text:
    LUZ HENRY v. COMMISSIONER OF CORRECTION
    (AC 18095)
    Landau, Spear and Dupont, Js.

      Argued December 9, 1999
    officially released October 10, 2000

      Eugene J. Riccio, with whom, on the brief, was Lori A. McCarthy, for the appellant (petitioner).

      LeonF. Dalbec, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Maureen M. Keegan, supervisory assistant state’s attorney, for the appellee (respondent).
   Opinion

SPEAR, J.

The petitioner, Luz Henry, appeals from the judgment of the habeas court dismissing her petition for a writ of habeas corpus in which she alleged ineffective assistance of counsel. She claims that the dismissal was improper because trial counsel failed (1) to investigate the petitioner’s mental history, (2) to obtain an expert to review the petitioner’s mental health records and (3) to interview codefendants who would have provided exculpatory statements. We affirm the judgment of the habeas court.

The following facts were found by the habeas court and are relevant to this appeal. The petitioner and four codefendants went to the apartment of the victim, Lori Englehardt, to confront her because she had earlier called the petitioner a “slut.” The four codefendants pushed their way into the victim’s apartment and one or more stabbed the victim eight times, resulting in her death. After the killing, the codefendants drove the petitioner to St. Mary’s Hospital to establish an alibi that she was at the hospital and in labor while the crime was being committed. The petitioner did in fact deliver a child the next day.

The petitioner was subsequently arrested and charged with conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a) and aiding and abetting the crime of murder in violation of General Statutes §§ 53a-8 (a) and 53a-54a (a). She faced a maximum sentence of eighty years imprisonment. The petitioner pleaded guilty under the Alford doctrine to a reduced charge of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (1), and the court imposed the maximum sentence of twenty years imprisonment. After dismissing the petitioner’s habeas corpus petition, the court granted the petitioner’s application for certification to appeal, and this appeal followed.

The petitioner makes three claims of ineffective assistance of trial counsel. She first claims that trial counsel failed to investigate adequately the petitioner’s mental history in light of (1) the psychiatric treatment that the petitioner received after the birth of her child, (2) the fact that she was a victim of physical and emotional abuse by her husband, (3) her numerous suicide attempts and the numerous suicide attempts by members of her family and (4) her father’s history of drug and substance abuse. The petitioner claims that if her mental history had been properly investigated, there might have been a basis for a mental disease or defect defense at trial. Second, the petitioner claims that the failure of trial counsel to investigate her mental history prior to trial was exacerbated by his failure to obtain an expert to evaluate her mental history for purposes of the sentencing hearing. She maintains that if trial counsel had obtained such an expert, that expert’s opinion would have been persuasive in ameliorating the sentence and that she likely would have received a sentence of less than the maximum. Her last claim is that trial counsel failed to interview her codefendants in the criminal case after they indicated that they would exculpate the petitioner. Elizabeth Ruiz, one of the codefendants who pleaded guilty prior to the commencement of the petitioner’s trial, had indicated that she would testily favorably for the petitioner. Despite this information, trial counsel did not interview Ruiz or any other codefendant. We agree with the habeas court’s rejection of each of these claims.

We first note our standard of review. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Fuller v. Commissioner of Correction, 59 Conn. App. 302, 303, 755 A.2d 380, cert. denied, 254 Conn. 943, 761 A.2d 760 (2000). “A convicted defendant’s claim that counsel’s assistance was so defective as to require a reversal of the conviction . . . has two components. First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989).” (Internal quotation marks omitted.) Fair v. Warden, 211 Conn. 398, 402, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989).

The first component, generally referred to as the performance prong, requires that the petitioner “show that counsel’s representation fell below an objective standard of reasonableness.” (Internal quotation marks omitted.) Aillon v. Meachum, supra, 211 Conn. 357. In Strickland, the United States Supreme Court held that “[¡Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged ‘action might be considered sound trial strategy.’ . . . [C]oun-sel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90.

Even if a petitioner shows that counsel’s performance was deficient, the second prong, or prejudice prong, requires that the petitioner show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 694. In the context of a guilty plea, our Supreme Court has stated: “[T]he petitioner must show that such a decision to plead not guilty would have been based on the likelihood that the introduction of the evidence for the defense that was not identified because of ineffective assistance of counsel would have been successful at trial. . . . [The United States Supreme Court stated that in] many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the prejudice inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.” (Citation omitted; emphasis added; internal quotation marks omitted.) Copas v. Commissioner of Cor rection, 234 Conn. 139, 156-57, 662 A.2d 718 (1995), quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

With this standard of review in mind, we examine each of the petitioner’s claims. Additional facts will be discussed where necessary for the resolution of the claim.

I

The petitioner first claims that trial counsel was ineffective in failing to investigate adequately the petitioner’s mental history for purposes of establishing an affirmative defense and for use in mitigating her sentence. Because these issues are closely related, we will discuss them together.

The habeas court did find that trial counsel made no “concerted effort to obtain petitioner’s medical records. He was aware that the petitioner had some psychiatric history and that she had been the victim of spousal abuse.” The court further found that the petitioner “was reluctant to discuss or inform the attorney in any detail of these problems.” The habeas court noted the petitioner’s claim that information about her mental health could have been presented to a “defense-oriented forensic psychiatrist” and that a defense might have been available. The court, however, found this to be pure speculation and concluded that trial counsel focused on contesting the issues at trial because the petitioner claimed that she was not guilty and did not commit the crime. We also note that the petitioner presented no psychiatric evidence at the habeas trial in support of these claims. The habeas court properly rejected this claim.

II

The petitioner next claims that trial counsel was ineffective at sentencing because he did not hire a qualified expert witness to review her medical records, which would have helped in mitigating her sentence. This claim was not alleged in the petition for a writ of habeas corpus and the habeas court made no mention of such a claim, presumably because it was never presented to the court. We are not required to review claims that were not distinctly raised at trial and decline to do so here. State v. Rogers, 38 Conn. App. 777, 787, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996).

Ill

The petitioner’s final claim is that trial counsel was ineffective in that he failed to interview the four code-fendants who would have either exonerated her or given information helpful to her defense. The court found that “[t]he petitioner and her father urged [trial counsel] to interview the codefendants, claiming that they had altered their stories so as to exculpate [the] petitioner. The attorney discussed this with counsel for the code-fendants. They refused to allow any such questioning of [their] clients. Under such circumstances, it was not possible for [trial counsel] to question these potential witnesses because of the Rules of Professional Conduct § 4.2.”

We agree with the court that under the then existing circumstances, trial counsel could not have questioned the codefendants. The petitioner claims that because Ruiz had pleaded guilty prior to the petitioner’s trial, trial counsel could have discussed the case with her. Ruiz was still represented by counsel at that time because her case had not concluded. She was not sentenced until after the petitioner entered her guilty plea and, therefore, was unavailable pursuant to rule 4.2.

The petitioner also alleges that trial counsel was deficient in failing to interview prisoners who were rumored to have heard the codefendants say that although their original statements were inculpatory to the petitioner, they were changing those statements to ones that were more favorable to the petitioner. Trial counsel believed that such statements would be hearsay and not admissible and that the original statements might be admitted for substantive purposes pursuant to State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). The court did not address this claim other than to note that any such inconsistent statements might be used to attack the credibility of any codefendants who testified at trial.

None of the codefendants was called to testily during the habeas trial as to what they would have said, nor did the petitioner call any of the prisoners who generated the rumors that her codefendants desired to change their inculpatory statements to exculpatory ones. In light of this lack of evidence, the court properly concluded that the failure of the petitioner’s counsel to interview the codefendants or the prisoners who had heard the rumors did not constitute ineffective assistance of counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). A defendant who pleads guilty under the Alford doctrine does not admit guilt, but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea. State v. James, 197 Conn. 358, 359 n.l, 497 A.2d 402 (1985); State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985).

       Rule 4.2 of the Rules of Professional Conduct provides: “In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”


source: Caselaw Access Project

author: ZARELLA, J. LAVERY, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. TOMMY HAMMOND
    (AC 18702)
    Lavery, Zarella and Spallone, Js.

      Argued January 24
    officially released October 10, 2000

      Michael S. Alevy, deputy assistant public defender, with whom was Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elizabeth Bodine, assistant state’s attorney, for the appeilee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ZARELLA, J.

The defendant, Tommy Hammond, appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine in violation of General Statutes § 2 la-279 (a), possession of heroin in violation of § 21a-279 (a), possession of heroin with intent to sell in violation of General Statutes § 2 la-277 (a) and possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that (1) the trial court improperly denied his motion to suppress certain evidence seized as a result of a warrantless search and seizure that he claims was made without probable cause and (2) his conviction of two counts of possession of narcotics, both of which arose out of the same transaction, violates federal and state proscriptions against double jeopardy. We affirm the judgment of the trial court.

The court found the following facts from the evidence adduced at the suppression hearing. On February 12, 1997, at approximately noon, Sergeant Herman Badger of the New Haven police department received an anonymous telephone call from a citizen complaining about a drug transaction taking place on the steps of a church at 246 Dixwell Avenue. Badger was stationed at the police substation on Charles Street around the comer from the church when he received the call. The caller indicated that two black males, one taller than the other, were selling drugs. The caller also described the color of the jackets that the two individuals were wearing. The caller was excited and upset by the fact that chug dealing was occurring on the church steps. Badger was familiar with the area and testified that it was an area known for frequent drug transactions.

Badger contacted Officer Richard Zasciurinskas by radio and dispatched him in his patrol car to the area of the church to look for the suspects described in the anonymous tip. At the time that Zasciurinskas was dispatched, he was a very short distance from the area in a marked patrol car. Badger, accompanied by Officer Samuel Bagley, left the substation and walked approximately 100 to 200 feet to the intersection of Charles Street and Dixwell Avenue. All three officers were in full uniform. Just prior to reaching the intersection, Badger and Bagley observed two black males standing in front of the church. One male was taller than the other, and their jackets matched the description given by the caller. The officers did not observe any conduct indicating that a drag transaction was taking place. The two men, however, fled when they saw the officers approach.

The two men walked across Dixwell Avenue and proceeded north, away from the officers. Badger radioed Zasciurinskas and ordered him to stop the two individuals. Badger and Bagley then proceeded across Dixwell Avenue and followed the two men at a distance of approximately thirty to fifty feet. Zasciurinskas, who was traveling south on Dixwell Avenue, drove his car across the northbound lane of traffic in front of the suspects and partially blocked traffic. As Zasciurinskas exited his vehicle, the two suspects reacted by turning and proceeding south on Dixwell Avenue. Zasciurinskas yelled to them to stop. Zasciurinskas then observed one of them drop a bundle on the ground.

Zasciurinskas picked up the bundle, which consisted of nine glassine envelopes. On the basis of his almost twenty years of police experience, Zasciurinskas determined that the bags contained a possible narcotic substance. Badger and Bagley were about eight to ten feet from the two suspects, and Zasciurinskas was about ten to fifteen feet on the other side them.

The two men were detained by Badger and Bagley, and transported to the police substation. There, the contents of one of tire nine envelopes tested positive for the presence of heroin. The defendant was placed under arrest. A search of the defendant incident to the arrest revealed a single plastic bag containing a white powder also believed to be a narcotic substance. At the substation, the defendant indicated that the single bag of cocaine was for his personal use.

The defendant pleaded not guilty to a four count substitute information charging him with possession of narcotics (cocaine) in violation of § 21a-279 (a) in count one, possession of narcotics (heroin) pursuant to §2 la-279 (a) in count two, possession of narcotics (heroin) with intent to sell by a person who is not drug-dependent pursuant to General Statutes § 21a-278 (b) in count three and possession of narcotics (heroin) with intent to sell within 1500 feet of a school pursuant to § 21a-278a (b) in count four. The jury found the defendant guilty on counts one, two and four. The jury returned a verdict of not guilty on count three, but guilty to the lesser included offense of possession of narcotics (heroin) with intent to sell pursuant to § 21a-277 (a). The court sentenced the defendant to serve a term of four years incarceration on the first count. The court merged the second count with the third count and sentenced the defendant on the third count to a term of twelve years to be served concurrently with the term imposed on the first count. The court also sentenced the defendant to serve a term of three years on the fourth count to run consecutive to the sentences imposed on all other counts. Thus, the court imposed a total effective sentence of fifteen years.

I

The defendant claims first that he was illegally seized on the basis of an anonymous tip received by the police because the tip lacked the requisite reliability to give rise to a reasonable and articulable suspicion. We disagree.

In justifying the seizure of a suspect, the “police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). “The police officer’s decision . . . must be based on more than hunch or speculation.” State v. Cofield, 220 Conn. 38, 45, 595 A.2d 1349 (1991).

To determine whether the police had a reasonable suspicion that warranted the seizure of the defendant, we look to the totality of the circumstances surrounding the police action. State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987). In the present case, the anonymous tip was telephoned to Badger, who was one of the arresting officers. Badger determined that the caller was excited by and upset that a drug transaction allegedly had taken place on the steps of the church. The informant gave the relative heights of the two individuals who had engaged in the alleged drug transaction, described the colors of the coats the two individuals were wearing, and gave their location and indicated their race. Every aspect of the tip, with the exception of the fact that the two men were on the sidewalk in front of the church instead of on its steps, was verified by Badger and Bagley when they left the substation immediately after the call and proceeded the short distance to the scene.

The defendant relies on Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990), and claims that the fact that the informant accurately described those facts is not sufficient corroboration to warrant a seizure. The defendant cites White for the proposition that an anonymous tip containing only facts and conditions that were in existence at the time of the tip is insufficient to support a reasonable and articulable suspicion, and that the tip must contain a prediction of future events to establish the reliability of the tipster. The defendant overstates the holding in White.

In White, the state received an anonymous tip that the suspect would be leaving a particular apartment at a specified time in a particular vehicle, that she would be going to a particular motel and that she would be in possession of cocaine. Id., 327. The United States Supreme Court found that the verification of those facts coupled with the verification of the destination of the defendant lent sufficient credibility to the anonymous tip to warrant a reasonable and articulable suspicion. Id., 332. The court stated: “What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information—a special familiarity with respondent’s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. . . . When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.” (Citation omitted; emphasis in original.) Id.

The defendant argues that because the tip in this case did not predict future events, it lacked, under White, the credibility to warrant a reasonable and articulable suspicion on the part of the police. The details relayed to the police in the present case were not predictive in nature and were facts available to any member of the public observing the subjects. White, however, also stands for the proposition that “[Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture’ . . . that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” (Citation omitted.) Id., 330.

In addition to the facts that were conveyed to the police by the informant, Badger testified that the informant seemed agitated or excited. Badger believed that the caller was offended that drug transactions allegedly were taking place on the steps of the church. The police knew the area to be one where drug transactions were routinely carried out. Additionally, the suspicions of the police were further raised when the two men, on seeing the police, turned, crossed the street and started to walk in a different direction. Finally, when Zasciurin-skas drove his patrol car across the street and stopped, the defendant again turned and walked away from the officer. Those factors, in addition to the tipster’s information, which was confirmed by the police as to physical description, location and time, were sufficient to give the police reasonable and articulable suspicion sufficient to warrant a seizure of the defendant.

In Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000), the United States Supreme Court held that police knowledge of an area as a high crime area and flight by a suspect were enough to raise a reasonable and articulable suspicion. In Wardlow, the defendant fled when he saw police vehicles converge on an area that was known for heavy drug trafficking. Id. Two police officers stopped the defendant, and one of them conducted a protective patdown search for weapons because the officer, on the basis of his experience, believed that there were usually weapons in the vicinity of drug transactions. Id., 675. The facts in the present case are far stronger than those in Wardlow. We conclude, therefore, from the undisputed facts in this case, that the court properly denied the defendant’s motion to suppress.

II

The defendant claims next that his conviction of two counts of possession of narcotics pursuant to § 21a-279 (a) violates the federal and state prohibitions against double jeopardy. We disagree.

The state in its amended long form information alleged in the first count that the defendant “did possess or have under his control a quantity of a narcotic substance, to wit: cocaine, in violation of Section 21a-279 (a) of the Connecticut General Statutes.” In the second count, the state alleged that the defendant “did possess or have under his control a quantity of a narcotic substance, to wit: heroin, in violation of Section 21a-279 (a) of the Connecticut General Statutes.” The third count specifically states that the defendant “did possess or have under his control with the intent to sell a quantity of a narcotic substance, to wit: heroin, in violation of Section 21a-278 (b) of the Connecticut General Statutes.” The defendant, relying on our Supreme Court’s decision in State v. Rawls, 198 Conn. 111, 502 A.2d 374 (1985), claims that when two identically classified narcotic substances are simultaneously possessed in the course of the same transaction, the proscriptions against double jeopardy decree that only one offense has been committed.

In Rawls, a police detective, during a raid of an after-hours club, noticed the defendant place a black pouch on the bar and walk toward the exit. Id., 113. The defendant was stopped, and the detective inspected the bag and found a yellow spoon with a white powder residue, two glassine envelopes, a plastic bag and a film container, all of which held a white powder substance. Id. The defendant was arrested and charged with two counts of possession of narcotics. Id., 111-12. The defendant was convicted on both counts and sentenced to seven years incarceration on each count, the terms of which were to run consecutively. Id., 112. The sentence was subsequently modified to run concurrently. Id. On appeal, the defendant claimed that by convicting him of two counts of possession of narcotics for the simultaneous possession of heroin and cocaine, the court punished him twice for the same offense and thereby violated the double jeopardy provision of the United States constitution. Id., 119.

The court in Rawls noted that “[t]he double jeopardy clause of the fifth amendment to the federal constitution protects not only against multiple trials but also against multiple punishments for the same offense. . . . With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the . . . court from prescribing greater punishment than the legislature intended.” (Citations omitted; internal quotation marks omitted.) Id., 120. The court held that the defendant’s conviction and sentencing on both possession counts violated the double jeopardy clause and set aside the conviction on one count. Id., 122. Thus, the court determined that the appropriate procedural form for the remand to the trial court when multiple punishments have been imposed for the same offense is to vacate the conviction and the sentence on the additional count.

Our Supreme Court in State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), again addressed the issue of the appropriate form of the remand when multiple punishments have been imposed for the same crime. In Chicano, the state requested that only the sentence be vacated and that the conviction be allowed to stand. The court noted that this would be a departure from the practice of vacating the conviction and the sentence as was done in Rawls. The court stated that this procedure is “consistent with the procedure followed by the Second Circuit Court of Appeals; see United States v. Roman, 870 F.2d 65, 75-76 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S. Ct. 3164, 104 L. Ed. 2d 1026 (1989); United States v. Aiello, 771 F.2d 621, 632-33 (2d Cir. 1985); but it is not consistent with the procedure followed by this court in prior cases involving successful double jeopardy claims. See, e.g., State v. Rawls, [supra, 198 Conn. 122].” State v. Chicano, supra, 722 n.18. Further, the court noted that although a majority of the federal circuit courts of appeal follow the procedure of vacating the conviction and the sentence on the lesser offense, the procedure of vacating only the sentence has found support in the Second Circuit and at least three other circuits. Id., 724 n.19.

The Chicano court concluded that the “Second Circuit’s approach to this procedural issue adequately addresses the dual concerns relating to a subsequent reversal of the remaining conviction and subjecting a defendant to the collateral consequences of multiple convictions.” Id., 725. Thus, Chicano held that the proper procedure when multiple punishments have been imposed for the same offense is to vacate only the additional sentence and not the conviction.

In the present case, the defendant stands convicted of two counts of possession of narcotics arising out of the same transaction. The defendant, however, was sentenced only on one count of possession of narcotics. This is consistent with the procedural form adopted in Chicano. Because there has been only one sentence on the possession counts, the double jeopardy claim must fail.

The court correctly merged the count alleging possession of heroin with the count alleging possession of heroin with intent to sell, as the former is a lesser offense included within the latter offense. That left the count alleging possession of cocaine, the count alleging possession of heroin with intent to sell and the count alleging possession of heroin with intent to sell within 1500 feet of a school. The remaining possession of narcotics (cocaine) conviction, for which the defendant was sentenced, did not merge with the count alleging possession of narcotics with intent to sell because the former was not a lesser offense included within the latter offense. The information specifically sets forth the manner in which the crimes were committed. The possession count is specifically described in the information as possession of cocaine. The count alleging possession with intent to sell was described in the information as possession of heroin with intent to sell. Because it is, therefore, possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser offense, the count alleging possession is not a lesser offense included within the greater offense of possession with intent to sell. See State v. Fuller, 56 Conn. App. 592, 599-600, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298 (2000).

In this case, the defendant, therefore, cannot claim to have been sentenced twice for the same crime because he was not sentenced on both possession counts and did not thereby receive multiple punishments for the same offense.

The judgment is affirmed.

In this opinion SPALLONE, J., concurred.

LAVERY, J.,

dissenting. Although I agree with the majority that the trial court properly denied the defendant’s motion to suppress, I respectfully dissent from the majority’s conclusion that the defendant did not receive multiple punishments for the same offense.

The defendant was charged with the following offenses which are relevant to this dissent. In count one, he was charged with possession of narcotics (cocaine) in violation of General Statutes § 21a-279 (a). In count two, he was charged with possession of narcotics (heroin) in violation of § 21a-279 (a). In count three, he was charged with possession of narcotics (heroin) with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b). The jury returned a verdict of guilty on counts one and two. The jury acquitted the defendant on count three, but entered a guilty finding on the lesser included offense of possession of narcotics (heroin) with intent to sell in violation of § 21a-277 (a).

On count one, the defendant received a four year sentence. The court merged count two with count three, and on count three, the defendant received a twelve year sentence to run concurrently with the sentence on count one. I would hold, pursuant to State v. Rawls, 198 Conn. 111, 502 A.2d 374 (1985), that counts one and two would merge, and since possession of narcotics is a lesser offense included within count three (possession with intent to sell), there should be only one sentence. I would therefore vacate the four year concurrent sentence on count one.

“In accordance with Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), double jeopardy claims challenging the constitutional validity of convictions pursuant to two distinct statutory provisions are traditionally analyzed by inquiring whether each provision requires proof of a fact of which the other does not require proof. . . . We prefer a different form of analysis in the circumstances of this case, in which only one statutory provision is at issue.

“The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute. . . . State v. Freeney, 228 Conn. 582, 587, 637 A.2d 1088 (1994). The issue, though essentially constitutional, becomes one of statutory construction.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 304, 699 A.2d 921 (1997).

I will first consider whether the two charges of possession of narcotics, one of which alleged possession of heroin, the other of which alleged possession of cocaine, both should have been merged into one count of possession of narcotics. As previously noted, this issue is governed by State v. Rawls, supra, 198 Conn. 111. The majority’s summary of Rawls is an accurate one, and I need not resummarize its facts and holding here. In short, Rawls concluded that the defendant’s conviction of two counts of possession of narcotics for the simultaneous possession of heroin and cocaine punished him twice for the same offense, thus violating the double jeopardy provision of the United States constitution. Id., 122. Our Supreme Court in State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), later sharpened Rawls' focus and concluded that in such a situation in which Rawls applies, only the sentence is to be vacated and not the conviction. Id., 724-25.

Similar to Rawls, the defendant here was convicted of two counts of possession of narcotics for the simultaneous possession of heroin and cocaine. Section 21-279 (a) prohibits the possession of narcotic substances. Cocaine and heroin are substances that are covered under the “narcotic substance” umbrella. General Statutes § 21a-240 (30). Under § 21-279 (a), one criminal act, possession of narcotics, embraces multiple types of specific drugs, and “[mjerely because one element of a single criminal act embraces two persons or things, a prosecutor may not carve out two offenses by charging the several elements of the single offense in different counts and designating only one of the persons or things in one count and designating only the other person or thing in the other count.” (Internal quotation marks omitted.) State v. Rawls, supra, 198 Conn. 120. “Unless a clear intention to fix separate penalties for each narcotic substance involved is expressed, the issue should be resolved in favor of lenity and against turning a single transaction into multiple offenses.” Id., 122. I see no clear intention from the legislature to demarcate possession of cocaine and heroin, both of which are “narcotic substances” pursuant to § 2 la-240 (30), as separate offenses. Accordingly, the conviction for possession of narcotics (cocaine) and the conviction for possession of narcotics (heroin) should have been merged as one count of possession of narcotics. Furthermore, since possession of narcotics in violation of § 21a-279 (a) is a lesser offense included within the offense of possession of narcotics with intent to sell in violation of § 21a-277 (a); see State v. Clark, 56 Conn. App. 108, 109 n.2, 741 A.2d 331 (1999); the possession of narcotics count properly merges into the count alleging possession of narcotics with intent to sell.

This case is distinguishable from State v. Hill, 237 Conn. 81, 675 A.2d 866 (1996), which contemplated a scenario different from the case here. In Hill, the defendant challenged on double jeopardy grounds his conviction of different offenses under different statutes, which arose out of the same transaction. Id., 98. As previously noted, this scenario requires an entirely different analysis focusing on whether each statutory provision requires proof of a fact that the other does not. Id., 100.

The defendant here was originally charged with possession of narcotics (heroin) with the intent to sell in violation of § 2 la-278 (b), similar to the charge issued in Hill. Unlike the situation in Hill, however, the defendant in this case was convicted of possession of narcotics (heroin) with intent to sell in violation of § 2 la-277 (a), and counts one and two are lesser offenses included within that charge. Accordingly, Hill and its analysis does not apply.

I therefore conclude that the defendant has been sentenced twice for the same crime in violation of the double jeopardy clause of the United States constitution. I would vacate the four year sentence given as a result of the conviction on count one because that conviction should merge with the conviction on count two, constitute a lesser offense included within count three and become one sentence arising out of the same transaction, that of twelve years.

For the foregoing reasons, I respectfully dissent.

       General Statutes § 21a-279 (a) provides in relevant part: “Any person who possesses or has under his control any quantity of any narcotic substance ... for a first offense, may be imprisoned not more than seven years . . . .”

       General Statutes § 21a.-277 (a) provides in relevant part: “Any person who . . . possesses with the intent to sell or dispense ... to another person ... a narcotic substance, except as authorized in this chapter, shall be imprisoned . . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising apublic or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . . .”

        Rawls stands for the proposition that simultaneous possession of heroin and cocaine in a single transaction cannot result in two convictions for possession. The dissent follows Rawls and concludes that “the possession of narcotics count (cocaine) and the possession of narcotics count (heroin) should have been merged together as one count of possession of narcotics.” Chicano no longer requires the conviction to be vacated.

       In count four, the defendant was charged with and convicted of possession of narcotics (heroin) with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). The defendant was sentenced on that count to three years, consecutive to all of the other counts. That count is not relevant to the issues here.

       The Hill court concluded that it had no occasion to reconsider Rawls because it discussed a different analysis. “In Rawls, we concluded that multiple convictions were barred under § 21a-279 (a) because ‘neither the language of [§ 21a-279 (a)] nor its legislative history indicates an intention to authorize multiple punishment for the simultaneous possession of more than one narcotic.’ State v. Rawls, supra, [198 Conn.] 121. We have no occasion to reconsider our determination in Rawls in this case.” State v. Hill, supra, 237 Conn. 102-103 n.27.


author: SPEAR, J.

text:
    SANDRA SACHS v. JOEL SACHS
    (AC 18815)
    (AC 19255)
    Laveiy, Spear and Dupont, Js.

      Argued February 23
    officially released October 10, 2000

      Lori Welch-Rubin, for the appellant (defendant).

      Wesley W. Horton, with whom were Kenneth J. Bartschi and Jessica A. Ballou, certified legal intern, and, on the brief, Susan M. Cormier and Richard L. Goldblatt, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SPEAR, J.

These two appeals arise from a marriage dissolution action. In appeal No. 18815 (pension appeal), the defendant, Joel Sachs, claims that the trial court improperly construed the property award provisions of the parties’ dissolution agreement to allow the plaintiff, Sandra Sachs, one third of the defendant’s future pension benefits that are attributable solely to the defendant’s work after the date of the dissolution. The challenged future pension benefits are one third of all postdissolution deposits made to the defendant’s retirement plans and the earnings thereon. In appeal No. 19255 (attorney’s fees appeal), the defendant claims that the trial court improperly awarded attorney’s fees to the plaintiff to defend this appeal. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of these appeals. On April 13, 1983, the parties executed a separation agreement (agreement) that the trial court incorporated by reference into the dissolution decree. The parties subsequently filed a series of postjudgment motions seeking to clarify whether the parties intended to divide the defendant’s future pension benefits accruing after the court rendered the judgment dissolving the marriage. The defendant filed a motion for order pursuant to paragraph three of the agreement, seeking the entry of a proposed qualified domestic relations order (QDRO) that would have excluded from the agreement all annual contributions made by his employer for his work postdissolution. The plaintiff filed a motion to compel the defendant to draft a QDRO requiring the defendant to pay to the plaintiff one third of his present and future pension benefits in accordance with the agreement that was incorporated into the dissolution decree. The court, after a hearing, ruled that the defendant’s QDRO did not comply with the April 13, 1983 dissolution judgment. It further ordered the defendant to submit to the plaintiff “appropriate [QDRO’s] transferring to the plaintiff one third of his present and future interest in the [pension plan]. Said transfer to include contributions to both plans from date of judgment (4/13/83) to date of retirement.”

The facts relevant to the attorney’s fees appeal are as follows. The plaintiff moved for attorney’s fees to defend the present appeal, requesting a total of $15,000. The plaintiff’s appellate counsel required a $10,000 retainer, and her trial counsel required a $5000 retainer to consult on the appeal. The court found that “the defendant was evasive [about] disclosing his financial status, that he has in excess of one million dollars in liquid assets and continues to earn an annual income of approximately $210,000.” The court also found that the plaintiff had recently inherited some money, but that it would be significantly diminished after distribution to beneficiaries and after payment for the administration of the estate. Also, the court found that the plaintiff was unemployed. The court ordered the defendant to pay to the plaintiffs appellate counsel the sum of $7500.

I

In the pension appeal, the defendant claims that the court improperly construed the parties’ dissolution agreement as providing that the plaintiff was entitled to one third of the defendant’s pension benefits that were attributable solely to his work performance after the date of the dissolution. Specifically, the defendant claims that (1) the court’s interpretation is contrary to the intent of the parties, as expressed in paragraphs three and twenty of the agreement, to limit all property awards to that which the court could have ordered pursuant to General Statutes § 46b-81 and (2) regardless of the intent of the parties, § 46b-81 does not authorize the court to award the challenged future pension benefits.

A

“The agreement of the parties executed at the time of the dissolution was incorporated into the judgment and is a contract of the parties. Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999); Greenburg v. Greenburg, 26 Conn. App. 591, 595, 602 A.2d 1056 (1992). The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four comers of the instrument. Issler v. Issler, supra, 235. ‘[T]he constmction of a written contract is a question of law for the court. ’ Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988); Sacharko v. Center Equities Ltd. Partnership, 2 Conn. App. 439, 445, 479 A.2d 1219 (1984). The scope of review in such cases is plenary. Branch v. Occhionero, 239 Conn. 199, 205, 681 A.2d 306 (1996); Hammond v. Commissioner of Correction, 54 Conn. App. 11, 16, 734 A.2d 571, cert. granted on other grounds, 251 Conn. 919, 742 A.2d 358 (1999). Because our review is plenary, involving a question of law, our standard for review is not the clearly erroneous standard used to review questions of fact found by a trial court. Our review of the parties’ agreement is plenary . . . .” Amodio v. Amodio, 56 Conn. App. 459, 470, 743 A.2d 1135, cert. granted on other grounds, 253 Conn. 910, 754 A.2d 160 (2000) (appeal withdrawn September 27, 2000).

Notwithstanding the plain language of paragraph three of the agreement, the defendant insists on a tortured reading of paragraph twenty of the agreement to support his claim that the parties intended their agreement to be subject to the statutory limitations provided under § 46b-81.

The defendant’s basic premise is that the court could not, pursuant to § 46b-81, order that postdissolution contributions to the pension plan be allocated to the parties in the manner that they have done so by agreement. He asserts that implicit in the clause that requires court approval of the agreement is the understanding that the court will limit any property award to that which the court could have ordered pursuant to § 46b-81. We conclude that the court properly construed the agreement.

Paragraph twenty does not make any express reference to § 46b-81. There is, therefore, no reason to review the distribution of the pension benefits under the agreement pursuant to the authority provided by § 46b-81 for the distribution of property.

Paragraph twenty of the agreement, by its plain language, indicates that the agreement will become effective only upon approval after submission to the court pursuant to § 46b-66. Nowhere does the agreement specifically reference § 46b-81. Furthermore, paragraph twenty states that “[i]f approved by the Court, this agreement is to be taken as the parties’ full expression of the manner in which they would like to have their property and other assets and problems resolved.”

The court interpreted the agreement provision that defined the distribution of the defendant’s pension benefits by looking at the plain language of the agreement. “The interpretation of the agreement is a search for the intent of the parties. . . . This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Citation omitted; internal quotation marks omitted.) Champagne v. Champagne, 43 Conn. App. 844, 848, 685 A.2d 1153 (1996).

Several key phrases in the language of paragraph three of the agreement provide clear and unambiguous evidence of the parties intent. First, the language that states that “ [t]he husband has accrued and will continue to accrue pension and retirement benefits,” indicates that the agreement covers both the present and future accrual of benefits. Second, the agreement states that “[i]t is the intention of the parties that such benefits shall be divided between the Husband and Wife . . . .” (Emphasis added.) In this second statement, there was no attempt to distinguish between future and past accruals for direction at the time of the division of the benefits. Third, the agreement further directs the husband to “take all necessaiy steps, prepare and execute all necessary documents to have one third (1/3) of his vested interest in said benefits present and future transferred to the Wife . . . .” (Emphasis added.) This language again refers to future benefits without any attempt to indicate that future contributions are intended to be treated differently. Finally, the agreement refers to the wife’s share, and provides that one third of “all benefits whether lump sum or periodic payable to the Husband . . . shall be paid and payable directly to the Wife . . . .” (Emphasis added.) This language again fails to make any distinction between present and future contributions of the husband, and more directly indicates an intention to divide all of the benefits in the proportions stated in the agreement. The defendant’s claim that the court improperly construed the agreement is without merit.

B

The defendant also makes the claim that the court could not have awarded the future pension benefits pursuant to § 46b-81 because such benefits are not marital property, and, therefore, the court had no power to do so pursuant to the agreement of the parties. Even if we assume, without deciding, that the challenged benefits are not marital property, the defendant cannot prevail.

In 1983, the defendant joined with the plaintiff in requesting the dissolution court to approve the agreement as fair and equitable and to incorporate it into the dissolution decree. He now asks us to hold that the agreement is unenforceable. “This situation is in the nature of induced error. Actions that are induced by a party ordinarily cannot be grounds for error. . . . A defendant can present a claim of relief from induced error only upon a showing that the error violated his constitutional rights.” (Citations omitted; internal quotation marks omitted.) State v. Edwards, 39 Conn. App. 242, 251, 665 A.2d 611, cert. denied, 235 Conn. 924, 925, 666 A.2d 1186, 1187 (1995); see also State v. Hanks, 39 Conn App. 333, 344, 665 A.2d 102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995); State v. Youdin, 38 Conn. App. 85, 94, 659 A.2d 728, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995). Because no constitutional violation is claimed here, review of this claim is not warranted.

Moreover, the defendant’s initial claim that the court lacked subject matter jurisdiction to enforce the challenged aspect of the agreement is no longer viable. During the pendency of these appeals, our Supreme Court decided Amodio v. Amodio, 247 Conn. 724, 724 A.2d 1084 (1999), clarifying the distinction between a court’s subject matter jurisdiction and its authority to act pursuant to a statute. “General Statutes § 46b-l (c) provides the Superior Court with plenary and general subject matter jurisdiction over legal disputes in family relations matters . . . (Internal quotation marks omitted.) Id., 729. General Statutes § 46b-66 provides the court with jurisdiction to incorporate a separation agreement into its order or decree if upon review it finds the agreement fair and equitable under the circumstances. Furthermore, § 46b-81 provides the court with jurisdiction to divide the parties’ property. Therefore, the trial court, pursuant to these statutes, had jurisdiction over the claim in this case. Our question is, therefore, whether the court acted within its statutory authority under these statutes in its decision to order the defendant, pursuant to the agreement, to submit a QDRO “transferring to the plaintiff one third of his present and future interest in the [pension plan].” Although it is axiomatic that parties cannot confer subject matter jurisdiction on a court by agreement, appellate review of a court’s statutory authority can be precluded, pursuant to the induced error doctrine, where a party to an agreement in the trial court seeks to avoid that agreement, in a situation where the agreement does not violate a constitutional right or public policy. As the defendant concedes, the court has subject matter jurisdiction over property awards in marital dissolution cases and thus had jurisdiction in this case.

II

In the attorney’s fees appeal, the defendant claims that the court improperly awarded attorney’s fees to the plaintiff to defend the appeal. We disagree.

Buttressing its decision to award $7500 to the plaintiff to defend the appeal, the court found the following facts. “The evidence at trial indicates that the defendant was evasive around disclosing his financial status, that he has in excess of one million dollars in liquid assets and continues to earn an annual income of approximately $210,000. The plaintiff recently inherited some money but this will be significantly diminished after distribution among the beneficiaries and moneys used for the administration of the estate. Additionally the plaintiff is unemployed.” Furthermore, the court specifically indicated that it considered the evidence and General Statutes §§ 46b-62 and 46b-82.

“Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. . . . Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980). An exception to the rule announced in Koizim is that an award of attorney’s fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine its prior financial orders .... Eslami v. Eslami, 218 Conn. 801, 820, 591 A.2d 411 (1991). Whether to allow counsel fees [under §§ 46b-62 and 46b-82], and if so in what amount, calls for the exercise of judicial discretion. . . . Holley v. Holley, [194 Conn. 25, 33-34, 478 A.2d 1000 (1984)]. An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did. Unkelbach v. McNary, 244 Conn. 350, 374, 710 A.2d 717 (1998), quoting Cook v. Bieluch, 32 Conn. App. 537, 544, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993).” (Internal quotation marks omitted.) Bornemann v. Bornemann, 245 Conn. 508, 543, 752 A.2d 978 (1998).

The defendant first claims that the court’s prior denial of attorney’s fees to litigate trial court motions acts as a bar to future claims for attorney’s fees. The defendant relies on our decision in Durkin v. Durkin, 43 Conn. App. 659, 685 A.2d 344 (1996), for this proposition. In Durkin, we stated that “[i]f an award of attorney’s fees was sought in the underlying proceeding from which the appeal is being taken, the ruling on that earlier application may substantially control the result on the later application for attorney’s fees on appeal. A. Rutkin, E. Effron & K. Hogan, 8 Connecticut Practice Series: Family Law and Practice (1991) § 44.12, p. 285.” (Internal quotation marks omitted.) Durkin v. Durkin, supra, 664. In Durkin, the claim was that the court deprived the defendant of a meaningful hearing on attorney’s fees because the defendant was unable to cross-examine the plaintiff on her financial affidavit because she was out of the country at the time of the hearing. We held that the defendant had a sufficient opportunity to cross-examine the plaintiff at an earlier hearing on the same financial affidavit and thus that the court properly relied on a previous hearing in awarding counsel fees to the plaintiff. Id. The factual situation in Durkin and its holding are therefore not applicable here.

Furthermore, Durkin does not preclude future awards of attorney’s fees once a trial court in a prior proceeding rules that no attorney’s fees are warranted at that time. This is evident by our choice of the words, “may substantially control.” (Emphasis added.) Id. Such language is not mandatory. The trial court could have concluded, therefore, that because the plaintiff was being forced to defend another appeal to enforce its prior judgment, an award of attorney’s fees was necessary to prevent the undermining of its previous financial orders.

The defendant next claims that the plaintiffs attempts to introduce evidence to inform the court of the reasonableness of the fees bear on the trial court’s abuse of discretion in awarding attorney’s fees in this case. General Statutes § 46b-62 governs orders for the payment of attorney’s fees and provides in relevant part that “the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.”

The defendant claims that his due process rights were violated because the plaintiff’s motion sought $10,000 for her appellate attorney’s fees, but the trial court allowed her to testify that her attorney estimated the fees for the appeal to be “in the range of about twenty-five thousand—[dollars].” The defendant’s objection to this testimony as hearsay was overruled. This argument is factually flawed. First, the motion for attorney’s fees sought $15,000 to defend the appeal. That the plaintiff testified that her anticipated cost of appeal would exceed the requested $15,000 is of no moment. The defendant, by the stated relief sought in the motion, was on notice that he faced a liability of only $15,000. Fiirthermore, the court awarded only $7500 in attorney’s fees. We fail, therefore, to see how the defendant’s due process rights could have been violated.

The defendant also claims that it was an abuse of discretion for the court to award attorney’s fees because the plaintiff had already paid the $10,000 retainer to her appellate counsel, and therefore the plaintiff was actually seeking a reimbursement. Because attorney’s fees may be awarded even where both parties are financially able to pay their own fees; Eslami v. Eslami, supra, 218 Conn. 820; we find that the court did not abuse its discretion in awarding fees in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       Paragraph three of the agreement provides: “The Husband has accrued and will continue to accrue pension and retirement benefits from Northwestern Mutual Life Insurance Company. It is the intention of the parties that such benefits shall be divided between the Husband and Wife sixty-six and two-thirds (66 2/3%) percent to the Husband thirty-three and one-third (33 1/3%) percent to the Wife. The Husband represents that said benefits are payable to him upon his attaining age sixty-five and that he shall forthwith take all necessary steps, prepare and execute all necessary documents to have one third (1/3) of his vested interest in said benefits present and future transferred to the Wife to be hers absolutely and forever it being understood that one third (1/3) of all benefits whether lump sum or periodic payable to the Husband upon his attaining the age of sixty-five shall be paid and payable directly to the Wife and the Wife agrees to pay the tax consequent on said one third (1/3). It is further understood and agreed that the Husband shall not in any way impair by hypothecating, borrowing against, anticipating or otherwise the benefits accrued or accruing in such pension plan. Such benefits as are payable upon the death of an insured under such plan shall be payable one third (1/3) to the Wife.”

       Paragraph three is fully set out in footnote 1. Paragraph twenty, entitled “COURT APPROVAL AND MODIFICATION,” provides: “Pursuant to the provisions of Sections 46b-66 and 46b-86 of the Connecticut General Statutes, this Agreement shall be submitted to the Court having jurisdiction of any action for dissolution which may be brought by either party and this Agreement shall be effective only if approved by the Court and incorporated into the decree of dissolution. If approved by the Court, this Agreement is to be taken as the parties’ full expression of the manner in which they would like to have their property and other assets and problems resolved.”

       General Statutes § 46b-81 provides: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
      “(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       The defendant originally claimed that the court lacked subject matter jurisdiction to award the challenged benefits. During the pendency of this appeal, our Supreme Court clarified the distinction between subject matter jurisdiction and the trial court’s authority to act pursuant to a statute. Amodio v. Amodio, 247 Conn. 724, 724 A.2d 1084 (1999). The defendant recast his claim as a challenge to the court’s authority to award the future pension benefits.

       See footnote 4.

       General Statutes § 46b-l provides in relevant part: “Family relations matters defined. Matters within the jurisdiction of the Superior Court deemed to be family relations matters shall be matters affecting or involving: (1) Dissolution of marriage, contested and uncontested, except dissolution upon conviction of crime as provided in section 46b-47; (2) legal separation; (3) annulment of marriage; (4) alimony, support, custody and change of name incident to dissolution of marriage, legal separation and annulment; (5) actions brought under section 46b-15 . . . and (17) all such other matters within the jurisdiction of the Superior Court concerning children or family relations as may be determined by the judges of said court.”

       “General Statutes § 46b-62 governs the award of attorney’s fees in dissolution proceedings. That section provides in part that ‘the court may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .’ The criteria set forth in § 46b-82 are ‘the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom tire custody of minor children has been awarded, the desirability of such parent’s securing employment,.’ In making an award of attorney’s fees under this section, ‘[t]he court is not obligated to make express findings on each of these statutory criteria.’ Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982).” Bornemann v. Bornemann, 245 Conn. 508, 542, 752 A.2d 978 (1998).


text:
    STATE OF CONNECTICUT v. DARRYL OLAH
    (AC 18467)
    Foti, Spear and Healey, Js.
    Argued November 29, 1999
    officially released October 10, 2000

      Richard T. Meehan, Jr., with whom, were Rosemarie T. Weber, certified legal intern, and, on the brief, Edward J. Gavin, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Gerard F. Esposito, senior assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Darryl Olah, appeals from the judgment of conviction, rendered after a jury trial, of one count of risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21, one count of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, one count of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-142, § l, and three counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a.

The defendant claims that the trial court improperly (1) failed to disclose material, exculpatory and favorable information after an in camera review of the victim’s records from the department of children and families, (2) refused to suppress certain photographs of the victim that were seized pursuant to the plain view doctrine during the execution of a search warrant that authorized the seizure of photographs of the victim “naked” or in “sexually explicit positions,” (3) refused to suppress certain statements of the defendant as the “fruit of the poisonous tree” because they were obtained as a result of the allegedly unlawful seizure of the photographs, (4) admitted into evidence certain seized photographs and the defendant’s statement regarding masturbation because such evidence was irrelevant and prejudicial, and (5) restricted the defendant’s cross-examination of the victim as to an allegedly false prior written statement she made. We reverse the judgment of the trial court because we agree with the defendant’s first claim.

The jury reasonably could have found the following facts. The victim was bom on September 24,1980. When she was eleven years old, the defendant approached her from behind and mbbed his aroused penis against her buttocks. A second incident occurred when she was fourteen years old. At that time, the defendant forced some vodka down her throat, put his hand under her shirt and fondled her breast. A third incident occurred in June, 1996, when the victim was fifteen years old. The defendant approached her from behind in the driveway of her home and mbbed his aroused penis against her buttocks. The defendant also told her that he could not wait until she became sixteen years of age because at that time he would be able to have intercourse with her and that it would not constitute statutory rape. Shortly before she became sixteen years of age, the victim reported these incidents to her father as well as to Detective Benjamin Trabka of the Shelton Police Department.

Prior to the start of evidence, the defendant filed a motion to suppress certain photographs and other items that had been seized from his home, and certain statements he had made to the police. The court denied the motion after an evidentiary hearing in which it found the following facts. On September 17, 1996, Trabka obtained a warrant authorizing the police to search the defendant’s bedroom and seize photographs of the victim, “the victim’s size 5 underpants, one pair silk black and one pair floral colored, pictures of the victim naked, pictures of [the] victim in sexually explicit positions, picture of the victim with [the defendant] lying next to her with his penis exposed.”

Police officers executed the search warrant and seized 478 photographs from the defendant’s bedroom. None of the photographs depicted the victim nude; most focused on her buttocks or crotch. After the seizure, the defendant agreed to go to the police station to discuss the matter with the officers. During the interview, the defendant made certain incriminating statements and, when asked about the photographs of the victim, stated that he looked at them while masturbating. Additional facts will be discussed where necessary to the issues on appeal.

I

The defendant requests that we review certain of the sealed, privileged records of the department of children and families to determine whether they contain (1) exculpatory information, (2) information favorable to the defense that is material, (3) information that would yield a favorable inference that could give rise to reasonable doubt as to his guilt or (4) information that probably would have changed the outcome of the trial. The records concerned, inter alia, the victim’s claims against the defendant. They were subpoenaed to court, under seal, by the defendant for the court’s inspection.

The court reviewed the records in camera and concluded that there was nothing in the material that should be revealed to the defendant. This determination was within the court’s discretion, and our standard of review is whether that discretion was abused. State v. Rosado, 52 Conn. App. 408, 416, 726 A.2d 1177 (1999). “ ‘Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. . . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.’ . . . Whalen v. Ives, 37 Conn. App. 7, 21, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995).” (Internal quotation marks omitted.) Turk v. Silberstein, 48 Conn. App. 223, 225-26, 709 A.2d 578 (1998).

We conclude that under the circumstances of this case, the court abused its discretion by not disclosing to the defendant a certain portion of the victim’s records. “After performing an in camera inspection, the trial court is required to release only information that is material and favorable to the defense. . . . Favorable evidence is that evidence which . . . might have led the jury to entertain a reasonable doubt about . . . guilt. . . and this doubt must be one that did not otherwise exist. ... On the other hand, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citations omitted; internal quotation marks omitted.) State v. Leduc, 40 Conn. App. 233, 249, 670 A.2d 1309 (1996), on appeal after remand, 44 Conn. App. 744, 690 A.2d 1390, cert. denied, 241 Conn. 909, 695 A.2d 541 (1997). We have also held that “[t]he test for disclosure of such records has been defined as evidence especially probative of the ability to comprehend, know and correctly state the truth . . . .” (Citations omitted; internal quotation marks omitted.) State v. Tubbs, 52 Conn. App. 636, 641-42, 727 A.2d 776 (1999). We conclude that a portion of the department records is favorable, material and probative of the victim’s ability to comprehend, know and correctly state the truth.

Our case law has prescribed the procedure for disclosure of probative privileged material after an in camera examination by the court. The state must obtain the witness’ consent to waive his or her privilege so that the relevant portion of the record may be released to the defendant. If such waiver is not forthcoming, the witness’ testimony must be stricken. State v. Rosado, supra, 52 Conn. App. 415.

Pursuant to this procedure, we will not detail the information that should be disclosed. At the new trial, the victim could elect to refuse to waive her privilege to preclude disclosure of the information. It suffices for us to identify the relevant portion of the record sufficiently for the trial court and our Supreme Court in the event of further review. The information is part of an eleven page document labeled “Running Narrative Document” and is the defendant’s exhibit D for identification. The pages are unnumbered, and the document begins on the first page under the date of September 3, 1996. The last entry on page eleven is dated April 2, 1997. On the third page of this document, in the fifth paragraph, the victim reportedly made statements about certain activities. Those statements are in the first two sentences of the paragraph, and it is those two sentences that we direct the trial court to disclose. The date of this narrative is October 22, 1996.

Although we order a new trial, we will discuss the defendant’s remaining claims because they will undoubtedly arise in the new trial.

II

The defendant claims that the court improperly denied his motion to suppress by determining that the photographs were legally seized pursuant to the plain view doctrine. The defendant claims that (1) the photographs were seized by Trabka pursuant to the warrant because he deemed them sexually explicit and, therefore, their seizure cannot be justified under the plain view doctrine and (2) the incriminating nature of the photographs is not immediately apparent because they depicted the victim fully clothed and were not sexually explicit.

We first state our standard of review in connection with a motion to suppress. “A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Blackman, 246 Conn. 547, 553, 716 A.2d 101 (1998).

A

We can quickly dispose of the defendant’s claim that the plain view doctrine cannot be used to justify the seizure of the photographs because Trabka believed that he was seizing sexually explicit photographs pursuant to the warrant. The plain view doctrine states that if the police officer is in a place where he is entitled to be and sees an item in plain view, the incriminating nature of which is immediately apparent, he may seize that item without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 464-73, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); see also Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

In discussing the “immediately apparent” aspect of the plain view doctrine and its implicit probable cause requirement, our Supreme Court has stated that “ [w]hether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time . . . and not on the officer’s actual state of mind at the time the challenged action was taken . . . .” (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431, 441, 733 A.2d 112 (en banc), cert. denied, 528 U.S. 1030, 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999). Trabka’s subjective belief that he was acting pursuant to the command of the warrant is, therefore, irrelevant.

B

The defendant claims that the photographs were not incriminating and, therefore, did not meet that prong of the plain view doctrine that requires that the incriminating nature of the items be immediately apparent. He asserts that the photographs were not related to the commission of any of the crimes charged and that Trabka did not have probable cause to seize them. We disagree.

Because this is a question of law, our standard of review is plenary. The United States Supreme Court has held that the “immediately apparent” language of Coolidge v. New Hampshire, supra, 403 U.S. 443, does not establish “any requirement that a police officer know that certain items are contraband or evidence of a crime. Indeed . . . [t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. . . . We think this statement of the rule from [Payton v. New York, 445 U.S. 573, 587, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)], requiring probable cause for seizure in the ordinary case, is consistent with the Fourth Amendment and we reaffirm it here.

“As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief . . . that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability that incriminating evidence is involved is all that is required. . . .

“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” (Citations omitted; internal quotation marks omitted.) Texas v. Brown, 460 U.S. 730, 741-42, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).

Our Supreme Court has stated that “ [t]he immediately apparent requirement of the plain view exception is satisfied if, at the time of discovery of the contraband or evidence, there is probable cause to associate the property in plain view with criminal activity without further investigation.” (Internal quotation marks omitted,) State v. Eady, supra, 249 Conn. 439. Our Supreme Court has also said with respect to the “immediately apparent” prong of the plain view doctrine that “objects not named in the warrant, but found within an officer’s plain view, may be seized if the objects clearly and definitely relate to the behavior which prompted the issuance of the search warrant .... The requirement for a plain view seizure thus appears, in short, to be probable cause to believe that the item seized is reasonably related, in an evidentiary sense, to the commission of the crime.” (Citations omitted; internal quotation marks omitted.) State v. Onofrio, 179 Conn. 23, 40-41, 425 A.2d 560 (1979).

We examine Trabka’s seizure against this backdrop. The behavior that prompted the search warrant was the defendant’s sexual contact with the underage victim and his continuing sexual interest in the victim. As the court stated, the victim was clothed in all of the pictures, but they were indeed odd in that many of them portrayed only the lower portion of her body while she was either bending over or seated. The police officer did not have to know to a certainty that the photographs were evidence of the crimes charged. We therefore agree with the court’s assessment that those photographs properly were seized because they were related to the risk of injury charges as well as to the sexual assault charges in that they indicated an obsession with the underage victim.

III

The defendant next claims that the court improperly refused to suppress certain of his statements as the “fruit of the poisonous tree” because they were obtained as a result of the allegedly unlawful seizure of the photographs. Specifically, the defendant claims that the masturbation statement should have been suppressed because it was tainted by the seizure of the photographs. Our determination in part II of this opinion that the seizure of the photographs was proper requires us to reject this claim as well.

IV

The defendant also claims that the court improperly admitted into evidence the photographs and his masturbation statement because they were irrelevant and prejudicial. We disagree.

The defendant correctly points out that our standard of review of evidentiary rulings is that we will overturn such rulings only when there was an abuse of discretion and a showing of substantial prejudice or injustice. We indulge every reasonable presumption in favor of the correctness of the trial court’s ruling and accord the court’s decision great weight. State v. Berger, 249 Conn. 218, 229-30, 733 A.2d 156 (1999).

We agree with the state that the photographs were more probative than prejudicial because they were indicative of the defendant’s sexual attraction to the victim. Such attraction was relevant to show that the defendant’s touching of the victim was for purposes of sexual gratification.

The defendant’s statement that he used the photographs to masturbate also was relevant to show his sexual interest in the victim and his motivation to commit the crimes of sexual assault in the fourth degree and risk of injury to a child. We conclude that the photographs and masturbation statement were more probative than prejudicial and that the court did not abuse its discretion in admitting this evidence.

V

The defendant’s last claim is that the court improperly restricted his cross-examination of the victim as to an allegedly false prior written statement she made. This claim is without merit.

Certain additional facts are necessary for our resolution of this issue. Questions were put to the victim, outside the presence of the jury, by way of an offer of proof by the defendant regarding a certain letter she had written to a male acquaintance. The letter stated in part: “[W]ant to try the butterfly. It’s not the insect or dance. It’s a new oral sex thing.” Under cross-examination by defense counsel, the victim admitted that she had written the letter to the male acquaintance. She further testified that she never actually performed the described sexual act on him.

The defendant claims that the letter and the victim’s testimony showed that she falsely claimed to have performed a sexual act on the male acquaintance. He asserts that such a false statement would impeach her credibility before the jury, and that the court’s exclusion of the letter and testimony thus improperly restricted his right of cross-examination. We disagree.

The defendant’s basic premise is wrong. He claims that the victim stated in the letter that she actually performed the sexual act on the male acquaintance. This is a misstatement. We have examined the letter, and there is nothing in it that can be construed as the victim’s stating that she had actually performed the described sexual act on the male acquaintance. Thus, the victim’s denial that she had done so could not be a falsehood. Because there was no false statement, the defendant’s right of cross-examination was not improperly restricted.

The judgment is reversed and the case is remanded for a new trial with direction to proceed pursuant to State v. Rosado, supra, 52 Conn. App. 416, with respect to disclosure of the two sentences from the department records that are referenced in this opinion. In all other respects the judgment is affirmed.

In this opinion the other judges concurred.

         In its substitute information, the state alleged in part that one incident of risk of injury to a child occurred in April or May, 1992, another occurred in March, 1995, and a third occurred in March, 1996.

       Although the record before us does not so indicate, we assume that the defendant made the necessary showing to entitle him to such an in camera review and that the victim consented to the court examining the records. See State v. Albert, 50 Conn. App. 715, 729-30 n.10, 719 A.2d 1183 (1998), aff'd, 252 Conn. 795, 750 A.2d 1037 (2000).

       The decision in State v. Eady, supra, 249 Conn. 431, was issued after the defendant filed Ms principal brief in this court. The state’s brief was filed after Eady was issued and cited that case. The defendant, however, chose not to address Eady in his reply brief.

       The charge of sexual assault in the fourth degree pursuant to § 53a-73a requires proof that the defendant intentionally subjected the victim to sexual contact. General Statutes § 53a-65 (3) in part defines sexual contact as “any contact with the intimate parts of a person ... for the purpose of sexual gratification of the actor . . . .”