text:
    Larry E. Chace v. George D. Bronson, Warden
    (7486)
    Spallone, O’Connell and Stoughton, Js.
    Argued June 19 —
    decision released September 12, 1989

      John R. Williams, for the appellant (petitioner).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, was Dennis O’Connor, assistant state’s attorney, for the appellee (respondent).
   Spallone, J.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus founded on ineffective assistance of counsel. The petitioner claims that he was denied his right under the sixth amendment to the United States constitution to effective assistance of counsel at his murder trial. We find no error.

After a trial by jury, the petitioner, Larry E. Chace, was convicted of murder in violation of General Statutes § 53a-54a. He was subsequently sentenced to a term of imprisonment of not less than seventeen years nor more than life. He appealed the judgment of conviction to the Supreme Court, claiming (1) that there was insufficient evidence to convict him of murder, (2) that the prosecutor made improper remarks to the jury, thus depriving him of his right to a fair trial, and (3) that he had been deprived of his right to effective assistance of counsel. State v. Chace, 199 Conn. 102, 505 A.2d 712 (1986). The Supreme Court found no error as to the first and second issues and declined to consider the petitioner’s claim of ineffective assistance of counsel because the record was inadequate for proper review. Id., 109. The petitioner subsequently petitioned the Superior Court for a writ of habeas corpus, claiming ineffective assistance of counsel, in violation of his rights under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. The petitioner’s claims of ineffective assistance of counsel involved allegations that his trial counsel (1) failed to seek out essential witnesses and produce them at trial, (2) failed to present available evidence of the defendant’s intoxication, (3) failed to request a jury instruction on the lesser included offense of manslaughter, (4) failed to except to the trial court’s failure to charge on the lesser included offense of manslaughter, (5) failed to argue evidence of the petitioner’s intoxication to the jury, and (6) failed to argue to the jury the lesser included offense of manslaughter. The habeas court rejected all the petitioner’s claims of ineffective assistance, except the claim that counsel had erroneously failed to request-a jury instruction on a lesser included offense. With regard to that claim, the court held that the petitioner would have been entitled to a charge on manslaughter, if such a charge had been requested, and that counsel’s failure to request the charge was not a professionally reasonable judgment under the standards articulated in Strickland v. Washington, 466 U.S. 668, 690-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1983), reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). The court held, however, that the petitioner had failed to make the additional showing required by Strickland that there was a reasonable probability that counsel’s error was so prejudicial to the defense that, but for the error, the result of the proceeding would have been different. This appeal followed.

The underlying facts were set out in detail by our Supreme Court in its opinion in the petitioner’s first appeal. See State v. Chace, supra, 103-104. To summarize, the victim, Sheldon Merrill, Jr., and a friend became involved in an argument with the petitioner at the Speak Easy Cafe in Berlin. The petitioner and Merrill went out into a nearby parking lot, where a fight ensued and the petitioner stabbed Merrill to death. It was established at trial that the petitioner had been drinking beer for “ ‘a couple of hours’ ” before the stabbing, and the victim’s friend testified that the petitioner “ ‘appeared to be under the influence’ ” at the time. Id. No other evidence was offered regarding the petitioner’s intoxication.

The petitioner’s claims of error fall into three categories. The petitioner contends that the habeas court erred in failing to find ineffective assistance of counsel on the grounds (1) that counsel failed to conduct a proper investigation of the petitioner’s alleged intoxication, (2) that counsel failed to request a jury instruction on second degree manslaughter, and (3) that counsel failed to argue intoxication during his summation to the jury.

Before addressing the petitioner’s claims, we review generally the principles governing claims of ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, the petitioner must show (1) that the attorney’s performance was so deficient and his errors so serious that counsel was, in effect, not functioning as counsel, and (2) that those errors functioned so as to deprive the petitioner of a fair trial. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985), citing Strickland v. Washington, supra, 687, 694. The petitioner must show that his attorney’s performance was not reasonably competent or was not within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. Williams v. Manson, 195 Conn. 561, 564, 489 A.2d 377 (1985). Petitioners are entitled to reasonably professional assistance, not to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977). Judicial scrutiny of counsel’s performance must be highly deferential, and a reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Levine v. Manson, supra. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. “In fairly assessing the attorney’s conduct it is required ‘that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ ” Id., quoting Strickland v. Washington, supra, 689. The seeond component of the Strickland test requires that the petitioner demonstrate that counsel’s lack of competency contributed to his conviction. Levine v. Manson, supra. The petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Aillon v. Meachum, 211 Conn. 352, 559 A.2d 206 (1989). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id.

The petitioner bears the burden of making both showings. Id. “ ‘Unless a defendant [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.’ ” Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094 (1989), quoting Strickland v. Washington, supra, 687.

The petitioner’s first claim is that his lawyer failed to conduct a proper investigation regarding his claim that he had been highly intoxicated at the time of the killing. He first contends that, if counsel had conducted a more thorough investigation, he would have uncovered additional evidence of intoxication that would have persuaded the jury that the petitioner was incapable of forming the requisite intent to commit the crime of murder. The petitioner points to two investigatory lapses, claiming that, although he gave his attorney the name of a friend, Eddie Barber, who had been with him in the bar on the date of the killing and who was willing to help locate witnesses, the attorney never contacted Barber or located any witnesses. The petitioner refers as well to his attorney’s failure to contact the administrator of the victim’s estate, who was proceeding with a suit under the Dram Shop Act against the cafe, in order to obtain information developed in that suit bearing on the petitioner’s intoxication.

The petitioner’s ruminations on what might have happened if his attorney had conducted a more thorough investigation are largely speculative. Defense counsel is not required to investigate everyone whose name happens to be mentioned by the petitioner. Schwander v. Blackburn, 750 F.2d 494, 500 (5th Cir. 1985). “Defense counsel will be deemed ineffective only when it is shown that a defendant [petitioner] has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.” State v. Talton, 197 Conn. 280, 297-98, 497 A.2d 35 (1985).

The habeas court determined that, under the facts and circumstances of this case, trial counsel’s investigation was not so inadequate as to constitute ineffective assistance of counsel. This determination is amply supported by the record. At the evidentiary hearing before the habeas court, counsel testified that his investigation of the case included review of a copy of the prosecution’s entire file, discussions with the petitioner and his brother, a trip to the cafe where the killing occurred in an effort to locate an employee who might remember the petitioner, and a discussion with an attorney representing the family of the victim in the Dram Shop suit. Counsel concluded, as a result of his investigation, that the issue of intoxication would be part of the trial defense. Under these circumstances, the habeas court correctly concluded that counsel’s investigation was adequate. Although counsel’s investigation was apparently not broad enough to include interviews with Barber, the petitioner’s friend, and with any individuals Barber might have been able to name, our review of the record persuades us that counsel nevertheless had sufficient information to conclude that additional investigation was unnecessary. See Siemon v. Stoughton, 184 Conn. 547, 557, 440 A.2d 210 (1981). Under these circumstances, we conclude that counsel’s conduct fell “within the wide range of reasonable professional assistance.” Levine v. Manson, supra.

The petitioner next faults his attorney for not calling the petitioner’s brother, James Chace, as a witness at trial. At the habeas hearing, James Chace, an eyewitness to the killing, testified that the petitioner had been intoxicated at the time of the killing and that he, Jarnes Chace, had told the petitioner’s counsel about the petitioner’s intoxication. The habeas court found that James Chace’s testimony regarding the degree of the petitioner’s intoxication was not credible and would not have been helpful to the defense and that, thus, there was an adequate explanation for counsel’s failure to call him as a witness at trial. We agree.

The petitioner’s complaints that trial counsel failed to call certain witnesses are not favored because the presentation of testimonial evidence is a matter of trial strategy. Schwander v. Blackburn, supra. “The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.” State v. Talton, supra, 297. We have reviewed the record and conclude that the habeas court did not err in concluding that counsel’s decision not to call James Chace as a witness was within the range of reasonable trial tactics. The record supports the habeas court’s conclusion that counsel’s decision was predicated upon the belief that any benefit that might have inured to the petitioner from his brother’s testimony would be outweighed by the deleterious effect of other unfavorable testimony James Chace might be called upon to give. The court found, and the record reveals, that counsel reasonably opted to avoid the possibility that the jury would learn, through James Chace, unfavorable facts regarding the petitioner’s words, attitude, and actions following the killing. Moreover, the habeas court noted that James Chace’s testimony was inconsistent with other evidence presented at trial and judged that he was not a credible witness. Under these circumstances, we conclude that the habeas court did not err in finding that the petitioner had failed to demonstrate that counsel’s decision not to call James Chace as a witness at trial failed to meet the objective standard of reasonable competence outlined in Strickland v. Washington, supra. In any event, an error on the part of counsel in failing to call a witness cannot be considered prejudicial, as affecting the outcome of the trial, when the evidence the witness would have given would have been cumulative. We reject the petitioner’s claims of error.

The petitioner’s third claim is that the habeas court erred in finding that no prejudice resulted from his counsel’s failure to request a jury charge on the lesser offense of second degree manslaughter. At trial, after conferring with counsel, the court charged the jury on the crimes of murder, General Statutes § 53a-54a, and manslaughter in the first degree, § 53a-55 (a) (l). The habeas court found that the failure of trial counsel to request a charge on second degree manslaughter; General Statutes § 53a-56; failed to meet the performance standard of Strickland v. Washington, supra, but that such failure resulted in no prejudice to the petitioner. Assuming, without deciding, that the habeas court was correct in its initial determination that counsel would have been entitled to a charge on manslaughter in the second degree if he had requested it, we limit our review to considering whether counsel’s failure to request such an instruction constituted ineffective assistance of counsel.

Our Supreme Court has recently held, in Fair v. Warden, supra, that counsel’s failure to request a lesser included offense instruction does not necessarily deprive a petitioner of reasonably effective assistance of counsel. “It may be sound trial strategy not to request a lesser included offense instruction, hoping that the jury will simply return a not guilty verdict.” Id., citing State v. Asherman, 193 Conn. 695, 729, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985). We conclude that the petitioner has failed to demonstrate that counsel’s failure to request a jury instruction on manslaughter in the second degree was anything other than a considered choice among various reasonable trial strategies. Even were we to conclude, however, “that trial counsel’s assistance was so ineffective and flawed as to have deprived the petitioner of 'counsel guaranteed by the sixth amendment’ Fair v. Warden, supra, 407; the petitioner has not met his burden of proving prejudice under the second prong of Strickland. While the petitioner clings to the possibility that the jury, given the option of a second degree manslaughter charge, would have chosen to convict him of that charge, on this record we cannot conclude that this possibility was sufficiently realistic to warrant upsetting the guilty judgment. The habeas court held that the facts before the jury were such that it was not reasonable to believe that the jury would find that the petitioner did not either intend to cause serious physical injury or intend to cause death. The habeas court referred to the following evidence: (1) the fact that the petitioner slashed at the victim three times, leaving a cut across his cheek and two stab wounds in his chest; (2) the fact that the petitioner followed the victim after he staggered backwards, again slashing with the knife; (3) the fact that, after the victim called out to the petitioner to stop, the petitioner replied, “If I catch you, I’ll do it again”; (4) the fact that the petitioner stood over the victim after the victim had collapsed, and then calmly put his knife away, walked over to his car, got in and drove away. The habeas court thus decided that, even if the jury had been instructed on manslaughter in the second degree, the probability, based on the evidence, that the jury would have chosen to convict the petitioner of second degree manslaughter was not high, and therefore counsel’s failure to request the charge resulted in no prejudice. We agree.

Assessment of the possibility that the jury might have chosen to convict the defendant of a lesser offense if it had been properly charged is a proper measure of whether trial counsel’s failure to request a charge on a lesser offense resulted in prejudice to the petitioner. See Fair v. Warden, supra, 410. “ ‘An assessment of the likelihood of a result more favorable to the defendant [petitioner] must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like. A defendant [petitioner] has no entitlement to the luck of a lawless decisionmaker. . . .’” Id., quoting Strickland v. Washington, supra, 695.

We have reviewed the record and agree with the habeas court’s assessment of the relative likelihood that the petitioner might have been found guilty of manslaughter in the second degree instead of murder. Intent may be inferred from the conduct of the accused. State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 (1972). “ ‘ “An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” ’ ” State v. Chace, supra, 105, quoting State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). In this case, the evidence strongly pointed to the likelihood that the petitioner intended either to cause serious physical injury or death. While engaged in a fist fight with the victim, the petitioner drew from his belt a knife with a blade over four inches long. The petitioner slashed the victim three times, leaving a cut across his cheek and two stab wounds in his chest. The first chest wound was one and one-half inches deep. The second was four inches deep, penetrated the left lung, and involved a two inch laceration of the heart. When the victim staggered backward, the petitioner followed, continuing to wield the knife. In reply to the victim’s entreaties to stop and put the knife away, the petitioner replied, “If I catch you, I’ll do it again.” Even assuming that the petitioner was entitled to an instruction on second degree manslaughter, and that counsel’s failure to request such an instruction constitutes ineffective assistance of counsel, this strong evidence of intent to cause either serious physical injury or death renders it unlikely that a jury instructed on murder, first degree manslaughter, and second degree manslaughter would have found that the petitioner acted recklessly, rather than with intent to cause serious physical injury or death. Accordingly, we conclude that any possibility that the jury would have convicted the petitioner of manslaughter in the second degree does not amount to “a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 694.

The petitioner’s final claim is that he was denied effective assistance of counsel because trial counsel failed to argue the evidence of his intoxication to the jury during final argument. The petitioner concedes, however, that counsel did in fact discuss the evidence of intoxication during summation. The record reveals that trial counsel argued at some length the state’s failure to meet its burden of proving intent to kill, pointing in this regard to the testimony of the state’s witness, the victim’s friend, that the petitioner appeared to be “under the influence” at the time of the killing. Moreover, it is undisputed that counsel argued to the jury that the evidence showed the petitioner did not have the requisite intent when he stabbed the victim. It thus appears that the petitioner’s argument amounts to a claim that counsel failed to emphasize sufficiently to the jury the evidence of intoxication and its implications respecting the issue of intent.

The habeas court found that defense counsel’s closing argument fell within the wide range of reasonable professional assistance. We agree. Moreover, we agree with the habeas court that there is no reason to believe that an argument in some other form or manner on the issue of intoxication would have affected the outcome in this case.

There is no error.

In this opinion the other judges concurred.

       The defendant also briefed a claim that the habeas court erred in failing to hold that the standard for effective assistance of counsel is higher under the Connecticut constitution than under the United States constitution. At oral argument, however, he acknowledged that our Supreme Court has rejected the contention that article first, § 8, of the Connecticut constitution affords “greater and more extensive rights to counsel” than the right to counsel provided by the sixth amendment to the United States constitution. See Aillon v. Meachum, 211 Conn. 352, 355 n.3, 559 A.2d 206 (1989). It is therefore unnecessary for us to address this claim.

       General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . .

       General Statutes § 53a-55 provides in pertinent part: “(a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person . . .

      General Statutes § 53a-3 (4) defines serious physical injury as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”
      General Statutes § 53a-3 (11) defines the word “intentionally” as follows: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.”

       General Statutes § 53a-56 provides in pertinent part: “(a) A person is guilty of mansláughter in the second degree when: (1) He recklessly causes the death of another person . . . .”
      General Statutes § 53a-3 (13) defines the word “recklessly” as follows: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Lawrence Franko v. George D. Bronson, Warden Willie Thompson v. George D. Bronson, Warden
    (7409)
    (6657)
    Dupont, C. J., Borden, Spallone, Daly, O’Connell, Stoughton, Norcott and Foti, Js.

      Considered June 1 —
    decision released September 12, 1989

      Michael J. Isko, in support of the motion.

      James L. Radda, in support of the motion.
   Borden, J.

The petitioners in these habeas corpus cases, Lawrence Franko and Willie Thompson, are both incarcerated. Their motions seek our review of the decisions of the presiding judge of the habeas court denying their appellate counsels’ motions to withdraw. In passing on these motions, we are faced with the issue of whether the procedures set out in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Practice Book §§ 952 through 956, apply in the context of appeals from habeas corpus judgments.

The petitioner Franko is serving a twenty year sentence for sexual assault, and the petitioner Thompson is serving a thirty year sentence for robbery, burglary and as a persistent felony offender. Both Franko and Thompson filed writs of habeas corpus alleging ineffective assistance of trial counsel.

In Franko’s case, the writ of habeas corpus was denied by the trial court, Barry, J. Thereafter, Franko, by his public defender, filed a petition for certification to appeal the denial to this court pursuant to General Statutes § 52-470 (b). On August 30, 1988, Judge Barry granted the petition for certification to appeal, along with an appointment of counsel and a waiver of fees. The public defender representing Franko filed a timely appeal on his behalf, but thereafter moved in this court to withdraw as appellate counsel on the basis of an Anders brief. In keeping with our procedure when such motions are filed in criminal cases under Practice Book § 4035, we referred the motion and Anders brief to Judge Mack, the presiding judge of the habeas court, On October 25, 1988, Judge Mack denied the motion to withdraw. On November 18, 1988, the public defender moved for an articulation of Judge Mack’s ruling. Finally, on February 14,1989, the public defender filed, in this court, under Practice Book §§ 4053 and 4054, an untimely motion for review of Judge Mack’s articulation. It is that untimely motion for review that we now address.

In Thompson’s case, the writ of habeas corpus was denied by the court, Kline, J., on August 21, 1985. Thompson’s untimely petition for certification to appeal was granted by Judge Kline on October 3,1985. After filing an appeal on the petitioner’s behalf, the public defender subsequently moved to withdraw on the basis of an Anders brief. Just as in the Franko case, Judge Mack denied the public defender’s motion to withdraw, and an untimely motion for review of that denial was filed in this court.

As previously noted, both motions for review were untimely because neither was filed within ten days of the decision on the motion to withdraw, as required by Practice Book § 4053. Ordinarily, we would dismiss both motions for their untimeliness and would refuse to consider the merits of either. Because we consider the issue likely to recur, however, we choose in this rare instance to depart from our usual policy and grant review for reasons of judicial economy.

Each motion essentially seeks our review of the presiding judge’s denial of appellate counsel’s motion to withdraw. Before we address the merits of these motions, we must decide whether the procedure set out in Anders v. California, supra, and codified in Practice Book §§ 952 through 956; see footnote 2, supra; applies in the context of appeals from habeas corpus judgments.

Although Anders was a habeas corpus action, the opinion in that case focuses only upon “the extent of the duty of court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent’s appeal.” (Emphasis added.) Anders v. California, supra, 739. Practice Book §§ 952 through 956 implement the Anders principle. The Anders decision is based upon constitutional requirements guaranteed by the sixth amendment in criminal cases. There is, however, no equivalent constitutional right to counsel in habeas corpus cases. Pennsylvania v. Finley, 481 U.S. 551, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987).

Although the Anders procedure is not, therefore, constitutionally required in habeas corpus appeals, we look beyond this constitutional limitation to the existence of General Statutes § 51-296, which creates a statutory right to counsel in certain habeas corpus actions. That section mandates that counsel be appointed for an indigent defendant “[i]n any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter .. . (Emphasis added.) We conclude, moreover, that General Statutes § 51-296 applies as well to appeals from such habeas corpus proceedings, because no such appeal may be taken unless an appropriate judicial authority has certified pursuant to General Statutes § 52-470 (b) “that a question is involved in the decision which ought to be reviewed by the court having jurisdiction . . .

Because the legislature has created a right to counsel in habeas corpus cases under § 51-296, and in appeals therefrom, we conclude that the right to appeal in habeas corpus actions should be extended the same protections as those set out in the Anders decision. We, therefore, follow the procedure set out in Practice Book § 4035 and §§ 952 through 956; see footnote 2, supra; by referring motions to withdraw based on Anders briefs to the presiding judge of the trial court in those habeas corpus matters specified in General Statutes § 51-296.

Although we have the authority, pursuant to Practice Book §§ 4035 and 4053, to review the habeas court’s decision, we consider that the habeas court is in the best position to make the Anders determination in the first instance. If, upon the filing of the Anders brief and upon his own independent review of the transcript, record and any brief filed by the defendant, the presiding judge determines that an appealable issue dqes exist, he shall follow the mandate of Practice Book § 955 by either allowing counsel to withdraw and appointing new counsel to represent the defendant, or by ordering counsel of record to proceed. If the presiding judge determines that no appealable issue properly exists in the case, then the matter should be referred to the judge who granted the petition for certification to appeal, for a determination of whether certification was improvidently granted in the first instance. If that judge determines that certification to appeal was improvidently granted, he should vacate his previous certification and notify the clerk of this court. Upon such notification, the appeal will be dismissed for lack of subject matter jurisdiction. If that judge nonetheless determines that certification was proper, then he shall follow the mandate of Practice Book § 955 by either allowing counsel to withdraw and appointing new counsel to represent the defendant, or by ordering counsel of record to proceed.

We are aware that the certification requirement of General Statutes § 52-470 (b); see footnote 1, supra; frequently places the judge who tried the habeas corpus case in the uncomfortable position of reviewing his own decision to determine whether an appealable issue exists. While we can understand a judge’s reluctance to deny a petitioner’s request to appeal under those circumstances, we note that such a denial of a petition for certification of appeal does not leave the petitioner without further recourse. If the petition for certification to appeal is denied, the petitioner may bring a writ of error in the Supreme Court under General Statutes § 52-273 and Practice Book § 4143, provided that “the issues sought to be raised do not present any federal question cognizable by the federal district court . . . ,” If the petitioner cannot pass the federal question hurdle in order to bring a writ of error, he may then seek relief via the federal habeas corpus route under 28 U.S.C. § 2254.

Furthermore, the legislature has deemed it appropriate in other contexts for a judge to review his own decision for the limited purpose of determining whether an appealable issue exists. For example, General Statutes § 54-95 provides that “[n]o appeal may be taken from a judgment denying a petition for a new trial unless, within ten days after the judgment is rendered, the judge who heard the case or a judge of the supreme court or the appellate court, as the case may be, certifies that a question is involved in the decision which ought to be reviewed by the supreme court or by the appellate court. ...” Additionally, General Statutes § 54-96, which requires the permission of the presiding judge in order for the state to appeal in a criminal case, has ordinarily been considered to apply where the judge who presided at the trial also made the determination of whether to permit an appeal. See, e.g., State v. Avcollie, 178 Conn. 450, 452, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); State v. Morrissey, 18 Conn. App. 658, 659, 560 A.2d 471 (1989).

Finally, we turn to the issue of res judicata as raised in these cases by Judge Mack. His denials of the motions to withdraw were apparently based on his view that the previous decision granting certification to appeal in each case had res judicata effect on a subsequent motion to withdraw. We disagree.

In a habeas corpus case, the adjudication on the merits is the judgment on the habeas petition, and not the subsequent order granting certification to appeal. Furthermore, because it is clear under State v. Rogers, 199 Conn. 453, 459, 508 A.2d 11 (1986), that a judge is not bound by the decision of another judge made at an earlier stage in the proceedings, Judge Mack was not bound by the earlier decisions of Judges Barry and Kline granting certification to appeal, when he considered the two motions to withdraw.

In both cases, the orders denying the motions to withdraw are set aside, and the motions to withdraw are referred to the presiding judge of the trial court for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       Practice Book § 4035 provides in pertinent part: “The supreme court, on its own motion, may refer an application to withdraw appearance filed pursuant to Sec. 952 to the trial court for purposes of rendering a decision thereon. The decision of the trial court may be reviewed by the supreme court pursuant to Sec. 4053. . . .”
      Practice Book §§ 952 through 956 provide:
      “Sec. 952.--REQUEST BY INITIAL COUNSEL TO WITHDRAW
      “When the defendant is represented at trial by the public defender or when he has counsel appointed for him to prosecute his appeal under the provisions of Sec. 950 and such public defender or counsel, after a conscientious examination of the case, finds that such an appeal would be wholly frivolous, he shall advise the presiding judge and request permission to withdraw from the case.
      “Sec. 953.--SUBMISSION OF BRIEF
      “At the time such request is made, counsel shall submit to the presiding judge a brief which refers to anything in the record that might arguably support the appeal. A copy of such brief shall be provided to the defendant, and the defendant shall be further allowed a reasonable time to raise, in writing, additional points in support of his appeal.
      “Sec. 954.--FINDING THAT APPEAL IS FRIVOLOUS
      “The presiding judge shall fully examine the briefs of counsel and of the defendant, and shall review the transcript of the trial. If, after such examination, the presiding judge concludes that the defendant’s appeal is wholly frivolous, he may grant counsel’s motion to withdraw and refuse to appoint new counsel. Before refusing to appoint new counsel, the presiding judge shall make a finding that the appeal is wholly frivolous and shall file a memorandum, setting forth the basis for his finding.
      “Sec. 955.--FINDING THAT APPEAL IS NOT FRIVOLOUS
      “If after a full examination pursuant to Sec. 954 the presiding judge concludes that the defendant’s appeal is not wholly frivolous, he may allow counsel to withdraw and appoint new counsel to represent the defendant, or he may order counsel of record to proceed with the appeal.
      “Sec. 956.--DISQUALIFICATION OF PRESIDING JUDGE
      ‘ ‘If the presiding judge was also the trial judge, he shall refer the matter to the chief judge for assignment to another judicial authority.”

       Practice Book §§ 4053 and 4054 provide: “Sec. 4053. —in general “The supreme court may, on written motion for review stating the grounds for the relief sought, modify or vacate any order made by the trial court under Sec. 4040 (a) or any action by the chief clerk of the supreme court under Sec. 4040 (c) (2) or any order relating to the perfecting of the record for presentation to the supreme court or the procedure of prosecuting or defending against the appeal, or any order made by the trial court concerning a stay of execution on appeal. All petitions for review of bail shall be filed in the appellate court. A motion to review an order concerning a stay of execution must be filed within five days from the issuance of notice of the order. Other motions for review shall be filed within ten days from the issuance of notice of the order sought to be reviewed. Motions for review of the clerk’s taxation of costs under judgments of the supreme court shall be governed by Sec. 4119.
      “If a motion for review of a decision concerning a stay depends on a transcript of evidence or proceedings taken by a court reporter, the moving party shall file with the motion either a transcript or a copy of the court reporter’s written acknowledgment of the transcript order. The opposing party may, within one week after the transcript or the copy of the written acknowledgment of the transcript order is filed by the moving party, file either a transcript of additional evidence or a copy of the court reporter’s written acknowledgment of the transcript order.
      “Sec. 4054. —review of motion for rectification of appeal or ARTICULATION
      “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may make a written motion for review to the supreme court, to be filed with the chief clerk of the supreme court, and the supreme court may, upon such a motion, direct any action it deems proper. If the motion depends upon a transcript of evidence or proceedings taken by a court reporter, the procedure set forth in Sec. 4053 shall be followed. Corrections which the supreme court makes or orders made pursuant hereto shall be included in the printed record or a supplemental record in the same way in which, under Sec. 4051, corrections made by the trial judge are included.”

       The petition for certification to appeal was granted on October 3,1985, by Judge Kline. The appeal was not filed, however, until December 24,1987. We do not know the reason for the two year delay. The record reflects, however, that the petitioner’s appeal rights were reinstated by Judge Mack on December 4, 1987.

       Practice Book § 4143 provides: “Sec. 4143.-when available
      “(a) Writs of error for errors in matters of law only may be brought from a final judgment of the superior court to the supreme court.
      “(b) No writ of error may be brought in any civil or criminal proceeding for the correction of any error where (1) the error might have been reviewed by process of appeal, or by way of certification, except that the state may bring a writ of error where it has been denied certification to appeal in a habeas corpus proceeding pursuant to General Statute § 52-470 (b) and a petitioner may bring a writ of error in a habeas corpus proceeding requiring certification to appeal where petitioner has been denied certification to appeal and the issues sought to be raised do not present any federal question cognizable by the federal district court, or (2) the parties, by failure timely to seek a transfer or otherwise, have consented to have the case determined by a court or tribunal from whose judgment there is no right of appeal or opportunity for certification.”


author: O’Connell, J. Borden, J.,

text:
    State of Connecticut v. Ruben Reyes
    (5510)
    Borden, Daly and O’Connell, Js.

      Argued October 11, 1988 —
    decision released September 12, 1989

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, was Kevin McMahon, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from a judgment of conviction, after a jury trial, of two counts of the crime of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4). He claims that the trial court erred (1) in removing him from the courtroom during his trial, and (2) in its instructions to the jury. We find no error.

The jury could reasonably have found that on June 23,1985, at approximately 11:30 p.m., the defendant, carrying a sawed-off shotgun, entered a cafe in Hartford with an unarmed man and announced, “This is a robbery.” The defendant pointed the gun at Gloria Echevarria, who was sitting behind the bar, and told her to open the cash register. She complied and the unarmed man removed approximately $325 from the cash register. At that point the defendant grabbed the bartender who was emerging from the rear of the cafe and pointed the gun at his neck. He then pushed the bartender against the bar and took approximately $180 from his pockets and wallet. Both robbers then fled and the bartender called the police who later arrested the defendant.

The defendant first claims that the trial court erred in removing him from the courtroom during argument on the state’s objection to a question posed to him on direct examination by defense counsel.

The defendant had taken the witness stand on his own behalf when defense counsel inquired, “And, to your knowledge, what is the community right where the Friendship Cafe is, if you know?” The state objected to the question on relevancy grounds and the court excused the jury. Before defense counsel could respond to the objection, the state’s attorney sought removal of the defendant, in order to prevent him from tailoring his testimony to the argument. Over defense counsel's objection and exception, the court agreed, ordering the defendant to leave the courtroom, justifying the expulsion on the ground that no testimony was to be taken during his absence.

The defendant claims that the trial court violated his right to be present at his trial pursuant to the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. He also argues that the court violated Practice Book §§ 967 and 968.

By contrast, the state argues that neither the state constitution nor the federal constitution mandates that the defendant be present, where, as here, a legal question concerning the admissibility of testimony was discussed.

It is well established that a case will not be decided on constitutional grounds if there is some other ground on which it can be decided. State v. Williams, 200 Conn. 310, 322, 511 A.2d 1000 (1986). While both our Supreme Court and this court have addressed the defendant’s right to be present at his trial under the federal constitution no case has been found that addresses this right in relation to our rules of practice. Because those rules furnish an adequate basis for determining the issue before us, we will address it accordingly.

Three rules of practice are pertinent to the defendant’s claim. Practice Book § 967 provides that a “defendant has the right to be present at the arraignment, at the time of the plea, at evidentiary hearings, at the trial, and at the sentencing hearing . . . . ” (Emphasis added.) Practice Book § 968 reinforces the defendant’s right to be present by stating that he “must be present at the trial” (emphasis added) unless the trial court finds that he is represented by counsel and that he has waived his right to be present. Finally, Practice Book § 970 (3) provides that the “defendant need not be present . . . [a]t any argument on a question of law or at any conference . . . .” (Emphasis added.)

Although we are determining this issue on rules of practice grounds, an examination of cases discussing the constitutional right to presence at trial is helpful. Our Supreme Court has held that “[a] criminal defendant has a constitutional right to be present at all critical stages of his trial.” State v. Simino, 200 Conn. 113, 125, 509 A.2d 1039 (1986); Rushen v. Spain, 464 U.S. 114, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983); see Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). When a situation arises in which the defendant is not present during some portion of his trial, the reviewing court must determine whether he was absent during a critical stage and whether he effectively waived his right to be present by his unexcused absence. State v. Simino, supra, 126. The latter question need not be addressed here because both parties agree that the defendant did not waive his right.

Relying on State v. Simino, supra, 128, and State v. Olds, 171 Conn. 395, 405-406, 370 A.2d 969 (1976), the state asserts that a defendant has no absolute right to be present during discussions of law. Our reading of those cases, however, indicates that such a right would arise if it is determined that his presence bears a reasonably substantial relation to his opportunity to defend. State v. Olds, supra, 406; see Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S. Ct. 330, 78 L. Ed. 674 (1934).

In upholding the trial court’s denial of the defendant’s request to be present, the court, in Olds, examined the record and held that the discussion of law at issue involved pretrial motions, such as motions for production, to quash, to reduce bond and for a jury of twelve and that “there would have been no ‘advantage’ to having the defendant present . . . .” State v. Olds, supra.

The right to be present during a discussion of law after the trial has commenced, however, arose in State v. Simino, supra. In Simino, the court held that the defendant’s presence was constitutionally mandated when the court was charging the jury because during that time the “ ‘court is required to state the fundamental legal principles applicable to criminal cases generally, as well as the material legal principles applicable to a particular case and the application of the law to the facts. . . .’ ” Id., 128, quoting People v. Ciaccio, 47 N.Y.2d 431, 436, 391 N.E.2d 1347, 418 N.Y.S.2d 371 (1979). Despite the holding that the defendant had a right to be present during the jury charge, the Simino court concluded that the defendant had waived that right by failing to attend court that day, through no fault of the state. State v. Simino, supra.

In the present case, during the enforced absence of the defendant, the trial court sustained the state’s objection to defense counsel’s question to the defendant. It stated that it had previously prohibited him from inquiring into the existence of high crime and drug trafficking in and around the cafe through earlier witnesses he had subpoenaed because such evidence was irrelevant to the case. The court added that defense counsel had failed to interview those witnesses prior to their taking the stand despite the fact that they had been waiting at the courthouse to testify for approximately two days. Consequently, he did not know how those witnesses would respond to his questions and the court would not now permit him to elicit the desired but still irrelevant answers from the defendant. Defense counsel did not respond to those remarks.

On the basis of the foregoing, we conclude that the defendant’s enforced absence bore a reasonably substantial relation to his opportunity to defend himself because he was precluded from hearing the court’s remarks reflecting upon his counsel’s preparation of his case.

Because we interpret Practice Book §§ 967 and 968 as implementing the defendant’s constitutional right to be present at trial under the circumstances of the present case, we conclude that the trial court’s order evicting him from the courtroom violated his right to be present at the trial pursuant to Practice Book § 967. Although the language in Practice Book § 970 (3) appears to grant the trial court discretion in removing the defendant during questions of law, the facts here clearly demonstrate that a court acts at its peril when it elects to do so during the trial, as opposed to during arguments of pretrial motions.

The defendant urges us to adopt a per se rule of error in any case in which a defendant is ordered to leave the courtroom during the trial, except for reasons of misconduct as provided in Practice Book §§ 891 and 892. Because we strongly favor the defendant’s presence at all times during the trial, the establishment of a per se rule is appealing. On the other hand, because we can envision a situation involving a purely technical violation, we conclude that the better course is a case-by-case analysis, determining harm in the light of the circumstances of each case.

Here, the colloquy that occurred in the defendant’s absence involved the state’s objection to a proposed question which the court sustained on relevancy grounds. The defendant does not challenge that ruling on appeal. Rather, the defendant claims that his absence was harmful because he was precluded from learning of and investigating the court’s remarks concerning his counsel’s preparation of his defense.

An inquiry into this type of claim is more suited to a habeas corpus proceeding and would therefore be inappropriate in this appeal. State v. Williamson, 206 Conn. 685, 706-707, 539 A.2d 561 (1988). Hence, we conclude that the trial court’s error was harmless.

The defendant’s remaining claims challenge the court’s charge to the jury. He argues (1) that there was insufficient evidence to warrant the court’s instruction on subsection (2) of the definition of robbery found in General Statutes § 53a-133, (2), in the alternative, that the court failed to instruct the jury that they all had to agree on which subsection of § 53a-133 the defendant violated, (3) that there was insufficient evidence to warrant the court’s instruction on two statutory alternatives found in the definition of larceny as set forth in General Statutes § 53a-118, and (4) that the portion of the court’s instruction concerning the taking of money from the cash register was confusing and erroneous. The defendant concedes that none of these claims of error was raised at trial and asks this court to review them under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

In defining the crime of robbery, the court read General Statutes § 53a-133, which provides in pertinent part: “A person commits robbery when ... he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

The court then referred to the evidence detailing the taking of money from the cash register to demonstrate how either subsection may apply. Shortly thereafter, it mentioned the robbery of the bartender in order to remind the jury that the case involved two separate robbery charges.

At the outset, we note that the defendant’s first two challenges to the court’s charge are directed solely to the robbery of the bartender. Turning to his first claim, he argues that the court erred in instructing the jury on the second subsection of § 53a-133 because there was no evidence that the bartender was compelled “to deliver up” his wallet and the cash. Therefore, he claims that the judgment of conviction on that count must be set aside and a new trial must be ordered. Because a defendant has a constitutional right to be acquitted unless proven guilty of each element of a charged offense beyond a reasonable doubt, we will review this claim under State v. Evans, supra. State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987); State v. Messier, 16 Conn. App. 455, 469, 549 A.2d 270 (1988); State v. Webb, 8 Conn. App. 620, 625, 514 A.2d 345 (1986).

“ ‘[Wjhere a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.’ ” State v. Williams, supra, quoting State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983).

Both parties agree that the evidence depicted the defendant placing a shotgun to the bartender’s neck, turning him around and ordering him to place his hands on the bar while the other individual went through the bartender’s pants pockets retrieving his wallet and cash.

The state argues that the defendant takes an excessively restrictive view of the interpretation of subsection (2). It contends that the proof necessary to support such an instruction need only demonstrate that the victim was compelled to yield control of the property. Thus, in this case the force used placed the bartender in a position where he would be compelled to make himself accessible to a taking.

To support its argument, the state relies on State v. Webb, supra. There we said that “[a] common sense analysis [of § 53a-133] illustrates that the two subsections overlap. . . . ‘[Preventing or overcoming resistance to the taking of the property’ is at least a first cousin of‘compelling the owner of such property . . . to deliver up the property.’ ” Id., 625. In Webb, we disagreed with the defendant’s argument that the court erred by instructing the jury on both subsections rather than only on subsection (2) because he was charged only with “ ‘[forcing the victim] to sign over to him her paycheck.’ ” Id. Rather, “while we concede that [such] language ... is covered by subsection (2), that does not logically lead to a conclusion that subsection (1) is excluded.” Id.

By contrast, the defendant urges us to follow State v. Williams, supra. There, the trial court also instructed the jury on both subsections. On appeal, the state conceded that the evidence supported an instruction only as to subsection (1). In finding reversible error, our Supreme Court stated, “ ‘[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.’ ” Id., 364, quoting Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982).

In light of our interpretation of § 53a-133 in State v. Webb, supra, we are unpersuaded by the defendant’s argument and his reliance on State v. Williams, supra. There, the victim felt a “tug” on her shoulder where the strap of her pocketbook rested and immediately lost consciousness. She testified that she “did not see the person who had taken her pocketbook, but believed he had approached her from behind.” Id., 352. As the state conceded, this scenario leaves no room for any interpretation other than that the defendant’s actions prevented or overcame the victim’s resistance to his seizure of her pocketbook and thus supported an instruction only as to subsection (1). The evidence in the present case, however, does not permit such a clear-cut analysis and we are satisfied that the trial court did not err by instructing the jury on both subsections.

We now turn to the defendant’s alternate argument that the trial court erred in failing to instruct the jury that each member had to agree on which subsection of § 53a-133 the defendant violated with respect to the robbery of the bartender. As a result, the defendant claims that his sixth amendment right to a unanimous jury verdict was violated.

Although the defendant failed to take an exception to the absence of such an instruction, his claim is entitled to a limited review to determine whether his sixth amendment right was compromised. State v. Anderson, 211 Conn. 18, 33, 557 A.2d 917 (1989); State v. Evans, supra.

When a trial court charges the jury on statutory alternatives that are supported by the evidence and are conceptually distinct, it must also instruct the jury that each member must agree on which alternative the defendant committed if it renders a conviction. State v. Anderson, supra, 34.

We have previously determined that the evidence in this case supported a charge on both subsections of § 53a-133. Moreover, we also stated that we interpret those subsections as “first cousins” and “almost indistinguishable.” State v. Webb, supra, 625, 626. Because “ ‘[t]he jury should not be obliged to decide between two statutorily prohibited ways of committing the crime if the two ways are practically indistinguishable’ ”; State v. Bailey, 209 Conn. 322, 334, 551 A.2d 1206 (1988), quoting Manson v. State, 101 Wis. 2d 413, 430, 304 N.W.2d 729 (1981); we conclude that subsections (1) and (2) are not conceptually distinct and therefore a unanimity charge was not required. Thus, there was no danger of a constitutional violation and the defendant’s claim is not entitled to further review. Id.; see also State v. Flynn, 14 Conn. App. 10, 39, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988).

In his next claim, the defendant argues that the trial court erred by reading the entire definition of larceny from General Statutes § 53a-119.

The trial court instructed the jury that larceny encompasses, inter alia, a wrongful taking, obtaining or withholding of the property of the owner. The defendant contends that this instruction placed statutory alternatives before the jury which were not supported by the evidence because there was no proof in the record of an “obtaining” or “withholding.”

We will not address this claim of error because the defendant failed to preserve it for appeal. State v. Townsend, 206 Conn. 621, 627, 539 A.2d 114 (1989). Moreover, our reading of the charge discloses that the court specifically apprised the jury that the state was alleging a “wrongful taking.” Hence, there was no danger that their verdict was based on an improper element of larceny. Id.

The defendant argues, in this final claim, that the trial court’s instruction concerning the taking of money from the cash register was confusing and erroneous. The state concedes and we agree that this issue is reviewable under State v. Evans, supra. See State v. Zayas, 195 Conn. 611, 616, 490 A.2d 68 (1985).

The thrust of the defendant’s argument is that the court was inconsistent in identifying the owner of the money taken from the cash register. As a result, the jury may not have understood the elements of the crime of robbery.

“It is elementary jurisprudence that a jury charge is to be considered in its entirety and no part of it is to be critically dissected in order to find a technical inaccuracy in one portion, read in artificial isolation from the overall charge.” State v. Phillips, 17 Conn. App. 391, 394, 552 A.2d 837 (1989). We are satisfied that the jury was aware, on the basis of the evidence, that Echevarria was an employee of the cafe and was sitting behind the bar, when the defendant forced her to open the cash register, and that Morganson, who was not present, was the owner of the cafe. The court’s reference to “[the robbery] against the Friendship Cafe” does not distort these facts or leave any element of the crime misunderstood. Having reviewed the charge from the standpoint of its effect on the jury in assisting it in reaching a proper verdict; State v. Santiago, 17 Conn. App. 273, 279, 552 A.2d 438 (1989); we are not persuaded by the defendant’s argument.

There is no error.

In this opinion Daly, J., concurred.

Borden, J.,

concurring. I agree with the result and with much of the reasoning of the majority. I write separately, however, because I take a somewhat different view of the basis of the conclusion that the trial court erred in excluding the defendant from the trial. In my view, Practice Book § 967 is sufficient to decide this case.

It is Practice Book § 967 which governs the defendant’s right to be present at his trial. That section, which is entitled “Right of Presence,” provides that “[t]he defendant has the right to be present at the arraignment, at the time of the plea, at evidentiary hearings, at the trial, and at the sentencing hearing, except as provided in Sec. 966 . . . . (Emphasis added.)

By contrast, Practice Book § 968, entitled “Continued Presence Not Required,” refers to those instances where the defendant “must be present,” namely, “at the trial and at the sentencing hearing . . . . ” Thus, § 968 refers to those situations where the defendant may not absent himself unless he is excused by the court. Put another way, this section refers to those situations where the defendant has no right to be absent. This reading is buttressed by § 969, which provides, in general, that if the defendant is not present “at the trial or a part thereof or the sentencing hearing and his absence has not been excused,” the court may issue a capias to compel his presence.

I agree with the majority that, under the circumstances of this case, the trial court violated Practice Book § 967 by excluding the defendant from the courtroom during the trial. Although his right to be present at trial may not be absolute, the state’s argument at trial, namely, that he might tailor his testimony to legal arguments made in his presence; see footnote 2, infra; was an insufficient ground on which to remove him from the witness stand and to exclude him from the courtroom while those arguments were made. There simply is no basis, either in the language of Practice Book § 967, in its purpose or in the constitutional background against which it must be read, for such an exclusion.

1 agree with the majority that the transcript of what occurred in the defendant’s absence indicates that the defendant was not harmed by the court’s error in excluding him. The fact that his attorney had earlier been unsuccessful in attempting to present irrelevant evidence about the high incidence of crime in the area of the cafe, through witnesses whom he may not have interviewed beforehand, must have been known to the defendant, because that had happened in his presence in the courtroom.

I agree with the majority that a violation of Practice Book § 967 should not call for a rule of reversal per se, without an inquiry into its actual harm to the defendant. See State v. McNellis, 15 Conn. App. 416, 433, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). I therefore agree that the court’s error was harmless because, whether it is measured by non-constitutional or constitutional standards of harmless error, it could not have impaired the defendant’s right to defend himself, and could not have contributed to the verdict.

       Moreover, we note that the defendant was present at trial during an earlier argument concerning the state’s objection to similar questions and, as a result, he was aware of the basis of the court’s ruling that the testimony elicited was irrelevant.

       A habeas corpus action alleging ineffectiveness of counsel is pending at this time.

       Section 966 is simply a Practice Book reference, entitled “Presence of Defendant,” that encompasses §§ 967 through 970.

       The entire incident is as follows:
      “Defense Attorney:
      “Q. About how far is your residence, that is where you live, from the Friendship Cafe?
      “A. About five blocks.
      “Q. About five blocks and so do you know the area where the Friendship Cafe is located?

        “A. Yes.
      “Q. And, to your knowledge, what is the community right where the Friendship Cafe is, if you know?
      “State’s Attorney: Objection.
      “The Court: Read the question back.
      (Last question read back)
      “State’s Attorney: Objection.
      “The Court: What’s the relevancy of that?
      “State’s Attorney: It’s character evidence.
      “Defense Attorney: I think the testimony has been received with regard to the community in which the cafe is located.
      “The Court: There has been no testimony at all about the community.
      “Defense Attorney: And even in the face of the fact there might not have been, I think it’s relevant and probative.
      “The Court: Why don’t we excuse the jury.
      (Jury leaves courtroom)
      “The Court: There has been an objection on the ground of relevancy. You say you think it’s relevant, you’re going to have to tell me how it’s relevant before I can allow it to go to the jury.
      “Defense Attorney: Yes, your Honor.
      “The Court: Because if it’s not relevant—
      “State’s Attorney: One moment, please. I ask that the witness be — I know it’s an offer of proof but if he’s going to start characterizing again, I want the witness, now that he is a witness, I think he should be in the alcove because I think [the defense attorney], I think he will virtually tell him what to say.
      “The Court: Okay, take the witness outside of the courtroom.
      “Defense Attorney: I object to that, your Honor, and I take exception to it.
      “The Court: You may take exception.
      “Defense Attorney: As a witness — the jury can be excused but the witness should be allowed to remain.
      “The Court: This is not testimony. That’s right, you can take him out.
      (The defendant leaves the courtroom)
      “The Court: I think [the state’s attorney’s] concern is you’re going to coach him from the floor.
      “Defense Attorney: I’m not going to coach him from the floor.
      “The Court: Well, tell me the relevancy and then you can ask him the questions. I want to know from you what the relevancy is, you’re the one that says it’s relevant.
      “Defense Attorney: The area where this particular bar is located is known to be a high crime area, particularly with regard to the trafficking of narcotíes. Time and time again it’s been made mention in other courts, in our criminal courts.
      “State’s Attorney: I can’t hear you. I’d better get closer.
      “Defense Attorney: That this is a particular area, particularly Lawrence Street and Grand Street, known for its criminal activity, particularly the trafficking of narcotics.
      “The Court: Okay.
      “State’s Attorney: That’s not relevant.
      “The Court: What’s the relevancy?
      “Defense Attorney: It’s a high crime area.
      “The Court: So what?
      “Defense Attorney: And this particular—
      “The Court: That’s where crime occurs and that’s what the allegation is, a robbery occurred at the Friendship Cafe, which is a high crime area. So what?
      “Defense Attorney: But not necessarily by this defendant.
      “The Court: What does whether it’s a high crime area have to do with whether he’s the one who did the crime or not?
      “Defense Attorney: Your Honor, I think it’s relevant, that it’s probative and, therefore, relevant because of the fact that this is—
      “The Court: I think one of the other witnesses already testified that it’s a high crime area.
      “State’s Attorney: I don’t believe so.
      “The Court: You don’t think so?
      “State’s Attorney: I think I objected and I think it was kept out.
      “The Court: Maybe but I think the question was asked but so what, so what if there are drugs dealt in that area?
      “Defense Attorney: This is a foundation being laid for other questions.
      “The Court: For what?
      “Defense Attorney: Concerning whether some of this activity went on in this particular business establishment.
      “The Court: You’re trying to impeach your own witnesses, that’s what you’re telling me.
      “Defense Attorney: I’m not impeaching my own witness.
      “The Court: Those are the same witnesses whose testimony we struck.
      “Defense Attorney: They were my witnesses only to the extent that I subpoenaed them. They definitely were not—
      “The Court: Now, wait a minute—
      “Defense Attorney: — allowed to testify in front of the jury.
      “The Court: Now wait a minute. They were not allowed to testify to the jury because there was nothing probative about what their testimony was or was going to be to the jury but they were your witnesses, you subpoenaed them.

        “Defense Attorney: Exactly.
      “The Court: You brought them into this courtroom, they are your witnesses and you cannot impeach them.
      “State’s Attorney: It’s impeaching character, which the rules are even more set on that. I would cite Tait and LaPlante the page that I’ve already given to the Court. You can’t impeach — the second part of that page talks about impeaching the character and certainly characterizes someone as being involved in drugs as character evidence.
      “The Court: It says, while it is true that witnesses do not belong to any party and may be called by either or both parties, for impeachment purposes, the rules do assign a proprietary interest to witnesses. Usually there is no question about that a witness belongs to the party who calls him to the stand. If one side recalls a witness first called by his opponent, the Court has the discretion to rule that the witness be deemed that of the recalling party unless that party is seriously disadvantaged by such a ruling.
      “Defense Attorney: Seriously disadvantaged by such a ruling.
      “The Court: Now, you called them.
      “Defense Attorney: It’s prejudicial to my client.
      “The Court: Excuse me, you called them and none of them were surprised, none of them were hostile, they answered all of your questions directly and you just couldn’t do anything.
      “Defense Attorney: One of the things that I think the Court has knowledge of is the fact that these people never reported to me, they reported to the State’s Attorney even though—
      “The Court: You never went out of your way to even question them, they had been outside this courtroom for two days now, two and a half days.
      “State’s Attorney: And I will state that as an officer of the Court—
      “The Court: You never went up and said, may I speak to you? You subpoenaed them without even knowing what their testimony was.
      “Defense Attorney: Then why would they, without any form of aggravation or argumentation, why did they go to the State’s Attorney’s Office when they arrived at court?
      “State’s Attorney: Can you state that that is the truth as an officer of the court?
      “Defense Attorney: I saw them coming from upstairs.
      “The Court: So what? What else is upstairs. The men’s room is upstairs. The lady’s room is upstairs.
      “State’s Attorney: That’s an incorrect characterization, in any event.
      “The Court: There are several other courtrooms upstairs.
      “Defense Attorney: Is the State’s Attorney prepared to say these people did not come to see him?

        “State’s Attorney: The people that came in today went to the State’s Attorney’s Office. Yesterday I talked to people in the hallway, they never even came to the State’s Attorney’s Office.
      “Defense Attorney: They were not upstairs with you?
      “State’s Attorney: They were not with me.
      “Defense Attorney: Or with any State’s Attorney?
      “State’s Attorney: Not that I’m aware of.
      “The Court: Bring in Mr. Reyes.
      “Defense Attorney: But you do say that the people that came in today did come to you?
      “State’s Attorney: They asked why they were here and I said you have to talk to [the defense attorney],
      “Defense Attorney: But, they did come see you?
      “State’s Attorney: They asked to know why they had to be here, you weren’t here at 10 o’clock and they wanted to know why they were here.
      “Defense Attorney: He had the subpoena in hand. They had my signature on it.
      “State’s Attorney: Were you here?
      “The Court: Were you here?
      “Defense Attorney: No, I was not.
      “The Court: No, you saw fit to go to another court. Mr. Sheriff, bring the defendant in.
      (The defendant enters the courtoom)
      “The Court: Bring out the jury.
      (Jury enters courtroom)”


text:
    Diana M. Klug v. Inland Wetlands Commission of the City of Torrington et al.
    (7600)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 6 —
    decision released September 12, 1989

      John R. Logan, for the appellant (plaintiff).

      George B. Simoncelli, Jr., corporation counsel, for the appellee (named defendant).
   Borden, J.

The plaintiff appeals from the judgment of the trial court dismissing her appeal from a decision by the named defendant, the Torrington inland wetlands commission (commission). The dispositive issue is whether the plaintiffs appeal was governed by General Statutes § 22a-43, the appeal provision of the Inland Wetlands and Watercourses Act (act); General Statutes §§ 22a-28 through 22a-45; or by General Statutes § 4-183, the appeal provision of the Uniform Administrative Procedure Act (UAPA). We hold that the appeal was governed by § 22a-43, and we find error.

The facts are undisputed. In November, 1987, Eugene F. Green applied to the commission for a permit to conduct certain regulated activities in a wetlands area in Torrington. On March 22,1988, after a public hearing, the commission granted Green’s application and published notice of its decision in a local newspaper. In April, 1988, the plaintiff, an abutting landowner, appealed from the commission’s decision to the trial court, naming and serving as defendants the commission and the state department of environmental protection.

The commission moved to dismiss the plaintiff’s appeal for lack of subject matter jurisdiction, on the basis of her failure to name and serve Green as a defendant. The commission argued, and the trial court agreed, that the appeal was governed by General Statutes § 4-183, that Green was a party of record within the meaning of § 4-183 (b), and that the failure to name and serve Green as a defendant was a fatal jurisdictional defect. The court therefore dismissed the plaintiff’s appeal, and this appeal followed.

The plaintiff’s principal claim is that the court erred in ruling that the commission was an “agency” and that the commission’s decision thereby arose from a “contested case” within the meaning of the UAPA. We agree that the court erred.

General Statutes § 22a-43 governs the procedure for appeals from wetland and watercourse regulatory decisions. It provides, in general terms, that certain persons may appeal from inland wetland and watercourse actions. Those persons are the state commissioner of environmental protection, classically aggrieved persons, and owners or occupiers of land abutting or within ninety feet of the wetland or watercourse involved. The actions in which they may appeal are those “made pursuant to section 22a-36 to 22a-45, inclusive, by the [state] commissioner, district or municipality . . . . ” General Statutes § 22a-43 (a). Those actions taken pursuant to § § 22a-36 through 22a-45 are all inland wetland and watercourse actions of both the state commissioner and municipal inland wetlands agencies and districts.

An appeal taken under § 22a-43 requires that notice “shall be served upon the inland wetlands agency and the commissioner”; General Statutes § 22a-43 (a); but not upon the applicant before the administrative body. The applicant may move to be made a party defendant in the appeal. General Statutes § 22a-43 (b).

Under General Statutes (Rev. to 1989) § 4-183 (b), which was in effect at the time of the plaintiffs appeal to the trial court, copies of the appeal petition were required to be served “upon the agency and all parties of record,” (emphasis added) and the failure to name and serve a party, such as the applicant in this case, rendered the appeal jurisdictionally defective. See Minichino v. Freedom of Information Commission, 6 Conn. App. 148, 503 A.2d 1189 (1986); Newtown v. Department of Public Utility Control, 3 Conn. App. 416, 488 A.2d 1286 (1985). General Statutes (Rev. to 1989) § 4-183 (b), which is part of the UAPA, applies, however, only to a final decision “in a contested case.” It is a statutory requirement of “contested case” status under the UAPA that the decision appealed from be that of “an agency”; General Statutes § 4-166 (2); and an “agency” under the UAPA means in relevant part “each state board, commission, department or officer . . . authorized by law . . . to determine contested cases.” General Statutes § 4-166 (1).

The issue in this case arises from the exception clause in § 22a-43, namely, “except if such appeal is from a contested case, as defined in section 4-166, such appeal shall be in accordance with the provisions of section 4-183 . . . . ” See footnote 2, supra. Thus, if the commission were an “agency” within the meaning of the UAPA, the exception clause would apply, and the plaintiffs appeal would be jurisdictionally defective. If, however, the commission was not such an agency, the appeal was jurisdictionally proper. We conclude that the commission was not an agency under § 4-166 (1), and that the appeal was jurisdictionally proper.

First, both the language of § 4-166 (1), which defines a UAPA agency as a “state board, commission, department or officer,” and the fact that the commission in this case is a commission of the city of Torrington, not the state of Connecticut, strongly suggests that the commission is not a UAPA agency. Although this analysis does not completely carry the day under all circumstances; see, e.g., Connecticut Air Service, Inc. v. Danbury Aviation Commission, 211 Conn. 690, 561 A.2d 120 (1989); it certainly is a persuasive starting point. We note, in fact, that the commission in this case apparently followed § 22a-43, by publishing notice of its decision in a newspaper, a procedure contemplated by § 22a-43 but not contemplated by the UAPA.

Thus, under this analysis, the exception clause in § 22a-43 would apply when the state commissioner makes a regulatory decision, since she is clearly a “state . . . officer” within the confines of § 4-166 (1). Indeed, a contrary interpretation would mean that for all practical purposes the exception would swallow the rule, since it is difficult to conceive of any significant instances when decisions by a local inland wetlands agency would be governed by the general appeal provision of § 22a-43, rather than by the exception clause. Had the legislature intended to make all local inland wetlands agencies state agencies for purposes of appeal, we do not believe that it would have created such an intricate statutory appeal provision that would thereby end up largely as a dead letter.

Second, consistent with this analysis, the history of and the entire administrative matrix established by the act provide a comprehensive, integrated statutory scheme that encompasses active participation by both the state and a municipality. Prior to the enactment of the act, regulation of wetlands and watercourses was a matter solely of local zoning concern. McCallum v. Inland Wetlands Commission, 196 Conn. 218, 221 n.3, 492 A.2d 508 (1985). From when the act was enacted in 1969 until July 1, 1988, it was “declared to be the public policy of the state to encourage municipal participation [in carrying out the purposes and policies of the act] by means of regulation of activities affecting the wetlands and watercourses within the territorial limits of the various municipalities or districts.” (Emphasis added.) General Statutes (Rev. to 1987) § 22a-42 (a). Under that scheme, if a municipality did not take appropriate action to establish such regulation by June 30,1974, the commissioner was required to do so. See General Statutes (Rev. to 1987) § 22a-42 (f).

In 1987, the state public policy was amended to “require municipal regulation” of wetlands activities; (emphasis added) General Statutes (Rev. to 1989) § 22a-42 (a); Public Acts 1987, No. 87-533; and to require all municipalities to establish wetlands agencies by July 1,1988. See General Statutes (Rev. to 1989) § 22a-42 (c); Public Acts 1987, No. 87-533. Throughout, of course, the commissioner has retained numerous regulatory and administrative powers. See General Statutes § 22a-39. During its history and as expressed by its structure, the act has contemplated concurrent state and local jurisdiction to effectuate its purposes. Aaron v. Conservation Commission, 183 Conn. 532, 441 A.2d 30 (1981); see also Cioffoletti v. Planning & Zoning Commission, 209 Conn. 544, 561, 552 A.2d 796 (1989). Thus, the act has long authorized, and now requires, local decisions made by local authorities. It would be inconsistent with that history and statutory scheme to transplant an appeal from a local wetlands decision from the wetlands act to the UAPA.

Connecticut Air Service, Inc. v. Danbury Aviation Commission, supra, recently decided by our Supreme Court, by no means signifies a different result. In that case, the court stated that the commissioner of transportation has “supervision and control of virtually every aspect of aeronautical activity conducted within the state, including that carried out at a municipal level . . . .’’Id., 696. The court therefore concluded “that such supervision and control is principally a state function and duty”; id.; and that a local aviation commission’s congruent powers and duties could be carried out only as the commissioner’s agent. Id.

By contrast, wetlands supervision and control was initially a purely local zoning matter; it was later shared between the state and municipalities, and is now delegated principally to the municipalities. See, e.g., General Statutes § 22a-42 (c) (“[f]or the purposes of this section, the board or commission authorized by the municipality or district, as the case may be, shall serve as the sole agent for the licensing of regulated activities”). Under these circumstances, there is no basis on which to conclude that the commission in this case was acting as the state commissioner’s agent.

Nor are we persuaded by the commission’s reliance on certain other precedents, namely, Feinson v. Conservation Commission, 180 Conn. 421, 429 A.2d 910 (1980), Murphy v. Berlin Board of Education, 167 Conn. 368, 355 A.2d 265 (1974), and Catholic Family & Community Services v. Commission on Human Rights & Opportunities, 3 Conn. App. 464, 489 A.2d 408 (1985). To the extent that Murphy was resuscitated by Connecticut Air Service, Inc. v. Danbury Aviation Commission, supra, 696; see id., 699-700 (Shea, J., dissenting); this case is distinguishable because the Torrington commission could not be considered to be acting as an agent of the state commissioner. Feinson v. Conservation Commission, supra, 424, is inapplicable because the trial court’s procedural conclusion in that case, namely, that the appeal was governed by the UAPA, was “no longer at issue” on appeal, and thus was neither addressed nor decided by the Supreme Court. Catholic Family & Community Services v. Commission on Human Rights & Opportunities, supra, 467, is not pertinent because its broad language defining a UAPA agency, on which the defendants rely, was employed in the context of whether a state hearing officer was such an agency, not whether a local authority constituted a state agency.

There is error, the judgment is set aside and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

         The plaintiff also named the city of Torrington as a defendant, but subsequently withdrew the appeal as to that defendant.

       General Statutes § 22a-43 (a) and (b) provide in pertinent part: “(a) The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within fifteen days after publication of such regulation, order, decision or action appeal to the superior court for the judicial district where the land affected is located, and if located in more than one judicial district, to said court in any such judicial district, except if such appeal is from a contested case, as defined in section 4-166, such appeal shall be in accordance urith the provisions of section 4-183 .... Notice of such appeal shall be served upon the inland wetlands agency and the commissioner. The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court. . . .
      “(b) The court, upon the motion of the person who applied for such order, decision or action, shall make such person a party defendant in the appeal. ...” (Emphasis added.)

       General Statutes § 4-183 was extensively amended effective July 1,1989. See Public Acts 1988, No. 88-317. Those amendments are not before us on this appeal.


author: Per Curiam.

text:
    Patrick R. Gil v. Inland Wetlands and Watercourses Agency of the Town of Greenwich
    (6573)
    Borden, Stoughton and Norcott, Js.
    Argued April 20 —
    decision released June 16, 1989

      Patrick R. Gil, pro se, the appellant (plaintiff).

      John H. Reilly, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from a decision of the defendant, the inland wetlands and watercourses agency of the town of Greenwich. The defendant had denied the plaintiffs application to construct a single family home, driveway and septic system in a wetland. The plaintiff claims that the court erred in concluding (1) that he was not entitled to a permit as a matter of right pursuant to two particular provisions of the town’s inland wetlands regulations, (2) that the defendant’s decision did not amount to an unconstitutional taking of his property without compensation, and (3) that the defendant’s decision was supported by substantial evidence in the record. We have fully considered the plaintiff’s claims, the defendant’s responses thereto, the entire record of this case and the trial court’s thoughtful memorandum of decision. On the basis of that review, we conclude that the plaintiff’s claims of error are without merit.

There is no error.

       At oral argument in this court, the plaintiff raised for the first time in the entire history of this case a claim that certain reports were improperly received by the defendant after the administrative hearing. We take no cognizance of this claim because it was not raised in the trial court or in his brief in this court.


text:
    Raymond Olstza et al. v. Robert H. Fenton et al.
    (7091)
    Borden, Spallone and Daly, Js.
    Argued May 4 —
    decision released June 16, 1989

      Richard A. Fuchs, for the appellants (plaintiffs).

      Agnes M. Cahill, with whom, on the brief, was Michael P. Del Sole, for the appellees (defendants).
   Per Curiam.

The plaintiffs have appealed from the judgment rendered in favor of the defendants in this medical malpractice action. The sole issue raised is whether the trial court correctly charged the jury on the foreseeability of harm. The charge given by the trial court in this case comports with the charge on foreseeability of harm approved by our Supreme Court in Pisel v. Stamford Hospital, 180 Conn. 314, 331-32, 430 A.2d 1 (1980).

There is no error.


text:
    State of Connecticut v. Victor Rusgaitis
    (7124)
    Borden, Daly and Norcott, Js.
    Argued June 15 —
    decision released June 21, 1989

      Victor Rusgaitis, pro se, the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Karen Diebolt, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

There is no error.


text:
    Sandra Peralli v. Woodrow Pitkat
    (7395)
    Daly, Foti and Jacobson, Js.
    Argued May 16 —
    decision released June 21, 1989

      I. David Marder, with whom, on the brief, was Irene Cornish, for the appellant (plaintiff).

      Glenn E. Coe, with whom, on the brief, was Margaret E. Moriarty, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the trial court’s order imposing sanctions against her and requiring her to make weekly payments for child support and the sanctions. The plaintiff’s essential claim is that the court’s determination of her earning capacity was unsupported by the evidence. Our examination of the record indicates that there was ample evidence for the trial court to determine the plaintiff’s earning capacity. We will not retry the facts. Golfin v. Plymouth Industrial Development Corp. of Connecticut, Inc., 15 Conn. App. 804, 543 A.2d 287 (1988).

There is no error.


text:
    Andrew W. Bartha et al. v. Zoning Board of Appeals of the City of Norwich
    (7505)
    Spallone, O’Connell and Stoughton, Js.
    Argued June 19 —
    decision released June 28, 1989

      Stanley Maxim Lucas, for the appellants (plaintiffs).

      Ralph Bergman, for the appellee (defendant),
   Per Curiam.

There is no error.


text:
    State of Connecticut v. George Guedes
    (6686)
    Düpont, C. J., Spallone and Foti, Js.
    Argued June 22 —
    decision released June 29, 1989

      William Holden, public defender, for the appellant (defendant).

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

There is no error.


text:
    Maria LaFaci-Zitzkat v. Walter D. Zitzkat
    (7285)
    Spallone, O’Connell and Norcott, Js.
    Argued June 20 —
    decision released July 13, 1989

      Walter D. Zitzkat, pro se, the appellant (defendant).

      Carlo Forzani, Bridget G. Jenkins and Maureen E. Donahue, filed a brief for the appellee (plaintiff).
   Per Curiam.

The defendant in this action for dissolution of marriage has appealed from a pendente lite order of the trial court.

Subsequent to the filing of this appeal, and just prior to oral argument in this court, the plaintiff and the defendant entered into a separation agreement. That agreement was incorporated into a final judgment dissolving the marriage of the parties.

“Pendente lite orders necessarily cease to exist once a final judgment in the dispute has been rendered because their purpose is extinguished at that time.” Connolly v. Connolly, 191 Conn. 468, 480, 464 A.2d 837 (1983). Pendente lite orders do not survive the rendition of judgment. See Tobey v. Tobey, 165 Conn. 742, 745, 345 A.2d 21 (1974). The judgment of dissolution “disposed with finality of all interlocutory orders.” Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953); see also Yontef v. Yontef, 185 Conn. 275, 291, 440 A.2d 899 (1981); Caracansi v. Caracansi, 4 Conn. App. 645, 652, 496 A.2d 225, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985).

Accordingly, because this case has gone to final judgment, the pendente lite order has ceased to exist, thereby rendering this appeal moot.

The appeal is dismissed.


text:
    U.S. Fidelity and Guaranty Company v. K.J. Enterprises, Inc., et al.
    (6466)
    Dupont, C. J., Borden and Daly, Js.
    Argued June 7 —
    decision released July 19, 1989

      Frank X. Lo Sacco, pro se, the appellant (defendant).

      Kirk D. Tavtigian, Jr., with whom were James J. Tancredi, and Susan J. Barnes, for the appellee (plaintiff).
   Per Curiam.

The plaintiff instituted this action against the defendants for breach of an indemnity agreement and to set aside certain conveyances of property as fraudulent. From a judgment in favor of the plaintiff and an award of attorneys fees and expenses, the defendant has appealed.

The defendant raises ten claims of error on appeal that attack either the court’s factual findings or its exercise of discretion. We have fully reviewed each of the defendant’s claims and conclude that the court’s findings are not clearly erroneous, and that its actions were clearly within its discretion. See Della Pietra v. American Factors, Inc., 18 Conn. App. 812, 556 A.2d 1064 (1989).

There is no error.


text:
    Evelyn Sebestyen v. William A. Sebestyen
    (6488)
    Dupont, C. J., Bokden and O’Connell, Is.
    Submitted on briefs January 8 —
    decision released August 11, 1989

      Gaetano Ferro filed a brief for the appellant-appellee (defendant).

      Jane Phillips and Salvatore C. DePiano filed a brief for the appellee-appellant (plaintiff).
   Per Curiam.

We have carefully considered each of the claims of error in the defendant’s appeal and in the plaintiff’s cross appeal. Our review of the record and briefs, coupled with an analysis of the claims of error by the parties, indicates that the trial court acted reasonably, in the exercise of its discretion and in accordance with the law.

More particularly, the court did not abuse its discretion in awarding costs and expenses of litigation to the plaintiff. Stoner v. Stoner, 163 Conn. 345, 353-56, 307 A.2d 146 (1972); see also Turgeon v. Turgeon, 190 Conn. 269, 280-83, 460 A.2d 1260 (1983).

There is no error.


text:
    Bridgeport Metal Goods Manufacturing Company v. Administrator, Unemployment Compensation Act, et al.
    (2090)
    Testo, Hull and Borden, Js.
    Argued February 29
    decision released May 22, 1984

      Donald E. Wasik, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (named defendant).

      Michael LaVelle, for the appellee (plaintiff).
   Borden, J.

This is an appeal by the named defendant, the administrator of the Unemployment Compensation Act; General Statutes §§ 31-222 through 31-274h; from the judgment of the trial court denying benefits to the claimant. The administrator awarded benefits. General Statutes § 31-241. The plaintiff, who is the employer, appealed to an appeals referee; General Statutes § 31-242; who affirmed the award. The plaintiff appealed to the employment security board of review; General Statutes § 31-249; which also affirmed the award. The trial court sustained the plaintiff’s subsequent appeal; General Statutes § 31-249b; and denied benefits. We find error.

The facts are not in dispute. The claimant was an hourly paid employee of the plaintiff, which is located in Bridgeport. She was laid off on October 3, 1980, and filed for and received unemployment benefits. In December, 1980, she moved to Puerto Rico, where she continued to receive the benefits until July, 1981. On March 25,1981, the plaintiff, pursuant to a collective bargaining agreement, sent her a recall notice, which she received but to which she failed to respond.

General Statutes § 31-236 (1) provides in pertinent part as follows: “An individual shall be ineligible for benefits ... if the administrator finds that he has failed without sufficient cause . . . to accept suitable employment when offered him by ... an employer . . . . Suitable work shall mean . . . work for which he is reasonably fitted, provided such work is within a reasonable distance of his residence . . . ."(Emphasis added.) The issue is whether, under the facts of this case, the claimant’s “residence” means the residence at the time of the lay-off or the residence at the time of the rehire offer. The trial court concluded that it means the claimant's residence at the time of the layoff. We agree with the defendant that it means the residence at the time of the rehire offer.

First, the act is to “be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases.” General Statutes § 31-274 (c). It is remedial legislation and as such is “ ‘to be construed liberally as regards beneficiaries, in order to accomplish its purpose’ Reger v. Administrator, 132 Conn. 647, 650, 46 A.2d 844 (1946); which is “ ‘to ameliorate the tragic consequences of unemployment.’ ” Id.

Second, since 1936 the defendant has been interpreting the word “residence” to mean the claimant’s residence at the time of the rehire offer. Such a longstanding administrative construction of the statute by the agency charged with its enforcement is “ ‘high evidence of what the law is’ ”; Wilson v. West Haven, 142 Conn. 646, 657, 116 A.2d 420 (1955); and is to be given “great deference.” Roy v. Centennial Ins. Co., 171 Conn. 463, 473, 370 A.2d 1011 (1976).

Third, our Supreme Court has interpreted a closely related provision of the act to focus on the claimant’s location. “Since, under unemployment compensation laws, it is the availability of an individual that is required to be tested, the labor market must be described in terms of the individual. A labor market for an individual exists when there is a market for the type of services which he offers in the geographical area in which he offers them.” Reger v. Administrator, supra, 651.

Fourth, a contrary interpretation would be inconsistent with the interstate unemployment compensation benefits program which operates in all fifty states, the District of Columbia, Puerto Rico and the Virgin Islands, and of which our act forms a part. See, e.g., General Statutes § 31-255. This system encourages unemployed workers to seek employment in other localities by continuing their benefits when they move. It is deeply rooted in the notion of “[f]reedom of movement within the labor market, whether induced by initiative or personal necessity.” Menard, “Refusal of Suitable Work,” 55 Yale L.J. 134,145 (1945). The “geographic mobility of labor . . . can aid in equalizing wages and work conditions for comparable employments. It helps to distribute workers where the need is greatest. It may provide workers with an opportunity to use their capacities and abilities most effectively.” Altman, Availability for Work, p. 204.

We disagree with the reasoning of Brown-Brockmeyer Co. v. Holmes, 152 Ohio St. 411, 89 N.E.2d 580 (1949), on which the plaintiff relies. See also Altman, op. cit., 205-213.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendant on the appeal.

In this opinion the other judges concurred.

       This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).