author: Stoughton, J.

text:
    State of Connecticut v. Willie Clark
    (5798)
    Bieluch, O’Connell and Stoughton, Js.
    Argued March 15
    decision released May 31, 1988

      David M. Abbamonte, special public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Henry J. Lyons III, assistant state’s attorney, and Donald A. Browne, state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant appeals from the judgment of conviction following a jury trial on a charge of assault in the first degree, a violation of General Statutes § 53a-59 (a) (1). The sole error claimed by the defendant is the refusal of the trial court to charge the jury on the defense of insanity.

Evidence was offered from which the jury might have found that on the afternoon of September 24, 1984, on a city sidewalk on Main Street in Bridgeport, the defendant had struck an elderly woman on the head with a hammer. There was no apparent reason for the attack. A policeman who had been looking from the window of a nearby coffee shop saw the defendant strike the victim, and the policeman subdued the defendant and placed him under arrest.

The defendant testified in his own behalf. He denied having struck the victim and said that he had been at home or going to the store with his mother at the time of the assault. He said that he had been arrested and handcuffed at the bus station, and not at the scene of the assault. He also testified that on the previous day he had turned himself in to the police because he was carrying marihuana. He said that he was held overnight and given his pills so that he could go to court in the morning. He said that he asked to go to Fairfield Hills, but was taken to court and released. He said that he had been to Fairfield Hills about three years previously for assaulting his mother, that he had seen psychiatrists there, and that he took Mellaril twice a day which would “mess” his mind. The defendant testified that he had no “head problem” on the day of the attack. The defendant offered no other evidence and he called no other witnesses.

Counsel for the defendant claims that the defendant’s version of events seems incredible when measured against that of the policeman. He claims that the attack was so bizarre and the defendant’s version of events so incredible that he was entitled to a charge on a defense of insanity. We disagree.

Under General Statutes § SSa-lS, in any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time of the proscribed act, lacked substantial capacity as a result of mental disease or defect either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. When the defendant raises an affirmative defense, General Statutes § 53a-12 (b) places the burden of establishing that defense by a preponderance of the evidence upon him. Only where evidence indicating the availability of the defense of insanity is placed before the jury is a defendant entitled as a matter of law to a theory of defense instruction. State v. Rosado, 178 Conn. 704, 708, 425 A.2d 108 (1979). The defendant denied that he committed the assault and asserted that he was elsewhere at the time it took place. There was thus a question of fact for the jury, which is the usual posture of the two sides in a case such as this one. The defendant is not entitled to testify as to his version of events and, without more, ask that the jury be instructed that his version may be evidence of mental disease or defect. The defendant offered no expert testimony. He did not explain or offer any evidence of any prior treatment. He offered no evidence to explain why he was taking Mellaril or even what it was.

Whether a defendant has succeeded in putting sanity in issue is a question of law for the trial court. State v. Rossier, 175 Conn. 204, 209, 397 A.2d 110 (1978). In this case, the evidence of an apparently unprovoked attack by the defendant furnished no proof of mental disease or defect. His own denial is of no more assistance, and neither the jury nor this court is at liberty to speculate about what he was taking Mellaril for or indeed what he had been doing at Fairfield Hills, a place never defined or described for the jury.

The defendant claims also that he was entitled to a charge on General Statutes § 53a-13 because he had requested such a charge. The request to charge which was filed in this case failed to comply with the requirements of Practice Book § 852, which provides that each request be clearly and concisely stated with the citation of authority upon which it is based and the facts supported by the evidence to which the proposition would apply. The defendant’s request was as follows: “Insanity - 53a-13 (a) Pursuant to United States v. Hartefield, 513 F.2d 254 (1975) according to the language and the law of that case which is hereto attached to this request.” This fails to meet the requirements of § 852.

Furthermore, Practice Book § 4065 (d) (1) requires that a party claiming error in the trial court’s refusal to charge as requested print in his brief or appendix a verbatim statement of the relevant portions of the charge as requested and as given by the court, and any relevant exceptions to the charge as given. The defendant has not complied with this rule and this failure would preclude review in any event.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-13 provides: “lack of capacity due to mental DISEASE OR DEFECT AS AFFIRMATIVE DEFENSE.
      “(a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.
      “(b) It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the direction of such prescription.
      “(c) As used in this section, the terms mental disease or defect do not include (1) an abnormality manifested only by repeated criminal or otherwise antisocial conduct or (2) pathological or compulsive gambling.”

       General Statutes § 53a-12 provides: “defenses; burden of proof.
      “(a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.
      “(b) When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”

       “Fairfield Hills” refers to Fairfield Hills Hospital of the Connecticut Department of Mental Health, a state operated facility for the treatment of mental disorders.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    City of Hartford v. Stanley V. Tucker
    (5668)
    Borden, Stoughton and Fon, Js.

      Argued March 2
    decision released May 31, 1988

      Stanley V. Tucker, pro se, the appellant (defendant).

      Richard M. Cosgrove, deputy corporation counsel, with whom, on the brief, was Christine E. Keller, assistant corporation counsel, for the appellee (plaintiff).
   Foti, J.

The defendant appeals from a judgment rendered in part for the plaintiff following a jury trial. The defendant claims that the court erred (1) in directing a verdict for the plaintiff on one count of the defendant’s counterclaim for failure to state a cause of action, and (2) in improperly instructing the jury on the second count. We find no. error.

This action was originated by the plaintiff city of Hartford (city) to collect taxes and interest allegedly due on certain real and personal property owned by the defendant, Stanley Tucker. The parties entered into a stipulation, pursuant to which the city withdrew its entire complaint and Tucker withdrew the first count of his counterclaim. The case was tried to the jury on the second and third counts of Tucker’s counterclaim. See Practice Book § 169. The city of Hartford filed an answer and two special defenses to Tucker’s counterclaim.

This appeal has its historical roots in a judgment that was rendered in 1977. In that judgment, the city was ordered to reduce the assessed value of certain property owned by the defendant. As a consequence of that court ordered reduction, the city owed the defendant $9381.57. Rather than reimburse the defendant, the city garnished that debt because the defendant owed the city back taxes and interest on other properties in the city in excess of the amount resulting from the overassessment. On November 23,1984, the defendant signed a partial satisfaction of judgment indicating that payment had been made, except for two amounts, $918.58 and $893.37. On that date, the city issued two checks, one for $918.58 and the other for $893.37. Those two checks were never cashed.

The first count of the defendant’s counterclaims in this action alleged that the $9389.57 was exempt from garnishment, and that, because the city had illegally garnished the funds, the defendant was unable to pay utility bills to the Hartford Electric Light Company on his various properties. The failure to pay the utility bills resulted in a receiver of rents being appointed. The defendant further alleged that the receiver’s failure to collect sufficient rents prevented him from making tax and mortgage payments and resulted in a foreclosure action on his properties.

The second count of the counterclaim alleged that the city breached the terms of a stipulation which called for the release of the garnished funds once the defendant paid the taxes due on certain property he owned located at 65 Bulkeley Avenue, or once his equity interest in that property was foreclosed.

As directed by the court, the jury returned a verdict in favor of the city on the first count which alleged illegal garnishment. After deliberation on the remaining count, the jury returned a verdict for the defendant on that count in the amount of $2144.15, representing the sum of the two checks still outstanding from November 23, 1984, plus interest.

The defendant contends that the trial court erred in directing the verdict on the first count for failure to state a cause of action. He contends that the garnishment was illegal because General Statutes §§ 12-118 and 12-119 exempt from garnishment a refund owed to a taxpayer as a consequence of overassessment. We cannot agree.

Taxes properly assessed by a town constitute a debt which may be recovered by suit or “any proper action in the name of the community.” General Statutes § 12-161. It has long been recognized that a foreign attachment; General Statutes § 52-329; may properly be brought against a municipal corporation. Prudential Mortgage & Investment Co. v. New Britain, 123 Conn. 390, 391, 195 A. 609 (1937); Bray v. Wallingford, 20 Conn. 416, 419 (1850). There is nothing in the language of § 52-329 which is inconsistent with the provisions of §§ 12-118 and 12-119. Nor is there any language in those statutes which prohibits a town from garnishing funds as the city did here. We conclude that where a municipal corporation has incorrectly assessed property, has successfully collected those taxes, and has been ordered to refund the overpayment, the town may garnish those funds if the taxpayer is in arrears for taxes properly assessed on other properties owned by the taxpayer in the same town.

A directed verdict is not favored but is justified if, from the evidence, the jury could not reasonably and legally have reached any other conclusion than that embodied in the verdict as directed. Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984). The defendant could not have prevailed on the ground that the garnishment was illegal. The first count, therefore, failed to state a cause of action. The court did not err in directing the verdict for the city on that count.

The defendant’s second claim of error is that the court erred in telling the jury that it would not comment on the testimony of four of the defendant’s witnesses because their testimony was irrelevant. The testimony offered by those witnesses related only to the defendant’s first count which alleged the illegal garnishment of the tax receipts held by the city and consequential damages which resulted from that garnishment. In view of our conclusion that the court did not err in directing the verdict on the first count, we conclude that this claim is without merit.

There is no error.

In this opinion the other judges concurred.

        Tucker v. Hartford, Court of Common Pleas, Hartford County, No. 108945 (June 6, 1977).

        Hartford v. Tucker, Court of Common Pleas, Hartford County, No. 143605 (September 9, 1986).

       General Statutes § 12-118 provides: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises. Any such application shall be a preferred case, to be heard, unless good cause appears to the contrary, at the first session, by the court or by a committee appointed by the court, and the pendency of such application shall not suspend an action by such town or city to collect no more than seventy-five per cent of the tax so assessed or not more than ninety per cent of such tax with respect to any real property for which the assessed value is five hundred thousand dollars or more, and upon which such appeal is taken. If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review to make such amendment effective. The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and costs. Upon motion, said court shall in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and costs. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

       General Statutes § 12-119 provides: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof or any lessee thereof whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation and shall be served and returned in the same manner as is required in the case of summons in a civil action, and the pendency of such application shall not suspend action upon the tax against the applicant. In all such actions, the superior court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       General Statutes § 12-161 provides: “All taxes properly assessed shall become a debt due from the person, persons or corporation against whom they are respectively assessed to the town, city, district or community in whose favor they are assessed, and may be, in addition to the other remedies provided by law, recovered by any proper action in the name of the community in whose favor they are assessed.”

       General Statutes § 52-329 provides: “When the effects of the defendant in any civil action in which a judgment or decree for the payment of money may be rendered are concealed in the hands of his agent or trustee so that they cannot be found or attached, or when a debt is due from any person to such defendant, or when any debt, legacy or distributive share is or may become due to such defendant from the estate of any deceased person or insolvent debtor, the plaintiff may insert in his writ, subject to the provisions of sections 52-278a to 52-278g, inclusive, a direction to the officer to leave a true and attested copy thereof and of the accompanying complaint, at least twelve days before the return day, with such agent, trustee or debtor of the defendant, or, as the case may be, with the executor, administrator or trustee of such estate, or at the usual place of abode of such garnishee; and from the time of leaving such copy all the effects of the defendant in the hands of any such garnishee, and any debt due from any such garnishee to the defendant, and any debt, legacy or distributive share, due or that may become due to him from such executor, administrator or trustee in insolvency, not exempt from execution, shall be secured in the hands of such garnishee to pay such judgment as the plaintiff may recover.”


author: Dupont, C. J.

text:
    Richard A. Hamann et al. v. Town of Newtown et al.
    (5878)
    Dupont, C. J., Borden and Foti, Js.

      Argued March 1
    decision released May 31, 1988

      Mark V. Oppenheimer, for the appellants (plaintiffs).

      Jeffrey C. Pingpank, with whom, on the brief, was Louis B. Blumenfeld, for the appellees (defendants).
   Dupont, C. J.

The plaintiffs appeal from the dismissal by the trial court of their appeal from a decision of the defendant board of selectmen of the town of Newtown (board). We find no error.

The plaintiffs are the owners of a sixteen acre parcel of land in Newtown which is crossed by a road known as Kale Davis. Pursuant to General Statutes § 13a-39, the plaintiffs applied to the board for a determination of the boundaries of Kale Davis road, which boundaries the plaintiffs alleged had become lost or uncertain. Following a hearing, the board issued a resolution which established the boundaries to be as depicted on a certain survey map, and which concluded that the portion of Kale Davis road which crosses the plaintiffs’ property is a private road rather than a town highway.

The plaintiffs, in their appeal to the Superior Court, claimed that they were aggrieved because the board’s decision unlawfully deprived them of the care and maintenance by the town of the road and of their right to divide their property. They sought a declaration that the road, as depicted on the survey map referred to in the board’s resolution, is a public road.

The trial court concluded that the plaintiffs were not aggrieved by the failure of the board to find that the road is a public road because General Statutes § 13a-39 did not empower the board to establish the legal status of the road. The court reasoned that the statute only empowered the board to determine the location of the boundaries of the road and since the board found the boundaries to be those which were not disputed by the plaintiffs, there could be no aggrievement. The court also found, in the alternative, that even if the board had the statutory authority under § 13a-39 to determine whether the road was public or private, the evidence supported the board’s conclusion that the road is a private one.

The issue dispositive of this appeal is whether the board is empowered under General Statutes § 13a-39 to determine the legal status of a road. We agree with the trial court’s conclusion that the board is not authorized by § 13a-39 to make such a determination.

General Statutes § 13a-39 sets forth a procedure for defining the boundaries of a highway which have become lost or uncertain. Appeal of St. John’s Church, 83 Conn. 101, 106, 75 A. 88 (1910). After hearing all parties interested, the town selectmen are required to reach a decision defining the lines and bounds of the highway. See Hartford Trust Co. v. West Hartford, 84 Conn. 646, 81 A. 244 (1911). “A statutory proceeding for the survey and platting of an existing road does not operate to establish the road. Its purpose is merely to ascertain the courses and distances of one claimed already to be established. It estops the public from claiming that the road runs on a line different from that of the survey.” 39 Am. Jur. 2d, Highways, Streets and Bridges § 55. Recourse to § 13a-39 presupposes a prior determination that the road in question has been deemed a public highway. See id. The board is without authority under that section to determine the legal status of a road.

The determination of the legal status of a road is distinct from a determination of the boundaries of a road. The purpose of § 13a-39 is to settle the uncertain width of a highway for the benefit of adjoining property owners. See Appeal of St. John’s Church, supra, 105.

General Statutes § 13a-48 provides for the formal acceptance of a highway by a municipality. A road may also be expressly dedicated to a public use; A & H Corporation v. Bridgeport, 180 Conn. 435, 439, 430 A.2d 25 (1980); or impliedly dedicated and accepted by the general public. Id. A public road may also be formally discontinued; General Statutes § 13a-49; or deemed abandoned due to nonuse by the public. Doolittle v. Preston, 5 Conn. App. 448, 451, 499 A.2d 1164 (1985). We find no basis, and the plaintiffs have presented no authority, however, for support of the proposition that the board is empowered to make a determination as to the status of a road coincident to its authority to determine the boundaries of a road that have become lost or uncertain. The acceptance of municipal highways under General Statutes § 13a-48 is an exercise of legislative power, vested in this case in the Newtown legislative council and town meeting, and such power may not be delegated to the town selectmen. Brookfield v. Greenridge, Inc., 177 Conn. 527, 533, 418 A.2d 907 (1979); see also Thompson v. Portland, 159 Conn. 107, 115, 266 A.2d 893 (1970).

The trial court properly dismissed the plaintiffs’ appeal for lack of aggrievement. The tests for determining “aggrievement” for purposes of an appeal from a decision of an administrative agency are whether a specific, personal, and legal interest in the subject matter of a decision has been demonstrated and whether it has been established that a personal and legal interest has been specially and adversely affected by the decision. Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 502, 503 A.2d 1161 (1986); Goldfeld v. Planning & Zoning Commission, 3 Conn. App. 172, 175, 486 A.2d 646 (1985). The plaintiffs have demonstrated the former but have not established the latter. The allegations contained in the plaintiffs’ complaint, as well as our review of the proceedings before the board and the trial court, indicate that the plaintiffs do not dispute the board’s determination of the boundaries of Kale Davis road, but only take issue with the board’s determination of the legal status of the road. The board lacked the authority to make the latter determination and the plaintiffs were not adversely affected by the decision of the board as to the boundaries of the road since they agree that the boundaries as found by the board are accurate. The plaintiffs were not aggrieved by the decision of the board.

There is no error.

In this opinion the other judges concurred.

       The town of Newtown and individual members of the board are also defendants in this action.

       General Statutes § 13a-39 provides in pertinent part: “Whenever the boundaries of any highway have been lost or become uncertain, the selectmen of any town in which such highway is located, upon the written application of any of the proprietors of land adjoining such highway, may cause to be made a map of such highway, showing the fences and bounds as actually existing, and the bounds as claimed by adjoining proprietors, and shall also cause to be placed on such map such lines as in their judgment coincide with the lines of the highway as originally laid down. . . . Such decision shall specifically define the line of such highway and the bounds thereof and shall be recorded in the records of the town in which such highway is located, and the lines and bounds so defined and established shall be the bounds of such highway unless changed by the superior court upon appeal from such decision of the selectmen.”

       General Statutes § 13a-40 provides in pertinent part: “Any person aggrieved by such decision may appeal to the superior court for the judicial district where such highway is situated within ten days after notice of such decision has been given, which appeal shall be in writing, containing a brief statement of the facts and reasons of appeal and a citation to such selectmen and all adjoining proprietors on such highway to appear before said court, and said court, or any judge thereof, may direct the time of appearance and the manner of service. Said court may review the doings of such selectmen, examine the questions in issue by itself or by a committee, confirm, change or set aside the doings of such selectmen, and make such orders in the premises, including orders as to costs, as it finds to be equitable.”

       General Statutes § 13a-l defines “highway” as “includpng] streets and roads.”

       General Statutes § 13a-48 provides: “Any municipality whose duty it is to maintain the highways within its limits may, except as otherwise provided in its charter, at any annual or special meeting held for that purpose, accept as a public highway any proposed highway situated in such municipality.”


author: Spallone, J.

text:
    State of Connecticut v. Douglas Leon Perry
    (5654) (5655)
    Spallone, Norcott and Foti, Js.
    Argued March 9
    decision released May 31, 1988

      Stephen F. Cashman, special public defender, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, for the appellee (state).
   Spallone, J.

The sole issue presented by these appeals is whether the trial court erred by ordering the consolidation of two informations filed against the defendant. One information charged that the defendant, on June 24, 1985, at approximately 5:30 p.m., at the home of Jeffrey Scheuing in the town of South Windsor, had committed the crimes of criminal attempt to commit burglary in the third degree in violation of General Statutes § 53a-49 and 53a-103, criminal mischief in the third degree in violation of General Statutes § 53a-117, and threatening in violation of General Statutes § 53a-62 (the Scheuing incident). The second information accused the defendant of having committed, also on June 24, 1985, at approximately 9:30 p.m., at the home of Michael Duprey in the town of South Windsor, the crimes of burglary in the second degree in violation of General Statutes § 53a-102, criminal mischief in the third degree in violation of General Statutes § 53a-117, assault in the third degree in violation of General Statutes § 53a-61, and larceny in the fourth degree in violation of General Statutes § 53a-125 (the Duprey incident). After a trial to a jury, the defendant was found guilty of all counts in both informations. In these appeals from the judgments of conviction, we find no error.

With respect to the charges arising from the Scheuing incident, the jury could reasonably have found the following facts. At approximately 5:30 p.m., on June 24, 1985, Scheuing was in the kitchen of his home with his wife when he heard the sound of breaking glass emanating from the basement. Seeking the source of the broken glass, Scheuing went down to the basement and saw the defendant standing outside the door. The screen on the exterior door had been cut open, and the pane of glass nearest the doorknob on the interior door had been broken. Upon seeing Scheuing, the defendant fled the scene on a bicycle. Scheuing gave chase and caught up to the defendant at a nearby intersection when the defendant fell off the bicycle. The defendant threatened Scheuing, who, fearing the defendant was armed, initially backed away. When the defendant again attempted to flee on the bicycle, Scheuing attempted to restrain him. The defendant broke free of Scheuing’s grasp and ran into some neighboring woods, leaving the bicycle. Having been summoned by a neighbor, the police arrived at Scheuing’s home soon thereafter.

The jury could also reasonably have found the following facts regarding the Duprey incident. Later on the evening of June 24, at approximately 9:30 p.m., when Michael Duprey returned home from work, he noticed that, although no lights had been left on in his home when he left for work, a light was burning in the family room. Duprey entered the garage attached to his house where he saw that a window had been broken and motor oil spilled on the floor. As Duprey approached the main body of the house, he heard movements in the upper floors. He searched the downstairs rooms and, approaching the base of the stairs, he turned on the light which illuminated the staircase. Standing at the top landing was a black male, wearing dark clothing and carrying a blue satchel. As Duprey started up the stairs, the intruder moved into one of the upstairs bedrooms. Duprey then went back downstairs, took a rifle from his gun cabinet, and returned to confront the intruder. At the same time, the defendant ran downstairs; the two met in the kitchen. When Duprey pointed the rifle at the defendant and ordered him to stop, the defendant swung the satchel, striking Duprey in the arm, and then fled through a sliding glass door in the basement.

Duprey called the police from a neighbor’s house and, after returning home, discovered that a camera bag, an Olympus camera, a warm-up suit, a money purse and a twelve-speed bicycle, which together had an estimated value of $1070, had been taken from the house.

All of the items stolen from the Duprey residence, with the exception of the twelve-speed bicycle, were recovered later on the evening of June 24 by the Manchester police at a location about one mile from Duprey’s home in South Windsor. Duprey was taken to this location by a South Windsor police officer, and there identified his belongings. Both Duprey and Scheuing were later shown a nine-photo array, from which they each selected a photograph of the defendant, identifying him as the man they had seen at their respective homes. In addition, both Duprey and Scheuing made positive identifications of the defendant at his subsequent trial.

At the time of his trial, the defendant had charges in five separate files pending against him. The defendant moved for separate trials on each file and the state moved to join all five informations in a single trial. After conducting a hearing on both motions, the court, Brennan, J., granted the state’s motion to join two of the informations for the trial, specifically the Duprey and Scheuing incidents, and severed the remaining files. The state excepted to the severance of the remaining files and the defendant excepted to the joinder of the Duprey and Scheuing files. The defendant now appeals.

The considerations governing the joinder of two or more criminal offenses are contained in General Statutes § 54-57 and elucidated in Practice Book §§ 828 and 829. Our Supreme Court has recently analyzed the interplay of these provisions, in one instance finding error in the consolidation for trial of four informations pending against a defendant; State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987); and in a second instance finding no error in the joinder of two informations against a defendant. State v. Pollitt, 205 Conn. 61, 530 A.2d 155 (1987). A comparison of these decisions and a careful examination of the factors which must be considered when deciding whether separate offenses ought to be consolidated for trial, lead us to conclude that the joinder in the present case was proper.

It is indisputable that the decision to join or sever offenses is submitted to the discretion of the trial court and may not be disturbed absent a manifest abuse of that discretion. State v. Pollitt, supra, 68; State v. Boscarino, supra, 721. On appeal, the defendant must demonstrate that the “denial of severance resulted in substantial injustice,” and also that any resulting prejudice was “beyond the curative power of the court’s instructions.” State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); see also State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982); State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976); State v. Smith, 10 Conn. App. 624, 629, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987).

The defendant here, as did the defendants in Boscarino and Pollitt before him, claims that the ability of the state to put evidence before the jury regarding the defendant’s complicity in more than one criminal episode resulted in substantial injustice. Although it is a well settled rule of law that evidence of a defendant’s involvement in prior crimes is not generally admissible as substantive evidence to prove his culpability for another; State v. Jonas, supra, 571; State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970); the procedure allowing for the joinder of offenses, by necessity, avoids the application of this traditional prohibition. The consolidation of informations for trial, therefore, creates “an omnipresent risk . . . that‘although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused’s guilt, the sum of it will convince them as to all.’ United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622, 59 S. Ct. 793, 83 L. Ed. 1500 (1939).” State v. Boscarino, supra, 721-22.

The Bosearino court found that this risk, which “is greatly enhanced when the offenses joined are factually similar, but legally unrelated”; State v. Boscarino, supra, 722; could not be surmounted, given the facts and circumstances of that case. The factual similarities of the four crimes joined in Bosearino, although they were not similar enough to constitute “signature offenses,” combined with the violent nature of the crimes and the duration and complexity of the trial, produced a substantial likelihood that the jury “would weigh the evidence against the defendant cumulatively, rather than independently in each case.” Id., 723. Under those circumstances, not even the trial court’s “apt and thorough admonitions could . . . mitigate the potential for prejudice wrought by the joinder . . . .” Id., 725.

By comparison, the Pollitt court found it unnecessary to delve into the considerations apparent in Bosearino. Relying on the precedents of State v. Ibraimov, 187 Conn. 348, 446 A.2d 382 (1982), and State v. Howard, 187 Conn. 681, 447 A.2d 1167 (1982), the court in Pollitt concluded that the circumstances of the two offenses joined “were sufficiently similar and distinctive to constitute ‘signature offenses.’ . . . Because the defendant was not substantially prejudiced by joinder of the offenses for a single trial . . . the trial court did not err in granting the state’s motion for consolidation.” (Footnote omitted.) State v. Pollitt, supra, 72.

With Pollitt and Boscarino marking either end of the spectrum, the facts of the present case cause it to fall somewhere between the two. As in Boscarino, the state has conceded that the burglary and the attempted burglary at issue here are not sufficiently similar to be signature crimes; therefore, the holding of Pollitt is not applicable. We do not find, however, that the underlying facts of this case engendered the potential for prejudice which was perceived to be of such magnitude as to require separate trials in Boscarino.

“Substantial prejudice does not necessarily result from a denial of severance even where evidence of one offense would not have been admissible at a separate trial involving the second offense. A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly. See Drew v. United States, 331 F.2d 85, 89 (D.C. Cir. 1964); State v. Bell, [supra, 406]; State v. King, supra, 301.” (Emphasis added.) State v. Pollitt, supra, 68; see also United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985).

We do not believe that any of the factors which contributed to a finding of prejudice in Boscarino exist here. Although there are certainly factual similarities between the offenses charged; e.g., both involved burglaries in the same town within hours of one another by a black male dressed in dark clothing; these similarities were not so significant as to impair the defendant’s right to the jury’s fair and independent consideration of the evidence in each case.

This conclusion is further bolstered by the concise and orderly presentation of the state’s evidence at trial. The state first produced Michael Duprey who recounted his confrontation with the intruder, described the property which was taken from his home and identified the defendant as the thief. Jeffrey Scheuing next took the stand and testified to the facts concerning his encounter with the man who attempted to break into his home. Scheuing also identified the defendant as the individual he confronted. The state next produced Officer James Graham, a member of the Manchester police department, who, on the night of June 24, after being informed of the recent crimes committed in South Windsor, observed a man fitting the description of the suspect which had been dispatched over the police radio, near the South Windsor-Manchester town lines. Graham further testified that, when the suspect saw Graham in his cruiser, he dropped the bags he was carrying and fled into a wooded area. These bags were later found to contain the items taken from the Duprey home. Finally, Detective Francis Felber of the South Windsor police department described the investigation he conducted of the crimes reported by Duprey and Scheuing, which ultimately led to Felber’s application for a warrant for the arrest of the defendant.

Throughout the examination of the witnesses, the state exhibited great care in keeping the two incidents separate and, unlike Boscarino, the evidence presented was “simple, separable and straightforward.” State v. King, supra, 302. On the basis of these circumstances, we conclude that the defendant was not substantially prejudiced by the joinder of these two offenses.

There is no error.

In this opinion the other judges concurred.

       As is discussed in more detail, infra, the state presented evidence to the jury concerning these incidents in reverse chronological order; eliciting testimony first from Michael Duprey, and then from Jeffrey Scheuing. For our purposes, however, we will discuss the events of the evening of June 24, 1985, as they actually occurred.

       “[General Statutes] Sec. 54-57. joinder of offenses of the same character. Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book § 828 provides: “severance of offenses. If it appears that a defendant is prejudiced by a joinder of offenses, the judicial authority may, upon his own motion or the motion of the defendant, order separate trials of the counts or provide whatever other relief justice may require.”
      Practice Book § 829 provides: “trial together of indictments or informations. The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”

       The state conceded in Bosearino that the four assaults with which the defendant was charged could not be considered “signature crimes.” See State v. Carsetti, 12 Conn. App. 375, 380-83, 530 A.2d 1095 (1987); C. McCormick, Evidence (3d Ed.) § 190, p. 560 (“[t]he pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature”). Similarly, evidence of the four offenses would not have been admissible in separate trials of each under the remaining exceptions to the prohibition of “other crimes” evidence, i.e. intent, identity, malice or motive. See State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979).

       The defendant claims that the state, by opting to offer evidence on the completed burglary at the Duprey home before presenting evidence of the attempted burglary at the Scheuing residence; the latter having occurred first in time; unduly confused the jury. We cannot agree. The state claims that it chose to present its case in reverse chronological order to minimize the likelihood that the jury would conclude that the defendant, having failed at the Scheuing home, “moved on to the Duprey residence to finish what he started.” We do not find that the defendant was in any way prejudiced by the presentation of the evidence against him, given that the presentation was well organized and that, in its instructions to the jury, the trial court tailored its comments to conform to the evidence as adduced.

       The proceedings in the trial below lasted three days, there were four witnesses and ten exhibits introduced. The trial of the defendant in Boscarino lasted approximately ten weeks, there were fifty-five witnesses (some of whom gave testimony in more than one case) and there were sixty-six exhibits. These are differences of some importance.

       In his brief, the defendant claims that the trial court failed to instruct the jury that they were to keep the evidence presented in each case separate and that they were not to allow themselves to use evidence of one offense to influence their deliberations on the other. The state has responded, and correctly so, that the defendant neither requested such an instruction nor objected to the court’s final instructions to the jury which lacked the admonition. We will not, therefore, grant the defendant a full review of this claim. State v. Evans, 165 Conn. 61, 70, 327 A.2d 583 (1973); see also State v. Tyler-Barcomb, 197 Conn. 666, 672, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986); State v. Huff, 10 Conn. App. 330, 337, 523 A.2d 906 (1987).
      Due to the nature of the challenge discussed in the body of this opinion, however, we feel compelled to review the court’s instructions to the jury in the context of the possibility of the jury becoming confused or misled. On the basis of a careful examination of the transcripts, we conclude that the trial court sufficiently distinguished the separate offenses and, although a specific cautionary instruction is doubtlessly preferable, there existed little or no likelihood that the jury impermissibly intermingled the evidence of the two offenses.


text:
    State of Connecticut v. Aida Lopez
    (5546)
    Spallone, Norcott and Foti, Js.
    Argued March 8
    decision released May 31, 1988

      Joseph B. Burns, with whom, on the brief, were Austin J. McGuigan and Lisa J. Barry, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, were Mitchell Brody, deputy assistant state’s attorney, and James G. Clark and Warren Maxwell, assistant state’s attorneys, for the appellee (state).
   Spallone, J.

The defendant appeals her conviction, after a jury trial, of the crimes of possession of heroin, General Statutes § 21a-279 (a), and sale of heroin, General Statutes § 21a-277 (a).

The defendant claims that the trial court erred (1) in admitting evidence of the defendant’s prior criminal activity, (2) in admitting prejudicial photographs into evidence, and (3) in improperly presenting photographs to the jury. We find no error.

The jury could reasonably have found the following facts: On March 27,1984, Joan Mohr called her friend, Darlene O’Neill, and asked her where she could purchase some red bag heroin. At that time, O’Neill was a former drug user and was participating in a methadone treatment program. On the evening of March 27, O’Neill drove Mohr to the defendant’s apartment for the purpose of purchasing some red bag heroin. O’Neill had previously purchased drugs from the defendant and three weeks earlier had been asked by the defendant to sell drugs for her in Bristol. O’Neill also asserted that the defendant requested that she approach Mohr about selling drugs for the defendant in Bristol. Both women entered the defendant’s apartment, where O’Neill observed the defendant deliver five bags of red bag heroin to Mohr. O’Neill then took Mohr home and went home herself.

In the early hours of March 28,1984, Neil Hamilton, Joan Mohr’s boyfriend, found her dead in the kitchen of the apartment they shared. The police, who responded to Hamilton’s call, found a red plastic bag on the kitchen counter, four sealed red bags containing heroin hidden in the foil of a cigarette pack and drug paraphernalia. Traces of heroin were also found on a spoon and a cotton swab seized from the apartment. A subsequent autopsy disclosed that Mohr died from an overdose of heroin.

As a result of their investigation, the police secured warrants for the defendant’s arrest and a search of her apartment. A search of the defendant’s apartment produced part of a red plastic bag containing traces of heroin. The defendant was tried and convicted as indicated above.

The defendant’s first allegation of error is that the trial court abused its discretion when it allowed O’Neill to testify that she had purchased drugs from the defendant in 1976 or 1977. We disagree.

Generally, evidence of prior misconduct is inadmissible to prove that the defendant is guilty of the crime charged. State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Perry, 14 Conn. App. 526, 531, 541 A.2d 1245 (1988); State v. Rodriguez, 10 Conn. App. 176, 178, 522 A.2d 299 (1987). “Yet, such evidence may be admitted to prove a variety of other things, such as intent, identity, malice, motive, an element of the crime or modus operandi. State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); State v. Shindell, 195 Conn. 128, 133, 486 A.2d 637 (1985); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). Thus, evidence of prior misconduct is not per se inadmissible. The trial court, in analyzing the admissibility of the evidence, must apply a two-prong test. First, the court must conclude that the offered evidence is relevant and material to one of the enumerated exceptions, e.g., motive, intent and identity. Second, the court must conclude that the probative value of the evidence outweighs its inevitable prejudicial effect. See State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983).” State v. Rodriguez, supra, 178.

“The appropriate standard for reviewing the trial court’s determination of the admissibility of the evidence based on this test has been clearly set forth by our Supreme Court. ‘[T]he trial court’s discretion will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. On review, by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.’ State v. Shindell, supra, 134.” State v. Rodriguez, supra, 179; see also State v. Smith, supra, 156-57.

There is no question in this case that the fact that the witness purchased heroin from the defendant in the past was relevant to the witness’ ability positively to identify the defendant as the woman who sold Mohr heroin. In addition, this testimony was probative as to the defendant’s knowledge of the presence and substance of the narcotic. See State v. Williams, 12 Conn. App. 225, 235, 530 A.2d 627 (1987). The court then proceeded to determine whether the prejudicial effect of this testimony was outweighed by its probative value, and concluded that it was. See State v. Shindell, supra. Furthermore, in its charge to the jury, the trial court limited the purposes of such testimony to the issues of knowledge and identity and proscribed its use as an indication of guilt. Such a limiting instruction serves to minimize any possible prejudice; State v. Brown, supra, 58; State v. Rodriguez, supra, 180; and the jury is presumed to have followed the court’s instructions. State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986); State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984). The trial court properly admitted the testimony of O’Neill with regard to prior sales by the defendant and correctly admonished the jury as to the limited purpose of such testimony.

In her second claim, the defendant contends that the trial court committed error when it admitted two photographs into evidence. The first photograph depicted a view of the decedent’s kitchen, including the drug paraphernalia on the counter and the corpse in the middle of the floor. The second photograph was a close-up of the decedent’s arm, displaying a tourniquet-like mark on the forearm and a needle-like mark in the crook of the elbow.

In State v. McKenna, 11 Conn. App. 122, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987), we stated .that “[p]ho to graphic evidence is admissible where the photograph has a reasonable tendency to prove or disprove a material fact in issue. State v. DeJesus, 194 Conn. 376, 381, 481 A.2d 1277 (1984). There is no requirement that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible. Rather, the test for admitting the challenged evidence is its relevancy, not its necessity. State v. Haskins, 188 Conn. 432, 453, 450 A.2d 828 (1982); State v. Piskorski, 177 Conn. 677, 701, 419 A.2d 866, cert., denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Even if a photograph has the potential to prejudice the jury, it may be admitted if, in the court’s discretion, its probative value outweighs its possible prejudicial effect. State v. DeJesus, supra, 382; State v. Haskins, supra, 452-53. The trial court has wide discretion when weighing a photograph’s potential prejudice against its probative value. State v. DeJesus, supra; see also State v. Doehrer, 200 Conn. 642, 649, 513 A.2d 58 (1986); State v. Delgado, 8 Conn. App. 273, 288-89, 513 A.2d 701 (1986).” State v. McKenna, supra, 139. On appeal, a trial court’s ruling on relevancy will not be disturbed unless a clear abuse of discretion is shown. State v. Napoleon, 12 Conn. App. 274, 285, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 79 (1987). We need only inquire whether the trial court’s conclusion was reasonable. State v. Hamele, 188 Conn. 372, 383, 449 A.2d 1020 (1982). In this case, the trial court expressly concluded that the photographs were relevant to, inter alia, “the finding presumably of heroin in the body,” and to the “testimony with regard to the marks [on the decedent’s arm] exhibited by the doctor.” We cannot say that the trial court acted improperly or otherwise abused its discretion in admitting the photographs.

In conclusion, we find that the trial court did not abuse its discretion and acted properly and in accordance with applicable law when it admitted evidence of the defendant’s prior misconduct and in its admission into evidence of certain photographs of the victim.

There is no error.

In this opinion the other judges concurred.

       We decline to review the defendant’s third claim of error because the record indicates that the manner in which certain photographs of the deceased were presented to the jury was not objected to at trial. Ordinarily, the failure to raise a claim at trial renders it unreviewable on appeal. Practice Book § 4185; State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986); State v. Hinckley, 198 Conn. 77, 81, 502 A.2d 388 (1985). We will consider a claim not raised at trial only under exceptional circumstances; State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973); or where the claim of error qualifies for review under the plain error doctrine. Practice Book § 4185; State v. Hinckley, supra, 87-88. This claim meets neither standard.

       “Red bag heroin” is heroin that is packaged and sold in red bags and which contains an unusually high percentage of pure heroin.


author: Norcott, J.

text:
    Raymond Elliott v. Beverly Elliott
    (4838)
    Borden, Daly and Norcott, Js.
    Argued November 19, 1987
    decision released May 31, 1988

      Richard B. Laschever, for the appellant (defendant).

      W. David Keith, for the appellee (plaintiff).
   Norcott, J.

The defendant wife appeals challenging the financial orders rendered by the state trial referee incident to the judgment dissolving the marriage between the parties. Specifically, the defendant claims that the trial court erred (1) in forgiving the alimony arrearage owed to the defendant and rescinding the wage execution ordered on the plaintiffs pay, (2) in failing to consider certain contributions made to the defendant’s support by her mother and sister, (3) in awarding the defendant only $700 in attorney’s fees, and (4) in fashioning the remainder of the award. We find error in part.

The plaintiff and defendant were married on August 14, 1971. There were no children born of the marriage. On August 6, 1979, the plaintiff commenced the present action for dissolution. Thereafter, the defendant filed a motion for alimony pendente lite which was granted by the court on November 25,1980. The court ordered the plaintiff to pay to the defendant a weekly sum of $35 as alimony pendente lite. The court further ordered the plaintiff to pay all of the defendant’s medical bills and to maintain medical insurance for her benefit.

The plaintiff failed to keep up with these payments, and on August 18,1982, the defendant filed a motion for contempt, wage execution and counsel fees. Before this motion could be argued before the court, however, the plaintiff paid all past due amounts. In the three years that followed, the plaintiff was continually falling into arrears with respect to his obligation to provide alimony pendente lite to the defendant. The defendant filed several motions for contempt, and the plaintiff made several unsuccessful attempts to become current in his payments. Finally, on August 27, 1985, the trial court found the plaintiff in contempt. The court found an arrearage of $3415 as of August 23,1985 and ordered a wage execution against the plaintiff in the amount of $45 per week, $35 towards the current order and $10 towards the arrearage.

The case was tried before a state trial referee on November 6, 1985. On January 2, 1986, the referee granted the dissolution and ordered that the marital residence be sold and the proceeds distributed 35 percent to the plaintiff and 65 percent to the defendant. In addition, the trial referee ordered the previously determined arrearage forgiven and the wage execution suspended. Finally, the referee ordered the plaintiff to pay $700 toward the defendant’s attorney’s fees and ordered the plaintiff to maintain the defendant on his medical and dental policies. From these financial orders, the defendant appeals.

The defendant’s first claim is that the trial referee erred in forgiving the plaintiff’s arrearage and in rescinding the wage execution against the plaintiff. It is the defendant’s contention that, by taking this action, the trial referee retroactively modified the earlier order for alimony pendente lite. Such retroactive modification, the defendant contends, is not permitted under General Statutes § 46b-86.

It is clear that a trial court does have the authority to modify an award of alimony. General Statutes § 46b-86 (formerly § 46-54) provides that “[ujnless and to the extent the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party.” This statute has long been held to authorize the modification of periodic alimony for the future. Scoville v. Scoville, 179 Conn. 277, 279, 426 A.2d 271 (1979); see also Grinold v. Grinold, 172 Conn. 192, 195, 374 A.2d 172 (1977); Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976). In Sanchione v. Sanchione, 173 Conn. 397, 378 A.2d 522 (1979), however, our Supreme Court held that this statute is not to be construed so as to permit the retroactive modification of alimony awarded at the time of dissolution. The question in the case before us is whether the Sanchione reasoning also prevents the retroactive modification of pendente lite alimony.

In Sanchione, our Supreme Court articulated several compelling reasons why General Statutes § 46b-86 should not be construed so as to permit the retroactive modification of an alimony award entered at the time of dissolution. Among the reasons cited by the court for precluding such retroactive modification were the following: (1) unpaid alimony installments are in the nature of a final judgment which cannot be retroactively disturbed; (2) prohibiting the retroactive modification of alimony would prevent hardship to alimony recipients by protecting their expectations and enabling them to rely on the continuing alimony obligations of the paying spouse; (3) a modifiable alimony decree is not entitled to full faith and credit in another state’s courts, at least not where the spouse has failed to take the final step of reducing the alimony arrearage to a judgment for money owed; and (4) trial judges asked to modify an alimony order retroactively might well become engaged in what would essentially be appellate review of another trial judge’s judgment. Id., 405-406.

These considerations apply with equal force to pendente lite alimony orders. First, like unpaid installments of an alimony award entered at the time of dissolution, accrued and unpaid installments of alimony pendente lite are, in effect, debts which have become vested rights of property which the court cannot take away. Smith v. Smith, 151 Conn. 292, 297, 197 A.2d 65 (1964); German v. German, 122 Conn. 155, 164, 188 A. 429 (1936); see also Parenti v. Parenti, 71 R.I. 18, 41 A.2d 313 (1945). “No basis exists for any differentiation in this respect between Connecticut orders made as incident to a final decree of divorce and those granted pendente lite . . . .” Smith v. Smith, supra, 297. Next, we note that the purpose of alimony pendente lite is to provide a party with support during the pendency of the dissolution action. Id. Allowing a court to modify an award of alimony pendente lite retroactively at the time the dissolution is granted would frustrate that purpose because it would encourage spouses to delay making their alimony payments until the time of dissolution, hoping that the order for alimony pendente lite would be forgiven or changed at that time. Lastly, the recipients of alimony pendente lite may have a need to enforce such orders in another state and trial judges retroactively modifying an award of alimony pendente lite would actually be engaging in appellate review of another trial judge’s judgment.

Because the factors discussed in Sanchione apply with equal force to orders for alimony pendente lite, we conclude that such orders are not retroactively modifiable. This decision is supported by our Supreme Court’s ruling in Tobey v. Tobey, 165 Conn. 742, 345 A.2d 21 (1974). In Tobey, the Supreme Court noted that it would be error for a trial court to fail to cite a defendant for contempt or to fail to incorporate an accumulated arrearage of pendente lite alimony in a final order granting dissolution. Id., 745-46.

Having determined that orders for alimony pendente lite cannot be retroactively modified, we must determine whether the action taken by the trial court in this case was, in fact, a retroactive modification. We conclude that it was. By forgiving the arrearage, the trial court effectively changed the terms of the earlier order for alimony pendente lite. Sanchione v. Sanchione, supra. The plaintiffs claim that the trial court’s order was a permissible assignment of the defendant’s right to levy against him under General Statutes § 46b-81 (a), rather than a retroactive modification under General Statutes § 46b-86, is a novel but unresponsive argument. Regardless of the authority under which the trial court entered the order forgiving the arrearage, the effect was that the pendente lite order was modified. Accordingly, we find error on this claim.

The defendant’s second claim is that the trial court erred in failing to consider certain contributions made to the defendant’s support by her mother and sister. We disagree.

General Statutes § 46b-82 provides that “[i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . .’’Infixing the nature and value of the property to be assigned, the court, in addition to the criteria listed in General Statutes § 46b-82, must also consider “the opportunity of each for future acquisition of capital assets and income ... [as well as] the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.” General Statutes § 46b-81 (c). While the trial court must consider each of these factors, no single factor is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982).

Our review of the record indicates that the trial court properly considered all of the statutory criteria set forth in General Statutes §§ 46b-81 and 46b-82. While the trial court, in its memorandum of decision, made no specific reference to the contributions made to the defendant’s care by her mother and sister, “ ‘[t]he court is not obligated to make an express finding on each of [the] statutory criteria.’ Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982).” Carpenter v. Carpenter, supra, 740. Accordingly, with respect to this claim we find no error.

The defendant’s final two claims of error relate to the trial court’s discretion in rendering the financial awards. First, the defendant claims that the trial court erred in awarding her only $700 in attorney’s fees. As our court has often noted “[w]hether to allow counsel fees, and if so in what amount, lie within the broad discretion of the trial court. . . . In exercising its broad discretion, the court must consider the statutory criteria set out in General Statutes §§ 46b-62 and 46b-82 and the respective financial abilities of the parties.” (Citations omitted.) Vaiuso v. Vaiuso, 2 Conn. App. 141, 151, 477 A.2d 678, cert. denied, 194 Conn. 807, 482 A.2d 712 (1984); see also Voloshin v. Voloshin, 12 Conn. App. 626, 631-32, 533 A.2d 573 (1987). Our review of the record indicates that the trial court did not abuse its discretion in awarding only $700 in attorney’s fees in this case. Lastly, the defendant claims that the trial court erred in fashioning the remainder of the award. The trial court is accorded broad discretion in awarding alimony and allocating property in dissolution actions. Little v. Little, 14 Conn. App. 195, 196, 540 A.2d 102 (1988). After reviewing the record,' we cannot say the trial court abused that discretion in this case.

There is error in part, that part of the judgment forgiving the arrearage in pendente lite alimony and rescinding the wage execution against the plaintiff is set aside and the case is remanded with direction to modify the judgment to include the arrearage and wage execution.

In this opinion the other judges concurred.


text:
    In re Marcel L.

    (5986)
    Spallone, Daly and Norcott, Js.
    Argued March 9
    decision released May 31, 1988

      Joette Katz, public defender, for the appellant (defendant).

      Michael B. O’Hare, assistant state’s attorney, with whom, on the brief, was Warren Murray, deputy assistant state’s attorney, for the appellee (state).

       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.

   Spallone, J.

The defendant appeals from his adjudication as a youthful offender after having been found guilty of breach of peace, in violation of General Statutes § 53a-181, and falsely reporting an incident, in violation of General Statutes § 53a-180.

The defendant claims that the trial court committed reversible error (1) by refusing to allow the defendant to question the state’s witnesses about the disposition of criminal charges which had been brought against them and by refusing to consider any evidence regarding the dispositions of those charges, and (2) by finding the defendant guilty of falsely reporting an incident although there was insufficient evidence. We note initially that the state has conceded error on the defendant’s second claim with the result that the defendant must be acquitted of that charge.

The only facts pertinent to the remaining issue in this appeal are as follows: In October of 1986, the defendant and three members of a neighboring family were involved in a tumultuous altercation which resulted in the arrests of all concerned for breach of peace. The charges against the neighbors were eventually nolled by the state, and these three individuals testified against the defendant at his trial. During the testimony of these witnesses, defense counsel was prevented by the trial court from cross-examining them as to the circumstances surrounding the nolles. The court expressly stated that “the disposition of [those] cases will not be considered by me in making my decision.” (Emphasis added.) Although on several occasions the defendant attempted to raise the subject again, the court remained steadfast in its refusal to allow such cross-examination. We find such refusal to be erroneous.

By disallowing and disregarding any evidence of the disposition of the charges against the only three witnesses, aside from the defendant, to the affray which led to the defendant’s conviction, the trial court effectively prevented the defendant from confronting the witnesses against him. This limitation foreclosed an entire area of inquiry that could have exposed, if present, the bias, interest or motive of the only three witnesses whose testimony was proffered against the defendant.

“Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Corley, 177 Conn. 243, 246, 413 A.2d 826 (1979); State v. Luzzi, 147 Conn. 40, 46, 156 A.2d 505 (1959). The sixth amendment to the constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured to defendants in both state and federal prosecutions. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). The primary interest secured by confrontation is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). An important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to ‘expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).” State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982); see also State v. Ortiz, 198 Conn. 220, 223-25, 502 A.2d 400 (1985); State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985).

There is no merit to the state’s claim that the trial court was merely exercising its discretion in placing restrictions on the scope of the cross-examination. “ ‘The general rule is that restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.’ [State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980).] We need not address the threshold question in this case, however, because the trial court did not allow any cross-examination into the witnesses]’ possible motive and interest. Cross-examination regarding motive, bias, interest and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, [195 Conn. 475, 482, 488 A.2d 1239 (1985)]; State v. Shindell, [195 Conn. 128, 140, 486 A.2d 637 (1985)]; State v. Corley, [supra, 246]; State v. Luzzi, [supra].” State v. Milum, supra, 609.

It is self evident that, on the basis of the legal principles enunciated in the cases cited above, the court was obligated to permit the defendant to cross-examine all of the witnesses against him as to the circumstances concerning the fact that the state had nolled the charges against them, particularly here, where the prosecution of the defendant arose out of the same facts and circumstances that resulted in the arrests of all of the witnesses, as well as of the defendant.

There is error, the judgment of the trial court is set aside and the case is remanded with direction to render a judgment of acquittal of falsely reporting an incident and for a new trial solely as to breach of the peace.

In this opinion the other judges concurred.

       We conclude that the circumstances of this case, where the witnesses’ nolled charges arose from the same incident as the charges brought against the defendant, distinguish it from the decision in State v. Harris, 10 Conn. App. 217, 235-36, 522 A.2d 323 (1987).


author: Daly, J.

text:
    Julian Lieb v. Department of Health Services
    (5503)
    Daly, Norcott and Foti, Js.
    Argued December 8, 1987
    decision released June 7, 1988

      Richard J. Lynch, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Lisa H. Oliveri, assistant attorney general, for the appellant (defendant).

      David W. Skolnick, with whom, on the brief, was Patricia Kilkenny, for the appellee (plaintiff).
   Daly, J.

The defendant appeals from the trial court’s granting of the plaintiff’s motion to quash a subpoena duces tecum served on the plaintiff by the defendant. The trial court quashed the subpoena on the ground that the information sought was protected by the psychiatrist-patient privilege created by the legislature.

The sole issue on appeal is whether General Statutes § 19a-14 (a) (10), which authorizes the department of health to investigate members of the health profession, overrides the psychiatrist-patient privilege of General Statutes § 52-146e (a). In holding that the legislature did not intend the psychiatrist-patient privilege to be nullified by General Statutes § 19a-14 (a) (10), we find no error in the trial court’s decision.

The facts are not in dispute. The plaintiff, Julian Lieb, a physician licensed in this state, is engaged in the private practice of psychiatry. Lieb is on the faculty of the University of Connecticut School of Medicine and is widely respected by those in the profession as a specialist in the treatment of depression. Several of the plaintiff’s patients suffer from severe depressive disorders for which he has prescribed psychostimulant medication. On March 27, 1986, the department of health services (hereinafter department) requested that the plaintiff attend a “compliance conference,” a meeting which addresses the concerns of the profession. Specifically, the department sought information regarding the plaintiff’s prescribing of the psychostimulant medication. Thq plaintiff voluntarily attended this conference where various prescriptions and the amount of medications prescribed were discussed. Subsequently, the department contacted six of the plaintiff’s patients in an attempt to secure consent for their medical records for the department’s records. The plaintiff, in an attempt to address the concerns of the department while protecting the confidentiality of his patients, provided blind case summaries from which the personal communications of the patients had been deleted. Despite an unsuccessful attempt to secure consent from the patients, the department issued a subpoena duces tecum to the plaintiff, requiring him to provide the complete patient records of five named patients, relevant medical records, notes, medication sheets, and medical releases provided by the patients.

On July 1,1986, the plaintiff moved pursuant to General Statutes § 52-146f to quash the department’s subpoena. The trial court, on September 2,1986, granted the motion.

The defendant argues that the public policy concerns which enable the department to investigate the qualifications of licensed physicians supersede the psychiatrist-patient privilege. In support of its argument, the department cites In re Board of Medical Review Investigation, 463 A.2d 1373 (R.I. 1983). The state legislature of Rhode Island had authorized the board to investigate allegations of professional misconduct within the medical field and a physician appealed from the trial court’s denial of his motion to quash a subpoena duces tecum. The Rhode Island Supreme Court upheld the lower court’s ruling, stating: “A physician under investigation for professional misconduct subverts rather than supports the rights of the patient by distorting the patient’s privilege to his own ends.” Id., 1376. The defendant further maintains that General Statutes § 52-146Í enumerates the situations in which consent of the patient is not required, specifically, subsection six which provides ‘‘[communications or records may be disclosed to the commissioner of health services in connection with any inspection, investigation or examination of an institution . . . .” We find that the defendant’s argument is without merit.

We begin our analysis by noting that in Connecticut there is no common law physician-patient privilege. Zeiner v. Zeiner, 120 Conn. 161, 167, 179 A.2d 644 (1935) (“information acquired by physicians in their professional capacity has never been privileged”). Our legislature has created a privilege to cover “all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility.” General Statutes § 52-146d (2).

An examination of the statutes concerning the privilege is determinative of the issue in this case. Communications between a psychiatrist and a patient “shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identifies a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.” General Statutes § 52-146e (a). In the enactment of the privilege statute, our legislature anticipated circumstances in which disclosure might be appropriate. General Statutes § 52-146Í (1) through (6) dictates six statutory-exceptions to the privilege which, however, are inapplicable to this case. The defendant vigorously argues that the statutory exception of General Statutes § 52-146Í (6) quoted above is determinative of this case. The defendant’s argument is incorrect as subsection (6) clearly applies to the investigation of institutions and not individual psychiatrists.

This court has recently stated that “[i]t is axiomatic that courts are required to read a statute in light of its purpose.” State v. Rado, 14 Conn. App. 322, 329, 541 A.2d 124 (1988). It is commonly understood that “the purpose of the privilege is to give to the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor’s testimony.” State v. White, 169 Conn. 223, 234-35, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975). In reviewing this statute, courts must presume that the legislature incorporated the purpose of the statute in every sentence, clause, phrase and item of punctuation of the statute. See B. Holden & J. Daly, Connecticut Evidence § 50. In this case, we must assume that if the legislature had intended to make the medical records of psychiatrists available to the department of health, it would have clearly and unequivocally expressed the intention to do so in the statutes. Requiring the judicial branch to create a procedure on a case by case basis is uncertain and undoubtedly unintended manner of execution.

The defendant correctly argues that the exceptions to the psychiatrist-patient privilege “are not limited to those found in General Statutes § 52-146Í.” State v. Toste, 178 Conn. 626, 629, 424 A.2d 293 (1979); State v. White, supra, 234. The defendant’s claim, in substance, is that the department’s statutory duty to conduct all necessary investigations of licensed physicians throughout the state constitutes a sufficient basis for an exception, in addition to those provided in § 52-146Í, to the psychiatrist-patient privilege. The fact that the department, as licensing authority, is charged with the maintenance of health care standards pursuant to General Statutes § 20-13e is not in dispute. Moreover, it is not in contention that the department has the power to issue subpoenas and “order the production of books, records and documents” pursuant to General Statutes § 19a-14 (10). These general provisions, however, do not permit the department to derogate the explicit statutory privilege between a psychiatrist and the patient. Our Supreme Court has held that, in construing two statutes, the clear language of a narrowly tailored provision is not to be superseded by the broad, general provisions of another statute. See, e.g., Atwood v. Regional School Dist. No. 15, 169 Conn. 613, 363 A.2d 1038 (1975). Furthermore, the general language providing the authority the power to carry out its duties is not specific enough to put a patient on notice that his or her communication with a psychiatrist would not be disclosed.

Furthermore, our holding today is substantiated by the department’s failure to show reasonable cause for the production of complete patient records. Recently, the California Court of Appeals decided a case based on circumstances virtually identical to those in the present case. In Wood v. Superior Court, 166 Cal. App. 3d 1138, 1150, 212 Cal. Rptr. 811 (1985), the California medical quality board, similar to the department in the present case, conducted an investigation of physicians’ practice of prescribing certain controlled substances. As in the present case, the board in Wood issued administrative subpoenas requiring the physician to produce complete medical records of certain named patients. The court overturned the trial court’s order of compliance holding that the patient’s privacy interests were invaded and that the board’s showing was insufficient to sustain the omnibus demand for the complete medical records of the patients. The court concluded that: “If the trial court is to make the decision of reasonable cause other than as a rubber stamp the root facts upon which an inference of improper prescribing is based must be laid bare. Here we have some facts about the prescriptions and the conclusions of board personnel that they are suspicious but no mediating fact revealing why the conclusion is warranted. The board has made no evidentiary showing of how often physicians similarly situated to petitioners might prescribe these drugs. Alternatively, the board has made no showing of the likelihood that the prescriptions could have been properly issued, given what is known of the circumstances of issuance. Absent this information the trial court had no means by which to gauge the likelihood that the records sought will reveal physician misconduct. Without this there can be no independent judicial assessment of good cause.” Id. We hold that the trial court correctly granted the motion to quash because the defendant did not provide the trial court with probable cause for the desired medical records.

We conclude by noting that the public interest in health care, combined with confidence in the initial and ongoing checks on qualifications of psychiatrists is abundantly clear. Despite these strong interests, we have no basis to establish an exception to the psychiatrist-patient privilege that has been created by our legislature.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 19a-14 (a) provides in relevant part: “The department of health services shall have the following powers and duties with regard to the boards and commissions . . . which are within the department of health services. The department shall: . . . (10) Conduct any necessary . . . investigation regarding . . . possible violations of statutes or regulations, and disciplinary matters. In connection with any investigation, the commissioner of health services or said commissioner’s authorized agent may administer oaths, issue subpoenas, compel testimony and order the production of books, records and documents . . . .”

       General Statutes § 52-146e (a) provides: “All communications and records as defined in section 52-146d [between psychiatrist and patient] shall be confidential .... Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records . . . without the consent of the patient or his authorized representative.”

       This compliance conference was held pursuant to General Statutes § 4-182 (c) which provides: “No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.”

       General Statutes § 52-146j (a) provides: “Any person aggrieved by a violation of sections 52-146d to 52-146j, inclusive, may petition the superior court for the judicial district in which he resides, or, in the case of a nonresident of the state, the superior court for the judicial district of Hartford-New Britain, for appropriate relief, including temporary and permanent injunctions, and the petition shall be privileged with respect to assignment for trial.”

       General Statutes § 52-146f provides: “consent not required for disclosure, when. Consent of the patient shall not be required for the disclosure or transmission of communications or records of the patient in the following situations as specifically limited:
      “(1) Communications or records may be disclosed to other persons engaged in the diagnosis or treatment of the patient or may be transmitted to another mental health facility to which the patient is admitted for diagnosis or treatment if the psychiatrist in possession of the communications or records determines that the disclosure or transmission is needed to accomplish the objectives of diagnosis or treatment. The patient shall be informed that the communications or records will be so disclosed or transmitted. For purposes of this subsection, persons in professional training are to be considered as engaged in the diagnosis or treatment of the patients.
      “(2) Communications or records may be disclosed when the psychiatrist determines that there is substantial risk of imminent physical injury by the patient to himself or others or when a psychiatrist, in the course of diagnosis or treatment of the patient, finds it necessary to disclose the communications or records for the purpose of placing the patient in a mental health facility, by certification, commitment or otherwise, provided the provisions of sections 52-146d to 52-146j, inclusive, shall continue in effect after the patient is in the facility.
      “(3) Except as provided in section 17-295c, the name, address and fees for psychiatric services to a patient may be disclosed to individuals or agencies involved in the collection of fees for such services. In cases where a dispute arises over the fees or claims or where additional information is needed to substantiate the fee or claim, the disclosure of further information shall be limited to the following: (A) That the person was in fact a patient; (B) the diagnosis; (C) the dates and duration of treatment; and (D) a general description of the treatment, which shall include evidence that a treatment plan exists and has been carried out and evidence to substantiate the necessity for admission and length of stay in a health care institution or facility. If further information is required, the party seeking the information shall proceed in the same manner provided for hospital patients in section 4-105.
      “(4) Communications made to or records made by a psychiatrist in the course of a psychiatric examination ordered by a court or made in connection with the application for the appointment of a conservator by the probate court for good cause shown may be disclosed at judicial or administrative proceedings in which the patient is a party, or in which the question of his incompetence because of mental illness is an issue, or in appropriate pretrial proceedings, provided the court finds that the patient has been informed before making the communications that any communications will not be confidential and provided the communications shall be admissible only on issues involving the patient’s medical condition.
      “(5) Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient’s death, when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.
      “(6) Communications or records may be disclosed to the commissioner of health services in connection with any inspection, investigation or examination of an institution, as defined in subsection (a) of section 19a-490, authorized under section 19a-498.”

       General Statutes § 52-146e provides: “disclosure of communications. (a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
      “(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and the records is necessary for the treatment.
      “(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.”

       See footnote 1, supra.