text:
    State of Connecticut v. Elliot G. Vallas State of Connecticut v. William Calash State of Connecticut v. Robert Iaquessa State of Connecticut v. William Girolomoni State of Connecticut v. Frank Rogers
    (5696)
    (5697)
    (5726)
    (5727)
    (5728)
    (5732)
    (5750)
    Dupont, C. J., Spallone and O’Connell, Js.

      Argued May 2
    decision released September 20, 1988

      William F. Dow III, with whom, on the brief, was Carole C. Cooke, for the appellant in the first two appeals (defendant Elliot Vallas).

      Gary A. Mastronardi, for the appellant in the third appeal (defendant William Calash).

      Daniel A. Lyons, Jr., with whom, on the brief, was Lisa A. Riggione, law clerk, for the appellant in the fourth and fifth appeals (defendant Robert Iaquessa).

      Michael J. McClary, with whom, on the brief were Hugh F. Keefe, John J. Keefe, Jr., and Charles Tiernan, for the appellant in the sixth appeal (defendant William Girolomoni).

      Robert M. Casale, with whom, on the brief, was Tara L. Knight, for the appellant in the seventh appeal (defendant Frank Rogers).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief were Robert Devlin, former assistant state’s attorney, and Janine D’Angelo, law student intern, for the appellee (state).
   Spallone, J.

The defendants have filed a total of seven appeals which were argued together. This opinion addresses all of the issues raised in those appeals.

The defendants, William Calash, William Girolomoni, Robert Iaquessa, Frank Rogers and Elliot Vallas appeal their convictions, following their conditional pleas of nolo contendere, to the crime of conspiracy to violate the state narcotic drug act in violation of General Statutes §§ 21a-277 (a) and 53a-48 (a). The defendants Iaquessa, Vallas and Rogers also appeal their convictions, following their conditional pleas of nolo contendere, to the crime of possession of a narcotic substance in violation of General Statutes § 21a-279 (a). Each plea of nolo contendere was conditioned on our review of the trial court’s denial of the defendants’ motions to suppress evidence that the defendants claimed was the product of an unreasonable search and seizure.

On January 28, 1986, the state’s attorney-for the judicial district of New Haven applied to the state wiretap panel, pursuant to Chapter 959a of the General Statutes; General Statutes §§ 54-41a through 54-41t; for authorization to intercept calls to and from telephone facilities registered to the defendant Calash. The supporting affidavit, signed by state police detectives George Nobile and William F. Schaeffer, Jr., alleged that Calash was involved in a network that sold and distributed cocaine. The wiretap order was requested as an aid in discovering the source of the cocaine and the configuration of the distribution network. On January 31, 1986, the wiretap panel granted the application to tap two telephones in the Calash home and issued wiretap order 86-01, which was limited to run from January 31, 1986, to February 14, 1986. In compliance with the order, the Calash phones were tapped from January 31, 1986, until February 11, 1986, when the interceptions were terminated due to information received by the state police that Calash had moved to Florida.

Information gleaned from police surveillance, informants and wiretap order 86-01 led the state police to seek two additional wiretap orders. On February 26, 1986, the state wiretap panel approved the two applications, and wiretap orders 86-03 and 86-04 were issued. Order 86-03 authorized the interception of telephone transmissions received at the home of the defendant Girolomoni. Order 86-04 authorized the tapping of two telephones at a Branford business known as the Rendezvous Cafe, one a private business phone, the other a public pay phone. Both orders were limited to the period of time from February 12, 1986, to March 12, 1986.

As a result of the investigation conducted, which included information accumulated from police surveillance, informants and the successful wiretaps, the defendants were arrested and charged with various offenses arising out of their alleged narcotics dealings. Pursuant to a warrant, the residences of three defendants, Vallas, Iaquessa and Rogers, were searched and various items were seized, including the narcotics that provided the basis of the charges of possession levied against those defendants. They filed motions to suppress those items seized during the searches of their residences, and all five defendants moved to suppress evidence obtained via the wiretap orders. The motions to suppress the evidence obtained pursuant to the search warrants were denied. Similarly, after an extensive evidentiary hearing, the motions to suppress evidence obtained as a result of wiretap orders 86-01, 86-03 and 86-04 were denied, with the exception of one transmission, concerning the defendant Vallas, which was intercepted during wiretap order 86-01.

All five defendants subsequently withdrew their earlier pleas of not guilty and entered conditional pleas of nolo contendere, reserving their rights to appeal from the denial of their motions to suppress.

The defendants, individually in some instances, and collectively in others, raise the following claims of error: (1) the trial court erred in denying the motions to suppress wiretap evidence (a) because the wiretap order did not authorize twenty-four hour surveillance, (b) because the affidavit for order 86-04 did not support the finding of a “special need” which was required to lawfully tap the public pay phone at the Rendezvous Cafe, and (c) because there was an undue delay between the completion of the taping authorized by orders 86-03 and 86-04 and the delivery of the tapes to the wiretap panel which was in violation of General Statutes § 54-41i; (2) the trial court erred as to the defendant Vallas when it denied his motion to suppress the interceptions garnered under wiretap order 86-04 as the illegal fruit of the suppressed conversation intercepted under 86-01; and (3) the trial court erred in denying the claims of the defendants Iaquessa, Rogers and Valias that there was insufficient information in the affidavit to support a finding that probable cause existed to search their residences.

I

A

As part of their first claim of error, all of the defendants urge upon us the proposition that the orders issued by the wiretap panel limited the telephone monitoring to twelve hours per day. The three wiretap orders all expressly stated that the interceptions were authorized “during the hours of 12:00 a.m. to 12:00 p.m.” The defendants claim that the language used restricted the monitoring activities to the hours between 12 noon and 12 midnight. The state contends that no such limitation was ordered, and that a common sense review of the orders, the application and the affidavits indicate that the police were authorized to maintain a twenty-four hour wiretap. We agree with the state’s position.

During the lengthy hearing on the defendants’ motions to suppress, the trial court determined that the wiretap panel’s reference to the hours of “12:00 a.m. to 12:00 p.m.” was ambiguous. As is proper when faced with an ambiguity; see State v. Santiago, 8 Conn. App. 290, 304-305, 513 A.2d 710 (1986); the trial court looked beyond the face of the order to the wiretap application and accompanying affidavits to determine the intent of the panel’s order. In addition to these documents, the court considered testimony that the investigating officers were seeking authorization for twenty-four hour surveillance. Schaeffer reiterated the statements contained in his affidavit accompanying the wiretap application to the effect that narcotics dealing is not confined to any specific hours in a day, and that only twenty-four hour monitoring would yield productive results. In addition, Schaeffer testified that the officers in charge of the investigation, on receipt of the panel’s order, presumed their request for twenty-four hour surveillance had been granted. On the basis of the evidence adduced at the evidentiary hearing, the order and its appurtenant supporting documents, the court concluded that the intent of the wiretap panel was to authorize a twenty-four hour wiretap.

The trial court was correct in its determination that the term “12:00 a.m. to 12:00 p.m.” is inherently ambiguous. See, e.g., United States v. Rosario, 820 F.2d 584, 585 (2d Cir. 1987); Warshaw v. Atlanta, 250 Ga. 535, 299 S.E.2d 552 (1983); Hurwitz v. Boyle, 117 N.J. Super. 196, 284 A.2d 190 (1971); 51 A.L.R.3d 1061. It therefore acted properly in looking to the order’s supporting documents to determine the intent of the panel. “Just as an ordinary search warrant must not be read in a vacuum but must be evaluated together with its accompanying application and affidavit; see State v. Santiago, [supra, 304-305]; so must a wiretap order be evaluated together with its accompanying application and affidavit. See United States v. Tortorello, 480 F.2d 764, 781 (2d Cir.), cert. denied, 414 U.S. 866, 94 S. Ct. 63, 38 L. Ed. 2d 86 (1973); Moore v. United States, 461 F.2d 1236, 1238 (D.C. Cir. 1972).” State v. Chiarizio, 8 Conn. App. 673, 683, 514 A.2d 370, cert. denied, 201 Conn. 809, 515 A.2d 379 (1986). If the information contained in these appurtenant documents is sufficient to clarify the meaning and intent of the order, any factual ambiguity in the order is cured by reference to those documents. State v. Santiago, supra, 304.

Furthermore, having properly determined that the language of the panel’s order was unclear, the trial court was required to conduct a common sense review of the evidence before it, including testimony, the order itself, any supporting documents and prior predilections of the panel, and to make a factual finding as to the panel’s intent. See State v. Ralston, 7 Conn. App. 660, 678, 510 A.2d 1346 (1986). If such a finding is supported by credible evidence, it will not be disturbed by this court, unless it is clearly erroneous. Practice Book § 4061; State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985).

B

That portion of order 86-04 authorizing the interception of telephone transmissions at the public telephone located in the Rendezvous Cafe is challenged on two grounds: (1) all of the defendants claim that order 86-04 is facially invalid because it does not contain an express written finding of a “special need” to intercept telephone calls over a public phone; and (2) the defendants Girolomoni and Iaquessa claim that the order is not supported by adequate information from which the panel could have concluded that a “special need” existed to tap the public phone. We find neither claim to be persuasive.

First, we do not agree with the defendants that, absent an express written finding of a “special need,” a wiretap order for a public phone is invalid. General Statutes § 54-41d (7) provides that the issuing panel must find probable cause to believe that a special need exists to intercept wire communications over public facilities. There is no statutory requirement contained, however, in that section or in § 54-41e, which delineates the necessary contents of the panel’s order, mandating a written finding of a special need. We conclude that the panel’s having issued the order with an express acknowledgement that one of the telephones to be tapped was a public pay phone is sufficient to conclude that the panel had found probable cause to believe that the required special need existed.

Clearly, the wiretap panel had an obligation under § 54-41d (7) to deny the application to tap a public telephone unless it could find the required probable cause of a special need to intercept public communications. We cannot presume that the panel acted illegally absent evidence to that effect. Quite the contrary, it is presumed that a public officer, acting in his official capacity, has performed dutifully. State v. Crawford, 202 Conn. 443, 451, 521 A.2d 1034 (1987); State v. Lenihan, 151 Conn. 552, 555, 200 A.2d 476 (1964). The issuance of order 86-04 carries with it the implicit conclusion that the statutory criteria has been met.

Second, our review of order 86-04 and its accompanying documents confirms the panel’s finding that there was probable cause to believe that a special need existed to monitor the public telephone.

The affidavit submitted in support of the application for wiretap order 86-04 included the following factual representations. The affiants had reason to believe that the defendants were selling narcotics at the Rendezvous Cafe. The police developed this information from a variety of sources, including an informant who had purchased cocaine from Girolomoni at the cafe and another who had alerted the affiant that Calash had been selling cocaine from the cafe. The latter informant also stated to the officer that, after Calash moved to Florida, Girolomoni took charge of both the cafe and the drug business. Information obtained during wiretap 86-01 disclosed that one potential drug purchaser was informed that, after Calash left for Florida, she would still be able to purchase drugs at the Rendezvous Cafe. Calash was to remain active in the business and would return periodically to check on the operation. Between February 7 and February 9, 1986, five calls were made to the Calash residence from the public pay phone inside the Rendezvous Cafe. Surveillance by an undercover officer revealed that Girolomoni received phone calls on the pay phone despite the fact that the cafe had a business phone on the premises behind the bar and in an office. Iaquessa was a doorman at the cafe. In addition, the affiants requested that they be permitted to intercept calls only during the time when one of the principals was physically present in the Rendezvous Cafe.

In its totality, this information indicates that the public phone located in the Rendezvous Cafe was being used by the suspects in much the same way as a private phone. Calls were being made from this phone to the home of one of the principals, another principal regularly received incoming calls on this line, and the available evidence indicated that these conversations were drug related. Where, as in a case such as this, the targets of an investigation have regular access to a public phone and use it to conduct their business, a finding of a “special need” will be upheld. See State v. Tanchalk, 177 N.J. Super. 551, 555, 427 A.2d 118 (1981). The trial court did not err in concluding that the wiretap panel’s finding of probable cause was supported by sufficient information. See, e.g., State v. Telesca, 199 Conn. 591, 600-604, 508 A.2d 1367 (1986); State v. Kimbro, 197 Conn. 219, 236 n.17, 496 A.2d 498 (1985); State v. Ross, 194 Conn. 447, 459, 481 A.2d 730 (1984); State v. Ralston, 7 Conn. App. 660, 670-79, 510 A.2d 1346 (1986).

C

The claim that the tape recordings of the intercepted communications should have been suppressed because of the delay between the expiration of wiretap orders 86-03 and 86-04 and the delivery of the final tapes to the wiretap panel, merits little discussion.

General Statutes § 54-41i provides in relevant part: “Immediately upon the expiration of the period of the order . . . [the taped] recordings shall be made available to the panel issuing [the wiretap] order and sealed under its directions. . . .” As used in this statute, “the word ‘immediately,’ means without unreasonable delay, considering the nature of the task to be performed. Bailey v. Bruneau’s Truck Service, Inc., 149 Conn. 46, 52, 175 A.2d 372 (1961); Krattenstein v. Thomas, 7 Conn. App. 604, 609, 509 A.2d 1079 (1986).” State v. Chiarizio, supra, 692-93. In Chiarizio, we concluded that “any delay beyond one or two days calls for a satisfactory explanation.” Id., 693.

In this case, taping ceased at midnight on March 12, 1986. The investigating officers delivered the tapes to the criminal intelligence division (CID) of the state police for processing on Thursday, March 13, 1986. The tapes were ultimately received by the wiretap panel on Tuesday, March 18. Evidence was presented to the trial court that this five day delay was the result of a combination of factors, including the intervening weekend, the absence of one of the two member CID wiretap unit, and a heavy workload. The court found these explanations satisfactory. We agree. See State v. Chiarizio, supra, 693 (sixteen day delay found reasonable upon satisfactory explanation); United States v. Vasquez, 605 F.2d 1269, 1278 (2d Cir.), cert. denied, 444 U.S. 981, 100 S. Ct. 484, 62 L. Ed. 2d 408 (1979) (seven to thirteen day delay explained satisfactorily).

II

The defendant Vallas claims that any evidence obtained as a result of wiretap order 86-04 or ás a result of the search of his home should have been suppressed as to him as the fruits of an illegal wiretap.

The trial court suppressed one conversation, involving Vallas, which was intercepted during order 86-01, on the ground that Vallas was not properly notified of the interception as required by General Statutes § 54-41k. Because this conversation was referred to in the affidavits accompanying the applications for wiretap order 86-04 and for the search and seizure warrant directed at Vallas, he claims that any evidence obtained or seized by the order and warrant should also have been suppressed by the trial court. The state contends that both wiretap order 86-04 and the search and seizure warrant were supported sufficiently by additional information, independent of the suppressed conversation. We agree.

Vallas first claims that, excluding the suppressed conversation, only one reference was made to him in the affidavit supporting order 86-04. According to Vallas, this one reference, which occurred during an intercepted conversation betwen Calash and Iaquessa, is an insufficient basis for a finding of probable cause. It is enough to say that this defendant misconstrues the nature of our wiretap statutes in relation to the need for a finding of probable cause.

“Neither the fourth amendment nor the federal statute require[s] a showing of probable cause as to all persons named in the application as probable conversers, as long as probable came is established as to one of them. United States v. Martin, 599 F.2d 880, 884 (9th Cir. 1979); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976); United States v. Tortorello, [supra]; see Fishman, Wiretapping and Eavesdropping (1985 Sup.) § 50.” (Emphasis added.) State v. Ralston, supra, 680.

Because Vallas has not challenged the trial court’s finding that probable cause was established as to some of the principals named in order 86-04, he cannot succeed on his claim that that order was not supported by sufficient information.

The second claim, regarding the issuance of the search and seizure warrant, similarly fails. Our review of the affidavit supporting the application for this warrant reveals sufficient independent information to justify its issuance despite the inclusion of the suppressed conversation. See State v. Arpin, 188 Conn. 183, 190-96, 448 A.2d 1334 (1982). Most harmful to this defendant was the information contained in the affidavit regarding the investigating officers’ direct observation of Vallas completing a drug transaction in the parking lot of the Rendezvous Cafe. Whereas the police were made aware of this impending drug sale through the interception of a conversation during order 86-04, which we have deemed a legal wiretap, this information is wholly independent of the suppressed conversation. The trial court did not err in finding probable cause to justify the issuance of the search and seizure warrant.

III

The defendants Iaquessa, Rogers and Vallas claim that there was no probable cause to search their residences because there was no nexus between their alleged drug related activities and their homes. In short, those defendants claim that none of the information culled from the wiretaps or surveillance connects narcotics with their residences. They claim that the applications for the search of their homes are devoid of any factual foundation that would allow a judicial authority to conclude that these defendants stored drugs in their homes.

The defendants cite State v. DeChamplain, 179 Conn. 522, 427 A.2d 1388 (1980), as support for their contention that there must be factual information in the supporting documents from which the issuing magistrate may determine that probable cause exists to permit the search. That case, however, is inapposite. In DeChamplain, the trial court determined that because the affidavit in support of the warrant contained only a conclusory statement to the effect that the affiant had probable cause to believe that there was marihuana on the premises, rather than a recitation of facts supporting that conclusion, the warrant was illegal. Our Supreme Court, in affirming the trial court, held that “ ‘the grounds for a search must satisfy objective standards which ensure that the invasion of personal privacy is justified by legitimate governmental interests.’ (Emphasis added.) Torres v. Puerto Rico, 442 U.S. 465, 471, 99 S. Ct. 2425, 61 L. Ed. 2d 1 (1979).” State v. DeChamplain, supra, 533.

The nexus between the object to be seized and the premises to be searched needs not rest on personal observation, “ ‘but can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [the evidence].’ ” State v. Couture, 194 Conn. 530, 537, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985), quoting United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979). In dealing with large scale drug conspiracies, it is reasonable to conclude that the participants will maintain certain records and supplies in their homes. See State v. Brown, 14 Conn. App. 605, 615, 543 A.2d 750 (1988); see also United States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986); United States v. Stefanson, 648 F.2d 1231, 1236 (9th Cir. 1981). And, ordinarily, a conspiracy to sell drugs, such as is manifest here, “involves a course of conduct which continues over a long period of time.” State v. Ralston, supra, 682. “Indeed, it is usually considered to be a regenerating activity.” State v. Brown, supra, 615. When a suspect has been carrying on an illegal activity for an extended period of time without detection, it is reasonable to conclude that evidence of his activity will be secreted in his home. State v. Couture, supra, 543-44.

Our analysis of the affidavit accompanying the search warrant in this case discloses the factual allegation that Calash was involved in a drug distribution network. It was established from intercepted phone calls, through orders 86-01, 86-03 and 86-04, that certain persons were actively involved in selling narcotics through the Calash network, including the defendants Iaquessa, Rogers and Vallas as trusted members of that network. Through informants, it was learned that Calash left drug supplies with trusted people “so he would not directly be involved in the actual transaction of cocaine.” The affiants, Schaeffer and Nobile, represented, on the basis of their experience and training, that people involved in this type of drug distribution network utilize their homes to store supplies, cutting agents and records of transactions. These statements conform to the standards set forth in Reyes, Stephanson and Brown, supra.

We distinguish State v. DeChamplain, supra, from this case in that, here, we do not have “a conclusory statement to the effect that the affiants had probable cause to believe that there was marihuana in [the] apartment.” Id., 531. The affidavit in support of the search warrant issued in this case is compatible with the principle asserted in State v. Couture, supra, 543-45, that, where people jointly engage in repeated criminal activity and remain undetected certain logical inferences arise, one of which is that “it is a logical inference that a criminal who believes his identity is concealed would utilize his residence as a safe place.”

DeChamplain broke no new ground. It simply reiterated well established law that the judicial authority, and not those who apply for a search warrant, must draw the conclusion and make the determination that probable cause exists to justify the issuance of the warrant. State v. Williams, 169 Conn. 322, 326, 363 A.2d 72 (1975); State v. Rose, 168 Conn. 623, 627-28, 362 A.2d 813 (1975); State v. Allen, 155 Conn. 385, 391, 232 A.2d 315 (1967). “ ‘The issuing authority must determine for himself [or herself] the persuasiveness of the facts relied on to show probable cause. Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 [(1963)].’ State v. Allen, [155 Conn. 385, 391, 232 A.2d 315 (1967)]. The issuing judge must not serve merely as a rubber stamp for the police. State v. Rose, [168 Conn. 623, 627-28, 362 A.2d 813 (1975)].” State v. DeChamplain, supra, 528.

Our review of the affidavit submitted in support of the search warrant for the residences of the defendants Iaquessa, Rogers and Vallas clearly indicates that the trial court acted well within the parameters of the principles enunciated herein when, on the basis of the information contained in said affidavit and the logical inferences derived therefrom, it found probable cause to issue said warrant. The information in the affidavits in this case contained, not the conclusion that probable cause existed to search the defendants’ homes, as was found in the DeChamplain affidavit, but factual allegations from which the issuing authority could reasonably and logically determine the existence of probable cause. The trial court did not err in denying the defendants’ motions to suppress the evidence seized from their homes.

In summary, the trial court’s denial of the motions to suppress wiretap evidence and the evidence seized from certain of the defendants’ homes was proper and in conformity with applicable laws.

There is no error on any of the appeals.

In this opinion the other judges concurred.

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

       The details of the suppression of this conversation are discussed in greater detail in part II, infra.

       In fact, the affidavit prepared by the investigating officers specified the hours of “12 midnight to 12 midnight.” The term was changed to “12 a.m. to 12 p.m.” when the state’s attorney’s office prepared the wiretap application.

       The state introduced evidence at the hearing that the wiretap panel had issued twenty-four hour monitoring orders in previous years using the “12:00 a.m. to 12:00 p.m.” designation. In 1986, nine twenty-four hour wiretap orders were issued: six used “12:00 a.m. to 12:00 p.m.”; two used “12:00 midnight a.m. to 12:00 midnight p.m.”; and one used “12:00 midnight to 12:00 midnight.” There were no twenty-four hour wiretaps authorized in 1985. In 1984, out of eighteen twenty-four hour orders, eight used “midnight .m. to midnight .m.”; four used “12: midnight a.m. to 12: midnight p.m.”; five used “12:00 midnight a.m. to 12:00 midnight p.m.”; and one used “12:00 Midnight .m. to 12:00 Midnight .m.” The various creative denominations of these hours indicates not only confusion and ambiguity, but a great need for either a single, agreed upon term or, as the trial court suggested, a return to military time so as to avoid future misunderstandings.

       The word “noon” is defined as “the time of day when the sun is on the meridian.” (Emphasis added.) Webster, Third New International Dictionary. The abbreviation “a.m.” stands for “ante meridian,” meaning that part of the day before the sun has reached the meridian, and the abbreviation “p.m.” stands for “post meridian,” meaning that part of the day after the sun has passed the meridian. Neither abbreviation, therefore, applies to the moment of noon.

       “[General Statutes] Sec. 54-41d. ISSUANCE of order. Upon such application the panel of judges, by unanimous vote, may enter an ex parte order authorizing the interception of wire communications within the state of Connecticut, if the panel determines on the basis of the facts submitted by the applicant that there is probable cause to believe that: (1) An individual has committed or is committing an offense enumerated in section 54-41b; (2) particular communications will constitute material evidence that an offense enumerated in section 54-41b has been committed or is being committed or will materially aid in the apprehension of the perpetrator of such offense; (3) such communications are not otherwise privileged; (4) other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ; (5) the facilities from which, or the place where, the wire communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such individual; (6) such facilities or places are not those described in section 54-41h; (7) if the facilities from which a wire communication is to be intercepted are public, a special need exists to intercept wire communications over such facilities; (8) the investigative officers to be authorized to intercept the wire communication are qualified by training and experience to execute the interception sought; (9) not more than thirty-four orders authorizing interception have been previously issued by all panels in the calendar year in which the application is made, except that upon a showing of an emergency situation in which the commission of an offense enumerated in section 54-41b may result in imminent peril to public health, safety or welfare, such panel may issue additional orders authorizing interception.”

       “[General Statutes] Sec. 54-41e. statement by panel on issuance of order, contents of order. Each order authorizing the interception of any wire communication shall be accompanied by a written statement of the issuing panel setting forth in detail its determination made in accordance with the provisions of section 54-41d and the grounds therefor and shall specify: (1) The identity of the person, if known, whose communications are to be intercepted; (2) the nature and location of the communication facilities as to which or the place where authority to intercept is granted; (3) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates; (4) the identity of the investigative officers authorized to intercept such wire communications; (5) the identity of the investigative or law enforcement officers to whom disclosure of the contents of any intercepted wire communication or any evidence derived therefrom may be made; (6) the use to which the contents of any intercepted wire communication or any evidence derived therefrom may be put; (7) the identity of the person making the application and his authority; (8) the identity of the issuing panel and its authority to issue an order; (9) the period of time during which such interception is authorized, including a statement that the interception shall automatically terminate when the desired communication has been first obtained; (10) express authorization to make secret entry onto private premises to install any device, provided no such secret entry shall be authorized if there exists a practicable alternative method of executing the order which will preserve the secrecy of its execution; (11) the date of issuance of the order and its effective date. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception in accordance with the provisions of this chapter, and shall terminate upon attainment of the authorized objective, or in any event within fifteen days next succeeding the date of issuance of such order. An order authorizing the interception of a wire communication shall, upon request of the applicant, direct that a communication common carrier, landlord, custodian or other person shall furnish the applicant forthwith all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such carrier, landlord, custodian or person is according the person whose communications are to be intercepted. Any communication common carrier, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the applicant at the prevailing rates.”

       “[General Statutes] Sec. 54-41k. service of notice of interception; INSPECTION OF INTERCEPTED COMMUNICATIONS, APPLICATIONS AND orders; postponement of service. Within a reasonable time but not later than ninety days next succeeding the termination of the period of an order or extensions thereof, the issuing or denying panel may cause to be served on the persons named in the order or the application, and shall cause to be served on persons not named in the order or application whose communications were intercepted, an inventory which shall include notice of the fact of the entry of the order or the application; the date of the entry and the period of authorized interception, or the denial of the application; and the fact that during the period wire communications were or were not intercepted. The panel shall make available to such person or his counsel for inspection the intercepted communications, applications and orders immediately upon the filing of a motion requesting such information. On an ex parte showing of good cause approved unanimously by the panel the serving of the inventory required by this section may be postponed for a period not to exceed sixty days. Not more than one such postponement shall be authorized and under no circumstances shall the serving of the inventory required by this section be made later than one hundred fifty days after the termination of the period of an order or extensions thereof.”
      Because Vallas was not named in the application for order 86-01, or in the order itself, notice to him of an intercepted conversation was mandatory. State v. Formica, 3 Conn. App. 477, 481, 489 A.2d 1060, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Albert Eaddy
    (6298)
    (6576)
    Dupont, C. J., Borden and Spallone, Js.

      Argued June 10
    decision released September 20, 1988

      Suzanne Zitser, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Christopher Malany, deputy assistant state’s attorney, with whom, on the brief, was Robert Devlin, former assistant state’s attorney, for the appellee (state).
   Spallone, J.

This opinion addresses two appeals filed by the defendant. The first appeal is from the judgment of conviction, rendered after a jury trial, of the crime of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1). In the second appeal, the defendant appeals from his conviction of violation of probation; General Statutes § 53a-32; based upon the conviction of the crime of robbery.

In his first appeal, the defendant claims that the trial court erred (1) in charging the jury under General Statutes § 54-84 (b) on his failure to testify, (2) in its instructions to the jury on a statutory alternative for the underlying crime of larceny when there was no evidence offered by the state in support thereof, and (3) by allowing the prosecutor, during both cross-examination and closing argument, to impeach the defendant’s sole alibi witness by referring to her alleged pretrial silence.

The jury could reasonably have found the following facts. In the early morning hours of Tuesday, November 25,1986, the victim, Lee Crenshaw, and two friends were driving around New Haven in Crenshaw’s rented automobile. Sometime between 1 and 2 a.m., Crenshaw drove to the Brown Projects, an apartment complex located at 1134 Quinnipiac Avenue in New Haven, to visit a young woman named Brenda Taylor. Crenshaw and Taylor talked at the door of Taylor’s apartment for a few minutes. During the course of the conversation, Crenshaw displayed to Taylor a roll of money containing $400, which Crenshaw had received from his former employer. Taylor asked if she could borrow $10, but Crenshaw had nothing smaller than a $20 bill, except for a few $1 bills. He arranged with Taylor to return later.

Crenshaw and his friends then drove around for several more hours. During the ride, Crenshaw got change for a $20 bill from one of his friends. After dropping off his companions, he drove back to the Brown Projects, arriving there sometime between 5 and 5:45 a.m. He parked his car in the parking lot designated for use by the tenants of the project and located close to an alleyway leading to Taylor’s apartment.

Crenshaw walked to the apartment and knocked on the door. The door was opened by the defendant, Taylor’s brother, whom Crenshaw knew as “Cleecko” and with whom Crenshaw had had a previous encounter at the home of Taylor’s grandmother. Crenshaw recognized the defendant as the same person he had seen at the grandmother’s house.

Crenshaw asked the defendant if Taylor was home. The defendant called to her and then left. After conversing briefly in the doorway, Crenshaw suggested that he and Taylor sit in his car, which they did. After sitting and talking in the car for approximately five minutes, Crenshaw and Taylor were interrupted by a man who opened Crenshaw’s door and stated, “You messing with my girl.” As the man said this, he punched Crenshaw twice in the jaw and then bent over and grabbed Crenshaw’s arms below the elbows, effectively pinning his arms to his sides.

Taylor exited the car and Crenshaw heard her call the name “Cleecko.” While his arms were being held, Crenshaw’s car seat moved and he felt a second individual searching his pockets. By the dome light, which had gone on when the car door was opened, he recognized the defendant as the person searching his pockets. The defendant searched until he found and extracted the roll of bills from Crenshaw’s pocket, at which time the defendant exclaimed, “I got it.” The defendant and his companion left the car and ran down the alley in the direction of Taylor's apartment.

Crenshaw started the car and drove a few hundred feet down Quinnipiac Avenue hoping to get another look at his assailants. Having no success, he returned to Taylor’s apartment and briefly spoke with her. While driving home, Crenshaw saw a friend and told him that he had been robbed. Crenshaw returned home a little after 7 a.m. He called the police and talked to Officer Robert Malone. After Crenshaw had described the incident, stating that he had been robbed by a man nicknamed “Cleecko,” Malone and Crenshaw drove to the Brown Projects. Malone interviewed Taylor, asking her if she had been with the victim during the robbery, whether she knew “Cleecko,” whether he was currently in the apartment and whether she knew where he lived. Taylor did not give the officer any of the requested information and finally refused to answer any questions. When Malone asked the defendant’s mother, who was then present, what “Cleecko’s” real name was, she ignored him.

Malone then took Crenshaw to police headquarters, where Crenshaw viewed approximately 1000 photographs before he identified one of the defendant. Crenshaw told the detective that he was “positive” of his identification. Crenshaw eventually made an in-court identification of the defendant and stated that he was “absolutely certain” of his identification.

The defendant was arrested, charged with and found guilty by a jury of robbery in the second degree. Following that conviction, the defendant was found in violation of his probation.

In his first claim of error in the first appeal, the defendant contends that the trial court erred in its charge to the jury regarding the defendant’s failure to testify, by deviating from the exact language of General Statutes § 54-84 (b). The defendant contends that the jury might have interpreted the court’s instruction as prohibiting group discussion of the defendant’s election not to testify, without forbidding any juror’s private consideration of the defendant’s election not to testify.

Our Supreme Court recently has decided that language in a charge similar to that used here is indeed erroneous. State v. Townsend, 206 Conn. 621, 539 A.2d 114 (1988) (per curiam). “Judicial noncompliance with § 54-84 (b) does not, however, automatically warrant a reversal and a new trial. We must decide, on a case by case basis, whether a trial court’s failure fully to comply with the statute was harmless. State v. Cobb, 199 Conn. 322, 324-25, 507 A.2d 457 (1986). Because such an error is of constitutional dimension, ‘[t]he applicable test requires the state to prove beyond doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled.’ Stale v. Sinclair, [197 Conn. 574, 584, 500 A.2d 539 (1985)]; State v. Cobb, supra, 325; State v. Tatem, [194 Conn. 594, 599, 483 A.2d 1087 (1984)]. In the present context, the state must show that the charge as given conveyed to the jury the substantive meaning of the statutory requirement. State v. Cobb, supra; State v. Marra, 195 Conn. 421, 433, 489 A.2d 350 (1985).” State v. Townsend, supra, 625-26.

Our analysis of the charge in this case and the pertinent charge given in Townsend indicates that the instruction as given here fully comports with the principles outlined in Townsend. “[I]t was not reasonably possible that the jury would have understood the court to be permitting any inferences whatsoever to be drawn from the defendant’s failure to testify.” Id., 626. We hold that the instruction given by the trial court substantially conformed to the dictates of General Statutes § 54-84 (b) in content, intent and spirit and, therefore, the error was harmless. The assertions of the defendant to the contrary are more concerned with semantics than substance.

In his second claim of error, the defendant argues that the trial court erred in its charge to the jury on the crime of larceny. Because larceny is the underlying crime of robbery, the trial court was obligated to define the meaning of larceny for the jury. In its instructions, the trial court provided the jury with the statutory definition of larceny; see General Statutes § 53a-119; as an unlawful taking, obtaining or withholding of property from an owner. Although the instruction was not objected to at trial, the defendant claims that this instruction allowed the jury to consider statutory alternatives that have no support in the evidence adduced and, therefore, that this issue is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Again, this issue was addressed by our Supreme Court in State v. Townsend, supra.

“We have repeatedly disapproved of a trial court’s reading of an entire statute when the defendant has been formally charged under less than the statute as a whole. State v. Franko, 199 Conn. 481, 493, 508 A.2d 22 (1986); State v. Carter, 189 Conn. 631, 645, 458 A.2d 379 (1983). In this case, however, the information did not specify those aspects of the underlying charge of larceny on which the state was relying. The defendant has pointed to no prejudice attributable to the court’s over-inclusive instruction, which did not adversely implicate a specific element of the crime with which he was charged. It is, therefore, doubtful that the alleged error in this case is reviewable when it was not raised at trial. Compare State v. Williams, 202 Conn. 349, 362-64, 521 A.2d 150 (1987) with State v. Franko, supra.” (Footnote added.) State v. Townsend, supra, 627.

As was the case in Townsend, we conclude that this claim is best laid to rest at the door of harmless error. “Even if this claim of error is properly here, it cannot be sustained on its merits.” Id. A careful analysis of the charge as a whole, leaves us with the firm conviction that “there was no reasonable possibility that the jury was misled into mistaking the issues that it was to resolve. State v. Simms, 201 Conn. 395, 416, 518 A.2d 35 (1986).” Id.; see also State v. Coleman, 14 Conn. App. 657, 681-82, 544 A.2d 194 (1988).

The defendant’s final claim of error is that the state should not have been allowed to impeach the testimony of Taylor by referring to her failure to report the defendant’s noncomplicity in the crime when she was interviewed by Malone. Because the defendant did not object to this line of questioning at trial, he now claims he should be granted review under State v. Evans, supra. Because the claim raised by the defendant does not implicate a fundamental constitutional right; State v. Jones, 205 Conn. 723, 738, 535 A.2d 808 (1988); we decline to review it.

Because we have found no error in the conviction of the defendant of the crime of robbery in the second degree, the conviction is affirmed and thereby stands as a proper basis for the defendant’s conviction of a violation of probation. As to both appeals, we find that the trial court acted properly and in accordance with applicable law.

There is no error on either appeal.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 54-84. testimony or silence of accused. (a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       The trial court instructed the jury: “Now, as you know in this case, the Defendant did not testify. And a Defendant is under no obligation to take the witness stand and to testify. And no presumption of guilt may be related simply to the fact that he did not testify. Nor may you draw any unfavorable inference from the fact that he did not testify. You must not permit such a fact to weigh in the slightest degree against the Defendant, nor should it enter into your discussions or deliberations.”

       Nor did the information in the present case specify which aspect of larceny the state intended to prove.

       Although the defendant places great emphasis on the fact that the trial court made a second reference to the three aspects of larceny, he ignores the fact that the second reference defined larceny as “taking, obtaining and withholding,” creating conjunctive acts rather than alternatives. Clearly, this mistaken definition of the elements of larceny was to the benefit of the defendant rather than to his detriment.


author: Daly, J.

text:
    State of Connecticut v. Norberto Escobales
    (6183)
    Daly, O’Connell and Stoughton, Js.
    Argued June 14
    decision released September 20, 1988

      Richard Emanuel, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A, Browne,
      state’s attorney, Gerard Eisenman, assistant state’s attorney, and Nancy A. Freedman, law student intern, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction rendered after he had entered a conditional plea of nolo contendere to a charge of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). He claims that the trial court erred (1) in denying his motion to suppress certain evidence allegedly obtained beyond the permissible scope of a frisk following a noncustodial traffic stop, and (2) in refusing to order the production of the cocaine and the paper bag container seized from under his shirt. We find no error.

The factual situation is not in dispute. On July 22, 1986, at approximately 11 p.m., Bridgeport police officers Jesus Ortiz and Philomena Lula were patrolling the north end of the city when they observed a motorcycle go through a stop sign on Noble Avenue. As they proceeded to follow the motorcycle, which was being operated erratically, the officers noticed that a tail light was out. After it proceeded through another stop sign, the officers decided to stop the motorcycle on the basis of the motor vehicle violations they had observed. The stop was made on River Street, eight to ten blocks from where the officers’ original observations were made. The defendant began to speed away when the strobe lights of the patrol car were turned on. Upon approaching a busy intersection, however, the driver changed his mind and stopped.

As the operator got off the motorcycle, the officers observed him stuff something into his pants under his shirt. Ortiz, an officer with nine months experience in patrolling this particular area of the city, which is a high crime area known for drug activity, believed that the defendant had just stuffed a gun in his pants. He proceeded cautiously toward the defendant with his hand on his holstered gun. Lula, also under the belief that the defendant had hidden a weapon, approached the defendant from behind with her hand on her holstered gun. Ortiz questioned the defendant as to what he had stuffed under his shirt and the defendant made no reply. At this point, Lula reached into the defendant’s shirt and pulled out a crumpled brown bag. As Lula seized the bag, the defendant blurted out, “Give me a break, I found this. Didn’t you see me pick this up at Berkshire and Knowlton?”

The paper bag was crumpled and approximately five to six inches long. Lula opened the bag, looked inside and discovered two rocks, approximately two to four inches in size, apparently of cocaine. The rocks were not round or heavy. The defendant was thereafter patted down and arrested for possession of a narcotics substance with intent to sell; two counts of stop sign violations in violation of General Statutes § 14-301 (c); operating with a defective tail light in violation of General Statutes § 14-96 (a); and misuse of plates in violation of General Statutes § 14-147.

Although a state toxicologist confirmed that the. substance in the paper bag was cocaine, the bag and the cocaine were not introduced at the hearing.

In his first claim of error, the defendant argues that the police exceeded the right to frisk since they should have conducted a pat down before seizing the bag and its contents. Moreover, the defendant argues that even if the officer lawfully seized the bag and its contents, she should have felt it before opening it to ascertain whether it held a weapon. The defendant, in his argument, does not contest the police stop. He focuses on the intrusion by the officer. We find the defendant’s argument unpersuasiye.

Since Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), courts have held that a police officer is justified in stopping a person for a reasonable time and in patting down the person as long as the officer has reason to believe that the person is armed and dangerous. In Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), the United States Supreme Court held that it recognized “in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. ‘When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ he may conduct a limited protective search for concealed weapons.” In Williams, the officer had received a tip from an informer that the defendant, who was seated in a nearby car, was carrying narcotics and had a gun at his waist. The officer had approached the car and asked the defendant to open the door. When the defendant rolled down his window, the officer reached into the car and removed a gun from the defendant’s waistband. The court ruled that “[u]nder these circumstances the policeman’s action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable.” Id., 148. “ ‘Fourth Amendment jurisprudence involves prudence for the police as well as fairness for the citizens. A police officer “need not defer . . . protective measures to the point of peril.” United States v. Coates, 161 U.S. App. D.C. 334, 339, 495 F.2d 160, 165 (1974) (citation omitted).’ ” United States v. Wilkerson, 598 F.2d 621, 625 (D.C. Cir. 1978).

This case is similar to Williams in that the officer reached right for the bulky object believed to be a gun. Lula, however, was proceeding on her own knowledge and skill as a police officer coupled with the actions of the defendant which she directly observed rather than relying on an informant’s tip. The purpose of a limited search is to allow the police to pursue their investigation without fear of violence. Here, Lula made a limited protective search for a concealed weapon. A pat down was not necessary because Lula knew from her observation precisely where the defendant had concealed the bulky object. The ultimate question in fourth amendment cases is: Was the police officer’s response to the given situation reasonable? In this case, Lula had reason to suspect, on the basis of her direct observations, that the defendant had just concealed a weapon. Moreover, courts must give due consideration to the experienced judgment of officers in reviewing their conduct. See United States v. Wylie, 569 F.2d 62, 68 (D.C. Cir. 1977), cert. denied, 435 U.S. 944, 98 S. Ct. 1527, 55 L. Ed. 2d 542 (1978). The record indicates that both officers had been with the Bridgeport police department for three years and that Ortiz had patrolled this particular area for the previous nine months. Ortiz had approximately sixty previous arrests in the area and had seized three or four handguns and four or five knives while making those arrests. Given these factors, the limited intrusion was indeed reasonable. Too often, police officers are mortally wounded following traffic violation stops. An officer should not be made to choose between his own safety and what could later be construed as an illegal search and seizure. Law enforcement personnel have enough responsibility and concerns confronting them when they approach a person they have pulled over, and we refuse to impose upon them a Hobson’s choice of not making a limited intrusion where they believe a weapon is concealed when to do so greatly increases the risk that they will be shot. See United States v. Jackson, 652 F.2d 244, 249-50 (2d Cir. 1981). This court recently repeated the statement from Williams that “ ‘it may be the essence of good police work to adopt an intermediate response.’ ” State v. D’Ambrosio, 14 Conn. App. 309, 313, 541 A.2d 880 (1988). Although that statement deals with the stop element of a Terry stop, it is applicable to the patdown element under the facts here.

Under the circumstances here, it was reasonable for the officers to open the bag to ascertain its contents. See United States v. McClinnhan, 660 F.2d 500, 504 (D.C. Cir. 1981).

The defendant’s second claim of error is that the trial court erred in denying the defendant’s request to produce the cocaine and the paper bag. The trial court asked defense counsel if he thought that the cocaine and paper bag would be relevant if the size and description of the evidence became an issue. The court stated that, if so, the evidence would have to be produced. Defense counsel left the decision to the trial court and, in effect, did not take advantage of the offer to have the evidence produced. The trial court felt that the evidence had been fully testified to by both officers. Moreover, the toxicological report was put into evidence. There was no other testimony regarding the bag or its contents.

The trial court has wide discretion in ruling on the relevancy of evidence. 1 B. Holden & J. Daly, Connecticut Evidence § 67 (c) (1988). Our standard of review was firmly elaborated in State v. Tirado, 194 Conn. 89, 95, 478 A.2d 606 (1984). “ ‘ “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . .” ’ ‘Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . .’ ‘The aggrieved party, therefore, assumes a heavy burden when seeking to reverse the exercise of judicial discretion.’ ” Id. In this case, there was no such abuse of discretion.

There is no error.

In this opinion the other judges concurred.

       In United, States v. Jackson, 652 F.2d 244 (2d Cir. 1981), Judge Meskill analyzed the equally troublesome predicament found by officers approaching a suspected robber with their guns drawn.


text:
    Susan Pasqua v. Steven Pasqua
    (5865)
    Borden, Daly and Norcott, Js.
    Argued May 10
    decision released September 20, 1988

      Laurajean Golden, with whom was Sharon Langer, for the appellant (defendant).

      Dominick F. Burke, with whom, on the brief, was James F. Mullen, for the appellee (plaintiff).
   Daly, J.

In this marital dissolution action, the defendant appeals challenging the child support order issued incident to the judgment of dissolution. The dispositive issue is whether the trial court abused its discretion in ordering the defendant, a recipient of public assistance from the federal supplemental security income and state supplemental income programs, to pay $35 per week child support. We find error.

“As a preliminary matter, we note that a trial court has broad discretion in domestic relations cases. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Flynn v. Flynn, 7 Conn. App. 745, 746, 510 A.2d 1005 (1986). A reviewing court allows every reasonable presumption in favor of the correctness of the trial court’s ruling. Gallo v. Gallo, 184 Conn. 36, 44, 440 A.2d 782 (1981).” Little v. Little, 14 Conn. App. 195, 196, 540 A.2d 102 (1988). The standard of review is whether the trial court abused its legal discretion. deCossy v. deCossy, 172 Conn. 202, 204, 374 A.2d 182 (1977). In determining whether the trial court abused its discretion, the ultimate issue is whether the court could reasonably conclude as it did. Fattibene v. Fattibene, 183 Conn. 433, 442, 441 A.2d 3 (1981).

The defendant is disabled and has been found eligible for benefits from both federal and state programs. These benefits, in fact, constitute the defendant’s sole source of income. The defendant receives $176.05 per week, with expenses totalling $281.86 per week. His liabilities exceed $10,000 and he has no assets other than his household goods. It was undisputed that all of his public assistance grants were expended toward rent and food, including the maintenance of a special diet. The trial court reasonably deemed the defendant, who was disabled and undertaking a rehabilitation course, incapable of paying the weekly support order without accruing an arrearage. The court stated that the only reasonable expectation of payment depended on the defendant’s receiving an inheritance, winning the lottery or pursuing a successful career subsequent to his vocational rehabilitation.

Implicit in the trial court’s order was the finding that the defendant was unable to pay any amount of child support at the time of the judgment. The trial court’s order is clearly one for speculative prospective payments based on an anticipation of a change in his circumstances. That ruling constituted an abuse of discretion, which must be held to constitute error. Manaker v. Manaker, 11 Conn. App. 653, 655, 528 A.2d 1170 (1987) (“any future benefit the defendant may receive from the possibility of the housemate transferring assets to him is, at best, speculative and should not have been received into evidence for the purpose of assessing the defendant’s future economic prospects”). This court has recently held in Cuneo v. Cuneo, 12 Conn. App. 702, 709, 533 A.2d 1226 (1987), that financial awards “should be based on the parties’ current financial circumstances to the extent reasonably possible.” (Emphasis added.) Our ruling today is in accord with this proposition.

This case is distinguishable from our recent decision in Lawler v. Lawler, 16 Conn. App. 193, 547 A.2d 89 (1988). In Lawler, we held that the trial court was within its discretion in providing for automatic increases in periodic alimony payments based on the payor’s pay increases. Lawler was not a case of a speculative prospective increase in the net worth of one of the parties; rather, the potential increase in alimony was tied to the plaintiffs prospective pay increases, a future event which involved the plaintiffs finances and which the Lawler court found to be countenanced by our Supreme Court in Rubin v. Rubin, 204 Conn. 224, 233-34, 527 A.2d 1184 (1987). In this case, we are presented with facts that any increase in the defendant’s income would clearly be speculative and should, therefore, not have been considered. The plaintiff is not jeopardized since she can always move for modification in the future if there is a change in circumstances.

There is error, the order of support is vacated and the case is remanded with direction to modify the judgment in accordance with this opinion.

In this opinion the other judges concurred.

       Our conclusion that the trial court abused its discretion renders it unnecessary to consider the defendant’s claim that, as a matter of law, child support payments may not be ordered to be paid out of supplemental security income benefits and their state supplements.

       In Fattibene v. Fattibene, 183 Conn. 433, 443, 441 A.2d 3 (1981), our Supreme Court restated the holding in Krause v. Krause, 174 Conn. 361, 364-65, 387 A.2d 548 (1978), that evidence of a possible inheritance was “too speculative.”


author: O’Connell, J.

text:
    Angelo Iagrosse v. Charles Carlin et al.
    (6044)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued May 4
    decision released September 20, 1988

      Gregory A. Sharp, with whom, on the brief, was Timothy H. Everett, for the appellant (plaintiff).

      David M. Reilly, for the appellee (named defendant).

      Clinton L. A. Wright, for the appellee (defendant Clarence R. Collins).
   O’Connell, J.

The plaintiff, the zoning enforcement officer for the town of Hamden, appeals from the judgment rendered by the trial court, dismissing his appeal from the granting of three variances to various individual applicants. The plaintiff claims that the trial court erred in granting the motion to dismiss by finding that the plaintiff (1) failed to allege aggrievement to pursue the appeal, (2) failed to provide a bond in taking the appeal, and (3) misjoined three appeals in one action. We find error.

The following facts are relevant to the resolution of this appeal. On June 19, 1986, the Hamden zoning board of appeals granted in excess of twenty-five variances, among which were those granted to the following three parties, named as defendants in the plaintiff’s appeal to the Superior Court: (1) to Howard Benedict, as agent for Conifer Associates, Inc., for a condominium project; (2) to Bonaventura and Maria Mezza, for an imported food store; and (3) to Clarence Collins, a defendant in the present appeal, for a gas station, car wash and convenience store. The plaintiff, as zoning enforcement officer for the town of Hamden appealed to the trial court, pursuant to General Statutes § 8-8. The complaint was in three counts, each count addressing the variance granted to a particular applicant. Count one addressed the Benedict variance, count two, the Collins variance and count three, the variance granted to the Mezzas.

Collins filed a motion to dismiss the count pertaining to him, pursuant to General Statutes § 8-8 (d). The trial court, Quinn, J., granted the motion to dismiss, without a hearing or oral argument on the motion, and despite a written request for oral argument by the plaintiff. It is this failure of the trial court to entertain oral argument that requires a finding of error.

General Statutes § 8-8 (d) provides a statutory right to a hearing on the issue of standing in a zoning appeal, prior to the hearing of the appeal on the merits. That section provides that “[t]he court, upon the motion of the person who applied for the board’s decision, shall make such person a party defendant in the appeal. Such defendant may, at any time after the return date of such appeal, make a motion to dismiss the appeal. At the hearing on such motion to dismiss each appellant shall have the burden of proving his standing to bring the appeal.” (Emphasis added.) We read the above-italicized language to require that a hearing be held on any motion to dismiss filed pursuant to § 8-8 (d). No hearing was held in the present case, and we therefore find that the dismissal was improper and that the case must be remanded for a hearing to satisfy the mandate of General Statutes § 8-8 (d). At both the trial level and the appellate level, in a typical civil appeal, a hearing generally must be held on a motion to dismiss if one of the parties so requests. See Practice Book §§ 142 and 4043. In the present case, such a request was made. The record is barren of any explanation for the trial court’s failure to schedule a hearing and oral argument on the defendant’s motion to dismiss.

There is error, the judgment dismissing the appeal is set aside and the case is remanded to the trial court for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The defendants in the present appeal, Charles Carlin and Clarence Collins, are the clerk of the zoning board of appeals and an individual applicant, respectively.

       On April 3, 1987, the trial court, Dorsey, J., ordered the appeals severed. This appeal concerns only the Collins’ application.

       We note that any questions raised during oral argument concerning the propriety of service have been resolved in the plaintiffs favor by Schwartz v. Planning & Zoning Commission, 208 Conn. 146,150-51, 543 A.2d 1339 (1988).

       “[General Statutes] Sec. 8-8. appeal from board to court, review by appellate court, (a) Any person or persons severally or jointly aggrieved by any decision of said board, or any person owning land which abuts or is within a radius of one hundred feet of any portion of the land involved in any decision of said board, or any officer, department, board or bureau of any municipality, charged with the enforcement of any order, requirement or decision of said board, may, within fifteen days from the date when notice of such decision was published in a newspaper pursuant to the provisions of section 8-3 or 8-7, as the case may be, take an appeal to the superior court for the judicial district in which such municipality is located, which appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court.”

       We note also that subsequent to the trial court’s action in this appeal, another trial court, Dorsey, J., denied a motion to dismiss the Benedict appeal. It is not known whether a hearing was held on that motion.


text:
    State of Connecticut v. Jorge Ramirez
    (5250)
    Dupont, C. J., Borden and Spallone, Js.

      Argued April 5
    decision released September 20, 1988

      Neal G. Cone and Katherine F. Sullivan, certified legal interns, with whom were Michael R. Sheldon, Timothy H. Everett and, on the brief, Todd D. Fernow, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of attempted robbery in the first degree, in violation of General Statutes §§ 53a-49 and 53a-134 (a) (3). The defendant claims that the trial court erred (1) in refusing to instruct the jury that an unfavorable inference could be drawn from the state’s failure to produce a witness, (2) in failing to instruct the jury, sua sponte, on the victim’s interest in the case, and (3) in allowing into evidence, without any limiting instruction, evidence of the use of narcotics by the defendant. We find no error.

Evidence was introduced from which the jury could reasonably have found the following facts. On May 14, 1985, at approximately 9:30 p.m., the victim, Patrick Richmond, a taxi cab driver, had been dispatched via radio to pick up a fare in front of a school on Highland Avenue in the city of Bridgeport. While Richmond was waiting for the fare, the defendant, wielding a knife in his left hand, approached the cab and demanded money. Richmond grabbed the defendant’s left wrist. A struggle ensued, first in the cab and then on the street. During the struggle, Richmond gained possession of the knife. The defendant bit Richmond’s hand, and Richmond bit the defendant’s shoulder. During the altercation, Richmond stabbed the defendant in the leg. The defendant then left the scene in the direction of a nearby apartment house. Richmond started to drive away, but stopped the cab after calling and receiving instructions from his dispatcher to remain in the vicinity to await the arrival of the police.

When the police officers arrived, Richmond related the incident to them and they immediately began an investigation. Detective Michael DeCarlo followed a trail of blood to an apartment in a complex known as Green Apartments. A woman answered the door and, in response to DeCarlo’s questions, told him that her brother had been stabbed and taken to a hospital. She also informed DeCarlo that her brother’s name was Jorge Ramirez. DeCarlo then proceeded to Park City Hospital to speak to Richmond, who had been taken there. Upon his arrival at the hospital, DeCarlo learned that the defendant also was being treated in the hospital’s emergency room. By coincidence, the defendant and Richmond were in adjoining cubicles. Richmond identified a jacket as having been worn by the defendant, and subsequently identified the defendant.

The defendant was arrested and subsequently tried before a jury for the crimes of attempted robbery in the first degree and assault in the second degree. The court directed a judgment of acquittal on the assault charge, and the jury convicted the defendant on the charge of attempted robbery in the first degree. This appeal followed.

In his first claim of error, the defendant faults the trial court for its failure to charge the jury that it could draw an adverse inference from the state’s failure to produce Chester Murach, the taxi company’s dispatcher, as a witness in accordance with the principles enunciated in Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), and its progeny. The defendant claims that the trial court misconstrued the nature of the testimony which would have been elicited from this missing witness and, therefore, the trial court erred in determining that the witness’ testimony would have been merely cumulative. We decline to review this claim due to the defendant’s failure to comply with the mandates of our rules of practice.

Practice Book § 852, the rule applicable at the time of trial, provided in pertinent part: “Prior to the beginning of the arguments, sufficient copies of written requests to charge the jury must be filed with the clerk .... Requests shall be in separate and numbered paragraphs, each containing a single proposition of law 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. . . .” See Practice Book §§ 852, 853, 854, as amended effective October 1, 1986. The defendant’s request to charge, which was filed on the morning the jury charge was to be given, consisted of one sentence: “1. Secondino charge for State’s failure to call the dispatcher as a witness.” For us to accept the defendant’s argument that this sentence “substantially complied” with the provisions of § 852 would effectively emasculate the requirement that parties file a request to charge.

It is well established that “[t]he ever increasing refinement of our law justifies the cooperation of counsel in stating requests for jury instructions, and this cooperation is mandated, at least to the extent of substantial compliance with Practice Book § 852. The minor burden of cooperation imposed by this section is neither unreasonable nor novel.” State v. McIntosh, 199 Conn. 155, 160-61, 506 A.2d 104 (1986). While neither this court nor our Supreme Court places undue emphasis on procedural requirements to the detriment of the substantive merits of a claim, the recent spate of decisions that have had occasion to address the necessity for adequate requests to charge leads us to believe that such admonitions are falling on deaf ears. See, e.g., State v. Ostroski, 201 Conn. 534, 518 A.2d 915 (1986); State v. Hancich, 200 Conn. 615, 513 A.2d 638 (1986); State v. Robinson, 14 Conn. App. 40, 539 A.2d 606 (1988); State v. Bettini, 11 Conn. App. 684, 528 A.2d 1180 (1987); State v. Merritt, 11 Conn. App. 628, 528 A.2d 863 (1987); State v. Wright, 9 Conn. App. 275, 518 A.2d 658 (1986), cert. denied, 203 Conn. 802, 522 A.2d 293 (1987).

In this case, the defendant’s bald citation of Secondino is not a sufficient statement of a proposition of law, especially in light of the molding and refining of the missing witness charge that has taken place in subsequent cases. Neither does the request to charge specifically assert the facts in the case that would satisfy the two-prong test that is a prerequisite to the giving of a missing witness charge. See, e.g., State v. Wood, 208 Conn. 125, 139-41, 545 A.2d 1026 (1988); Shelnitz v. Greenberg, 200 Conn. 58, 74-75, 509 A.2d 1023 (1986). We must conclude that “[a] summary request such as this one does not comply with our rules of practice.” State v. Ostroski, supra, 558.

Neither are we persuaded by the defendant’s contention that an in-court discussion of whether the missing witness charge was warranted, held immediately before the court’s charge to the jury, is an acceptable alternative to the rules of practice. First, the rules of practice do not give oral argument as an alternative to a written request to charge. Second, the purpose of the provision, that attorneys help rather than hinder the trial court in its determination of whether a particular instruction should be given; State v. McIntosh, supra, 161; is not well served by oral argument. Rather than affording the court time to scrutinize the requests and investigate the relevant case law, so as to arrive at the proper legal answer, oral argument is likely to require the court to commit to memory the arguments of both sides, or to pressure it into making an immediate decision on the issue. We do not think it necessary or proper to burden the trial bench so.

The defendant, in his second claim, contends that the trial court erred in its failure to instruct the jury to determine the credibility of Richmond in the light of any motive for testifying falsely and inculpating the defendant. See State v. Cooper, 182 Conn. 207, 210-12, 438 A.2d 418 (1980); State v. Smith, 16 Conn. App. 223, 228-29, 547 A.2d 102 (1988). The defendant acknowledges that no request to charge was submitted on this issue, nor was an objection raised or an exception taken after the giving of the charge; therefore, our review of this claim is limited to a determination of whether plain error exists. See Practice Book §§ 852, 854 and 4185.

Review under the plain error doctrine “ ‘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.’ State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).” State v. Robinson, 14 Conn. App. 146, 151, 539 A.2d 1037 (1988). Compare Voloshin v. Voloshin, 12 Conn. App. 626, 630, 533 A.2d 573 (1987) (no plain error found) with Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223 (1987) (plain error found).

We do not agree with the defendant’s assertion that the trial court’s failure to instruct the jury, sua sponte, regarding the complainant’s interest in the outcome of the case is either an “obvious” error or a “truly extraordinary situation” so as to warrant a finding of plain error. “While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved, we have rejected the broad claim that a trial court has an independent obligation ‘ “to instruct sua sponte, on general principles of law relevant to all issues raised in evidence” ’; State v. Preyer, 198 Conn. 190, 198 n.9, 502 A.2d 858 (1985) . . . . ” State v. McIntosh, supra, 160.

Finally, the defendant avers that the trial court erred in admitting evidence of the use of narcotics by the defendant on the night in question, without instructing the jury that its consideration of this fact was to be limited solely to the issue of the defendant’s credibility. Again, no request was made by the defendant that such a limiting instruction be given at either the time of the introduction of the evidence or during the jury charge. Our review of the treatment of this evidence at trial, limited to the confines of plain error, results in a determination that the trial court did not err in failing to give, sua sponte, a limiting instruction. See State v. McIntosh, supra, 160; State v. Preyer, supra, 198.

During cross-examination, the defendant initially denied that he had taken any drugs on the night of the incident, although he did admit that he had been drinking beer. When confronted with the fact that the results of tests performed at the hospital that night revealed the presence of narcotics in his system, the defendant then confessed that he had ingested cocaine a half hour to an hour before the incident in question, and admitted that he was feeling the effects of the drug during his confrontation with the complainant.

In his brief, the defendant concedes that the state’s reference to the use of narcotics was to impeach his credibility first by revealing his change in testimony, and second by putting in question his ability to recall adequately the events of that evening. Both of these areas are permissible lines of inquiry on cross-examination. See, e.g., State v. Maldonado, 193 Conn. 350, 362, 478 A.2d 581 (1984) (“[t]he purpose of impeachment is to undermine the credibility of a witness so that the trier will disbelieve him and disregard his testimony”); State v. Esposito, 192 Conn. 166, 176, 471 A.2d 949 (1984) (“[t]he capacity of a witness to observe, recollect and narrate an occurrence is a proper subject of inquiry on cross-examination”).

Contrary to the argument of the defendant, nothing was said by the prosecution in its summation, or by the trial court in its charge, that would indicate to the jury that it could draw from the evidence of his drug use an inference that the attempted robbery was motivated by a need for money to support his drug habit. While the trial court did not specifically prohibit the jury from drawing such an inference, neither does a fair reading of the charge as a whole indicate that the charge affirmatively encouraged the jury to utilize this evidence for anything but a consideration of the defendant’s testimonial capacity. Under these circumstances, the court, in the absence of a proper objection or request, had no duty to instruct the jury, sua sponte, that its use of the evidence was limited.

There is no error.

In this opinion the other judges concurred.

       We find especially disingenuous the defendant’s statement that “[a]s the rule seeks clarity and brevity,” his request to charge satisfies these goals. Our interpretation of § 852 does not require a sacrifice of substantive content for the sake of brevity.

       In fact, the defendant may have been able to avoid the necessity of raising the claim on appeal that the trial court misconstrued the nature of his request to charge had he given the court the time and the means to consider adequately his request.

       The defendant’s version of the events was that the encounter with the complainant was not an attempted robbery but a simple “street fight.” The defendant claims, therefore, that the complainant also could have been charged with assault had the jury disbelieved the complainant’s claim that he had been attacked by the defendant.