988). “In passing on a defendant’s motion for summary judgment, the trial court is limited to deciding whether an issue of fact exists, but . . . it cannot try that issue if it does exist.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969); Gutierrez v. Thome, supra.

The trial court in the present case correctly determined that no genuine issue existed as to whether Jones was acting within the scope of his employment when he assaulted the plaintiff. “ ‘A master is liable only for those torts of his servant which are done with a view of furthering his master’s business within the field of this employment — for those which have for their purpose the execution of the master’s orders or the doing of the work assigned to him to do.’ ” Bradlow v. American District Telegraph Co., 131 Conn. 192,196, 38 A.2d 679 (1944); Turner v. American District Telegraph & Messenger Co., 94 Conn. 707,110 A. 540 (1920). In most cases, it is the function of the jurors to determine from the facts before them whether, under this test, a servant was acting within the scope of his employment. Bradlow v. American District Telegraph Co., supra, 195. In some situations, however, the acts of the servant are “so clearly without the scope of his authority that the question is one of law.” Id.; see also Gutierrez v. Thorne, supra, 499.

It is clear in the present case that Jones was not furthering the defendant’s business interests when he assaulted the plaintiff. His intentional, criminal acts were in no way connected to the defendant’s business. The mere fact that Jones was driving from one job site to another when the assault took place does not change this analysis. “ ‘In the course of his employment’ means while engaged in the service of the master, and it is not synonymous with the phrase ‘during the period covered by his employment.’ ” Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968). As there were no facts before the court from which it could conclude that Jones was furthering the defendant’s interests, the defendant’s nonliability under the theory of respondeat superior was properly determined as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his original complaint, the plaintiff also alleged that the defendant was negligent in the recruitment, hiring, training, discipline and supervision of Jones. The plaintiff withdrew this claim, however, on October 6,1987.


author: Cretella, J.

text:
    Kim Dorsey v. Jack C. Mancuso
    (8889)
    Daly, O’Connell and Cretella, Js.
    Argued September 24
    decision released December 18, 1990

      William L. Ankerman, for the appellant-appellee (defendant).

      Norman F. Fishbein, for the appellee-appellant (plaintiff).
   Cretella, J.

The defendant in this contract action appeals from the judgment of the trial court in favor of the plaintiff. The defendant claims that the trial court improperly (1) found that the plaintiff proved fraud in the inducement of the contract by clear and convincing evidence, (2) rendered judgment for the plaintiff in violation of public policy, (3) denied his motion to dismiss at the close of the plaintiff’s case, and (4) rendered judgment beyond the relief sought in the plaintiff’s complaint. The plaintiff cross appeals claiming that the court improperly ordered that the defendant is entitled to a one-half interest in the property in question.

The following facts are relevant to the resolution of this case. The plaintiff, who was married to Fred Dorsey, met the defendant when she was working at the Travelers Insurance Company in 1981. She began seeing the defendant socially in 1982 and, in April, 1985, she left her husband and began living with the defendant. Her marriage to Dorsey was dissolved in October, 1985.

In the spring of 1986, the plaintiff began seeing Dorsey again although she continued to live with the defendant. She resumed sexual relations with her ex-husband and became pregnant during the summer of that year. In January, 1987, she left the defendant and resumed living with her ex-husband. On April 26,1987, the plaintiff gave birth to a daughter and, while continuing to live with Dorsey, had a second child, a son, in November, 1988. The plaintiff and Dorsey remarried on November 26, 1988.

The defendant has asserted that he is the father of the plaintiffs daughter, although he has never contributed to her support.

During the course of their relationship, the plaintiff and the defendant decided to purchase a piece of property in Enfield for investment purposes. The title to the property was placed in only the plaintiffs name because the defendant was then defending a civil action and was advised by counsel not to put any property in his name. The parties built a two-family residence on the property and in September, 1987, the defendant moved into one half of the house and began renting the other half.

In August, 1988, while she was living with Dorsey, the plaintiff received a letter from the defendant’s attorney requesting that she quitclaim the Enfield property to the defendant. She telephoned the defendant to inform him that she would not quitclaim the property to him and thus forfeit her interest in the property while remaining liable for the mortgage which was in her name alone. The defendant, in reply, informed the plaintiff that he would make her life miserable if she did not comply with his requests, but, nevertheless, the plaintiff persisted in her refusal to transfer the property to the defendant.

Some time later, the defendant telephoned the plaintiff and threatened that he would bring an action to determine the paternity of her daughter if the plaintiff refused to deed the property to him. The plaintiff then agreed to transfer the property to the defendant on the basis of his assurances that if she executed the deed he would not pursue the paternity action. The plaintiff transferred the property to the defendant by a deed dated November 14, 1988. On November 28, 1988, however, she received a letter from the defendant’s attorney stating that unless she stipulated that the defendant was the father of her daughter, a paternity action would be brought. She refused to make any such stipulation and, in February, 1989, she received notice from the Wallingford Probate Court informing her that the defendant had filed a petition for paternity. That petition was denied and an appeal is now pending in the Superior Court.

The plaintiff brought the present action asking, inter alia, that her conveyance of the Enfield property to the defendant be declared null and void. The trial court found that the plaintiff had proved, by clear and convincing evidence, that the defendant had induced her by threat and fraud to turn over the real estate. The court further found that the defendant had promised that he would not bring a paternity action if she executed the deed and that the defendant’s representation was untrue, and known by him to be untrue, that he had no intention to fulfill the promise when it was made, that the purpose of his promise was to induce the plaintiff to act on that promise, that the plaintiff was induced to turn over the property to her detriment, and that as a result of the defendant’s fraud the plaintiff lost her equity in the Enfield property. The court then ordered that the defendant deed back to the plaintiff a one-half interest in the Enfield property. The defendant appealed to this court and the plaintiff cross appealed.

I

The Defendant’s Appeal

The defendant first claims that the plaintiff did not prove her claim of fraud in the inducement by clear and convincing evidence.

Whether a plaintiff sustains her burden of proof is a question of fact for the trier. Capmar Construction, Inc. v. Coyle, 4 Conn. App. 579, 580, 495 A.2d 1115 (1985). We are limited to an examination of the record to determine if it contains sufficient evidence to support the decision of the trial court. Northeast Gunite & Grouting Corporation v. Chapman, 20 Conn. App. 201, 203-204, 565 A.2d 256 (1989). This court is entitled to presume that the trial court properly considered all of the evidence that was before it. Chomko v. Patmon, 19 Conn. App. 483, 563 A.2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989).

The elements of fraudulent misrepresentation are as follows: (1) a false representation must be made as to a statement of fact; (2) the statement was untrue and known by the defendant to be untrue; (3) the statement was made to induce the plaintiff to act; and (4) the plaintiff acted on the false representation to her detriment. Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 295-96, 478 A.2d 257 (1984). Our review of the record leads us to conclude that there was ample evidence before the trial court to support its decision that the plaintiff executed the deed as a result of the defendant’s fraudulent inducement.

The defendant next claims that the trial court’s judgment violates public policy. Because the defendant fails to specify what public policy is violated by the court’s judgment and cites no rule of law in support of this public policy, we cannot consider this claim. Where counsel has not researched the issues or formulated the appropriate legal arguments, the claim evades meaningful appellate review. Echols v. Balck, 9 Conn. App. 620, 520 A.2d 651 (1987). Bare assertions without citation to legal authority constitute abandonment of the issue. State v. Chauvin, 8 Conn. App. 307, 311, 512 A.2d 969 (1986).

The defendant next claims that the trial court improperly denied the motion to dismiss that he entered at the close of the plaintiff’s case. He asserts that because there was insufficient evidence to establish the elements of fraud his motion should have been granted.

This claim is essentially a restatement of the first claim addressed in this opinion. In light of our conclusion that there was sufficient evidence to support the trial court’s determination of fraud, this claim must also fail.

The defendant’s final claim is that the court’s judgment went beyond the relief sought in the plaintiff’s complaint. The plaintiff asserted in her complaint each element necessary to establish that she was fraudulently induced to convey the Enfield property to the defendant. Her prayer for relief asked that the defendant be enjoined from conveying or encumbering the property, that judgment be entered declaring her transfer of the Enfield property to the defendant null and void, and that the court impose a constructive trust on the property in favor of the plaintiff.

The defendant asserts that because the plaintiff did not seek equitable relief under Practice Book § 139, the trial court did not have jurisdiction to render equitable relief. We do not agree.

The defendant relies upon Practice Book § 139 which provides: “A party seeking equitable relief shall specifically demand it as such, unless the nature of the demand itself indicates that the relief sought is equitable relief” (Emphasis added.)

Where the nature of the case and the nature of the plaintiff’s demand is such that equitable relief is clearly being sought, a specific demand for equitable relief is not necessary. Muller v. Witte, 78 Conn. 495, 497, 62 A. 756 (1906). We conclude that the nature of the plaintiff’s demands in the present case clearly notified the court and the defendant that equitable relief was being sought, therefore, the court was entitled to grant equitable relief pursuant to General Statutes § 52-22.

II

The Plaintiff’s Cross Appeal

The plaintiff’s cross appeal asserts that because the defendant gained possession of the Enfield property through fraud in the inducement, the contract was voidable at her option. She contends that it was, therefore, improper for the court to order the return of only a one-half interest in the property. We agree.

“Rescission of a contract is an appropriate remedy if there has been a material misrepresentation of fact upon which a party relied and which caused [her] to enter the contract.” Kavarco v. T.J.E., Inc., supra, 298. “Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract.” Id., 299. The appropriate remedy in this case would have been to void the contract between the parties as requested by the plaintiff in her complaint. This would have restored the parties to the position they were in before the defendant fraudulently induced the plaintiff to convey the Enfield property to him.

The judgment awarding a one-half interest to the plaintiff is reversed on the cross appeal and the case is remanded with direction to render judgment ordering the transfer of full title of the property at issue to the plaintiff, without prejudice to the defendant’s assertion of any equitable interest he may claim in the property. The judgment is affirmed as to the issues on the defendant’s appeal.

In this opinion the other judges concurred.

       General Statutes § 52-22 provides in pertinent part: “The superior court in the exercise of its equitable jurisdiction may pass the title to real property by decree, without any act on the part of any party holding title to the real property, when in its judgment it is the proper mode to carry the decree into effect.”


author: Lavery, J.

text:
    Theodore Coppola et al. v. Zoning Board of Appeals of the City of Derby
    (8715)
    Dupont, C. J., Foti and Laveky, Js.
    Argued October 2
    decision released December 18, 1990

      Peter M. Sipples, for the appellants (plaintiffs).

      Francis A. Teodosio, corporation counsel, for the appellee (defendant).
   Lavery, J.

The plaintiffs appeal from the judgment of the trial court dismissing their appeal from a decision of the defendant Derby zoning board of appeals (board). The board upheld the building inspector’s decision that the plaintiffs’ property was in two zones, R-5 and R-15, and that the zoning district boundary line did not follow the plaintiffs’ lot lines. The plaintiffs claim that the trial court’s dismissal should be reversed because (1) the court failed to find that the board acted illegally, arbitrarily, and in abuse of its discretion when it did not follow the clear language of the zoning ordinance indicating that the zoning district boundary was at the plaintiffs’ rear lot lines, (2) the court failed to consider the theory of estoppel presented by the plaintiffs, (3) the court found that a building inspector is empowered to determine the location of zone district boundaries, and (4) the court failed to find that a change in regulations eliminating condominiums in an R-15 district, by implication, changed the meaning of regulations pertaining to boundary locations.

The dispositive issue is the plaintiffs’ first claim, whether the zoning regulations and the zoning map of Derby provide that in the absence of zone boundary designation by specific footage on the zoning map the zoning boundary affecting the plaintiffs’ property runs along their rear lot line.

We conclude, as a matter of law, that the regulations when taken together and strictly construed, place the zoning boundary at the plaintiffs’ rear lot line thereby placing the plaintiffs’ property completely within the R-5 zone. We reverse the trial court’s dismissal of the appeal.

The trial court in its memorandum of decision filed on October 18, 1989, found the following facts. The plaintiffs are the owners of a three acre rectangular piece of property with a depth of approximately 675 feet and frontage of approximately 143 feet on New Haven Avenue in Derby. The plaintiffs’ lot lines have been the same since the creation of the zoning regulations. The parcel, as shown on the Derby zoning map, appears to be divided by a zoning district boundary placing the front portion of the property in an R-5 zone and the rear of the parcel in an R-15 zone. Prior to February 18, 1987, multifamily dwellings could be built by special exception anywhere in the city of Derby. On that date, the regulations were amended forbidding the construction of multifamily dwellings in an R-15 zone. On February 28,1987, the plaintiffs received a certificate of zoning compliance from the zoning enforcement officer indicating that the plaintiffs’ entire property is located within an a R-5 zone.

Section 25-5 (b) of the Derby zoning ordinance provides: “The boundaries of the several districts are hereby established as shown on the map entitled ‘Zoning Map of the City of Derby, New Haven County, Connecticut,’ dated May, 1969 and signed by the Mayor and the City Clerk, as the same may be amended from time to time, which map accompanies this Ordinance and is hereby declared to be a part of this Ordinance. . . .”

Section 25-5 (b) (2) provides: “The district boundary lines are intended generally to follow the center lines of streets and similar rights-of-way, shorelines of the Naugatuck River, lot lines or city boundary lines, all as shown on the zoning map, but where a district boundary line does not follow such a line, its position is shown on such zoning map by a specific dimension expressing its distance in feet from a street line or other boundary line as indicated. ” (Emphasis added.) The zoning map itself bears the following notation: “Note: Zone boundaries are parallel to street and property lines and are not intended to divide properties.” (Emphasis added.)

Section 25-5 (b) (3) of the Derby zoning regulations provides: “In case of uncertainty as to the true location of a district boundary line in a particular instance, the determination thereof shall be made by the Building Inspector. An appeal may be taken to the Zoning Board of Appeals . . . .”

Pursuant to this ordinance, the plaintiffs sought a ruling from the building inspector on the issue of the zoning boundary line. On October 19,1987, the building inspector determined that the property is in two zones, R-5 and R-15. He further stated, “I do not believe that there is any ‘uncertainty’ as to the location of the line. The parcel is very large and not of the type the notation on the zoning maps was intended to address.”

The building inspector further advised the plaintiffs that “the new revisions in the Derby zoning regulations unequivocally intended that no condominiums be developed in an R-15 Zone. Your proposed relocation of the line would make a mockery of the regulation. No longer does movement of a zoning boundary merely affect density. It changes the use which is allowed.” (Emphasis added.)

The building inspector concluded: “[You] may appeal my ruling to the Derby Zoning Board of Appeals. I do, however, feel the more prudent course would be to seek a zone change before the Zoning Commission.”

The plaintiffs appealed to the defendant board and, at a hearing on November 19, 1987, pointed out that where lot lines were not followed specific footage dimensions of the zone boundary were noted on the map. The two examples given by the plaintiffs were Chestnut Drive and Sodom Lane. At each of these locations, the distance noted on the map was 300 feet from the named streets and in most instances the zone boundary on those streets went beyond the lot lines. The record reveals that the board treated the appeal as a zone change. The board denied the plaintiffs’ appeal. The plaintiffs’ subsequent appeal to the Superior Court was dismissed. In this case, both the board and trial court placed undue emphasis on the uses allowed in the zones and a determination of who is authorized to decide zoning boundary disputes.

It matters not one whit what uses are allowed in R-5 or R-15 zones or who is the officially designated arbiter of zoning boundary disputes. The only issue presented here is what the regulation provides as to the location of the zone boundaries.

The question of whether a particular statute or regulation applies to a given set of facts is a question of statutory interpretation. Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 225, 497 A.2d 1005 (1985). Although the position of the municipal land use agency is entitled to some deference; Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976); the interpretation of provisions in the ordinance is nevertheless a question of law for the court. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980); Pascale v. Board of Zoning Appeals, 150 Conn. 113,116-17,186 A.2d 377 (1962). The court is not bound by the legal interpretation of the ordinance by the town. See Schwartz v. Planning & Zoning Commission, 208 Conn. 146,152-53, 543 A.2d 1339 (1988). Rather, the court determines legislative intent from the language used in the regulations. Weigel v. Planning & Zoning Commission, 160 Conn. 239, 246, 278 A.2d 766 (1971). “We interpret an enactment to find the expressed intent of the legislative body from the language it used to manifest that intent. . . . Zoning regulations, as they are in derogation of common law property rights, cannot be construed to include or exclude by implication what is not clearly within their express terms.” (Citations omitted.). Planning & Zoning Commission v. Gilbert, 208 Conn. 696, 705, 546 A.2d 823 (1988). The words used in zoning ordinances are to be interpreted according to their usual and natural meaning and the regulations should not be extended, by implication, beyond their expressed terms. Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153, 543 A.2d 1339 (1988).

In State v. Huntington, 145 Conn. 394, 399,143 A.2d 444 (1958), our Supreme Court stated that ''[t]he districts must be described with reasonable certainty and must have definite boundaries so that the regulations may be practically applied. The district lines and boundaries must be fixed by the regulations and not by administrative officials or courts.” In other words, the fixing of the boundaries is a legislative function and not an activity to be left to the discretion of any enforcement official.

The language of the Derby zoning ordinance is clear. It provides that the established zoning boundaries are as shown on the zoning map, incorporates that map by reference into the ordinance, and states that in the absence of a specific dimension expressing distance from a street line or other boundary, district boundaries are to follow street center lines, shorelines or lot lines. The note on the incorporated zoning map itself indicates that zoning“boundaries are not intended to divide properties.

Where, as here, the zoning map has been incorporated in and made part of the zoning regulations, the text of those regulations and the zoning map must be considered as a whole when we construe the regulation. Planning & Zoning Commission v. Gilbert, supra, 707. Thus a “ 'zoning map is an integral part of the zoning regulations, without which the regulations are said to be meaningless.’ ” Id., 706-707

In clear and unambiguous language, the ordinance and the map that is part of the ordinance require that zoning district boundary lines follow lot lines unless specific dimensions in feet are given. No such “specific dimension” appears on the zoning map in the area of the plaintiffs’ property, even though such dimensions do appear on other sections of the map such as Chestnut Drive and Sodom Lane. When taken as a whole and construed strictly, there can be no interpretation of the Derby ordinance that would allow the zoning district to divide the plaintiffs’ property. We hold, therefore, that under the clear language of Derby’s zoning regulations the zoning boundary between the R-5 and R-15 zones is the plaintiffs’ rear lot line leaving the plaintiffs’ property completely within the R-5 zone.

The judgment of the trial court is reversed and the case is remanded to that court with direction to render judgment remanding the matter to the defendant zoning board of appeals with direction to sustain the plaintiffs’ appeal.

In this opinion the other judges concurred.

       The named plaintiff is joined in this action by his wife, Josephine Coppola, who also has an ownership interest in the subject property.