author: Hennessy, J.

text:
    State of Connecticut v. Kevin Carr
    (12652)
    Dupont, C. J., and Spear and Hennessy, Js.
    Argued November 28, 1994
    decision released March 28, 1995

      Gerald, Hecht, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and EarlB. Richards, assistant state’s attorney, for the appellee (state).
   Hennessy, J.

The jury could reasonably have found the following facts. In the late afternoon of September 11,1992, Officer John P. Kelly of the New Haven police department was conducting surveillance of Asylum Street from the roof of the Jewish Home for the Aged. From this vantage point he observed the defendant standing near a gate between 72 and 74 Asylum Street. Kelly watched a woman walk up to the defendant and engage in a short conversation with him. The woman then removed something that appeared to be money from her pocket and handed it to the defendant. The defendant then walked over to some bushes near 72 Asylum Street, and removed a brown paper bag. The defendant took a small item from the bag, replaced the bag in the bushes and returned to the woman, who was still standing near the gate. The defendant then handed the item he had retrieved from the bag to the woman, and she departed on foot. Approximately ten or fifteen minutes later, Kelly observed an identical transaction between the defendant and another person.

Following these two transactions, Kelly made radio contact with Officer Walter Shreders, gave a description of the defendant, and requested that the defendant be detained. Shreders drove to Asylum Street, found the defendant standing in front of the gate between 72 and 74 Asylum Street, and placed the defendant in the police cruiser.

After watching Shreders detain the defendant, Kelly descended from the roof of the Jewish Home for the Aged, and went to the bushes in front of 72 Asylum Street. He removed the brown paper bag from the bush where the defendant had put it, and found twenty-five yellow glassine packets of cocaine in the bag.

The defendant claims that he first became aware at trial of the location from which Kelly had conducted the surveillance that led to his arrest. Kelly testified to the facts previously described, and the state introduced photographs of the area of 72 and 74 Asylum Street taken from the roof of the Jewish Home for the Aged. At the close of Kelly’s testimony, and after an additional witness had testified, the defendant moved for a mistrial, or, in the alternative, that the testimony of Kelly be stricken or that an order allowing the defendant to take photographs from the surveillance post at the Jewish Home for the Aged be issued. The defendant argues that the court should have granted this motion because the state had failed to comply with a pretrial discovery request that required disclosure of any exculpatory information, including the existence of any relevant “buildings, places or portions therein which are in the possession and control of any governmental agency.” See Practice Book § 741 (1) and (7). We do not agree.

Analysis of the defendant’s claim begins with Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). “In Brady the court held that ‘suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prosecution.’ Brady v. Maryland, supra, 87.” State v. Doolittle, 189 Conn. 183, 196, 455 A.2d 843 (1983). The Brady rule was refined in United States v. Agurs, 427 U.S. 97, 108, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), in which the United States Supreme Court stated that “ ‘the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ ” State v. Shannon, 212 Conn. 387, 399, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989).

Pursuant to Brady and Agurs, when the defendant claims error as a result of the state’s failure to disclose, he bears the burden of showing that the state had possession of material evidence favorable to his defense. State v. Crumble, 24 Conn. App. 57, 63, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991). “ ‘[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ ” State v. Shannon, supra, 212 Conn. 399, quoting United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). “In analyzing a Brady claim, the courts ‘must avoid concentrating on the suppressed evidence in isolation. Rather, we must place it in the context of the entire record. Evidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory. Implicit in the standard of materiality is the notion that the significance of any particular bit of evidence can only be determined by comparison to the rest.’ ” State v. Shannon, supra, 399-400, quoting Trujillo v. Sullivan, 815 F.2d 597, 613 (10th Cir.), cert. denied, 484 U.S. 929, 108 S. Ct. 296, 98 L. Ed. 2d 256 (1987); see also State v. Pollitt, 205 Conn. 132, 142-43, 531 A.2d 125 (1987).

Here, the defendant has not demonstrated a reasonable probability that the result of his trial would have been different if the state had disclosed the location of or provided access to the surveillance post prior to trial. As the trial court stated in its denial of the defendant’s motion for a mistrial, the police officer conducting the surveillance testified and was available for cross-examination by the defendant, and photographs of the view from the roof of the Jewish Home for the Aged were introduced into evidence. The defendant cross-examined Kelly extensively on his line of sight and his ability to view the defendant’s actions clearly. The accuracy of Kelly’s observations was also supported by his description of the defendant’s clothing to Shreders, and Kelly’s seizure of the bag containing cocaine from the location where Kelly had seen the defendant put it.

In light of all the evidence, we find that the defendant has failed to demonstrate that disclosure of or access to the surveillance location prior to trial might have affected the outcome of the trial. Therefore, we need not address the issue of whether the state had “possession, custody or control” of the roof of the Jewish Home for the Aged within the terms of Practice Book § 741 (7). The defendant has failed to establish that the requested disclosure was material and the state’s failure to disclose was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the same trial, the defendant was acquitted of one count 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).

       Practice Book § 741 provides in relevant part: “Upon a written motion made by a defendant within ten days after the entry of a plea, the prosecuting authority, within the time set by the judicial authority, shall disclose in writing the existence of and allow the defendant to inspect, copy, photograph and have reasonable tests made on any of the following relevant materials;
      “(1) Exculpatory information of materials . . .
      “(7) Buildings, places or portions thereof, which are in the possession, custody, or control of any governmental agency and which are material to the defense or about which the prosecuting authority intends to introduce evidence in chief at the trial.”


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    State of Connecticut v. Earl Smart
    (12546)
    O’Connell, Lavery and Schaller, Js.
    Argued October 31, 1994
    decision released March 28, 1995

      Deborah Del Prete Sullivan, assistant public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Joseph Harry, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sale of a narcotic substance in violation of General Statutes § 2la-278 (b), of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278 (b) and of conspiracy to sell a narcotic substance in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b).

On appeal, the defendant claims that (1) his convictions of possession of narcotics with intent to sell and sale of narcotics, both in violation of General Statutes § 21a-278 (b), violate his double jeopardy rights, (2) the trial court incorrectly admitted the statement of a non-testifying coconspirator where the defendant claims no evidence of a conspiracy existed, (3) the trial court incorrectly instructed the jury that it could consider the statement of the nontestifying coconspirator even if it determined that the statement was made before the defendant participated in the conspiracy, and (4) the trial court incorrectly instructed the jury regarding the overt act element of conspiracy. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The Bridgeport police received information that narcotic sales were occurring on Sanford Place in Bridgeport. Thereafter, members of the narcotics and vice division of the Bridgeport police department were assigned to attempt a “buy-bust” operation in that general area. In a buy-bust operation, an undercover police officer attempts to purchase narcotics from a suspected drug dealer and, after a purchase is made, backup units immediately proceed to the area and arrest the suspected dealer.

On May 26, 1992, Officer Warren DelMonte was assigned to attempt to purchase narcotics in the general area of 52 Sanford Place. Detective Ralph Villegas was part of the backup team, and was assigned to position his vehicle so that he could observe the transaction. The other members of the team, Detectives Richard DeRiso, Derwin Hill, Daniel Domkowski and Sergeant Joseph Convertito, were assigned to back up DelMonte should he need protection and, after DelMonte purchased the narcotics, to arrest the dealers.

Before the operation began, DelMonte was searched to make sure that he had no contraband or articles that would indicate that he was a police officer. Villegas then provided him with a $20 bill with which to make the narcotics purchase. The $20 bill was photocopied before they left the police station.

The team left the police station at approximately 3:30 p.m. Villegas was first to arrive in the area and parked his vehicle on Vine Street. From his location, he could see a section of Sanford Place that was not heavily trafficked. Villegas was able to monitor Del-Monte’s actions with binoculars.

At 3:40 p.m., DelMonte arrived and parked his vehicle in the area of 70 Sanford Place, near the middle of the block. He got out of his car and observed three men standing near a gray car across the street. These three men were later identified as the defendant, Den-ton Cleveland and Barrington Wilson. As he walked across the street toward the three men, Cleveland asked him, “How many do you want?” DelMonte held up four fingers and replied, “Four.” Wilson then walked approximately twenty feet away and stopped in the middle of the street. At the same time, the defendant stepped onto the sidewalk. DelMonte began to follow the defendant, but Cleveland instructed him to stop. Shortly thereafter, Cleveland instructed Del-Monte to follow the defendant. The two proceeded to a hollow steel pole connected to a chain-link fence. The pole had an opening on top. The defendant reached into the pole and pulled out a medium size clear plastic bag. Inside this bag were several smaller bags containing a white powdery substance. The defendant pulled out four of the smaller bags, each containing a white powdery substance, and handed them to DelMonte. In exchange, DelMonte gave the defendant the $20 bill that had been photocopied. The defendant then handed DelMonte an extra bag and said, “This one’s on me.” DelMonte put the bags he had purchased in his pocket, returned to his car and drove away. As he left, he broadcast a description of the three suspects over his car radio.

After DelMonte drove away, the backup team converged on the area to arrest the suspects. When they arrived, they observed the three suspects standing by the gray car. Wilson fled when he saw the police and was not caught. The defendant and Cleveland, however, were arrested at the scene. A search of the area produced no additional narcotics. At the police station, the defendant was found to be in possession of the $20 bill that had been photocopied.

DelMonte turned over the five bags he had purchased to Villegas. A field test of one of the bags produced a positive result for the narcotic cocaine. Subsequently, the five bags were taken to the state toxicology laboratory for additional testing where it was determined that the total weight of powders from all five bags was 270 milligrams. The test results further revealed that the five plastic bags contained cocaine.

I

In the defendant’s first claim, he argues that his convictions for the sale of a narcotic substance and for possession of a narcotic substance with intent to sell, both in violation of General Statutes § 21a-278 (b), violated his right against double jeopardy under the federal and state constitutions. The defendant cannot prevail in his double jeopardy claim for three reasons: (1) the defendant’s constitutional right against double jeopardy was not violated; (2) the merger doctrine is inapplicable; and (3) the actual evidence test is inapplicable.

The defendant’s claim is unpreserved as he did not raise the claim at trial. He now argues that his unpreserved claim is entitled to appellate review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). A defendant can prevail on an unpreserved claim only if “all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. The defendant’s claim fails to satisfy the third prong of Golding.

A

The double jeopardy clause embodies three protections. “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). The defendant’s claim in the present case rests on that aspect of double jeopardy that prohibits multiple punishments for conviction of a single offense. In this context, double jeopardy protection “ ‘is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.’ ” State v. Delgado, 19 Conn. App. 245, 250, 562 A.2d 539 (1989). Thus, the determinative question is whether the legislature intended the offenses at issue to be separate. Id., 251. “The issue, though essentially constitutional, becomes one of statutory construction.” State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985).

In order to prevail on his claim, the defendant must show (1) that the charged offenses arose out of the same act or transaction, and (2) that the two convictions are in reality the same offense. Multiple punishments are forbidden only if both conditions are met. State v. Snook, 210 Conn. 244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986).

For the first prong of the analysis of the defendant’s claim, it is necessary to review the information and the bill of particulars. In this case, the first count of the amended information alleged that the defendant sold cocaine to an undercover police officer on May 26,1992, at approximately 3:40 p.m., in the area of 60 Sanford Place in Bridgeport. The second count alleged that the defendant possessed cocaine with the intent to sell at the same time and place as is alleged in the first count. As the offenses were alleged to have been committed at the same time, on the same date and in the same location, the charged offenses arose out of the same transaction. See State v. Devino, 195 Conn. 70, 74, 485 A.2d 1302 (1985).

With regard to the second prong of the analysis, the defendant must demonstrate that the two convictions are in reality the same offense. “The test for determining whether two charged offenses constitute the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932).” State v. Woodson, 227 Conn. 1, 8, 629 A.2d 386 (1993). “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, supra, 304. The Blockburger analysis focuses on the statutory elements of the two crimes and the charging documents, and precludes examination of the evidence actually presented at trial. State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982); State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979). If each crime requires proof of a fact that the other does not, the offenses are not the same under Block-burger, “notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975).

Pursuant to § 21a-278 (b), an offense is committed by “[a]ny person who [1] manufactures, [2] distributes, [3] sells, [4] prescribes, [5] dispenses, [6] compounds, [7] transports with the intent to sell or dispense, [8] possesses with the intent to sell or dispense, [9] offers, [10] gives or [11] administers to another person any narcotic substance . . . .” In count one of the amended information, the defendant was charged with the sale of a narcotic substance in violation of § 21a-278 (b). In count two of the amended information, the defendant was charged with possession of a narcotic substance with intent to sell in violation of § 21a-278 (b). Applying the Blockburger test to these two offenses clearly establishes that they are not the same offense, nor do they stand in relation of greater and lesser included offenses. It is clear that each offense requires proof of a fact that the other does not.

In continuing this analysis, the holdings in State v. Brown, 163 Conn. 52, 301 A.2d 547 (1972), State v. Devino, supra, 195 Conn. 70, and State v. Hart, 23 Conn. App. 746, 585 A.2d 103 (1991), rev’d in part, 221 Conn. 595, 605 A.2d 1366 (1992), are significant. In Brown, our Supreme Court held that the trial court properly refused to instruct that possession of heroin was a lesser included offense of the sale of heroin. State v. Brown, supra, 63. The court reasoned that the sale of heroin does not necessarily require possession and thus the two offenses are not greater and lesser offenses. Id., 62-63. Thirteen years later in Devino, the court, relying on Brown, held that the defendant’s convictions for the sale of cocaine and for the illegal possession of cocaine, arising from the same transaction, did not violate double jeopardy principles. State v. Devino, supra, 75. The court reasoned that “[bjecause one may possess narcotics without selling them, a conviction for [the] illegal sale of narcotics requires proof of a fact that a conviction for illegal possession does not. Because one may either possess narcotics legally yet sell them illegally or sell narcotics without possessing them; see State v. Brown, [supra, 62-63]; a conviction for illegal possession of narcotics requires proof of a fact that a conviction for illegal sale does not.” State v. Devino, supra, 75. In Hart, this court followed the same rationale in holding that the defendant’s convictions for possession and sale of a narcotic substance, arising from the same transaction, did not violate the double jeopardy clause. State v. Hart, supra, 758.

The holdings of these cases apply here. The offense of possession of a narcotic substance with intent to sell requires proof that the defendant possessed a narcotic substance. There is no such requirement for the offense of the sale of a narcotic substance. State v. Devino, supra, 195 Conn. 75; State v. Hart, supra, 23 Conn. App. 758. Likewise, the offense of the sale of a narcotic substance requires proof of a sale. There is no such requirement for the offense of possession with intent to sell. State v. Devino, supra, 75. Therefore, under Blockburger the two offenses are not the same, nor do they stand in relation of greater and lesser included offenses.

Although the Blockburger test is satisfied, there remains the question of legislative intent. “ ‘The Block-burger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.’ ” State v. Greco, 216 Conn. 282, 292, 579 A.2d 84 (1990). Where there is no clear indication of a contrary legislative intent, however, the Blockburger presumption controls.

This statute does not indicate, on its face, that it was the intent of the legislature to prohibit multiple punishments for separate convictions of (1) possession of a narcotic substance with intent to sell and (2) the sale of the same narcotic substance. In this case, as in State v. Nixon, 231 Conn. 545, 651 A.2d 1264 (1995), the legislative history of the statute does not indicate that the legislature intended that the two crimes be considered the same offense for double jeopardy purposes. The defendant appears to suggest that because the two offenses are set forth in a single subsection, rather than in separate statutes, it could be inferred that multiple punishments are prohibited. This argument was rejected in State v. Tweedy, 219 Conn. 489, 495-96, 594 A.2d 906 (1991), and State v. Woodson, supra, 227 Conn. 11-12.

In Tweedy, where the defendant abducted and restrained a single victim, intending both to sexually assault her and to rob her, the court found no double jeopardy violation for the defendant’s convictions and sentences on two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B). State v. Tweedy, supra, 219 Conn. 495-96. Likewise, in Woodson, where the defendant set a single fire to a single building, the court found no double jeopardy violation for the defendant’s convictions and sentences on two counts of arson in the first degree in violation of General Statutes § 53a-lll (a) (3) and (4). State v. Woodson, supra, 227 Conn. 11-12. As the court in Woodson noted: “[T]he mere position of statutory language in the hierarchy of sections and subsections in the penal code does not control whether such language creates a separate offense for the purpose of double jeopardy analysis. The defendant’s assertion is in fact contradicted by our decision in Tweedy, wherein paragraphs (A) and (B) of § 53a-92 (a) (2) were regarded as separate crimes for double jeopardy purposes even though they occupied the same statutory section. If two subparagraphs in the kidnapping statute can be regarded as separate crimes, it follows apodictically that subdivisions (3) and (4) of § 53a-lll (a) can likewise be regarded as separate crimes for double jeopardy purposes despite their enactment as subdivisions of the same statute.

“Ultimately, whether statutory provisions are separate crimes meriting separate punishments for the purpose of double jeopardy analysis turns on whether the legislature intended them to be separate crimes. Although the location of statutory provisions in the penal code may be some evidence of legislative intent, the language of the provisions rather than where they are situated is more indicative of whether the legislature intended to create separate crimes and separate punishments.” (Emphasis added.) Id.

Clearly our Supreme Court has held that whether the statutory alternatives are set forth in separately numbered subdivisions or within the same subdivision they can be treated as completely distinct and separate offenses. State v. Chapman, 227 Conn. 616, 621, 632 A.2d 674 (1993); State v. Belton, 190 Conn. 496, 500-501, 461 A.2d 973 (1983).

B

The defendant claims alternatively that, pursuant to the common law merger doctrine, his conviction for possession of a narcotic substance with intent to sell merged into his conviction for the sale of the same narcotic substance.

The common law doctrine of merger dictates that when a defendant’s criminal act constitutes both a felony and a misdemeanor, and where there is identity of time, place and circumstance involved in the criminal act, the misdemeanor offense merges into the felony offense. State v. Andrew, 108 Conn. 209, 215-16,142 A. 840 (1928). Under this doctrine, however, a felony does not merge with a felony, nor a misdemeanor with a misdemeanor. Id., 216. Here, the offenses of possession of a narcotic substance are of the same grade, and, therefore, this early common law doctrine would be inapplicable. See State v. Setter, 57 Conn. 461, 469, 18 A. 782 (1889).

The merger doctrine may also have application to lesser included offenses. State v. Redmond, 10 Conn. Sup. 272, 274-75 (1942). As our Supreme Court observed: “ ‘The principles upon which the doctrine of merger seems to rest are that the offense merged is lesser than the one in which it is merged, and that the ingredients of the smaller one are so identical with the ingredients of the larger that when both have been committed they cannot in reason be separated; so that to punish an accused in such a case for both offenses would be in effect to punish the same act twice.’ ” State v. Andrew, supra, 108 Conn. 216, quoting State v. Setter, supra, 57 Conn. 468. In this case, the offenses of possession of a narcotic substance with intent to sell and the sale of a narcotic substance are of the same grade, and thus not lesser and greater offenses. Moreover, each offense contains an element that the other does not. State v. Devino, supra, 195 Conn. 75.

More recently, our Supreme Court addressed the merger doctrine as it relates to kidnapping offenses. In State v. Amarillo, 198 Conn. 285, 503 A.2d 146 (1986), the defendant was convicted of kidnapping in the first degree and sexual assault in the first degree. The defendant argued that the court should recognize the merger doctrine as precluding conviction for a kidnapping that was “merely incidental” to a sexual assault. The court refused to approve the doctrine. Id., 304. Likewise, our Supreme Court has repeatedly rejected the merger doctrine in other cases. See State v. Johnson, 185 Conn. 163, 177, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Briggs, 179 Conn. 328, 338, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912,10 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. DeWitt, 177 Conn. 637, 641, 419 A.2d 861 (1979); State v. Lee, 177 Conn. 335, 343, 377 A.2d 263 (1979); State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977). Instead, the court has held that “ ‘[wjhere the elements of two or more distinct offenses are combined in the same act, prosecution for one will not bar prosecution for the other.’ ” State v. Amarillo, supra, 305. “A defendant may be convicted of two crimes that derive from the same conduct . . . .’’Id. The merger doctrine is inapplicable to the defendant’s claim.

C

Alternatively, the defendant claims that his convictions for both possession of a narcotic substance with intent to sell and sale of the same narcotic substance violated the actual evidence test.

As discussed previously, the double jeopardy clause protects against successive prosecutions for the same offense and against multiple punishments for the same offense in a single trial. State v. Greco, supra, 216 Conn. 290. The Blockburger test was developed specifically to be used, in cases like this, for analyzing double jeopardy claims regarding multiple punishments for the same offense imposed in a single prosection. Grody v. Corbin, 495 U.S. 508, 516, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990). As the issue is essentially one of statutory construction, the inquiry is limited to examining the relevant statutes, the information, and the bill of particulars, and not the evidence presented at trial. State v. Greco, supra, 291.

The actual evidence test, unlike the Blockburger test, examines the evidence presented during the trial. The test has been used predominately in successive prosecution cases. See State v. Lonergan, 16 Conn. App. 358, 548 A.2d 718 (1988), aff'd, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). “Successive prosecution cases involve the core values protected by the double jeopardy clause. Successive prosecutions implicate a component of double jeopardy protection not implicated in single prosecutions of joined charges such as those involved in Blockburger. It protects not only against multiple punishments but also against multiple trials for the same offense. . . . When the issue is purely one of multiple punishments, the right to be free from vexatious proceedings simply is not present. The interest of the defendant in single trial prosecutions is in not having more punishment imposed than that intended by the legislature. When the issue is one of multiple trials, the double jeopardy clause vindicates principles of finality and repose of former judgments and of fundamental fairness that simply are not involved in a single prosecution of joined charges. Basically, it insures that having once ‘run the gauntlet’ of a criminal trial to either a judgment of conviction or acquittal, a person ought not to be required to run essentially the same gauntlet again.

“This rationale leads to our conclusion that the test for determining whether the ‘same offense’ is involved in successive prosecution cases should be one more protective of criminal defendants than is the relatively strict analytical Blockburger test that is decisive in single prosecution cases. We therefore adopt the actual evidence test in successive prosecution cases because it is a standard with more practical flexibility than the Blockburger same evidence test, as it directs a pragmatic inquiry into whether the evidence actually used to establish a conviction in the first prosecution is identical to that which will be used to establish a conviction in the second prosecution.” (Citations omitted; emphasis added.) State v. Lonergan, supra, 16 Conn. App. 377-78.

Because the actual evidence test has no application to double jeopardy claims arising from a single prosecution, the defendant’s claim must fail. The defendant has failed to demonstrate that his convictions and punishment for possession of a narcotic substance with intent to sell and the sale of the same narcotic substance violated his right against double jeopardy.

II

The defendant next argues that the trial court improperly failed to prevent, sua sponte, the state from introducing a statement made by Cleveland, a nontestifying coconspirator.

The following facts are relevant to this issue. During the trial, DelMonte, the undercover police officer who purchased cocaine from the defendant, testified, without objection, that after he got out of his car on Sanford Place, as he crossed the street and approached the defendant, Cleveland and Wilson, Cleveland asked him, “How many do you want?” DelMonte testified that on the basis of his experience in narcotics investigations, he believed that Cleveland was asking him how many bags of the narcotics that they were selling he wanted to purchase. DelMonte testified that he held up four fingers and responded, “Four.” As the defendant failed to raise a timely objection to testimony about Cleveland’s statement at the trial, this claim is unpreserved.

The defendant now argues that the unpreserved claim is reviewable under either the plain error doctrine or Golding. The defendant cannot prevail in either argument. First, the plain error review is inappropriate because the claimed error is not 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. Jeffrey, 220 Conn. 698, 710, 601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992).

Second, the defendant’s claim fails to satisfy the second prong of Golding as the defendant’s claim is not of constitutional magnitude. It is not necessary to review all of the prongs of Golding as “[i]n the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 213 Conn. 240. The second prong of Golding requires that the claim be of constitutional magnitude, alleging the violation of a fundamental right. Id. By arguing that his right to confrontation was violated when DelMonte testified that Cleveland asked him, “How many do you want?” the defendant has placed a constitutional tag on a nonconstitutional issue and Golding review is inappropriate. See State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982).

Ill

The defendant next argues that the court improperly instructed the jury regarding its consideration of a statement made by a nontestifying coconspirator.

The following facts are relevant to this issue. During the trial court’s charge to the jury, it instructed as follows regarding its consideration of out-of-court statements made by a coconspirator: “You heard testimony in this case that an individual named Denton Cleveland made certain statements to the undercover officer. Denton Cleveland is alleged by the state to be a coconspirator of the defendant in this case, Earl Smart. Any evidence of an out-of-court statement made by an alleged coconspirator shall not be considered by you as against another alleged conspirator, and that would be Mr. Smart in this case, unless (1) you determine from other independent evidence that, at the time the statement was made, a conspiracy to commit a crime existed; (2) you determine the statement was made while the person making the statement was participating in the conspiracy; (3) you determine that the statement was made before or during the time the person against whom it was offered was participating in the conspiracy; and (4) you determine that such statement was made in furtherance of the objective of the conspiracy.”

As the defendant failed to file a request to charge or take an exception to the charge, this claim is unpreserved. The defendant now argues that this unpreserved claim is reviewable under either the plain error doctrine or Golding. The defendant cannot prevail in this claim under either argument. First, as with the defendant’s second claim, plain error review is inappropriate here.

Second, the defendant’s claim fails to satisfy the second prong of Golding as that claim is not of constitutional magnitude. The defendant argues that the trial court’s instructions deprived him of his rights to a fair trial, due process of law and equal protection. “ ‘[WJhere the defendant fails to object to an instruction, “the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial ... is seriously undercut.” ’ ” (Citations omitted.) State v. Sawyer, 32 Conn. App. 854, 856, 632 A.2d 372, cert. denied, 228 Conn. 911, 635 A.2d 1230 (1993). In this case, the defendant’s claim concerns the trial court’s instructions to the jury regarding the circumstances in which the jurors could consider an out-of-court statement made by a nontestifying coconspirator. It is not a constitutional issue because it related solely to the jury’s consideration of a piece of evidence. The instruction was purely evidentiary in nature. The defendant has placed a constitutional tag on a nonconstitutional issue. State v. Gooch, supra, 186 Conn. 18. Under these circumstances, review of this claim under Golding is inappropriate.

IV

In the defendant’s final claim, he argues that the trial court improperly instructed the jury regarding the overt act element of the conspiracy charge.

The following facts are relevant to this issue. While instructing the jury on the conspiracy offense, the court gave the following charge on the element of an overt act: “The third element that the state must prove beyond a reasonable doubt is that any one or more of the persons who were parties to the agreement committed an overt act pursuant or in furtherance of the conspiracy. It makes no difference which one did the overt act. Nor is it necessary that the defendant himself committed the overt act or that all the conspirators did so. It is sufficient if any one or more of the persons who entered into the illegal agreement committed at least one overt act to further its purpose. An overt act is an open act which manifests or shows that it is part of a design or intent. It must be something more than the mere act of agreeing. It must be something that goes beyond merely making preparations in a general way. It must be something done after the agreement has been formed which furthers the purpose of agreement. If it furthers the purpose of illegal agreement, it makes no difference that the overt act itself may not be criminal. Of course, if the overt act itself is criminal, that would be sufficient, but it is not necessary that the act taken by itself be criminal.” (Emphasis added.)

The defendant does not argue that the trial court’s instruction on the law regarding the element of an overt act was improper. Instead, he argues that the trial court failed to instruct the jury factually as to what particular act the state was claiming constituted an overt act. He states that “by not instructing the jury as to what the state claimed constituted the overt act, the trial court did not adequately instruct the jury on the essential element of overt act.”

As the defendant failed to take an exception to this instruction, this claim is unpreserved. The defendant now argues that this unpreserved claim is reviewable under either the plain error doctrine or Golding. The defendant cannot prevail in either argument. First, plain error review is inappropriate here for the same reasons it is inappropriate in the second claim.

Second, the defendant’s claim fails to satisfy the third prong of Golding. The third prong of Golding requires the defendant to demonstrate that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 213 Conn. 239-40. The defendant has failed to demonstrate that his constitutional right to due process was violated by the trial court’s.instructions on the element of an overt act.

“ ‘On appeal, the adequacy of jury instructions is not determined by the giving of any one instruction, but by examining the instruction as a whole.’ ” State v. Brown, 199 Conn. 14, 27, 505 A.2d 690 (1986). The trial court’s instruction on the element of an “overt act” was virtually identical to that set forth in 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (2d Ed. 1986) § 5.1, p. 152. The jury was instructed that “an overt act is an open act which manifests or shows that it is part of a design or intent.” Additionally, the jury was instructed that an overt act “must be something more than the mere act of agreeing.” The jury was instructed that an overt act “must be something that goes beyond merely making preparations in a general way.” Finally, the jury was instructed that an overt act “must be something done after the agreement has been formed which furthers the purpose of the agreement.” These instructions were sufficient to guide the jurors in their deliberations as to what constitutes an overt act. See State v. McDaniel, 176 Conn. 131, 136-37, 405 A.2d 68 (1978); State v. Boykin, 27 Conn. App. 558, 570-72, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

With the court’s instructions as to what constitutes an overt act, the jury in this case could review the evidence presented at trial and determine whether an overt act was proven by the state. In the information, the state did not specify that a particular act by one of the conspirators constituted the overt act. Nevertheless, had the state done so, it would not have been limited to those acts alleged in the information. State v. Boykin, supra, 27 Conn. App. 571.

When instructing the jury, the trial court was not required to list specifically each and every potential overt act that the evidence revealed. Instead, the court properly provided the jury with instructions on assessing whether the evidence revealed an overt act on the part of one of the conspirators. The instructions were fully consistent with the law. Therefore, reviewing the charge as a whole, it is not reasonably possible that the jury was misled by the court’s jury charge and the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       This case was reargued and the trial court affirmed on other grounds. State v. Chapman, 229 Conn. 529, 643 A.2d 1213 (1994).


author: Spear, J.

text:
    State of Connecticut v. Charles A. Merdinger
    (11082)
    Lavery, Schaller and Spear, Js.

      Argued November 8, 1994
    decision released March 28, 1995

      George C. Springer, Jr., special public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Warren C. Murray, assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from a judgment of conviction, after a jury trial, of eight counts of failure to pay wages in violation of General Statutes § Sl^lb. The defendant claims that (1) § 31-71b is unconstitutional, (2) the trial court improperly failed to instruct the jury that § 31-71b requires proof of an intent not to pay wages and (3) the trial court improperly denied his motion for judgment of acquittal because the state failed to prove such intent and failed to prove that he was an employer pursuant to § 31-71b.

The jury reasonably could have found the following facts. Kristen Whiting began working as a waitress in May, 1990, at the Viva Zappata Restaurant in West-port. The restaurant was owned by a corporation known as the Mexican Cafe of Westport, Inc. The defendant, Charles A. Merdinger, was the president and sole stockholder of the corporation and had operated the restaurant for twenty-two years. Lynn McQuillan was employed by the corporation as the permittee, but she was neither an officer nor director and had no interest in the corporation. While Whiting worked as a waitress, she was paid her wages by check and tips in cash. Beginning on July 4, 1990, she commenced work as a bartender and was paid by check for two weeks. Thereafter, she was paid $150 in cash at the end of each evening through the end of August, 1990. In late August, the employer stopped paying Whiting in cash at the end of each day. She thereafter received the tips that she earned in cash and was to be paid by check for the hours worked.

For eight weeks, Whiting filled out a time card at the end of each day and made a copy for herself. During that eight week period, Whiting received her tip money, however, she did not receive a weekly paycheck. Whiting ceased working for the restaurant on October 25, 1990, and attempted to collect her past due wages on several occasions without success. Between October 25 and March 24,1991, she made at least ten requests to McQuillan for the past due wages. There were occasions when the defendant was present when Whiting asked McQuillan for her back wages.

Whiting finally received her wages in full approximately eleven months after she ceased working at the restaurant. The defendant was thereafter arrested and convicted for failing to piay wages during the eight week period in violation of § 31-71b. This appeal followed.

The defendant’s first three claims are intertwined as each turns on the constitutionality of the statute. We will discuss the claims together as the resolution of one resolves all.

I

The defendant claims that § 31-71b is unconstitutional because the statute does not prescribe a requisite mens rea, specifically, intent not to pay wages is not an element of the crime. Accordingly, he argues that the statute passes constitutional muster only if it is read as requiring that the state prove an intent to do the prohibited act (nonpayment of wages).

A party who challenges the constitutionality of a statute “bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality.” State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989); see Fleming v. Garnett, 231 Conn. 77, 88, 646 A.2d 1308 (1994). We, therefore, conduct our analysis of the constitutionality of § 31-71b with the defendant’s heavy burden of proof in mind.

It is well established that a criminal statute is not necessarily unconstitutional because it imposes strict liability. “[P]ublic policy may require that in the prohibition or punishment of particular acts it may be provided that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.” Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 70, 30 S. Ct. 663, 54 L. Ed. 930 (1910). “The constitutional requirement of due process is not violated merely because mens rea is not a required element of a prescribed crime.” United States v. Greenbaum, 138 F.2d 437, 438 (3d Cir. 1943).

The defendant argues, despite these principles, that § 31-71b violates the due process clause of the fourteenth amendment to the constitution of the United States because (1) it does not give fair notice of the conduct that will subject a person to the criminal sanctions of the statute, (2) it is not reasonable to hold corporate officers, who delegate the responsibility for payroll to others, liable for the innocent mistakes or errors that result in an employee’s not getting paid, (3) the conduct here was passive, and wholly passive conduct is not a proper basis for the imposition of criminal liability and (4) a criminal sanction was imposed on the defendant solely due to his status as an employer.

The defendant asserts, without analysis, that § 31-71b does not give fair notice of the proscribed conduct. This argument is without merit as the statutory requirements for regular payment of wages within a prescribed time period are clear and unambiguous. In addition, the jury reasonably could have found that prior to August, 1990, a field supervisor for the wage regulation division of the department of labor personally hand delivered a copy of § 31-71b to the defendant along with the department’s regulations. Therefore, the defendant had actual notice of the requirements of the statute.

The defendant’s claim that officers of companies should not be held liable for the innocent mistakes or errors of their employees overlooks the purpose of a regulatory statute such as § 31-71b. Under the defendant’s reasoning, an officer could avoid the criminal sanctions of a regulatory statute by delegating responsibility to another. Were we to accept this line of reasoning, it would thwart the purpose of the statute.

The defendant’s assertion that his passive conduct of not paying wages is insufficient to support a criminal conviction and his claim that he was convicted solely because of his status as an employer are untenable and not supported by any analysis. Criminal liability flows from the defendant’s failure to pay wages, not his status as an employer.

The defendant’s claim that his passive conduct is not punishable under the rationale of Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), is misplaced. “The due process limitation upon [imposing strict criminal liability], where the conduct involved is wholly passive, such as the failure of a convicted felon, with no notice of such a requirement, to register within a certain time after coming into a municipality having a criminal registration ordinance, is not applicable here.” State v. Kreminski, 178 Conn. 145, 150, 422 A.2d 294 (1979), distinguishing Lambert v. California, supra, 228. Under the defendant’s rationale, one could avoid the sanctions of most regulatory legislation by failing to do what the legislature requires and then claiming that such failure to comply is passive conduct and, therefore, not punishable. For example, an employer who failed to pay the legally mandated minimum wage could make such a claim.

The defendant claims, alternatively, that for the statute to be found constitutional we must read into it a requirement that the state must prove an intent to do the prohibited aet. The defendant concedes in his brief that the legislative history of the statute reveals that it was intended to assure the orderly payment of wages. The state correctly contends that this statute is one of strict criminal liability designed to eradicate the evil of nonpayment of wages even though those without an evil purpose might end up ensnared in its net.

In Morissette v. United States, 342 U.S. 246, 253-56, 72 S. Ct. 240, 96 L. Ed. 288 (1952), the Supreme Court espoused the reasoning behind imposing strict criminal liability for public welfare offenses, such as the one involved in this case. Morissette states: “While many of these [regulations on activities that affect public health, safety or welfare] are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called ‘public welfare offenses.’ These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. ... In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.” Id., 254-56.

We conclude that this public welfare offense properly does not require a mens rea and imposes strict criminal liability. The defendant benefited from the labors of the employees of Viva Zappata and should reasonably be expected to conform to the wage payment laws.

The defendant cites Morissette v. United States, supra, 342 U.S. 256, for the proposition that criminal offenses against the public health, safety and welfare may dispense with intent only where the penalties for violating such provisions are relatively small. The defendant suggests that the penalties imposed here are so severe as to preclude the offenses from being classified as strict liability public health or welfare offenses. While it is true that the Morissette court did state with respect to public welfare offenses that “penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation.” Id. We are not persuaded that General Statutes § 31-71g, which provides for penalties of $200 to $1000 and not more than thirty days or both, does violence to this principle. The defendant offers no authority in support of his assertion that the statutory penalties are not “small” enough to justify dispensing with intent. The penalties actually imposed appear to have been based on the defendant’s previous twenty convictions of the same offense for which he was fined and given a suspended sentence. The defendant also offers no authority for the proposition that we should consider the penalties actually imposed in determining the constitutionality of the statute. Accordingly, we decline to do so.

The defendant failed to show that § 31-71b is unconstitutional beyond a reasonable doubt, and we are not persuaded that § 31-71b requires proof of an intent to do the prohibited act. It necessarily follows that the trial court was not required to instruct the jury that the state was required to prove such intent, nor was the court required to grant the defendant’s motion for judgment of acquittal because the state did not prove such intent.

II

The defendant claims that the trial court improperly denied his motion for judgment of acquittal. He argues that the state failed to prove beyond a reasonable doubt that the defendant was Whiting’s employer pursuant to General Statutes § 31-71a (l). We disagree.

In reviewing a sufficiency of the evidence claim, we apply a two part test. "First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993), quoting State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992). The defendant argues that the state failed to prove (1) that he intended to do the prohibited act, i.e., failed to pay Whiting’s wages, and (2) that he was an employer as defined by § 31-71a (l).

The defendant argues that McQuillan’s and the defendant’s testimony shows that the defendant did not know about the wage dispute. As explained in the preceding section, the state does not have to prove intent because this is a strict liability offense. The defendant argues that there was no evidence that the defendant was Whiting’s employer. We conclude from our review that there was sufficient evidence from which the jury reasonably could have inferred that the defendant was Whiting’s employer. Corporations are included among the entities that may be “employers” pursuant to §§ 31-71a (l) and 31-71g. Section 31-71g provides that an officer of an employer corporation may be fined or jailed or both for violation of § 31-71b. The jury was entitled to find that the defendant was Whiting’s employer on the basis of his status as president and sole stockholder of the corporation over a twenty-two year period. Therefore, the court properly denied the motion for judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-71b provides: “weekly payment of wages. (a) Except as otherwise provided in section 12-34b, each employer, by himself, his agent or representative, shall pay weekly all moneys due each employee on a regular pay day, designated in advance by the employer, in cash, by negotiable checks or, upon an employee’s written request, by credit to such employee’s account in any bank which has agreed with the employer to accept such wage deposits.
      “(b) The end of the pay period for which payment is made on a regular pay day shall be not more than eight days before such regular pay day, provided, if such regular pay day falls on a nonwork day, payment shall be made on the preceding work day.”

       The fourteenth amendment to the United States constitution provides in pertinent part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law . . . .”

       The defendant also claims that § 31-71b is in violation of article first, § 8, of the constitution of Connecticut. The defendant offered no independent analysis of the state constitutional claim, therefore, we need not address it. See State v. Robinson, 227 Conn. 711, 721, 631 A.2d 288 (1993).

       In the present case the defendant was sentenced to 240 days in jail suspended after ninety days and fined $8000.

       At the time of these offenses, General Statutes (Rev. to 1989) § 31-71 g provided: “penalty. Any employer or any officer or agent of an employer or any other person authorized by an employer to pay wages who violates any provision of sections 31-71a to 31-7U, inclusive, may be fined not less than two hundred nor more than one thousand dollars or imprisoned not more than thirty days or both for each offense.”

       The state asserted the prior convictions and disposition in its brief and in oral argument without rebuttal by the defendant.

       General Statutes § 31-71a(l) provides: “ ‘Employer’includes any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased person, the conservator of the estate of an incompetent, or the receiver, trustee, successor or assignee of any of the same, employing any person, including the state and any political subdivision thereof . . . .”

       See footnote 7.

       See footnote 7.

       See footnote 5.


text:
    State of Connecticut v. Samuel George
    (12119)
    Landau, Spear and Hennessy, Js.

      Argued November 30, 1994
    decision released March 28, 1995

      Todd A. Edgington, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward Wilson, assistant state’s attorney, for the appellee (state).
   Hennessy, J.

The defendant appeals from the judgment of conviction, following a jury trial, of risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the risk of injury statute is unconstitutionally vague as applied to the facts of this case. We disagree and affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 15, 1991, at approximately 5:40 p.m., Officer Ellen Stoldt of the East Hartford police responded to a report that an infant had been left in a car in a parking lot. She discovered a seventeen month old infant in a car and, when the defendant returned to the car, Stoldt learned that the child was his and warned him not to leave his child unattended because he could be subject to arrest. Later that evening, between 8 and 9 p.m., Stoldt responded to a call that an infant had been left in a car in the parking lot at a bar in East Hartford. Upon arriving at the bar, Stoldt found the car empty and questioned the defendant as to where his child was. The defendant said that his child was at home. Stoldt asked if anyone was with the child, and the defendant said no. Stoldt dispatched other police officers to the defendant’s apartment and, when they found the child unattended, Stoldt arrested the defendant.

“ ‘In order to surmount a vagueness challenge, a statute must afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.’ ” State v. Erzen, 29 Conn. App. 591, 593, 617 A.2d 177 (1992); see also State v. Pickering, 180 Conn. 54, 60, 428 A.2d 322 (1980); State v. Jones, 29 Conn. App. 683, 687, 617 A.2d 918 (1992). Although the constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties, “[a] penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning.” State v. Erzen, supra, 594, citing State v. Pickering, supra, 61. Even if the language of a statute fails to provide definite notice, fair warning can be provided by prior judicial opinions involving the statute; State v. Pickering, supra, 62-63; State v. Palan gio, 24 Conn. App. 300, 303, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); or by an examination of “whether a person of ordinary intelligence would reasonably know what acts are permitted or prohibited by the use of his common sense and ordinary understanding.” State v. Erzen, supra, 594.

“Section 53-21 proscribes ‘two general types of behavior ... (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.’ (Citations omitted.)” State v. Jones, supra, 29 Conn. App. 687, quoting State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). The defendant was convicted under the first prong of this statute. Under this prong “ ‘the creation of a prohibited situation is sufficient’ ” to trigger criminal liability. State v. Palangio, supra, 24 Conn. App. 303, quoting State v. Perruccio, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984).

Here, the defendant had fair warning that his conduct was proscribed by law. Approximately three hours before he was arrested, the defendant was warned by a police officer that leaving his child unattended could result in his arrest. Despite this actual notice that leaving his child unattended could lead to criminal consequences, the defendant left his child unsupervised later that same evening. It seems particularly audacious for the defendant to claim a lack of fair warning that his conduct was criminal in these circumstances.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       Because the defendant’s sole claim on appeal is that the statute was unconstitutionally vague in application to the facts of this case, we need not consider the argument in his brief that § 53-21 fails to establish minimal guidelines to govern law enforcement. Although the guarantee against standardless law enforcement is a component of the void for vagueness doctrine, it is only a relevant inquiry when a statute is challenged as facially void for vagueness. State v. Pickering, supra, 180 Conn. 57; State v. Erzen, supra, 29 Conn. App. 593-94; State v. Palangio, 24 Conn. 300, 303, 588 A.2d 644, cert. denied, 218 Conn. 911, 591 A.2d 813 (1991).

       The defendant’s actual awareness that he was creating a situation inimical to the welfare of his child is further evidenced by the attempts the defendant made to lessen the possibility for harm by storing several shotguns, shells, and other dangerous instrumentalities in the child’s crib, where the child could not gain access, and fastening certain kitchen cabinets with child-proof latches.


author: Foti, J.

text:
    Steven Gibson v. Keebler Company et al.
    (13329)
    Dupont, C. J., and Foti and Heiman, Js.
    Argued January 17
    decision released March 28, 1995

      Richard L. Aiken, Jr., with whom, on the brief, was Douglas L. Drayton, for the appellant (plaintiff).

      John T. Scully, for the appellees (defendants).
   Foti, J.

The plaintiff appeals from a decision of the compensation review board of the workers’ compensation commission (review board) affirming the commissioner’s dismissal of his claim for lack of jurisdiction. We affirm the decision of the review board.

The facts necessary to the resolution of this appeal may be summarized as follows. On August 13, 1982, the plaintiff, Steven Gibson, was injured at O’Hare International Airport in Chicago, Illinois, during the course of his employment with the defendant, Keebler Company. He submitted a claim and was paid benefits pursuant to the Illinois Workers’ Compensation Act. On June 25,1986, he submitted a claim for supplemental benefits under the Connecticut Workers’ Compensation Act, General Statutes § 31-275 et seq. The commissioner dismissed the plaintiff’s claim under the Connecticut Workers’ Compensation Act. In the written decision dated July 15, 1992, the commissioner found that Connecticut was not the place of injury and that the plaintiff’s employment contract originated in Massachusetts. The commissioner also concluded that Connecticut was not the place of the employment relation. He found that, at the time of injury, the plaintiff was on the corporate staff of his employer located in Illinois, and that he had an office in Illinois. At the time, the plaintiff was employed as regional sales manager and was responsible for sales in the company’s Atlantic region. This region included territory from Norfolk, Virginia, to Canada, and from Albany, New York, to Allentown, Pennsylvania. The plaintiff reported his injury to his immediate supervisor at his employer’s headquarters in Illinois, and filed his claim for benefits in that state. The plaintiff did not make a claim for benefits in Connecticut until almost four years after his injury. The commissioner found that “[t]here were not significant contacts with the state of Connecticut” and concluded that Connecticut did not have jurisdiction over the plaintiff’s claim.

The plaintiff appealed the commissioner’s decision to the compensation review board pursuant to General Statutes § 31-301 (a). The review board affirmed the commissioner’s conclusion that no award of benefits could be made in Connecticut because Connecticut was not the place of the injury, the place of the employment contract or the place of the employment relation. See Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 195, 588 A.2d 194 (1991). The plaintiff appeals from this judgment. The sole issue is whether the conclusion of the commissioner, as affirmed by the review board, that the evidence was not sufficient to establish that Connecticut was the place of the employment relation is proper.

“As a preliminary matter, we note that when a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner has the power and duty, as the trier of fact, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988).” Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991). The commissioner’s conclusions from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Romanski v. West Hartford, 34 Conn. App. 307, 316, 641 A.2d 439 (1994). Our scope of review of the actions of the review board is similarly limited. Id. The decision of the review board must be correct in law, and must not include facts found without evidence or fail to include material facts that are admitted or not disputed. Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994).

The plaintiff argues that he established that he had an office located in Manchester, Connecticut, and that he spent time at that office, and had files and a secretary there. He argues that there was ample evidence presented to support a finding that the majority of his work was performed in Connecticut, that significant contacts with Connecticut existed, and that, therefore, his claim is subject to the Connecticut Workers’ Compensation Act.

The review board was aware that the commissioner who decided the matter had heard and seen the witnesses, and that the issue of credibility was of great importance in his decision. See Schick v. Windsor Airmotive Division/Barnes Group, Inc., 34 Conn. App. 673, 678, 643 A.2d 286 (1994). The review board noted that conflicting evidence had been presented. For example, the plaintiff testified before the commissioner that his office was in Connecticut and that “when he was in the home office in Illinois, he took whatever office was available to him for meetings.” In his deposition, however, he indicated that he was on the corporate staff technically based in Illinois and that he had a Chicago office. The review board correctly recognized that it was within the province of the commissioner to resolve the inconsistencies or contradictions in the evidence, and that it, as a review board, does not retry the facts. The trier of the facts determines with finality the credibility of the witnesses and the weight to be accorded their testimony. Vanzant v. Hall, supra, 219 Conn. 677; Barry v. Posi-Seal International, Inc., 36 Conn. App. 1, 7, 647 A.2d 1031 (1994). The commissioner’s conclusion, that Connecticut was not the place of the employment relation, drawn from the facts, must stand unless it resulted from an incorrect application of the law to the facts or from an inference illegally or unreasonably drawn from those facts. Fair v. People’s Savings Bank, supra, 207 Conn. 539.

The plaintiff also argues that the commissioner applied an improper standard in concluding that there were not “significant” contacts with the state of Connecticut. He argues that the standard under Cleveland v. U.S. Printing Ink, Inc., supra, 218 Conn. 195, is whether there is sufficient evidence of an employment relation. After a review of the record, we conclude that the trial commissioner applied the proper standard for a determination as to whether Connecticut is “the place of the employment relation.” (Emphasis added.) Id. The commissioner determined that Connecticut was not the place of the employment relation. We conclude that the findings and conclusion of the commissioner were supported by the evidence. Because the conclusion drawn by the commissioner reflects an appropriate application of the law to the subordinate facts, the review board properly affirmed the decision of the commissioner.

The decision of the review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-30 lb provides: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the appellate court.”

       The commissioner’s findings were based on the following information: Facts stipulated to by all parties, the plaintiff’s deposition, a transcript of a formal hearing held before another commissioner on February 14,1991, and other evidence, including exhibits. The commissioner noted that “[t]he question of the location of the [plaintiff’s] employment involved conflicting evidence.”

       General Statutes § 31-301 (a) provides in relevant part: “At any time within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner . . . either party may appeal therefrom to the Compensation Review Board . . . .”


text:
    Donald H. Fiddelman v. Popcorn Redmon
    (12489)
    Foti, Lavery and Schaller, Js.
    Argued December 7, 1994
    decision released April 4, 1995

      Richard L. Albrecht, for the appellant (defendant).

      Kathleen A. Hogan, with whom, on the brief, was Arnold H. Ruthin, for the appellee (plaintiff).
   Lavery, J.

The issue in this appeal is whether the termination of a birdnesting arrangement by giving the plaintiff exclusive possession of the marital home constituted a modification of the dissolution property distribution order or a modification of the custody and visitation order. The trial court found that it was a modification of the custody and visitation order, and we affirm the judgment of the trial court.

The pertinent facts are as follows. After a lengthy trial, the marriage of the parties was dissolved on June 13, 1991. Both sought sole legal custody of their two minor children, bom January 2,1986, and May 8,1987. This issue was vigorously litigated, and the children were represented by counsel.

The trial court, Freedman, J., awarded sole legal custody of the minor children to the plaintiff. It ordered shared physical custody and approved an arrangement that had been agreed on by the parties in which the children lived in the marital residence with the defendant for five days a week, and then the defendant would leave and the plaintiff would move in for the weekend. This practice is called birdnesting.

The trial court ordered the immediate listing for sale of the parties’ jointly owned marital home in Greenwich where the birdnesting took place, and it ordered the payment of $250,000 to the defendant upon its sale. The trial court’s orders stated in the memorandum of decision: “Until the sale and closing on the Greenwich property, or until the defendant wife elects to vacate said premises, whichever event shall first occur, the parties shall continue the ‘birdnesting’ arrangement that is presently in existence except that it shall be for the times hereinabove ordered. That is, each party shall have the exclusive use and occupancy of said premises during such period of time that the children are residing with that party. . . . Until the sale and closing on the Greenwich property the plaintiff husband shall pay when due, and be responsible for, all costs in connection with said premises including mortgage, real estate taxes, homeowners insurance, utilities and routine maintenance and repairs.” (Emphasis added.)

The parties appealed from the trial court’s decision. While the appeal was pending, the plaintiff filed motions for temporary exclusive possession and for modification of the allocation of parents’ time with the children; the defendant sought a modification of custody. The trial court, Novack, J., heard the three motions together before the decision on the appeal from the dissolution action.

Testimony was presented on twenty-five trial days during which over 100 exhibits were offered. A guardian ad litem, who was represented by counsel, was appointed for the children. The trial court heard evidence from Herbert Sacks, a psychiatrist, Stephen Herman, a psychiatrist the court appointed as evaluator, and Albert McGoldrick, a family services counselor, that the birdnesting should end. The guardian ad litem concurred with these recommendations. Judge Novack found that there was a substantial change in the circumstances regarding the best interests of the children since the dissolution of June 13, 1991. The trial court based its finding on the testimony of the experts. The court found that the present arrangement was not working and that changing the living arrangement of the children was necessary. The court awarded sole legal and physical custody to the plaintiff and liberal visitation rights to the defendant. The court further found that it was in the children’s best interests for them to continue living in the family residence for a period of time and that it was not in their best interests for both parents to continue living in the residence. The court ordered that the plaintiff and the children would have exclusive possession of the family home and that the defendant should vacate. The court further ordered that “because the welfare of the children is at stake, this order will not become automatically moot when the Appellate Court issues its decision. The orders impact on parenting time and will continue until further order of this court or the Appellate Court.” In addition, the court made the orders effective immediately and ordered that there would be no stay if there was an appeal. In response to a motion for articulation, the trial court stated: “The reason why the court directed that the exclusive possession order ‘will not become automatically moot .... is that the evidence revealed that a crisis existed, particularly for the older child of the parties, because of the environment created by the parties’ interaction in living under a birdnesting arrangement. It was the unanimous opinion of the experts who testified, as well as the guardian ad litem, that birdnesting should terminate and the children shoúld reside with their father in the marital home. Therefore, it was clearly in the children’s best interests that the order entered by this court not be changed without some basis for the change.

“This court did not hear the motion for exclusive possession in a vacuum. It heard this motion in conjunction with the other two motions involving parenting time and custody. It entered all orders on the basis of the best interest of the children. Other than action by the Appellate Court, this court intended all its orders to remain in effect, unless they were modified by subsequent hearings.”

The defendant appealed claiming that giving the exclusive possession of the marital home to the plaintiff was a modification of the property distribution, which was not modifiable, and not a modification of custody and visitation, which is modifiable. We find no merit in the defendant’s claims.

We affirmed the original dissolution action and certification to appeal to the Supreme Court was denied. Fiddelman v. Redmon, 31 Conn. App. 201, 623 A.2d 1064, cert. denied, 226 Conn. 915, 628 A.2d 986 (1993). We stated in the opinion with reference to the bird-nesting arrangement: “This exclusive use and occupancy coincides with the period of time that each party will reside with the children according to the custody orders.” Id., 207.

Absent waiver, consent, submission to jurisdiction or statutory exception, the court is without subject matter jurisdiction to modify or correct a final judgment after the four month period for opening or setting aside a civil judgment has passed pursuant to General Statutes § 52-212a. Kenny v. Kenny, 226 Conn. 219, 222, 627 A.2d 426 (1993); Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980). The court, however, retains continuing jurisdiction to modify final orders for the periodic payment of alimony or support, and the care, custody and visitation of minor children, subject to proof of certain conditions as provided in General Statutes §§ 46b-86 and 46b-56. The court does not retain “continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other under General Statutes § 46b-81.” Bunche v. Bunche, supra, 289.

The defendant claims on the basis of the Supreme Court’s ruling in Passamano v. Passamano, 228 Conn. 85, 634 A.2d 891 (1993), that the trial court’s order to the defendant to vacate the home was a modification of an order for the assignment of the plaintiff’s property to the defendant pending sale.

In Passamano, our Supreme Court stated: “When the decree is silent as to the characterization of an order, an analysis of the structure of the dissolution decree is highly instructive; Blake v. Blake, 211 Conn. 485, 497, 560 A.2d 396 (1989); and an ambiguous order should be examined in the context of the entire decree. Viglione v. Viglione, 171 Conn. 213, 216, 368 A.2d 202 (1976).” Id., 91.

The defendant claims that the provision relating to the use of the home must be a property assignment, under the rationale of Passamano, because it follows three paragraphs relating to the assignment of property. A review of the dissolution action’s memorandum of decision shows, however, that ten of the eleven paragraphs that follow the subject paragraph set forth orders in the nature of alimony and support. Thus, the defendant’s analysis based on proximity is inconclusive and without merit.

In addition, the circumstances in Passamano in which proximity had some significance are distinguishable from those in this case. In Passamano, the court was concerned with determining whether a provision requiring a party to pay specified monthly expenses relating to the marital home constituted a part of the property distribution. The court noted there that the subject order appeared in the same paragraph as other orders that clearly were part of the property distribution. Passamano v. Passamano, supra, 228 Conn. 92. Nothing in that decision suggests that the proximity of separate paragraphs to one another has any significance.

In the context of the entire dissolution decree, the division between the provision concerning the occupancy of the home and those concerning custody, alimony and child support is immediately apparent. The defendant cannot prevail on her claim that the provision relating to use of the home is a property assignment.

It is clear from the decisions by the trial court, the modification court, and this court that the exclusive use and occupancy of the Greenwich home was based solely on that period of time that the children were to reside with the party. In effect, the trial court awarded possession of the marital home to the children, giving each parent during his and her time of legal custody the right to occupy the house with the children exclusive of the other parent until the house is sold. Possession of the marital home in a birdnesting arrangement is not a property assignment but is part of the custody award.

The defendant’s other claim is that the trial court went beyond the plaintiff’s motion in ordering exclusive possession of the home to the plaintiff beyond the period of time requested in the plaintiff’s motion. In the plaintiff’s motion, the plaintiff asked for the temporary exclusive possession of the marital home pending the resolution of the postjudgment motions and appeal in this matter. The defendant claims that even if the award of exclusive possession to the plaintiff is valid, it had to cease upon the resolutions of the pending motions and appeal in this matter. We disagree.

The defendant claims that a trial court hearing a custody and visitation matter is limited in fashioning the custodial order to adopting the specific custodial arrangement sought by one of the parties. Under Connecticut law, the trial court’s discretion as to custody and visitation issues is not limited in that fashion. It has long been established that the court has an independent duty to inquire into custody arrangements even when the parties are in agreement; Strohmeyer v. Strohmeyer, 183 Conn. 353, 355, 439 A.2d 367 (1981); and that a custody agreement will not be recognized or enforced if it does not appear to be in the best interests of the child. Burke v. Burke, 137 Conn. 74, 80, 75 A.2d 42 (1950); Krasnow v. Krasnow, 140 Conn. 254, 260, 99 A.2d 104 (1953). Further, it has been recognized that in contested custody proceedings, the interests of one or both of the parents may be adverse to the best interests of the child. See G. S. v. T. S., 23 Conn. App. 509, 582 A.2d 467 (1990). In summary, the Connecticut law as to custody determinations pursuant to General Statutes § 46b-56 is that the court has an independent duty to determine an arrangement that meets the best interests of the child and is not limited to adopting the claims of one or both of the parents.

The judgment of modification of custody and visitation is affirmed.

In this opinion the other judges concurred.

       We received a fax transmission on the day of oral argument in this appeal from the counsel for the guardian ad litem of the children that stated in part: “The issue being argued today is a purely legal issue which does not have any bearing on the question of custody or the best interests of the children. Neither I nor the Guardian have taken a position on the question before the court today; we both feel that it has been expertly briefed by both of the parties’ attorneys. Both of the parties’ attorneys have been notified and consulted, and both have agreed that the presence of the children’s attorney and guardian is unnecessary. Among the attorneys, our presence was never expected.”
      We disagree with the assessment that the guardian for the children had no role in the issues on appeal. The issues do concern custody and the best interests of the children. We refer the guardian and counsel to G. S. v. T. S., supra, 23 Conn. App. 509, for future direction and guidance. See also Jaser v. Jaser, 37 Conn. App. 194, 197-200, 655 A.2d 790 (1995).