text:
    State of Connecticut v. Clayton Harrison
    (11508)
    Dupont, C. J., Daly and Landau, Js.

      Argued June 9
    decision released August 31, 1993

      Michael K. Courtney, assistant public defender, with whom, on the brief, was Judith M. Wildfeuer, certified legal intern, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Walter D. Flanagan, state’s attorney, Patricia A. Gilbert and Brian Cotter, assistant state’s attorneys, and Ronald DeMatteo, certified legal intern, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3).

The defendant claims (1) that the trial court’s charge to the jury on self-defense was improper and deprived the defendant of his due process and statutory rights to present a defense in that the trial court (a) failed to include an instruction that the threat of great bodily harm encompassed a threat of robbery, (b) included a charge that self-defense does not apply to the lesser included offenses of murder, General Statutes § 53a-54a (a), (c) failed to instruct properly the jury on the degree of force the defendant could justifiably use in self-defense, and (d) failed to instruct properly the jury on the law of retreat, and (2) that the combined effect of several of the trial court’s evidentiary rulings denied him his fundamental right to present a defense. We affirm the judgment of the trial court.

I

A

The defendant first claims that the trial court’s instruction on the circumstances justifying the use of deadly physical force under General Statutes § 53a-19 improperly failed to convey to the jury that the threat of great bodily harm included a threat of robbery. “A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Havican, 213 Conn. 593, 598, 569 A.2d 1089 (1990). When a defendant challenges the trial court’s failure to charge as requested, “we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support. . . .” (Citations omitted; internal quotation marks omitted.) Id., 595.

When the evidence is viewed in the light most favorable to the defendant, the following facts can be found. On July 29,1991, shortly before midnight, the defendant and two friends, Eugene McCallum and Crystal Copeland, left the defendant’s apartment to buy cigarettes and food at a local service station and convenience store in Danbury. The defendant had permission to use his cousin’s van. Because the defendant did not have a driver’s license, he asked McCallum to drive. When they arrived at the service station, the defendant and Copeland entered the store, made their purchases and returned to the van. The defendant was seated behind the driver’s seat and Copeland was seated in the passenger seat. A car pulled up as the defendant and his friends were preparing to leave the service station. The victim and three others emerged from the car and the victim approached the driver’s side of the van, demanding that the van be turned over to him in payment for a debt he claimed the defendant’s cousin owed him.

When the defendant stated he did not know about the debt and refused to relinquish the van, the victim reached into the van and began slapping and punching the defendant in the face and head. McCallum started to drive away, but the victim hung on to the driver’s open window, causing McCallum to stop the van. At that point, the victim resumed striking the defendant despite the defendant’s pleas for the victim to stop. The defendant could not dodge the blows because the back of the van was cluttered with what the defendant referred to as junk, tool boxes, a bicycle and clothes. The defendant tried to tell the victim that he was willing to contact his cousin to determine whether the victim was entitled to the van. After the victim threatened to kill him, the defendant grabbed a loaded .22 caliber pistol that was kept in the van, asked the victim to leave him alone, and shot him. The defendant then instructed McCallum to drive back to his apartment. En route, the defendant continuously denied shooting the victim when McCallum stated that he had. Approximately two hours later, at the Danbury hospital, the victim died from the gunshot wound. The defendant testified that he was afraid because of the victim’s assault on him and because he was having difficulty breathing due to his medical condition.

The victim was eighteen years old. The autopsy report revealed that he was about five feet nine inches tall and weighed 150 pounds. The defendant, in contrast, was fifty-five years old, five feet six inches tall and 118 pounds on the day of the shooting. He was taking medication on that day for shortness of breath, pneumonia and pain. He suffered from chronic obstructive pulmonary disease and emphysema and had been diagnosed with the AIDS virus.

A person is entitled to a proper jury instruction on the elements of every defense the legislature has created so that the jury may determine whether the state has sustained its burden of disproving the defense beyond a reasonable doubt. State v. Havican, supra. “If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. . . . [A] defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . .” (Citations omitted; internal quotation marks omitted.) Id., 597. “The primary purpose of the charge to the jury is to assist them in applying the law correctly to the facts which they find to be established. ...” (Citations omitted; internal quotation marks omitted.) Id., 603; State v. Jimenez, 30 Conn. App. 406, 412, 620 A.2d 817, cert. granted, 225 Conn. 916, 625 A.2d 1026 (1993). We find that the charge given performed this function. Instead of giving the requested charge, the trial court instructed the jury pursuant to § 53a-19 (a) that the use of deadly physical force is justified if the defendant reasonably believed that the victim was (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.

The defendant’s requested instruction on the use of deadly physical force in defense of robbery first defined robbery and larceny. It then stated: “Robbery, under our law, is a crime of violence. Under our self-defense statute and under the Common Law, the use of deadly physical force is justified when the defendant reasonably believes he is being robbed. I have defined robbery for you. The class of crimes in prevention of which a man may, if necessary, exercise his natural right to repel force by force to the taking of the life of the aggressor, are felonies which are committed by violence and surprise, and include robbery. Therefore, if you find from the evidence that a reasonable person in [the defendant’s] position on July 30, 1991, in the [service station] would have felt that [the victim] was attempting to rob him, then you will find that the use of deadly physical force was justified and you will find the defendant not guilty.”

“A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. ... If omission of an instruction was improper, our review is limited to whether, as a result, there is a reasonable possibility that the jury was misled.” (Citations omitted; internal quotation marks omitted.) State v. Jennings, 216 Conn. 647, 663, 583 A.2d 915 (1990); see State v. Havican, supra. The trial court properly declined to instruct the jury in accordance with the defendant’s request because it is an incorrect statement of the law.

A person is not permitted to use deadly physical force in self-defense just because that person reasonably believed that the victim was attempting to rob that person. General Statutes §§ 53a-19 and 53a-21. General Statutes § 53a-21 explicitly states that deadly physical force, such as that used by the defendant, may be used only in defense of person as provided by § 53a-19. Therefore, the crux of the inquiry is not whether the defendant reasonably believed he was being robbed, but whether the defendant reasonably believed that the victim was using or about to use deadly physical force or was inflicting or about to inflict great bodily harm. General Statutes § 53a-19 (a). Because the requested instruction on the use of deadly physical force omitted reference to the criteria set out in § 53a-19, it would have essentially allowed the jury to acquit the defendant of the crimes charged merely on the basis of the perceived threat of robbery. Because the defendant’s request to charge was not an accurate statement of the law, we need not consider the defendant’s remaining claims relating to it.

B

The defendant also claims that the trial court failed to cure properly its incorrect instruction that self-defense was inapplicable to the lesser included offenses of murder.

The defense of self-defense is applicable to the lesser included offenses of manslaughter in the first degree, General Statutes § 53a-55 (a) (1) and (3), manslaughter in the second degree, General Statutes § 53a-56, and criminally negligent homicide, General Statutes § 53a-58. State v. Hall, 213 Conn. 579, 584-86, 569 A.2d 534 (1990); State v. Williams, 25 Conn. App. 456, 467, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991).

Prior to the charge on the law of self-defense, the court explained the elements of the crime of murder. After charging the jury on self-defense, the court defined the law on the lesser included offenses of murder.

The defendant took exception to the trial court’s charge, contending that it did not clearly state that self-defense applies to the lesser included offenses. The court then called the jury back to the courtroom and charged in pertinent part: “So, if you find the murder, you’d stop right there. If you don’t find the murder, and you don’t find self-defense, you go to intentional manslaughter, then to reckless manslaughter if you don’t find intentional manslaughter, then to reckless manslaughter in the second degree if you don’t find it in the first degree, if you don’t find second degree manslaughter, then you’ll go on to criminally negligent homicide.” The jury was excused, but later returned asking the court to “Clarify order of issues we need to deliberate. For example, intent to kill, self-defense, etcetera, then written description of law and charges.” In response to the court’s inquiry as to what the question meant, the forewoman said, “I think what we mean is the — do you have to establish this intent to — to kill someone before you establish that it was self-defense?” A second juror said, “Your Honor, you gave us a sequence, I believe, for how we should proceed in our deliberations.” The court repeated its earlier instructions and added, “So the only thing self-defense applies to is the question of murder — the issue of murder.”

The next morning, the trial court corrected this instruction by telling the jury that “if you find self-defense in this case, then you cannot find Mr. Harrison guilty of anything.” Later, in response to the jury’s request for reinstruction on both subsections of manslaughter in the first degree, the court stated, “self-defense applies to manslaughter in the first degree, both subsections.” After further deliberation, the jury requested an instruction on reckless manslaughter in the first degree, General Statutes § 53a-55 (a) (3), and the trial court read the charge but did not restate that self-defense applied to this offense. The defendant took exception to the court’s failure to state explicitly that self-defense applies to the lesser included offense of reckless manslaughter in the first degree.

According to the defendant, these instructions were insufficient to cure the court’s incorrect instructions because the trial court’s curative instructions conflicted with the original instructions. The state agrees that the trial court’s statements on the inapplicability of the defense of self-defense to the lesser included offenses were improper, but argues that the court’s curative instructions removed from the minds of the jurors any misleading impression as to the applicability of self-defense to the lesser included offenses. We agree.

While it is true that “ ‘an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law’ State v. Jennings, supra, 664, quoting State v. Preyer, 198 Conn. 190, 198, 502 A.2d 858 (1985); an incorrect instruction to the jury may be cured by a later correct instruction that may be made when the jury is called back or returns for further instructions. State v. Wright, 169 Conn. 256, 262, 362 A.2d 983 (1975). We note again that when we review individual instructions we do not read each instruction in artificial isolation from the overall charge. State v. Hall, supra, 587.

The trial court’s two curative instructions on the applicability of self-defense removed from the minds of the jury any confusion as to the applicability of self-defense to the lesser included offenses. The failure of the trial court to discuss self-defense in connection with the lesser included offenses of murder is harmless error where, as in the present case, the trial court states that if the defendant acted in self-defense, the jury must find the defendant not guilty. Id., 588; State v. Williams, supra, 467. We have found harmful error where the trial court failed to instruct the jury that self-defense applied to the lesser included offenses of intentional homicide and the jury returned a verdict of guilty on a lesser included offense on which the jury was not permitted to consider the defendant’s self-defense claim. State v. King, 24 Conn. App. 586, 590-91, 590 A.2d 490, cert. denied, 219 Conn. 912, 573 A.2d 136 (1991). Here, the jury specifically requested reinstruction on both subsections and the jury convicted the defendant of reckless manslaughter in the first degree, General Statutes § 53a-55 (a) (3). The jury, therefore, convicted the defendant of a lesser included offense to which it had been explicitly instructed to apply the law of self-defense.

The defendant also asserts that the court’s failure to instruct on self-defense in its reinstruction on manslaughter in the first degree was improper. We disagree because the court specifically stated that self-defense applies to manslaughter in the first and second degrees and the jury requested only the “description” of reckless manslaughter in the first degree, not self-defense.

C

The defendant’s next claim involving the charge on self-defense is that the trial court failed to instruct properly on the subjective perspective of the defendant in defining the degree of force available to a defendant claiming self-defense. Specifically, the defendant argues that the trial court improperly defined the degree of force available to a defendant asserting self-defense because the court, on three occasions, told the jury that “ [reasonable force is the amount of force that would be used by an average person of ordinary intelligence acting under the same circumstances.” The defendant asserts that the trial court should have directed the jury to consider the amount of force that would be used by a terminally ill geriatric patient who had one half of the average person’s normal lung capacity and who was being struck by a healthy young man.

“Our case law interpreting General Statutes § 53a-19 requires . . . that the test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. . . . [¶] owe ver . . . the defendant’s belief ultimately must be found to be reasonable. . . . The starting point of the jury’s inquiry into whether reasonable force was used by a defendant is whether the defendant believed that deadly force was necessary to repel the attack. . . . Next the jury’s inquiry should focus on the question of whether that belief was reasonable. . . . This statutory emphasis on the defendant. . . demonstrates the function of the jury in their evaluation of the self-defense claim.” (Citations omitted; internal quotation marks omitted.) State v. Williams, supra, 464.

Reading the instruction as a whole, we find that in each instance, just before giving the challenged instruction the trial court clearly and properly reiterated the instruction on the subjective/objective test. The trial court stated that “[a] person is justified in using reasonable physical force upon another person to defend himself from what he believes reasonably, to be the imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for that purpose.” (Emphasis added.) Additionally, the trial court emphasized that the jury must view the danger from the defendant’s standpoint at the time of the attack. Finally, the trial court stated that in determining whether the amount of force used in this case was reasonable, the jury could consider “such factors such as the physical attributes of the parties involved including age, sex, height, weight . . . [and] the type of injuries inflicted by each party, if any, and the degree of severity of those injuries.” The trial court sufficiently apprised the jury of the law relating to the test for the degree of force that may be used justifiably in self-defense.

D

In his final claim relating to the charge on self-defense, the defendant maintains that the trial court failed to instruct the jury sufficiently that the state, in disproving self-defense beyond a reasonable doubt, was required to prove that the defendant had actual knowledge of his ability to retreat in complete safety. Section 53a-19 (b) (1) states that a person is not justified in using deadly physical force if the person claiming the defense of justification knew that the necessity of using such force could be avoided with complete safety by retreating. The defendant challenges the trial court’s initial charge that “in most circumstances, a person must retreat from the perceived harm if he is able to do so with complete safety.” This statement is the very charge our Supreme Court found to be improper because it replaced the subjective/objective standard set out in § 53a-19. State v. Quintana, 209 Conn. 34, 46, 547 A.2d 534 (1988).

Although the challenged instruction is improper, the jury was not misled since the court later cured this incorrect statement of the law on retreat. In its principal charge, the trial court stated that “a person is never justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety by retreating.” Furthermore, when the defendant excepted to the challenged instruction, the court recalled the jury and reinstructed as follows: “With respect to retreat . . . the state has to prove that the person who is alleging self-defense could have retreated; secondly, he should know that he could retreat with safety. That goes back again to the subjective standard.” The court sufficiently explained that the state carried the burden of proving the defendant had actual knowledge of his ability to retreat safely.

The defendant’s claim that the court’s supplementary instructions did not adequately inform the jury that the state carries the burden of proving that the defendant knew he could avoid the necessity of using such force by retreating is also without merit. The trial court repeatedly stated that the state bore the burden of disproving the defense of self-defense beyond a reasonable doubt.

II

The defendant’s final claim is that several improper evidentiary rulings had the cumulative effect of denying him his fundamental constitutional right to present a defense. He argues that the trial court improperly (1) refused to admit into evidence the defendant’s medical records from Danbury Hospital, (2) excluded testimony by the defendant of knowledge of his life expectancy, and (3) failed to admit evidence of specific acts of violence committed by the victim.

“Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). In exercising this right, the defendant “must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” (Internal quotation marks omitted.) Id.; State v. Kelly, 208 Conn. 365, 375-76, 545 A.2d 1048 (1988); State v. Mastropetre, 175 Conn. 512, 521, 400 A.2d 276 (1978). The fourteenth amendment to the United States constitution does not authorize a defendant to present every piece of evidence the defendant desires to present, although exclusionary rules of evidence cannot be applied “mechanistically” to deprive the defendant of his rights. Chambers v. Mississippi, supra; State v. Kelly, supra, 376. If, however, the evidence submitted is not relevant, the defendant’s right to confrontation is not affected and the evidence should be excluded. State v. Kelly, supra; In re Adalberto S., 27 Conn. App. 49, 57, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992).

The trial court has broad discretion in determining the relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987); State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); State v. Sharpe, 195 Conn. 651, 658-59, 491 A.2d 345 (1985). Its evidentiary rulings will be set aside only where there has been a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990); State v. Fritz, supra, 167-68; State v. Boucino, supra; In re Adalberto S., supra, 57. “As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. State v. Lombardo, 163 Conn. 241, 243, 304 A.2d 36 (1972); State v. Mastropetre, supra, 517; State v. Cassidy, 3 Conn. App. 374, 383, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).” (Internal quotation marks omitted.) State v. Kelly, supra, 376; State v. James L., 26 Conn. App. 81, 83, 598 A.2d 663 (1991).

The defendant contends that his medical history and his own knowledge of his life expectancy were relevant to substantiate his “state of mind” at the time of the shooting. The trial court found that the proffered evidence was irrelevant because the defendant failed to offer any testimony that his medical condition or the knowledge of his life expectancy had influenced his assessment of the need to use deadly physical force against the victim. We find no abuse of discretion by the trial court.

The defendant next asserts that the trial court improperly excluded evidence of the victim’s specific acts of violence. The defendant claims that evidence of a number of unprovoked and mindless acts of violence committed by the victim on prior occasions established the victim’s propensity for violence. He contends that the proffered evidence demonstrates that he was subject to an extreme level of aggression by the victim, justifying his use of a deadly weapon in self-defense.

A victim’s violent character may be proven by reputation, testimony or opinion evidence, or by evidence of the deceased’s convictions of crimes of violence. State v. Miranda, 176 Conn. 107, 114, 405 A.2d 622 (1978). It may not, however, be proven by evidence of other specific acts. Id., 112-13; State v. Weber, 31 Conn. App. 58, 66, 623 A.2d 506 (1993); State v. Maxwell, 29 Conn. App. 704, 713-14, 618 A.2d 43, cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, U.S. , 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993); State v. Webley, 17 Conn. App. 200, 206, 551 A.2d 428 (1988). “Specific acts of violence, other than convictions, may not be introduced to show a victim’s violent character because such evidence has the potential to surprise, to arouse prejudice, to multiply the issues and confuse the jury, and to prolong the trial. State v. Miranda, supra, 112 .... State v. Smith, 222 Conn. 1, 18, 608 A.2d 63, cert. denied, U.S. , 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992).” (Internal quotation marks omitted.) State v. Weber, supra, 67.

In an offer of proof, the defendant attempted to introduce the victim’s youthful offender adjudications for assault in two separate incidents as records of convictions under Miranda. Pursuant to General Statutes § 54-76k, “no youth shall be denominated a criminal by reason of such determination [of youthful offender status], nor shall such determination be deemed a conviction.” See, e.g., State v. Reiser, 196 Conn. 122, 128, 491 A.2d 382 (1985); see also State v. Jones, 205 Conn. 638, 668, 534 A.2d 1199 (1987) (youthful offender “treatment” is not a “crime” or “a criminal conviction” in Connecticut); State v. Eric T., 8 Conn. App. 607, 615, 513 A.2d 1273 (1986) (adjudication as a youthful offender is a determination of status, rather than a conviction for the underlying offenses or charges). Accordingly, the trial court did not abuse its discretion in excluding these prior violent acts because they were not convictions. Further, the defendant’s right to prove the victim’s violent character was protected by the trial court’s admission of the victim’s prior conviction of assault in the third degree, and by testimony from numerous witnesses that the victim had a reputation for violence.

Finally, the cumulative impact of these rulings did not deny the defendant his constitutional right to present a defense. See State v. Anderson, 28 Conn. App. 833, 849, 614 A.2d 438, rev’d on other grounds, 227 Conn. 518, 631 A.2d 1149 (1993).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 provides in pertinent part: “(a) A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person. . . .”

       General Statutes § 53a-19 provides: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       According to Arkady Katznelson, the associate medical examiner who performed the autopsy on the victim, the gun was either fired from more than three feet away from the victim or, the particles of gunpowder that usually encircle the entrance wound had been removed in the hospital during treatment of the victim. This evidence is significant as the defendant contends that the shot was fired at close range whereas the state claims that the shot was fired from a distance greater than three feet.

       Acquired Immune Deficiency Syndrome.

       The trial court charged, in pertinent part, as follows: “A defendant claiming a justification of self defense is permitted to use deadly force only in two broad circumstances. He may justifiably use deadly force only when he reasonably believed that the other person was using or about to use deadly physical force, or two, inflicting or about to inflict great bodily harm. The law does not encourage the use of deadly force, and in most circumstances, a person must retreat from the perceived harm if he is able to do so with complete safety.”

       General Statutes § 53a-21 provides: “A person is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent an attempt by such other person to commit larceny or criminal mischief involving property, or when and to the extent he reasonably believes such to be necessary to regain property which he reasonably believes to have been acquired by larceny within a reasonable time prior to the use of such force; but he may use deadly physical force under such circumstances only in defense of person as prescribed in section 53a-19.”

       The defendant’s contention that another request to charge set out the criteria of General Statutes § 53a-19 does not mitigate the misleading nature of his requested charge on self-defense of robbery.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    Philip H. Schnabel v. Clyde R. Tyler
    (10936)
    (10937)
    Daly, Foti and Landau, Js.

      Argued May 3
    decision released August 31, 1993

      M. Donald Cardwell and Elliot B. Spector, for the appellant (plaintiff).

      Kathleen Eldergill, for the appellee (defendant).
   Landau, J.

The plaintiff, Philip H. Schnabel, appeals from the judgment rendered in favor of the defendant, Clyde R. Tyler, on the complaint and the counterclaim after a trial to a jury. On appeal, the plaintiff claims that, on the complaint, the trial court improperly (1) charged the jury on the defamation claim, (2) denied his motion to set aside the verdict, (3) denied his motion for mistrial, (4) admitted allegedly hearsay evidence, and (5) denied him a fair trial by showing partiality and bias toward the defendant. On the counterclaim, the plaintiff claims that the trial court improperly (1) refused to set aside the jury’s award of damages as excessive and unsupported by the evidence, (2) failed to apply federal law, specifically the qualified immunity defense, to the defendant’s claims under 42 U.S.C. § 1983, and (3) excluded relevant testimony.

The jury could have reasonably found the following facts. On February 8, 1988, a Rocky Hill Texaco station owned by Isabelle Teed was the site of an armed robbery. Ten days later, at a meeting of the Rocky Hill town council, Teed criticized the plaintiff, the police chief of the town of Rocky Hill. Thereafter, Teed was questioned by two police officers. She informed them that, on the day of the town council meeting, she had spoken with an unidentified police officer who encouraged her to speak out at the meeting.

The plaintiff initiated an internal investigation to identify the officer who spoke with Teed on the day of the town council meeting. The defendant, a Rocky Hill police officer, became the focus of that inquiry. On March 9,1988, the plaintiff ordered the defendant into the plaintiff’s office and told him that he was the subject of an investigation. The defendant was detained and interrogated by the plaintiff. At the time of this interrogation, the office door was locked and the plaintiff denied the defendant’s request to have his attorney present during the questioning. As a result of the interrogation, the defendant was held beyond his shift and his requests to leave were ignored. The' defendant refused to answer the plaintiff’s questions. After approximately one hour, the defendant was released and suspended from the police force.

The following day, the defendant returned to the police station with his attorney. In response to further questioning, he told the plaintiff that he did not reveal confidential information to anyone regarding the Teed armed robbery and denied speaking with Teed on the day of the council meeting.

As a result of the interrogation and detention, the defendant filed a notice of intent to sue the plaintiff and the town of Rocky Hill. In a television broadcast, the defendant stated that the plaintiff’s conduct at the March 9,1988 interrogation may have been an illegal act. The defendant also gave a statement to the Hartford Courant and wrote a letter to the editor that appeared in a local newspaper.

On August 10, 1988, the plaintiff filed a complaint against the defendant for defamation. The defendant filed an answer and a counterclaim alleging false imprisonment, intentional infliction of emotional distress, abuse of process and § 1983 violations of his rights under the first and fourteenth amendments to the United States constitution. The jury returned a verdict in favor of the defendant on the complaint and on the counterclaim. This appeal ensued.

I

The Complaint

A

The plaintiff first claims that the trial court improperly instructed the jury on his defamation claim by omitting the word “not” at a specific point in the charge. We disagree.

“ ‘[T]o preserve full appellate review of a jury charge assigned as error, an appellant must not only move to set aside the verdict . . . but must also set forth, either in the motion itself, in supporting briefs, or in oral argument at a hearing held on the motion, each claim of error with sufficient specificity to enable the trial court to consider the claimed errors.’ ” (Citations omitted.) Budlong v. Nadeau, 30 Conn. App. 61, 65, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290 (1993), quoting Cuartas v. Greenwich, 14 Conn. App. 370, 374, 540 A.2d 1071, cert. denied, 209 Conn. 803, 548 A.2d 436 (1988). The plaintiff filed a motion to set aside the verdict on the counterclaim, but that motion did not address any errors in the jury charge. Neither the transcript nor the parties’ supporting briefs present a claim of error in the instructions. Therefore, the trial court did not have notice of the claimed errors and could not consider the plaintiffs claim. See Jacobs v. Thomas, 26 Conn. App. 305, 310-11, 600 A.2d 1378 (1991), cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). The plaintiff’s failure to raise the claimed error specifically in the motion, brief, or argument in support of the motion limits our review to a determination of whether the trial court committed “plain error.” Practice Book § 4185; Knock v. Knock, 224 Conn. 776, 793, 621 A.2d 267 (1993); Budlong v. Nadeau, supra, 65-66. Plain error review “is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Budlong v. Nadeau, supra, 66.

The trial court’s charge began with a recitation of the elements of a defamation cause of action. The plaintiff objected to that portion of the charge in which the court stated: “For example, if you believe that the gist of Mr. Tyler’s words was a flat statement that has eliminated any significant doubt in your minds that the statement was false; or if you determine that the words as spoken are true; or that the plaintiff has established, by clear and convincing evidence, that the words as spoken are false, then you will stop at that point and bring in a defendant’s verdict, the verdict for Mr. Tyler.” The trial court omitted the word “not” in the phrase, “the plaintiff has‘not’established . . . .” Our independent review of the entire charge indicates that the court’s instruction on the law of defamation was not misleading to the jury. The jury instruction indicates no plain error on the part of the trial court nor does it indicate the existence of an error so apparent as to affect the fairness and integrity of the proceedings. Therefore, the plaintiff’s first claim fails.

B

In his second claim, the plaintiff asserts that the trial court improperly failed to set aside the verdict on the defamation claim. We disagree.

Again, a party’s failure to raise a claim of error at trial limits our review to “plain error.” Practice Book § 4185; Kolich v. Shugrue, 198 Conn. 322, 326, 502 A.2d 918 (1986). “ ‘[I]n the interests of justice [this court will] notice plain error not brought to the attention of the trial court.’ ” Dunham v. Dunham, 204 Conn. 303, 311-12, 528 A.2d 1123 (1987). The plaintiff’s assertion that the jury could not have found as it did on the basis of the evidence presented at trial does not establish plain error on the part of the trial court.

C

The plaintiff’s third claim is that the trial court improperly denied his motion for a mistrial based on the defendant’s incomplete question to the Rocky Hill town manager regarding whether the town would indemnify the plaintiff if damages were awarded to the defendant on the counterclaim. The plaintiff argues that the large jury award signifies that the jury considered the question, even though never completed, as evidence. We disagree.

“The general rule is that a mistrial is granted only where it is apparent to the court that, as a result of some occurrence during trial, a party has been deprived of the opportunity for a fair trial.” Holbrook v. Casazza, 204 Conn. 336, 356, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). At trial, the plaintiff objected on the basis that the question had the effect of influencing the jury to award a disproportionate monetary figure in favor of the defendant. The defendant contended that such evidence was appropriate to show bias and that the witness was not an impartial or neutral observer. The court denied the motion for mistrial, sustained the plaintiffs objection, and instructed the jury to disregard the question.

Our review of the record indicates that this incomplete indemnification inquiry did not deprive the plaintiff of a fair trial. The trial court did not abuse its broad discretion in denying the plaintiffs motion for a mistrial.

D

The plaintiff next claims that the trial court improperly admitted hearsay evidence that was prejudicial to the plaintiff.

The plaintiff objected to the admission of a portion of a report (hereinafter Weinstein report) written by an arbitrator during a review of the circumstances surrounding the plaintiffs attempt to terminate the defendant’s employment with the police force. The defendant contends that the evidence does not constitute hearsay. Whether or not the admitted evidence is hearsay, we conclude that its introduction was not prejudicial to the plaintiff because all of the evidence in the Weinstein report came before the jury in other forms.

Evidence that is merely cumulative cannot constitute reversible error. State v. Randolph, 190 Conn. 576, 590, 462 A.2d 1011 (1983). Evidence that “was simply cumulative and supplementary” to the other evidence admitted during the course of the trial is unlikely to have an effect on the jury. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 490, 586 A.2d 1157 (1991); see also San derson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142, 491 A.2d 389 (1985) (admitted evidence was harmful because not entirely cumulative).

The Weinstein report states that a termination hearing took place and recommended that the defendant be suspended, rather than terminated from the police force. The report also reaffirms the defendant’s admitted lie about speaking with Teed on the day of the council meeting and verifies the state of his disciplinary record.

The plaintiff admits in his brief that the town manager testified that David Weinstein was employed as an arbitrator to conduct a termination hearing. Wein-stein, however, recommended the lesser sanction of a two day suspension as an alternative to termination. The defendant also testified at trial that he lied about speaking with Teed on the day of the council meeting. Furthermore, an exhibit was admitted in the plaintiff’s case that listed all the disciplinary specifications brought against the defendant, all of which were addressed in the Weinstein report. Our review of the record and the redacted Weinstein report indicates that the admitted portion of the report consisted merely of cumulative evidence of matters already presented at trial and did not prejudice the plaintiff. Therefore, the plaintiffs claim fails.

E

The plaintiff next claims that the trial court showed bias and partiality toward the defendant. We disagree.

The plaintiff specifically objects to three actions of the trial court: an admonishment of the plaintiff while he was testifying; a preliminary statement not made in the presence of the jury; and a hand gesture allegedly directed toward the defendant’s counsel. This court has held that, “[a]s a general rule, even in cases alleging judicial bias, this court will not consider the issue on appeal where the party failed to make the proper motion for disqualification at trial.” Barca v. Barca, 15 Conn. App. 604, 607, 546 A.2d 887, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988). Failure to request recusal or move for a mistrial represents the plaintiff’s acquiescence to the judge presiding over the trial. Id.; Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985); see Practice Book § 4185.

As to the first and second objections, the plaintiff failed to request a recusal and did not make a motion for a mistrial. Therefore, he has failed to preserve his right to contest those actions on appeal. The plaintiff’s third claim is that the trial court made a hand gesture that showed prejudice in favor of the defendant thereby denying the plaintiff a fair trial. The record indicates that the plaintiff, during a side bar conference, merely questioned the judge’s behavior. The plaintiff, however, failed to make a motion for mistrial or request a recusal. Thus, his acquiescence to the judge’s presiding prohibits our review of his claim on appeal. Timm v. Timm, supra.

II

The Counterclaim

A

The plaintiff claims that the trial court improperly denied his motion to set aside the damages award on the counterclaim as excessive and that the jury’s award of damages was reflective of the erroneous application of the law to the facts. We disagree.

“Assessment of damages is peculiarly within the province of the jury and their determination should be set aside only when the verdict is plainly excessive and exorbitant. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake or corruption. . . . Evidence offered at trial relevant to damages must be reviewed in the light most favorable to sustaining the verdict. ...” (Citations omitted; internal quotation marks omitted.) Wood v. Bridgeport, 216 Conn. 604, 611, 583 A.2d 124 (1990). “Every reasonable presumption in favor of the correctness of the court’s refusal to set aside the verdict as excessive should be indulged . . . and its ruling will not be disturbed unless there is a clear abuse of discretion.” (Citation omitted.) Oakes v. New England Dairies, Inc., 219 Conn. 1, 14, 591 A.2d 1261 (1991).

1

Our Supreme Court has held that a verdict in excess of $25,000 in false imprisonment claims is not shockingly excessive “even where the detention was brief.” Wochek v. Foley, 193 Conn. 582, 587-88, 477 A.2d 1015 (1984), and cases cited therein. The plaintiff in Wochek was forced from her home into a police cruiser and escorted to a hospital against her will. The plaintiff informed the police officers that she was terrified of hospitals but her protests were ignored and her requests for an attorney were denied. Id., 584. The Wochek court held that the trial court abused its discretion in setting aside a jury verdict for the plaintiff.

Our review of the record in this case clearly indicates that the jury could reasonably have found from the evidence presented that the defendant was ordered into the plaintiff’s office against his will. The office door was locked and the defendant was detained for approximately one hour. He repeatedly asked to leave but his requests were denied and his pleas for legal assistance were also ignored. Thus, there was sufficient evidence to support the jury’s verdict and the trial court did not abuse its broad discretion in refusing to set aside the verdict as excessive.

2

With regard to the jury award for intentional infliction of emotional distress, we cannot conclude, in light of the evidence, that it “so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 810, 614 A.2d 414 (1992). In Berry, the plaintiff, as a result of having gathered data on improper acts of his employer, was subjected to physical abuse and repeated threats. An expert witness diagnosed the plaintiff as suffering from posttraumatic stress disorder. Id. The jury found that the plaintiff suffered emotional distress from his fear of reprisal by his employer. Although the plaintiff did not seek medical treatment for the stress disorder or for his sleep disturbance, the Berry court held that the jury’s award of $50,000 for intentional infliction of emotional distress was not excessive. Id., 808.

In this case, the jury found that the defendant experienced physical symptoms over an extended period of time that required medical treatment and were a direct result of the plaintiff’s conduct. He was almost continuously subjected to internal investigations and disciplinary proceedings. He was forced to perform demeaning tasks where he was required to sit on a tall stool while leaning over a low desk in a police station hallway and remove staples from police department documents. All the while, he was subjected to abusive obscenities and ridicule from the plaintiff. When the defendant was forced to miss work due to his daughter’s illness, the plaintiff ordered him to document that illness. The plaintiff also required the defendant, without a nightstick, weapon, handcuffs, or any means to communicate with fellow officers, to guard a prisoner being treated for self-inflicted wounds at Hartford Hospital. The prisoner, who was not placed in physical restraints, was a convicted felon with a reputation for violence. No other officer was placed in these situations.

Our review of the record indicates that there was sufficient evidence for the jury to award these damages. Thus, the trial court did not abuse its broad discretion in denying the plaintiff’s motion to set aside the verdict as excessive.

3

As to the award for abuse of process, the evidence adequately supports the damages award. The plaintiff admitted in a memorandum to the town manager that the discovery process would most likely furnish the identity of the officer to whom Teed spoke on the day of the town meeting. Evidence was presented that the plaintiff used that information to harass the defendant continually by ordering him to perform degrading clerical work, seeking to discharge him, placing him in a potentially life threatening position of guarding an unrestrained prisoner with a reputation for violence, and instituting numerous disciplinary actions against him, most of which were overturned through proper grievance procedures. The jury reasonably found that the plaintiff wrongfully used the legal process for purposes other than for which they were designed — -to remedy any damage to the plaintiffs reputation allegedly caused by the defendant’s defamatory remarks. The award for abuse of process properly reflects the evidence presented. The trial court did not abuse its discretion in denying the plaintiff’s motion to set aside the verdict as excessive.

4

The plaintiff also claims that the defendant failed to allege a first amendment claim and that the evidence was insufficient to support the jury’s award. In his fourth claim, the defendant alleged that the plaintiff’s harsh treatment of him amounted to punishment for criticizing the plaintiff’s conduct publicly and thus, violated his first amendment right to free speech. The plaintiff argues that there could be no causal connection between Tyler’s speaking with Teed, the press or the electronic media and the plaintiff’s subsequent treatment of the defendant. He claims that his actions were necessary disciplinary measures in response to the defendant’s misconduct. The defendant argues that the plaintiff’s harsh treatment of him was retaliation for his speaking out against the plaintiff’s policy.

The United States Supreme Court’s test for causation requires the party claiming a constitutional violation “to show that his conduct was constitutionally protected, and that this conduct was a . . . ‘motivating factor’ in the [opponent’s] decision” to act in the complained manner. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). Once that burden has been met, the opposing party “had [to show] by a preponderance of the evidence that it would have reached the same decision as to [the defendant’s treatment] even in the absence of the protected conduct.” Id. The court also stated that in the case of a public employee, the evidence must be “balancefd] between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). Under this standard, the defendant was required to present only evidence that his speech was constitutionally protected. The jury by its verdict found that his speech concerned important matters of public concern rather than confidential information and, therefore, was protected. The jury found that the plaintiff failed to prove that his treatment of the defendant would have occurred notwithstanding the defendant’s challenged statements. Our independent review of the record indicates that the jury could reasonably infer from the evidence that the plaintiff responded to the defendant’s exercise of his free speech rights with conduct meant to punish him and not, as the plaintiff claims, to promote the harmony of the police department. It also reasonably inferred a retaliatory motive on the part of the plaintiff. No other officers were treated in the same manner as the defendant. Prior to the defendant’s remarks his performance record was relatively clean. The plaintiff refused to remove overruled disciplinary charges from the defendant’s record and he repeatedly attempted to terminate the defendant’s employment over a period of three years following Teed’s criticisms at the town meeting. The jury reasonably determined not only that the defendant’s exercise of free speech outweighed the interests of the department but that the interests of the department were not promoted by the plaintiff’s actions. The jury award for the first amendment violation is clearly supported by the evidence. Thus, the trial court did not abuse its discretion by refusing to set aside the verdict as excessive or contrary to the evidence.

5

The plaintiff further claims that the defendant failed to allege an equal protection claim and that the evidence was insufficient to support the jury’s award. The defendant’s fifth allegation was that the plaintiff’s treatment of him was dissimilar to the treatment of other officers, and therefore, violated his right to the equal protection of law. In Lehr v. Robertson, 463 U.S. 248, 265-66, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983), the United States Supreme Court held that “[t]he concept of equal justice under the law requires the State to govern impartially. . . . The sovereign may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.” (Citations omitted.) Our review of the record indicates that the jury could have reasonably found that the plaintiff singled the defendant out for harsh treatment. Other officers were not required to fill out sworn statements that they had not spoken to Teed on the day of the town meeting. No other officers were required to document their children’s illnesses. The defendant was excessively disciplined for minor infractions that would normally be overlooked. The plaintiff overruled a disciplinary board’s decision to drop reckless driving charges against the defendant based on an unsubstantiated claim of his past driving record. All of this evidence was credited by the jury as an accurate account of the plaintiff’s partial treatment of the defendant. We conclude that the trial court did not abuse its discretion in refusing to set aside the verdict as excessive and unsubstantiated by the evidence.

“ ‘The size of the verdict alone does not determine whether it is excessive. . . .’ ” Berry v. Loiseau, supra, 810. Indeed, all of the awards are amply supported by the record and do not shock the sense of justice. The jury awards are not excessive and, therefore, the plaintiff’s claims fail.

B

The plaintiff next claims that the trial court improperly refused to apply federal law, specifically the qualified immunity defense, to the defendant’s § 1983 claims. The plaintiff argues that the trial court’s failure to apply the qualified immunity defense was harmful error. We disagree.

A trial court may prohibit a government official from raising the qualified immunity defense to his action if the judge determines that the law is clearly established at the time the official acted. “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Id., 818-19.

In Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 56 (2d Cir. 1987), the plaintiff fire fighter publicly admonished the board of fire commissioners for engaging in discriminatory practices and violations of the Freedom of Information Act. The defendants acted in concert to harass him. The fire chief recommended termination, suspended him unnecessarily, generated disputes between him and his coworkers, and disciplined him for profane language that was commonplace at the firehouse. Id. The Second Circuit Court of Appeals, in reversing the trial court’s summary judgment against the plaintiff, found that a pattern of continual harassment could be understood by a reasonable jury as a deprivation of the plaintiff’s right of free speech. Id., 59.

In Yoggerst v. Stewart, 623 F.2d 35, 39 (7th Cir. 1980), the Seventh Circuit Court of Appeals held that actions taken by government officials “likely to chill the exercise of constitutionally protected speech” included an unwanted transfer of an employee, discharge, reprimand and threat of discharge. In Rookard v. Health & Hospital Corporation, 710 F.2d 41, 43 (2d Cir. 1983), the plaintiff hospital director of nursing noticed several improprieties within the hospital’s nursing department. When the director voiced her concerns she was transferred and then discharged. Id., 44. The Court of Appeals reversed a dismissal of her action and found that the treatment and discharge were intended to warn whistle-blowers of the consequences of speaking out. Id., 47. It stated that “[t]he First Amendment protects a government employee from discharge for speech upon matters of public concern . . . unless, under all the circumstances, the employee’s interest in free comment is outweighed by the State’s interest in the efficiency of its public services.” (Citations omitted.) Id., 46.

These cases clearly indicate that it is unlawful to discriminate against an employee for exposing government officials they suspect are participating in unlawful practices. Retaliatory actions by officials may be adjudged a punishing tactic, and, therefore, a deprivation of an individual’s right to exercise free speech. A reasonable police chief in the plaintiff’s position should have known that his treatment of the defendant violated his first amendment rights of free speech.

Thus, the law is clearly established that when government officials respond to an employee’s exercise of free speech in a retaliatory manner it violates the employee’s free speech rights under the first amendment. The trial court was correct in its conclusion that the qualified immunity defense was not available to the plaintiff.

C

The plaintiff s last claim is that the trial court improperly prohibited testimony he claimed was relevant to the government’s interests and entitled him to the qualified immunity defense. We disagree.

“ ‘A trial court has broad discretion in its rulings on the relevance of evidence and in its determination of whether the probative value of evidence outweighs its prejudicial effect. Reversal is required only when there is an abuse of discretion or when an injustice has been done. State v. Baskins, 12 Conn. App. 313, 318, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987).’ ” State v. Sweeney, 30 Conn. App. 550, 556, 621 A.2d 304 (1993). “The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987).

Our review of the record indicates that the trial court did not abuse its broad discretion in refusing to allow the plaintiff to testify regarding what he perceived as particular problems in the police department that justified his treatment of the defendant. Therefore, the plaintiffs claim fails.

D

The defendant, Clyde Tyler, claims attorney’s fees for services rendered on this appeal in connection with his 42 U.S.C. § 1983 claims pursuant to 42 U.S.C. § 1988. “Section 1988 (b) of title 42 of the United States Code provides that ‘[i]n any action or proceeding to enforce a provision of section . . . 1983 of this title . . . the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee.’ Federal courts have regularly applied this section to cover a prevailing party on appeal. See, e.g., Hutto v. Finney, 437 U.S. 678, 693, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978); Hastings v. Maine-Endwell Central School District, 676 F.2d 893, 896-97 (2d Cir. 1982). The United States Supreme Court has held that a plaintiff is a prevailing party pursuant to § 1988 if the plaintiff ‘succeed[s] on any significant issue in the litigation which achieves some benefit the part[y] sought in bringing suit.’ Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).” Torres v. Waterbury, 30 Conn. App. 620, 626, 621 A.2d 764 (1993). Although we have labeled Tyler the defendant in this suit, on his § 1983 claim his status is that of a prevailing party.

We recognize that a prevailing party on an appeal can recover reasonable attorney’s fees, but the decision to award such fees is discretionary and a “matter more appropriately determined by the trial court.” Id. Because Tyler has prevailed on his § 1983 claim in this appeal, we remand the matter for a determination by the trial court of his request for reasonable attorney’s fees connected with this appeal.

The judgment is affirmed and the defendant’s request for reasonable attorney’s fees is remanded to the trial court for a determination of whether an award is appropriate and, if so, the amount of the award.

In this opinion the other judges concurred.

       This case yielded a trial court judgment for the defendant on all counts of the plaintiff’s complaint and all counts of the defendant’s counterclaim. The plaintiff filed two separate appeals, one from the judgment with respect to the complaint and one from the judgment with respect to the counterclaim. These appeals were consolidated pursuant to Practice Book § 4004.

       Title 42, § 1983 of the United States Code provides a federal civil rights remedy to individuals who have been deprived of their constitutional rights by an official’s abuse of process. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). That section provides in pertinent part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       The record indicates that the defendant was reinstated the following day.

       The defendant later admitted that he did speak with Teed on that day but had lied during the investigative meeting because he feared that his employment with the police force would be terminated.

       The first amendment to the United States constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
      Section 1 of the fourteenth amendment to the United States constitution provides in pertinent part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . nor deny to any person within its jurisdiction the equal protection of the laws.”

       The trial court charged in pertinent part: “[T]he plaintiff Chief Schnabel must then prove that the statement or statements found by you to be the statements of words spoken by Mr. Tyler are false. And this element, the fact that was said, was not true, must be proven by Mr. Schnabel by clear and convincing evidence.”

       While the plaintiff moved to set aside the verdict that motion addresses the counterclaim, not the defamation claim. A party must properly preserve an issue for full review by raising the claimed errors with the trial court and filing a motion to set aside the verdict. Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986). This affords the trial court “ ‘a full opportunity to redress any errors which may have occurred at trial before the appellate process is begun.’ ” Id., 326.

       The defendant asked the town manager: “Isn’t it a fact, Mr. Shew, that the Town of Rocky Hill has agreed to indemnify Mr. Schnabel for damages incurred — ”
      The plaintiff objected and requested a side bar conference. When this was unsuccessful, the court excused the jury. After argument, the judge denied the plaintiff’s motion for mistrial and refused to admit the question. The witness, who was allowed to answer the question outside the presence of the jury, responded “Yes.”

       The portion of the Weinstein report that was admitted into evidence read as follows: “In accordance with an understanding between the Town and the Police Union, I conducted a pre-termination, fact finding hearing regarding the discharge of Officer Clyde Tyler of the Rocky Hill Police Department. We met on November 9 and 10,1990 and heard sworn testimony and received documentary evidence. The parties availed themselves of the opportunity to make opening and closing arguments.
      “Based on the foregoing, I recommend that Officer Tyler not be terminated but rather that a lesser sanction be imposed. Since the history of this matter [is] somewhat convoluted, I thought it appropriate to review for you the evidence presented and the history of this proceeding.
      * ** *
      “Specifications 1, 2 and 3 relate to events which took place on March 9, 1988. A negotiated settlement of a prohibited labor practice charge concerning the events of that day precludes their use as the basis of discipline. These specifications should be considered to be null and void. Specifications 4, 5, 6, 7 and 8 concern Officer Tyler’s interrogation on March 10, 1988. Specification 6 is the most meritorious and will be discussed after the problems with the others are reviewed.
      “Specification 4 refers to Officer Tyler lying about going to Mrs. Teed, disclosing to her confidential information about an on-going investigation and asking her to attend a Council meeting. This specification was not proven at the hearing since ....
      “Specification 5 says that Officer Tyler lied about having no information about a police officer having disclosed information on an on-going investigation to Mrs. Teed. This specification must fail .... Specification 7 alleges that Officer Tyler lied about approaching Mrs. Teed and disclosing confidential information. The latter half of the charge is not proven. Specification 8 repeats the same unproven allegation about disclosure of information about on-going investigation ....
      * * *
      “Specification 9 claims that Officer Tyler disclosed information about an on-going criminal investigation and revealed the identity of a confidential informant. This specification is completely without proven foundation. Specification 10 is a catchall allegation of failing to respond truthfully in a departmental investigation and is too general to put Officer Tyler on notice of the specific charges against him and, in any case, is simply cumulative.
      “Specifications 11,12,13 and 14 all relate to the alleged untruthfulness by Officer Tyler in statements provided by him to the former Town Manager on April 11,1988, and September 26, 1988. As I have indicated above, I do not believe that the differences between Officer Tyler’s account of events and those of the other witnesses were such that I could conclude with any confidence that he intentionally lied. There are other equally good explanations for those differences as I noted above. The remaining specifications use the claimed misconduct in Specifications 1-10 [in] support of other purported violations of the Police Department Rules of Conduct. They, of course, depend on the validity of Specifications 1-10.
      “With respect to Specification 6, (and some portions of several others), I conclude that Officer Tyler did lie about not discussing matters with Mrs. Teed prior to the Council meeting and having no knowledge of any officer speaking with her. He certainly did speak to her and was, quite obviously aware that he had done so. Officer Tyler did not answer candidly when asked in his interrogation on March 10,1988, if he had spoken to Mrs. Teed on the day of the Council meeting. He recounted a conversation with her in the Town Hall but failed to disclose his conversation with her in the restaurant earlier in the day.”

       The jury awarded Tyler the following: on the false imprisonment claim, $25,000 in compensatory and $10,000 in punitive damages; on the intentional infliction of emotional distress claim, $100,000 in compensatory and $50,000 in punitive damages; on the abuse of process claim, $35,000 in compensatory and $50,000 in punitive damages; on the first amendment claim, $25,000 in compensatory and $20,000 in punitive damages; and, on the equal protection claim, $25,000 in compensatory and $20,000 in punitive damages.

       The defendant asserted the claim for attorney’s fees in the conclusion of his brief. The plaintiff failed to respond to this request in a reply brief. Faced with identical circumstances in Torres v. Waterbury, 30 Conn. App. 620, 626 n.2, 621 A.2d 764 (1993), this court noted: “Neither 42 U.S.C. § 1988 (b), our Connecticut decisional law or our rules of appellate practice specify the proper method of raising a claim for attorney’s fees on appeal. While the claim could have been made, subject to the outcome of the appeal, directly to the trial court in a postjudgment motion, we believe that the matter is properly before us. . . . As an additional matter, we note that a party’s failure to analyze a particular issue may preclude appellate scrutiny.” (Citation omitted.) Here, as in Torres, the defendant has offered some analysis and case law, although limited, in support of his request for an attorney’s fee award, and, therefore, we will address it. Id.

       As the Torres court noted, the situation in which a defendant is requesting attorney’s fees requires an entirely different analysis. Torres v. Waterbury, 30 Conn. App. 620, 626 n.3, 621 A.2d 764 (1993).


author: Lavery, J.

text:
    State of Connecticut v. Glen Jackson
    (11417)
    Lavery, Landau and Schaller, Js.
    Argued April 29
    decision released August 31, 1993

      David F. Egan, public defender, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Reidy, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of a narcotic substance with intent to sell by a person who is not drug-dependent within 1000 feet of a school in violation of General Statutes (Rev. to 1991) § 21a-278a (b), criminal impersonation in violation of General Statutes § 53a-130, and possession of a pistol without a permit in violation of General Statutes § 29-35. The defendant makes no claim challenging the conviction of possession of a pistol. The defendant claims that the trial court improperly (1) found that he did not show substantial evidence of drug dependency, and (2) denied his motion for judgment of acquittal on the charge of criminal impersonation. We agree and reverse the judgment of the trial court in part.

The jury could reasonably have found the following facts. On May 21, 1991, Officers Ramano Ratti, Clarence Willoughby and Thomas Trocchio of the New Haven police department were on patrol at approximately 6:30 p.m. in the area of 68-70 Sylvan Avenue in New Haven. As they approached 68-70 Sylvan Avenue, Ratti observed what appeared to be the handle of a revolver protruding from the waistband of the defendant, who was standing on the sidewalk. Ratti and Willoughby jumped out of their vehicle, pursued the defendant for several blocks, and apprehended him in the area of 66 Orchard Street. A search of the defendant revealed twenty-six glassine bags, each containing a white powdery substance, later identified as cocaine, and $491 in cash. An operable Colt Python .357 magnum revolver was seized from the defendant, for which he did not have a permit. When arrested, the defendant identified himself as John Williams. It was subsequently determined from fingerprints that the person who identified himself as John Williams is also known as Glen Jackson.

At a hearing before the trial court, the defendant offered testimony from Sonya Cherry that she has known the defendant for one year, that she saw him use drugs on a daily basis, that he free-based cocaine three or four times a day, and that drug use affected his behavior such that he would act moody when he was not under the influence of drugs. She further testified that she was his girlfriend and that she free-based cocaine and smoked marijuana with the defendant every now and then.

The trial judge ruled at the end of the witness’ testimony that the defendant had not made a threshold showing of “substantial evidence” that the defendant was a drug-dependent person at the time of his arrest. The trial court then allowed a substitute information that deleted all language dealing with drug dependency in the counts alleging violations of General Statutes §§ 21a-278 (b) and 21a-278a (b). At the trial, there was no evidence presented by the state to show that the defendant intended to impersonate a real person in violation of General Statutes § 53a-130 other than that the defendant told the arresting officers that his name was John Williams.

We review the defendant’s second claim first because the state concedes error and, upon review, we agree.

Section 53a-130 (a) provides in relevant part: “A person is guilty of criminal impersonation when he: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another . . . .”

In State v. Smith, 194 Conn. 213, 479 A.2d 814 (1984), our Supreme Court held that because § 53a-130 (a) prohibits impersonating “another,” it does not prohibit merely giving a false name. The plain meaning of “another” is “some other real person.” Therefore, giving a false name is not impersonation unless the name given is that of a real person. Id., 220-22. For this reason, the state must adduce evidence at trial that the name a defendant gives belongs to a real person. Id.

In this case, when the defendant was arrested, he gave his name to the police as John Williams. The defendant had given this name to the police in the past, and, at the time of his arrest, they knew him by this name. Fingerprint analysis subsequently established that the defendant was Glen Jackson. Although the state introduced evidence of the defendant’s real name and the false name he gave, the state did not produce any evidence that John Williams is a real person. Thus, the trial court should have granted the defendant’s motion for a judgment of acquittal on the basis of insufficiency of evidence. We reverse the judgment of conviction of criminal impersonation and direct a judgment of acquittal on that count.

Next, we take up the defendant’s claim that because he presented substantial evidence of drug dependency, the trial court should have instructed the jury on that issue. We agree.

The trial court, in its ruling on substantial evidence of drug dependency, said: “As far as the court is concerned, the defendant — the burden that the defendant bears initially is to show substantial evidence. The only testimony in this case was the testimony that ... we heard yesterday from Sonya Cherry. Sonya Cherry is certainly — she is not a medical person; she is not a doctor; she is not an expert and the only thing I heard in this court was that in fact she is aware of or was aware of the fact that the defendant had imbibed in the consumption of freebasing coke and smoking marijuana.

“The statute also talks in terms of who is not at the time of such action a drug-dependent person. Of course that time would have to refer to May 21, 1991. I really — I don’t recall hearing anything specifically testified to about his use of any drugs concerning that particular date.

“The court does not feel that the testimony that was elicited yesterday in court is sufficient or does not amount to, as far as this court is concerned, to substantial evidence. One might then say how would a person go about proving such a thing? Well, there [are] several different ways. The defendant could testify about it but I only heard the one person and, as I say, the court does not feel that produced substantial evidence to turn this thing the other way.

“And as far as the defendant is concerned, he has the choice whether he wishes to testify or not testify and that’s a matter solely within his own discretion.

“So my ruling on this matter is that the defendant has not produced substantial evidence to turn this thing the other way.”

The judge’s ruling on substantial evidence and the verdict took place prior to our Supreme Court’s ruling in State v. Hart, 221 Conn. 595, 605 A.2d 1366 (1992). The sentencing in this case took place subsequent to the publication of State v. Hart, supra. We conclude that under the Hart standard, the trial court’s ruling was improper.

The jury verdict convicting the defendant was reached on February 21,1992. On April 10,1992, the defendant was sentenced. Our Supreme Court released its opinion in State v. Hart, supra, on April 7, 1992. “In a criminal proceeding, there is no final judgment until the imposition of a sentence. State v. Coleman, 202 Conn. 86, 89, 519 A.2d 1201 (1987); State v. Grot-ton, 180 Conn. 290, 293, 429 A.2d 871 (1980).” State v. Ayala, 222 Conn. 331, 339, 610 A.2d 1162 (1992). The holding in Hart became the law of this state before the judgment of the trial court became an appealable final judgment. Because final judgment was not rendered in this case until after Hart was decided by our Supreme Court, a retroactive application of Hart is not involved.

The Hart court made two significant holdings. First, in a departure from the burden shifting scenario set out in the earlier cases, the court held that “[General Statutes] § 21a-269 assigns to the defendant the burden of persuading the jury by a preponderance of the evidence that he or she is drug-dependent.” State v. Hart, supra, 610-11. Second, and more significant to the circumstances of this case, the court stated: “In the future, the trial court should instruct the jury concerning the issue of drug dependency and the defendant’s burden of proof if it determines that there is any foundation in the evidence, no matter how weak or incredible .... State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986).” (Emphasis added; internal quotation marks omitted.) Id., 613. Hart significantly lowers the standard of what constitutes sufficient evidence, produced by the defendant, to send the issue of drug dependency to the jury.

We conclude, applying the Hart standard, that the testimony of Cherry regarding the defendant’s asserted drug dependency was clearly a “foundation in the evidence” sufficient to require the trial court to instruct the jury on the issue of drug dependency.

The judgment is reversed only as to the charges of possession of a narcotic substance with intent to sell by a person who is not drug-dependent, possession of a narcotic substance within 1000 feet of a school by a person who is not drug-dependent and criminal impersonation, and the case is remanded for a new trial on the two narcotics charges, and with direction to render a judgment of acquittal on the charge of criminal impersonation.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of tiie offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       General Statutes (Rev. to 1991) § 21a-278a (b) provides: “Any person who violates section 21a-277 or 21a-278, and who is not, at the time of such action, a drug-dependent person, by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school.”

       General Statutes § 53a-130 provides: “(a) A person is guilty of criminal impersonation when he: (1) Impersonates another and does an act in such assumed character with intent to obtain a benefit or to injure or defraud another; or (2) pretends to be a representative of some person or organization and does an act in such pretended capacity with intent to obtain a benefit or to injure or defraud another; or (3) pretends to be a public servant, or wears or displays without authority any uniform or badge by which such public servant is lawfully distinguished, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense.”
      “(b) Criminal impersonation is a class B misdemeanor.”

       The Vincent Mauro School is located within 1000 feet of 68-70 Sylvan Avenue and 66 Orchard Street.

       We note that the defendant presented substantial evidence under the preffart standard to send the issue of drug dependency to the jury. In State v. McNeil, 21 Conn. App. 519, 574 A.2d 1314, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990), we held that the trial court, in assessing substantial evidence, is limited to determining whether the defendant has introduced sufficient evidence, if credited by the jury, to raise a reasonable doubt that the defendant was not drug-dependent. It is the trial court’s duty to weigh all the evidence and to determine whether that evidence, if believed by the jury, would permit a reasonable jury to entertain a reasonable doubt that the defendant was not drug-dependent at the time of the alleged crime. State v. Rivera, 23 Conn. App. 592, 593, 583 A.2d 931 (1990), cert. denied, 217 Conn. 807, 584 A.2d 1192 (1991). In State v. McNeil, supra, we defined substantial evidence of drug dependency by analogy to insanity cases. “It is not the trial court’s function to determine the credibility of the insanity evidence; see State v. Robinson, 213 Conn. 243, 256, 567 A.2d 1173 (1989) (credibility is within the province of the jury); but only to assure that the burden of proving sanity is not put on the state where there has been only a tangential, casual, or frivolous mention of the defendant’s possible lack of sanity. By analogy, therefore, in a drug prosecution the trial court is limited to determining whether the defendant has introduced sufficient evidence, if credited by the jury, to raise a reasonable doubt as to non-drug-dependency.” State v. McNeil, supra, 522.
      Prior to Hart, the state had the right in the first instance to rely on the presumption that the defendant was not drug-dependent. Once the defendant introduced some substantial evidence tending to prove his drug dependency, however, drug dependency became an issue in the case, the presumption lost its effect, and the state then bore the burden of proving beyond a reasonable doubt that the defendant was not drug-dependent. State v. Januszewski, 182 Conn. 142, 169, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).
      In this case, even under the preHart substantial evidence standard, the trial court improperly determined that the defendant failed to present substantial evidence of drug dependency. During its oral ruling on the issue of drug dependency, the trial court implied that the evidence presented was insufficient because there was no medical testimony. The trial court said: “Sonya Cherry is certainly — -she is not a medical person; she is not a doctor; she is not an expert and the only thing I heard in this court was that in fact she is aware of or was aware of the fact that the defendant had imbibed in the consumption of freebasing coke and smoking marijuana.” As we noted in State v. Rivera, supra, 601, “McNeil does not require testimony of a medical expert; all that is necessary is substantial evidence of drug dependency.”
      In this case, the defendant presented evidence, through the testimony of his girlfriend, Sonya Cherry, to prove that he was a drug-dependent person on May 21,1991. She testified that he smoked cocaine on a daily basis and that the drugs affeeted his behavior. The state argues that the evidence presented did not amount to substantial evidence of drug dependency because the evidence was not of the type and quantity presented by the defendants in McNeil, Rivera and Hart. In those cases, the state argues, psychic or physical dependence upon a drug was established through a variety of substantive testimony, including consistent long-term use, the awareness by the defendant or the defendant’s friends or family of the substance abuse, physical or social problems related to drug use, or existence of the dependence at the time the offense was committed. Those cases, however, did not establish a minimum standard for the quantity of evidence that must be presented, nor did they stipulate the type of evidence that must be-offered. The earlier cases require only that substantial evidence be presented that, if believed by the jury, could lead the jury to conclude that there, is a reasonable doubt that the defendant is not drug-dependent. We conclude that evidence, presented by someone purportedly close to the defendant, that the defendant free-based cocaine on a daily basis over a long period of time, and experienced mood swings when he was not using drugs, could lead a reasonable jury to determine that a reasonable doubt exists as to whether the defendant is not drug-dependent.

       Had the Hart opinion not been issued before final judgment was rendered in this case, we would nevertheless be bound to apply Hart retroactively. “As a rule, judicial decisions apply retroactively. Robinson v. Neil,
        409 U.S. 505, 507-508, 93 S. Ct. 876, 35 L. Ed. 2d 29 (1973). Indeed, a legal system based on precedent has a built-in presumption of retroactivity. Solem v. Stumes, 465 U.S. 638, 642, 104 S. Ct. 1338, 79 L. Ed. 2d 579 (1984). If a new constitutional doctrine is truly right, we should not reverse lower courts which have accepted it; nor should we affirm those which have rejected the very arguments we have embraced. United States v. Johnson, 457 U.S. 537, 555, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982), quoting Desist v. United States, 394 U.S. 244, 259, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969) (Harlan, J., dissenting).” (Internal quotation marks omitted.) State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986).
      “The fundamental basis for testing whether a decision should be given retrospective effect is whether the rule which it lays down goes ‘to the fairness of the trial — the very integrity of the fact-finding process.’ Linkletter v. Walker, 381 U.S. 618, 639, 85 S. Ct. 1731, 14 L. Ed. 2d 601 [1965].” Reed v. Reincke, 155 Conn. 591, 601, 236 A.2d 909 (1967).
      The Hart holdings clearly go to the issues of fairness and integrity of the factfinding process. Under Hart, a defendant merely has to present some evidence, even weak or incredible evidence, and the issue of drug dependency will remain in the case and be sent to the jury. The Hart holdings'on the one hand make it easier for the defendant to get the issue of drug dependency to the jury, while, on the other hand, require the defendant to prove, by a preponderance of the evidence, drug dependency. In this case the issue of drug dependency was not presented to the jury, but it should have been presented under the Hart rule. Furthermore, if the case goes forward on the presumption that the defendant is not drug-dependent, the defendant is subject to conviction under General Statutes §§ 21a-278 and 21a-278a, which apply to persons who are not drug-dependent and carry severe mandatory minimum sentences, rather than under General Statutes § 21a-277, which does not carry mandatory minimum sentences. The enhanced penalties provided under §§ 21a-278 and 21a-278a for a defendant who was not drug-dependent affect the length of the defendant’s potential incarceration. Because fairness and the integrity of the factfinding process are implicated by Hart, we would be bound to apply it retroactively.

       General Statutes § 21a-269 provides: “In any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, provisto or exemption contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.”